COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bray 

Argued at Richmond, Virginia 

BRANDON LEE KING 

v. Record No. 0295-95-3 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

COMMONWEALTH OF VIRGINIA MARCH 19, 1996 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 William F. Quillian, III, for appellant. 

 Thomas C. Daniel, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Brandon Lee King (defendant) was convicted by a jury for 

aggravated malicious wounding, the related use of a firearm, and 

feloniously discharging a firearm from a motor vehicle. On 

appeal, defendant complains that the trial court erroneously (1) 

declined to suppress his inculpatory statement to police and (2) 

failed to declare a mistrial after the Commonwealth referenced 

defendant's failure to testify during closing argument. Finding 

no error, we affirm the convictions. 

 The parties are fully conversant with the record in this 

case, and we recite only those facts necessary to a disposition 

of this appeal. 

 In the early morning hours of April 22, 1994, Bernie 

Bernatavicius was shot in the neck and permanently injured. The 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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following day, juvenile petitions were obtained for defendant, 

then 16 years of age, and Lynchburg Police Investigator Viar and 

Commander Burnette proceeded to defendant's grandmother's home to 

effect his arrest. The grandmother, also defendant's "legal 

guardian," advised that defendant was not then at the residence. 

 She authorized the officers "to talk" with defendant, once 

apprehended, and requested that they contact her, although she 

expressed no desire to be present during questioning. Several 

hours later, defendant was arrested, handcuffed, and transported 

to police headquarters, arriving at approximately 12:35 a.m. En 

route, defendant was advised of his constitutional rights 

pursuant to Miranda v Arizona, 384 U.S. 436 (1966), and denied 

knowledge of the offenses. 

 At the stationhouse, defendant was seated at a desk located 

in an "office area" of the "investigation bureau." The handcuffs 

were removed, and police again advised defendant of his Miranda

rights, using a departmental "rights form," which was read to 

defendant, "word for word," and reviewed by him.1

 This form 

included an affirmation that defendant had read and understood 

his constitutional rights and was "willing to make a statement 

and answer questions at this time," without "any threats or 

promises . . . by the police." Defendant signed and dated the 

form at approximately 12:40 a.m. 

 During the ensuing interview, defendant initially denied 

 

 1The compliance of this form with Miranda is not in issue. 
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involvement in the offenses and stated that "he wanted to talk to 

a lawyer." Viar replied, "fine," but, as the officers began to 

leave the room, defendant volunteered, "[W]ell, I don't really 

want to talk to a lawyer right now . . . eventually I'm going to 

have to talk to one."2

 Defendant then confirmed that he wanted 

"to keep answering . . . questions" and confessed soon 

thereafter, repeating his statement for an audio tape which was 

completed at 1:22 a.m. 

 At the time of arrest, defendant was 16 years of age, had 

completed the ninth grade, was literate, and possessed an I.Q. 

"in the middle of the average range." He was described by the 

officers as "very coherent," "intelligently speaking," and alert 

during the interview, which spanned approximately 45 minutes. 

Although defendant did not request his grandmother's presence 

before or during the interrogation, Burnette telephoned 

defendant's grandmother twice before beginning the interrogation 

and once thereafter, receiving no answer on any occasion. 

 I. THE ADMISSIBILITY OF DEFENDANT'S CONFESSION 

 "In order for a confession given during a custodial 

interrogation to be admissible at trial, the Commonwealth must 

show that the accused was apprised of his right to remain silent 

and that he knowingly, intelligently, and voluntarily elected to 

waive that right." Roberts v. Commonwealth, 18 Va. App. 554, 

 

 2Defendant acknowledges on brief that his request for 

counsel was "withdrawn" and argues no violation of Edwards v. 

Arizona, 451 U.S. 477 (1981). 
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557, 445 S.E.2d 709, 711 (1994). A "heavy burden rests upon the 

Commonwealth" to establish a "valid waiver," and the "[c]ourts 

must indulge every reasonable presumption against" it. Grogg v. 

Commonwealth, 6 Va. App. 598, 611, 371 S.E.2d 549, 556 (1988). 

 "[T]he inquiry whether a waiver of Miranda rights was made 

knowingly and intelligently is a question of fact, and the trial 

court's resolution of that question is entitled on appeal to a 

presumption of correctness." Harrison v. Commonwealth, 244 Va. 

576, 581, 423 S.E.2d 160, 163 (1992). The voluntariness issue, 

however, is a question of law which requires "an independent 

[appellate] examination of the totality of the circumstances to 

determine 'whether the statement is the "product of an 

essentially free and unconstrained choice by its maker," or 

whether the maker's will "has been overborne and his capacity for 

self-determination critically impaired."'" Wilson v. 

Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992) 

(citation omitted). "[I]n making that determination, we are 

bound by the trial court's subsidiary factual findings unless 

those findings are plainly wrong." Id.

 If the accused is a juvenile, we must consider "'the 

juvenile's age, experience, education, background, and 

intelligence, and . . . whether he has the capacity to understand 

the warnings given him, the nature of his Fifth Amendment rights, 

and the consequences of waiving those rights.'" Roberts, 18 Va. 

App. at 557, 445 S.E.2d at 711 (citations omitted). While it is 
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desirable to have a juvenile's parent, legal guardian or other 

"interested adult" present when the juvenile is interrogated or 

waives his or her constitutional rights, "the mere absence of a 

parent or [legal guardian] . . . does not render a [juvenile's] 

waiver invalid," although it is "a circumstance and factor to be 

considered in the totality of circumstances when determining 

whether a waiver is knowing and intelligent." Grogg, 6 Va. App. 

at 613, 371 S.E.2d at 557; see also Novak v. Commonwealth, 20 Va. 

App. 373, 387, 457 S.E.2d 402, 409 (1995). 

 Here, defendant was fully advised of his constitutional 

rights on two occasions and elected to confess to police only 

after expressly waiving these safeguards. Defendant's age, 

education, intellectual capacity, and conduct, including his 

declarations on the "rights form," together with the 

circumstances of the interview, all indicate that he acted 

knowingly, intelligently, and voluntarily. Although the presence 

of defendant's grandmother was not a prerequisite to a valid 

waiver of his Miranda rights, police, nevertheless, pursued 

reasonable efforts to contact her following defendant's arrest. 

We, therefore, find that defendant's statement was properly 

admitted into evidence. 

 Defendant argues, for the first time on appeal, that his 

confession was tainted by detention in violation of Code 

§ 16.1-247. However, it is well established that this Court will 

not consider an argument which was not presented to the trial 
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court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 

630, 631 (1991); see Rule 5A:18. Accordingly, we decline to 

address this issue. 
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II. DENIAL OF MOTION FOR MISTRIAL 

 During closing argument to the jury, the prosecuting 

attorney, after reviewing the Commonwealth's evidence, stated, 

 And, against that, the defense has offered 

the defendant's grandmother to say he 

couldn't have done it because he was at home 

a half an hour or twenty minutes before the 

shooting took place. I'm not saying Mrs. 

Clay is a liar. I'm not saying that she is 

telling you anything she believes to be a 

falsehood. I submit to you that Mrs. Clay is 

being a good grandmother and doing everything 

she could possibly do for her grandson. But 

I also submit to you that Mrs. Clay is 

mistaken. 

Defendant contends that these comments indirectly referenced his 

failure to testify, necessitating a mistrial. 

 In determining whether a remark falls 

within the boundary of the prohibition that a 

prosecutor shall not make an adverse comment 

before the jury on a defendant's failure to 

testify, the test is whether, in the 

circumstances of the particular case, "the 

language used was manifestly intended or was 

of such character that the jury would 

naturally and necessarily take it to be a 

comment on the failure of the accused to 

testify." 

Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263 

(1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th 

Cir. 1955)); Winston v. Commonwealth, 12 Va. App. 363, 370, 404 

S.E.2d 239, 243 (1991). The challenged argument in this instance 

merely contrasted the weight and credibility of the conflicting 

evidence, without inviting either intended or unintended 

attention to defendant's silence. Moreover, the trial court 

expressly cautioned the jury against such consideration. See
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Martinez v. Commonwealth, 10 Va. App. 664, 669, 395 S.E.2d 467, 

470 (1990), aff'd as modified, 241 Va. 557, 403 S.E.2d 358 

(1991). 

 Accordingly, we affirm the convictions. 

 Affirmed. 
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BENTON, J., dissenting. 

 While I agree that the admission of a juvenile's confession 

must be viewed under "the totality of the circumstances," Fare v. 

Michael C., 442 U.S. 707, 724-25 (1979); Green v. Commonwealth, 

223 Va. 706, 710, 292 S.E.2d 605, 607-08 (1982), failure of the 

police to notify appellant's legal guardian that appellant was in 

custody and would be interrogated is a significant factor that, 

when combined with the other circumstances, renders the 

confession involuntary and requires suppression. I would hold 

that the record establishes that the Commonwealth did not prove 

"by a preponderance of the evidence . . . that [appellant's] 

statement was voluntary." Williams v. Commonwealth, 234 Va. 168, 

172, 360 S.E.2d 361, 364 (1987), cert. denied, 484 U.S. 1020 

(1988). 

 Special considerations must be addressed when examining 

juveniles' confessions. In re Gault, 387 U.S. 1, 55 (1967). The 

court must evaluate "the juvenile's age, experience, education, 

background, and intelligence, and . . . whether [the juvenile] 

has the capacity to understand the warnings given him, the nature 

of his Fifth Amendment rights, and the consequence of waiving 

those rights." Fare, 442 U.S. at 725. This extensive evaluation 

is necessary because "the greatest care must be taken to assure 

that the admission was voluntary, in the sense not only that it 

was not coerced or suggested, but also that it was not the 

product of ignorance of rights or of adolescent fantasy, fright 
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or despair." In re Gault, 387 U.S. at 55. In this evaluation, 

the absence of a parent or guardian is "a circumstance that 

weigh[s] against the admissibility of the [juvenile's] 

confession." Miller v. Maryland, 577 F.2d 1158, 1159 (4th Cir. 

1978). 

 Appellant's grandmother, his legal guardian, asked that she 

be notified as soon as the police officers located her grandson. 

 When the police officers spoke to the grandmother, she initially 

gave them a telephone number that was her former number. She 

then gave them another number saying she had gotten "a new phone 

fairly recently." In addition, however, the police officers knew 

where she lived because they spoke to her at her residence when 

they were looking for appellant. 

 When the police officers arrested appellant at his friend's 

house, they did not call appellant's grandmother from the 

friend's residence and did not stop at her residence. They told 

the friend's mother that they "were going to contact [appellant's 

grandmother]." They did not. Instead, they put handcuffs on 

appellant, and, during the ride to the police station, they began 

to talk to him about the crime. When he denied involvement, the 

police officers told him "he could be tried as an adult" and that 

"he could spend a very long time in prison." Thus, they began 

pressuring him before they attempted to contact his grandmother. 

 Later, when the police officers began to interview appellant 

at the police station, he told the officers that he wanted to 
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talk to a lawyer. One of the officers "told him fine, that he 

would be transported on over to the detention home." Appellant 

then said he would continue to talk. The record establishes that 

the police officers did not then suspend questioning until 

appellant could either consult with a lawyer or discuss with his 

grandmother whether to waive his right to counsel. 

 The grandmother testified that she made three telephone 

calls to the police station and that "they wouldn't tell me if 

[appellant] was there or not." The following evidence also 

suggests that during the interrogation the police officer learned 

that appellant's grandmother had called and, even then, made no 

effort to send an officer for her: 

 A. Well, when we placed him under arrest, we 

were on Pacos Street, which is off of 

Leesville Road here in the city, and placed 

him in our patrol car, the car we were 

driving, and transported him to the station. 

 When we got to the station I tried to call 

the grandmother at the phone number two 

different times. And the phone rang and rang 

and I received no answer on the phone? 

 We went on and talked to Brandon. A short 

while later, I don't remember how long it 

was, I received a note from the detention 

people on duty at the Police Department that 

Brandon's grandmother had called and 

requested that I call her. I'm not sure 

whether she may have been notified that 

Brandon had been picked up or what the case 

was? I again tried to call her and received 

no answer. 

 We interviewed Brandon, and shortly after 

the interview was over the grandmother was on 

the phone again to the Detention Unit. They 

held her on the phone and contacted me in my 

office and transferred the call to me. I 

talked to her at that time. 
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 The police officer's effort was plainly inadequate. The 

police officer never checked to determine if he had written the 

correct phone number. The police officer also failed to retain 

the telephone number he called. Even if he called the correct 

number, the record clearly reveals that the grandmother had 

difficulty hearing. From the discussion on the record, her 

difficulty was apparent and should have been obvious to the 

police officer when he spoke to her in person. Even if the 

hearing problem had gone unnoticed, the police officer certainly 

should have suspected that either appellant's grandmother did not 

hear her phone after midnight or he was dialing the wrong number. 

 The police officers arrested and interrogated appellant 

between the late night hours of midnight and 1:30 a.m. Appellant 

was placed in handcuffs, warned that he would be treated as an 

adult and imprisoned, and taken to the police station. He was 

sixteen years of age and of average intelligence. When he asked 

for an attorney, he was told that he would be put in the 

detention home. Because the police officers had spoken in person 

with the grandmother at her home, they knew she lived only a 

short distance from the police department. Even though numerous 

patrol cars were on duty, the police officers who arrested and 

interrogated appellant did not direct any officer to drive to the 

grandmother's residence and inform her personally. Clearly, the 

police officers exerted a minimal amount of effort in contacting 

appellant's grandmother. 
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 When appellant's grandmother did not answer her phone after 

midnight, the police officers commenced an interrogation in which 

the appellant waived his Fifth Amendment rights. The police 

officers were "deal[ing] with a person who is not equal to the 

police in knowledge and understanding of the consequences of the 

questions and answers being recorded and who is unable to know 

how to protect his own interests or how to get the benefits of 

his constitutional rights." Gallegos v. Colorado, 370 U.S. 49, 

54 (1962). Other states have recognized the importance of the 

presence of a parent or guardian by requiring that an interested 

adult be present or available for consultation during the 

interrogation of a juvenile and the solicitation of waiver of any 

constitutional rights. See Commonwealth v. A Juvenile (No. 1), 

449 N.E.2d 654 (Mass. 1983); People v. Saiz, 620 P.2d 15 (Colo. 

1980); Commonwealth v. Henderson, 437 A.2d 387 (Pa. 1981). 

Indeed, this Court has stated "that it is desirable to have a 

parent, counsel or some other interested adult or guardian 

present when the police interrogate a juvenile, and . . . even 

more desirable to have an interested adult present when a 

juvenile waives fundamental constitutional rights and confesses 

to a serious crime." Grogg v. Commonwealth, 6 Va. App. 598, 613, 

371 S.E.2d 549, 557 (1988). 

 When the police officers informed appellant of drastic 

consequences that he faced, responded to his request for counsel 

by preparing him for detention, and provided no opportunity for 
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him to consult with his guardian before questioning, their 

conduct was unreasonable under the circumstances. As a result, 

the police effectively denied appellant the opportunity at a 

critical juncture to speak with an adult prior to the 

interrogation. The record fails to establish a need to act 

hastily at one o'clock in the morning and interrogate this 

juvenile without the presence of his grandmother. I would hold 

the confession involuntary under "the totality of the 

circumstances," because the police took little care to assure the 

confession was voluntary when the law demands that the "greatest 

care" be exercised. In re Gault, 387 U.S. at 55.