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McCarty v. Commonwealth10/22/2004
ion by a different officer; and (4) Mosley was given a fresh set of Miranda warnings prior to the second interrogation.
Mills at 482-83 (citation omitted).
We note that the Mills court also cautioned that " he Mosley Court did not state that these factors were exclusive or exhaustive. Nor did it elevate any single factor above the others. Thus, we approach the Mosley analysis on a case-by-case basis." Id.
As to the first factor, McCarty claims that Sergent failed to obtain a written waiver of his Miranda rights, and that McCarty nodding his head was insufficient to indicate that he understood those rights. We disagree. There is no requirement for a written waiver of Miranda rights, and nodding one's head can clearly indicate understanding and assent. As we have already determined that McCarty did not invoke his right to remain silent when he stated that there was nothing to talk about, we disagree with McCarty that Sergent improperly continued the questioning after he had invoked his right to remain silent. Finally, McCarty argues that Sergent failed to satisfy the third and fourth factors of Mosley because the brief pause in questioning lasted only as long as the trip to the dispatch station. The record indicates that the Miranda warning was not administered and the questioning did not begin until after the arrival of Sergent and his passenger at the dispatch station. Mosley stands for the proposition that if a lengthy period passes between two interrogations, the suspect must be Mirandized again prior to the second interrogation. There was no second interrogation here.
The judgment of the Fleming Circuit Court is affirmed.
ALL CONCUR.
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