COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
ANTHONY T. ALSTON
MEMORANDUM OPINION * BY
v. Record No. 2382-00-1 JUDGE ROBERT J. HUMPHREYS
SEPTEMBER 25, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on brief), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Anthony T. Alston appeals his convictions, after a bench
trial, for statutory burglary and grand larceny. Alston
contends that the trial court erred in denying his motion to
suppress his statement, which he argues was the result of a
custodial interrogation wherein he was refused his right to
representation. Finding no error, we affirm his convictions.
During the early morning hours of February 12, 2000, Alston
broke into the Tidewater Feed and Seed Store and stole seven
"leather studded spiked dog collars." Each collar had a minimum
value of $35.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On April 21, 2000, Alston was arrested for another burglary
and grand larceny that occurred on March 22, 2000 at the One
Stop Pet Shop. He requested and was appointed counsel for these
charges during his April 22, 2000 arraignment, and was retained
in custody.
On May 9, 2000, Detectives M.B. Logwood and Al Donker of
the Portsmouth Police Department removed Alston from jail and
took him to the detective bureau. After arriving at the bureau,
the detectives advised Alston of his Miranda rights. Alston
waived his rights and agreed to speak with the detectives.
Detective Logwood informed him that they wanted to interview him
"in reference to a couple of [additional] burglaries that had
occurred in the city." As a result of the questioning, Alston
confessed to burglarizing the Tidewater Feed and Seed Store in
February of 2000. He gave a written statement, as well as a
taped oral statement. At no time during the questioning did he
indicate that he was represented by counsel, nor did he request
counsel. The detectives were unaware that Alston had been
appointed counsel for the charges related to the March 22
burglary.
At trial, Alston moved to suppress his statement arguing
that it had been given in violation of his right to legal
counsel. Specifically, Alston argued that since he had
requested appointed representation for the charges related to
the March 22 burglary, he had invoked his right to counsel for
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purposes of not only those particular charges, but also for any
other unrelated charges for which police might want to question
him. The trial court denied Alston's motion, noting that there
was no evidence Alston had invoked his Fifth Amendment right to
counsel for either set of charges. Thus, the court found that
Alston's initial request for appointed counsel on the unrelated
charges fell within the Sixth Amendment, which does not apply to
other offenses that may come to the attention of police.
On appeal from a trial court's denial of a
motion to suppress, we must review the
evidence in the light most favorable to the
Commonwealth, granting to the Commonwealth
all reasonable inferences fairly deducible
from it. The findings of the trial court
will not be disturbed unless plainly wrong
or without evidence to support them. When
reviewing the trial court's denial of a
defendant's motion to suppress evidence,
"[t]he burden is upon [the defendant] to
show that th[e] ruling, when the evidence is
considered most favorably to the
Commonwealth, constituted reversible error."
McCloud v. Commonwealth, 35 Va. App. 276, 280-81, 544 S.E.2d
866, 868 (2001) (quoting McGee v. Commonwealth, 25 Va. App. 193,
197, 487 S.E.2d 259, 261 (1997) (en banc)).
We find no error in the trial court's determination that
Alston failed to invoke his Fifth Amendment right to counsel for
the March 22 charges. Thus, his request for counsel at
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arraignment for those charges would have fallen within the
constitutional protection afforded by the Sixth Amendment. 1
The Sixth Amendment right to counsel is "offense specific."
See Texas v. Cobb, 121 S. Ct. 1335 (2001). Therefore, "'[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
— whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.'" Id. at 1340 (quoting
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)).
Although it is true that "when the Sixth Amendment right to
counsel attaches, it does encompass offenses that, even if not
formally charged, would be considered the same offense under the
Blockburger test," there was no evidence to suggest that
Alston's burglary of the Tidewater Feed and Seed Store on
February 12, 2000 was a result of the "same act or transaction"
as his later burglary of the One Stop Pet Shop on March 22,
2000. Id. at 1343; see also Blockburger v. United States, 284
U.S. 299, 304 (1932). Accordingly, the protection afforded
Alston by the Sixth Amendment extended only to the charges and
proceedings concerning the March 22 burglary, and did not extend
to bar police from properly questioning him concerning the
unrelated matter of the February burglary of the Tidewater
1
Indeed, on appeal, Alston does not maintain that his Fifth
Amendment rights were violated.
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Feed and Seed Store. Thus, we affirm the decision of the trial
court.
Affirmed.
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