Present: All the Justices
ANTHONY T. ALSTON
OPINION BY
v. Record No. 012348 CHIEF JUSTICE HARRY L. CARRICO
November 1, 2002
COMMONWEALTLH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The question for decision in this case is whether the Court
of Appeals erred in approving the trial court's admission into
evidence of an uncounseled custodial statement made by the
defendant when he was represented by counsel previously
appointed on an unrelated charge. Finding that the Court of
Appeals did not err, we will affirm its judgment.
The record shows that in the early morning hours of
February 12, 2000, the defendant, Anthony T. Alston, broke into
the Tidewater Feed and Seed Store (Feed and Seed) in the 3400
block of George Washington Highway in the City of Portsmouth and
stole seven leather-studded spiked dog collars. Each collar had
a minimum value of $35.00. The defendant gained entry into the
store by throwing a large rock through the glass of the front
door.
Late at night on March 22, 2000, the defendant broke into
the One Stop Pet Shop (Pet Shop) in the 3900 block of George
Washington Parkway in Portsmouth and stole a pet python snake
and a lamp to keep the snake warm. He gained entry to the shop
by throwing a rock through a window.
On April 21, 2000, the defendant was arrested on charges of
burglary and grand larceny arising from the Pet Shop break-in.
He was arraigned on those charges the next day and counsel was
appointed to represent him. He was remanded to jail.
On May 9, 2000, Detective M. B. Logwood of the Portsmouth
Police Department took the defendant from the jail to the
detective bureau for questioning about "a couple of burglaries
that had occurred in the city," including the Feed and Seed and
Pet Shop burglaries. At that time, the defendant had not been
arrested on the Feed and Seed charges. Logwood advised the
defendant of his "rights under Miranda." 1 The defendant
indicated he understood the rights, and he agreed to talk with
Logwood and another detective. The defendant did not inform the
detectives that he had an attorney or ask to speak with the
attorney at any time before or during the interview. Logwood
did not know that an attorney had been appointed to represent
the defendant on the Pet Shop charges.
During the interview, the defendant confessed to the break-
in at Feed and Seed. He was charged with burglary and grand
larceny in connection with that break-in, counsel was appointed
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
to represent him, and a grand jury in the Circuit Court of the
City of Portsmouth later indicted him on the charges.
The defendant filed a motion to suppress the confession in
which he admitted the Feed and Seed break-in. The defendant
cited Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (when
defendant invokes Fifth Amendment right against self-
incrimination, all questioning must cease until counsel is
present unless defendant initiates contact with police), and
Arizona v. Roberson, 486 U.S. 675, 682-83 (1988) (Fifth
Amendment right against self-incrimination violated when police
conducted custodial interrogation of defendant regarding a
separate investigation after he had invoked right to cut off
questioning until counsel was present). The defendant argued
that once he invoked his right to counsel on the Pet Shop
charges, the right carried over and extended to the Feed and
Seed charges, with the result that the detectives could not
question him "unless he initiate[d the] contact [with the
police,] which is clearly not the case in this situation."
The trial court denied the motion to suppress. The court
noted the distinction between a person's Fifth Amendment right
against self-incrimination and his Sixth Amendment right to
counsel. 2 The court held that, because there was "no evidence
2
"The [Sixth Amendment right to counsel] arises from the
fact that the suspect has been formally charged with a
3
before the Court" showing the defendant had invoked his Fifth
Amendment right against self-incrimination with respect to the
Pet Shop offenses, "this case is significantly distinct" from
Edwards and Roberson, which dealt only with Fifth Amendment
rights. Hence, the court concluded, "there is a valid waiver of
Miranda" and the rule the defendant contended for, i.e., that an
accused who has invoked his right to counsel cannot be
questioned further unless he initiates the contact with the
police, did not "come[] into play" in this case.
In a bench trial, the court convicted the defendant of both
Feed and Seed charges and sentenced him to the penitentiary.
The defendant appealed his convictions to the Court of Appeals.
That court awarded the defendant an appeal and, in an
unpublished opinion, affirmed the judgment of the trial court.
Alston v. Commonwealth, Record No. 2382-00-1 (Sept. 25, 2001).
We awarded the defendant this appeal.
The Fifth and the Sixth Amendments both implicate the right
to counsel, but they work in different ways. The right involved
in the Fifth Amendment is the right against self-incrimination,
particular crime and thus is facing a state apparatus that has
been geared up to prosecute him. The [Fifth Amendment right
against self-incrimination] is protected by the prophylaxis of
having an attorney present to counteract the inherent pressures
of custodial interrogation, which arise from the fact of such
interrogation and exist regardless of the number of crimes under
investigation or whether those crimes have resulted in formal
charges." Arizona v. Roberson, 486 U.S. 675, 685 (1988).
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and the "prophylaxis of Miranda and Edwards provides the right
to have counsel present during interrogation as an additional
safeguard in the exercise of the right against self-
incrimination." Commonwealth v. Gregory, 263 Va. 134, 147, 557
S.E.2d 715, 722 (2002). The Fifth Amendment right against self-
incrimination "is not offense specific," and once the right is
invoked "for interrogation regarding one offense, [the suspect]
may not be reapproached regarding any offense unless counsel is
present." McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).
The Sixth Amendment right, however, is "offense specific,"
and "[i]t cannot be invoked once for all future prosecutions,
for it does not attach until a prosecution is commenced, that
is, at or after the initiation of adversary judicial criminal
proceedings." Id. at 175 (inner quotation marks omitted).
Here, the defendant does not claim any violation of his
Fifth Amendment rights. We are only concerned, therefore, with
the Sixth Amendment right to counsel.
In that regard, the defendant does not contend that
adversary judicial criminal proceedings had been initiated
against him at the time of the interrogation on the Feed and
Seed charges so as to trigger a Sixth Amendment right to
counsel. Rather, the defendant argues that the Sixth Amendment
right carried over from the adversary judicial criminal
proceedings held in the Pet Shop case. The defendant says the
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right then attached to the interrogation conducted in the Feed
and Seed case because the offenses involved in the two cases
were so closely related in place, time, and modus operandi as to
make the interrogation in the Feed and Seed case "a part and
parcel of a single prosecution."
The defendant maintains that the "single prosecution"
nature of this case distinguishes it from Texas v. Cobb, 532
U.S. 162 (2001), which the Court of Appeals cited in approving
the trial court's denial of the defendant's motion to dismiss.
In Cobb, the defendant confessed to a burglary but denied
knowledge of a woman's and child's disappearance from the
burglarized home. After he was appointed counsel on the
burglary charge, he was interrogated about the missing woman and
child. He waived his rights under Miranda and confessed to the
murders of the woman and child. In the Texas Court of Criminal
Appeals, the defendant argued that his Sixth Amendment right to
counsel attached when counsel was appointed on the burglary
charge and that his confession should be suppressed because
counsel was not present when he was interrogated. The court
agreed with the defendant, holding that "once the right to
counsel attaches to the offense charged, it also attaches to any
other offense that is very closely related factually to the
offense charged." Id. at 166-67 (internal quotation marks
omitted).
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The Supreme Court said that when it held in McNeil that the
Sixth Amendment right to counsel is "offense specific," it
"meant what it said." Id. at 164. The Court rejected the
"factually related" exception some courts had read into the
McNeil offense-specific definition, id. at 168, and held that
when the Sixth Amendment right to counsel attaches, it
encompasses offenses not formally charged but only if they would
be considered the same offense under the test enunciated in
Blockburger v. United States, 284 U.S. 299, 304 (1932) (the test
to be applied to determine whether there are two offenses or
only one is whether each provision requires proof of a fact
which the other does not). Cobb, 532 U.S. at 173. The Court
held further that burglary and murder were not the same offense
under Texas law and, accordingly, "the Sixth Amendment right to
counsel did not bar police from interrogating [Cobb] regarding
the murders, and [his] confession was therefore admissible."
Id. at 174.
Here, the burglaries were separate and distinct offenses,
committed at different times and locations and against different
victims. The throwing of a rock through a glass door or a
window was the only point of similarity in the two cases, and
that is de minimis at best. Furthermore, there is nothing in
the record to support a finding that the two burglaries arose
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from the same act or transaction. Indeed, the defendant
concedes on brief that it was not the same act or transaction.
Finally, each burglary required proof of a fact that the
other did not. The February 12 burglary required proof of the
fact that a break-in occurred at Feed and Seed, and the March 22
burglary did not require proof of that fact. The March 22
burglary required proof of the fact that a break-in occurred at
the Pet Shop, and the February 12 burglary did not require proof
of that fact. Hence, the two break-ins were not the same
offense under Blockburger, and this case is indistinguishable
from Texas v. Cobb on the "single-prosecution" ground asserted
by the defendant.
The defendant argues, however, that the use to which his
statement was put also indicates that the interrogation
conducted here was really "a part and parcel of a single
prosecution." The defendant says the statement was a "single,
inseparable statement," it "was intended that the evidence of
each burglary was to be used in the prosecution of the other,"
and "[t]he evidence was so used."
The record does not show, however, that the statement was
used in both cases. The two cases were tried separately, and
the judge, as the trier of fact in the case under review,
emphasized that he would consider only the parts of the
statement relevant to the Feed and Seed burglary, and he said
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that he would treat anything else in the statement as
surplusage.
Finally, the defendant argues this case is unlike Texas v.
Cobb in that "there was a history of consent to the type of
interview that actually occurred" in the Texas case, evidenced
by Cobb's lawyer having "allowed two thoroughgoing interviews by
the police," while here, "far from observing [the defendant's]
right to counsel, the interrogation was done in total disregard
of it." We fail to see the relevance of this argument, but
whatever its relevance, it overlooks the fact that the
defendant, just as the defendant did in Texas v. Cobb,
voluntarily waived his rights under Miranda and talked freely
with the police, constituting tacit "consent to the type of
interview that actually occurred" in this case. 3
Because the two break-ins involved in this case were not
the same offense under Blockburger, we are of opinion that Texas
v. Cobb is apposite, that the Sixth Amendment right to counsel
did not bar the police from interrogating the defendant about
the Feed and Seed break-in, and that his confession was
3
The defendant cites three cases from other jurisdictions
in support of his argument that Texas v. Cobb is not implicated
here. United States v. Crews, 171 F. Supp. 2d 93 (D. Conn.
2001); United States v. Red Bird, 146 F. Supp. 2d 993 (D. S.D.
2001); People v. Slayton, 32 P.3d 1073 (Cal. 2001). All three
of the cases differ from the present case in their factual bases
and, hence, are inapposite.
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therefore admissible. Accordingly, we will affirm the judgment
of the trial court.
Affirmed.
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