COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued by Teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0730-97-1 JUDGE NELSON T. OVERTON
AUGUST 5, 1997
JOHN EDWARD McBRIEN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Benjamin A. Williams, Jr., Judge Designate
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Margaret Ann B. Walker, Assistant
Attorney General, on brief), for appellant.
Douglas Early Ballard for appellee.
In this appeal pursuant to Code § 19.2-398, the Commonwealth
contends that the trial judge erred in suppressing statements
made by John Edward McBrien to police in connection with an
offense with which he is currently charged. For the reasons that
follow, we reverse the decision of the trial court and remand the
case for trial.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, we recite only those facts necessary to the
disposition of this appeal.
On appeal from a trial court's decision to suppress
evidence, we view the evidence in the light most favorable to the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
defendant, the prevailing party below. See O'Toole v.
Commonwealth, 20 Va. App. 540, 541, 458 S.E.2d 595, 596 (1995).
Upon request by a Virginia Beach Police detective, McBrien
went to the police station where he was questioned about an
alleged offense. McBrien gave a detailed statement to the
detective at that time. After the statement, the detective
placed McBrien under arrest. At this point the detective also
read McBrien his Miranda rights from a standardized form and had
McBrien initial that he understood each right. McBrien further
initialed the line marked "Yes" that he understood all of the
rights and initialed another line marked "Yes" that, having these
rights in mind, he wished to talk to the police. After that,
according to the detective's testimony at the hearing, he and
McBrien "went back over his statement again in the same detail
that I've already testified and [McBrien] gave [the detective]
all the facts again that happened."
The trial judge found that McBrien was in custody for
purposes of Miranda during his questioning at the station and
thus should have been given his Miranda warnings before he made
any statements. He granted McBrien's motion to suppress all
statements, but did not make a specific ruling as to the
statements made after the Miranda warnings were given.
We will assume without deciding that McBrien was in custody
for the pre-Miranda questioning, and that his statements during
that period of time should be suppressed. After McBrien
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knowingly and intelligently, and voluntarily waived his right to
remain silent, however, any statements made to the police may be
used against him in court. See Roberts v. Commonwealth, 18 Va.
App. 554, 557, 445 S.E.2d 709, 711 (1994). The detective
testified that after McBrien waived his right to remain silent,
he gave the detective "in the same detail . . . all the facts
again." Nothing at the hearing, including McBrien's own
testimony, contradicts this. Any statements made by McBrien
after his waiver are admissible against him and should not have
been suppressed.
The trial court's order is reversed and the case remanded
for further proceedings consistent with this opinion.
Reversed and
remanded.
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