COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Overton 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0101-98-3 JUDGE JERE M. H. WILLIS, JR. 

 MAY 26, 1998 

LEONARD CARL FERGUSON 

FROM THE CIRCUIT COURT OF WYTHE COUNTY 

J. Colin Campbell, Judge 

 Robert B. Beasley, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 Thomas G. Hodges (Hodges, Campbell & Stanley, 

on brief), for appellee. 

 The trial court found: 

 [T]he Defendant's statement was not a product 

of an essentially free and unconstrained 

choice, but his capacity for self[-] 

determination was critically impaired to such 

degree that his statement was involuntarily 

given. 

Because the evidence supports that conclusion, we affirm the 

judgment of the trial court. We need not address whether 

Ferguson was in custody when he gave the suppressed statement. 

 "The Commonwealth has the burden to prove, by a 

preponderance of the evidence, that a defendant's confession was 

freely and voluntarily given." Bottenfield v. Commonwealth, 25 

Va. App. 316, 323, 487 S.E.2d 883, 886 (1997). In determining 

voluntariness, we must inquire whether "the statement is the 

 

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

designated for publication. 
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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." 

Roberts v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709, 

711 (1994) (citations omitted) (internal quotation marks 

deleted). See also Midkiff v. Commonwealth, 250 Va. 262, 268, 

462 S.E.2d 112, 116 (1995). In making such a determination, 

"'courts look to the totality of all the surrounding 

circumstances,' including the defendant's background, experience, 

mental and physical condition and the conduct of the police." 

Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722, 

723 (1992) (citation omitted). While we must conduct an 

independent review of the question of voluntariness, we are bound 

by the trial court's subsidiary findings of fact unless they are 

plainly wrong. Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 

S.E.2d 655, 656 (1992). 

 Although Ferguson operated his own taxicab business, the 

trial court found that he was "a rather unsophisticated mentally 

slow individual with no apparent prior criminal history and no 

evidence of any understanding of the Constitutional rights 

protected under Miranda." This finding is supported by the trial 

court's observation of Ferguson and his demeanor in the 

courtroom. The evidence disclosed that Ferguson came to Richmond 

in response to a summons from investigators of the Attorney 

General's Office. Entering the building, he passed an armed 
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guard who admitted him. Going to an upper floor, he was met by 

two investigators of the Attorney General's Office who separated 

him from the family members who had accompanied him to Richmond 

and took him into a conference room, which required the unlocking 

of a door for entry. The investigators closed the door behind 

themselves and Ferguson. Ferguson thought the door relocked when 

it closed. Ferguson was not permitted to leave the room 

unaccompanied, even to go to the bathroom. The investigators 

explained that they did not want him to become lost in the maze 

of offices, but the existence of that maze and of that 

accompaniment supported Ferguson's feelings of being ensnared. 

Ferguson testified that he was not informed that he was free to 

leave or that he could decline to make a statement. This 

evidence supports the trial court's conclusion that, as a matter 

of fact, a person of Ferguson's character and capabilities would 

not feel free to exercise unconstrained choice but would feel 

obliged to submit to the demands of the investigators. This 

factual determination supports the legal conclusion that 

Ferguson's statement was involuntarily given. 

 The judgment of the trial court is affirmed. 

 Affirmed.