COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Humphreys 

Argued at Richmond, Virginia 

JAMES EDGAR TALBERT, III 

 MEMORANDUM OPINION* BY 

v. Record No. 2145-01-2 JUDGE JERE M. H. WILLIS, JR. 

 JULY 9, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Matthew P. Geary for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 James Edgar Talbert, III, was convicted in a bench trial of 

second-degree murder, in violation of Code § 18.2-32; use of a 

firearm during the commission of a murder, in violation of Code 

§ 18.2-53.1; and possession of a firearm by a convicted felon, in 

violation of Code § 18.2-308.2. On appeal, he contends that the 

trial court erred (1) in partially denying his motion to suppress 

evidence; (2) in convicting him of second-degree murder; (3) in 

convicting him of using a firearm during the commission of murder; 

and (4) in convicting him of possession of a firearm by a 

convicted felon. We affirm the judgment of the trial court. 
I. BACKGROUND

A. THE SHOOTING

 On May 10, 2000, Talbert went to Derrell Farrow's apartment 

to pick up some mail. Knowing the neighborhood to be a 

high-crime area frequented by drug dealers and having been 

robbed twice in that area, he placed a handgun in his back 

pocket. Talbert was a previously-convicted felon. 

 Arriving at Farrow's apartment, Talbert collected his mail 

and began looking at some photos that Farrow had taken. While 

he was looking at the photos, Farrow made sexual advances toward 

him, attempting to fondle his genital area. Talbert told Farrow 

to stop. Farrow then asked to perform oral sex on him. Talbert 

refused and pulled the handgun out of his back pocket. 

 Struggling for the weapon, the two men fell onto a sofa. 

The handgun discharged, and Farrow suffered a fatal gunshot 

wound to the chest. Talbert fled the apartment and drove to 

Shana Harvey's apartment on North 35th Street. Before entering 

her apartment, he discarded the handgun. 

 From Harvey's apartment, Talbert contacted the Richmond 

Police Department and reported that he had witnessed Farrow's 

shooting. He offered to provide information. Soon thereafter, 

Detectives Joyce Payne and Lloyd Redford arrived at Harvey's 

apartment. 

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B. POLICE INVESTIGATION AND INTERVIEW

 When the detectives arrived, they asked Talbert what had 

happened. According to Detective Redford: 

[Talbert] told me that he had been to visit 

a friend. While he was in there, he was in 

the back bedroom, he heard a knock at the 

door, two gentlemen came in, and he heard 

one of them tell the victim, give it up. 

Another one appeared in the doorway of the 

back bedroom, scuffled with him, one of them 

tried to take the ring off his finger, and 

he got away and ran out the door. 

Talbert told the detectives that while fleeing, he heard a 

gunshot. He then jumped into his truck and drove away. 

 Detective Redford went to Farrow's apartment and then 

returned to Harvey's apartment. The detectives asked Talbert 

and Harvey to accompany them to the police station to put their 

statements on tape. Detective Payne told Talbert that he did 

not have to go to the station. Detective Payne said, "this is 

totally on your own, if you would like to come down." Talbert 

and Harvey agreed to go and rode with the detectives to the 

police station. 

 At the police station, Harvey was interviewed first. 

During her interview, which lasted twenty to thirty minutes, 

Talbert waited outside the interview room, where he was watched 

by a uniformed officer. Talbert's interview began at 

approximately 5:00 a.m. The detectives asked him initially 

whether he minded talking with them. He replied, "ok." 

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 The interview room was small and was equipped with a round 

table and four chairs. Talbert sat at the table. Initially, 

the door was closed. Detectives Payne and Redford and Sergeant 

Walker questioned Talbert for approximately an hour and a half 

to two hours. At various times Talbert was questioned by one, 

two, or all three officers and the door was open. At no time 

was he told he was not free to leave. 

 While questioning Talbert, the police began to doubt his 

story because of inconsistencies between his account and the 

physical evidence. Talbert said four men struggled in the 

apartment, but the damage was inconsistent with that claim. 

Talbert also said he ran out the apartment's back door, but 

there were no fingerprints on the back door. Approximately 

halfway through the interview, Detective Payne began considering 

whether Talbert should be a suspect. 

 The officers told Talbert repeatedly that what he was 

saying did not match the evidence and that he needed to be 

truthful. About an hour into the interview, Detective Redford 

decided Talbert was holding back something, but he didn't know 

what. 

 After Talbert was told that the evidence suggested that 

only he and Farrow had been in the apartment and that a gunshot 

residue test would show that he fired the gun, he recanted his 

story. He explained that the gun had discharged accidentally 

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when he and Farrow were "scrambling" over it. The following 

colloquy ensued: 

Talbert: We got to talking when I got 

there. 

* * * * * * * 

Talbert: Didn't want to[;] it wasn't 

supposed to happen. 

Redford: I'm sure it wasn't. What 

happened? 

Talbert: It accidentally went off. 

Redford: The gun accidentally went off? 

Won't nobody in there other than the two of 

y'all right? 

Talbert: Yeah. We won't gone be no 

shooting, that ain't supposed to happen. We 

was scrambling and he just squeezed my hand 

and it went off. 

At that point Talbert had not been advised of his Miranda

rights.1

 Talbert was then handcuffed. A gunshot residue test was 

performed and questioning continued. Talbert told the police 

that he had left the handgun at an abandoned house on North 35th 

Street, near his girlfriend's apartment. 

 The police took Talbert and Harvey back to North 35th 

Street. Their purpose was to take Harvey home and to locate the 

handgun. As they were waiting for a key to the abandoned house 

where Talbert said he had left the handgun, Harvey pointed to 

Patrick Henley, who was walking down the street, and said he had 

 1 Miranda v. Arizona, 384 U.S. 436 (1966). 

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the handgun. Without being asked, Talbert confirmed this. 

Henley fled and threw the handgun in a storm drain, from which 

it was recovered. The police searched the abandoned house, but 

found no weapon. Forensic tests identified the handgun 

discarded by Henley as the weapon that killed Farrow. 

C. TRIAL

 On Talbert's pretrial motion, the trial court suppressed 

his statements following the portion recited above. However, it 

refused to suppress and received into evidence the recited 

portion of his statements and the handgun. It ruled that the 

handgun had been found as a result of Harvey's statement, not as 

a result of Talbert's statement to police. 

 Talbert waived his right to a jury trial, testified, and 

was convicted of second-degree murder, in violation of Code 

§ 18.2-32; use of a firearm during the commission of murder, in 

violation of Code § 18.2-53.1; and possession of a firearm by a 

convicted felon, in violation of Code § 18.2-308.2. 

II. MOTION TO SUPPRESS CONFESSION 

 "In reviewing a trial court's denial of a motion to 

suppress, 'the burden is upon [the defendant] to show that the 

ruling, when the evidence is considered most favorably to the 

Commonwealth, constituted reversible error.'" McGee v. 

Commonwealth, 25 Va. App. 193, 197 487 S.E.2d 259, 261 (1997) 

(en banc) (citation omitted). Talbert contends that his Fifth 

Amendment rights were violated when the police questioned him 

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without informing him of his Miranda rights and that the trial 

court erred in partially denying his motion to suppress all of 

his statements to the police and the handgun. 

 "[T]he protection afforded by Miranda applies only when a 

suspect is subjected to custodial interrogation." Webber v. 

Commonwealth, 26 Va. App. 549, 557, 496 S.E.2d 83, 86 (1998). 

In determining whether a person is in custody for Miranda

purposes, we inquire "how a reasonable man in the suspect's 

position would have understood the situation." Berkemer v. 

McCarty, 468 U.S. 420, 442 (1984). Whether a person is in 

custody "depends on objective circumstances of the 

interrogation, not on the subjective views harbored by either 

the interrogating officers or the person being questioned." 

Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 

262 (1998). 

 In Burket v. Commonwealth, 248 Va. 596, 450 S.E.2d 124 

(1994), Burket was asked by police to accompany them to police 

headquarters to assist with a double murder investigation. 

While still at his residence, he was told that he was not under 

arrest and that he was free to leave at any time. Forty minutes 

into his interview at police headquarters, he was told falsely 

that some children had seen him at the murder scene on the night 

of the murders. He was also told that hair samples similar to 

his were found at the victim's residence. 

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 Burket then admitted he was at the scene. He then said, 

"I'm gonna need a lawyer." The investigator told him that he 

was not under arrest and that he was free to leave. Burket then 

stated that he had accidentally killed the victims. Again he 

stated he thought he needed a lawyer. At that juncture, he was 

arrested and advised of his Miranda rights for the first time. 

Id. at 602-604, 450 S.E.2d at 128-29. 

 The Supreme Court held that Burket was not in custody until 

his arrest. It highlighted the portion of his interview where 

the officers advised him that he was not under arrest. It 

concluded: 

Burket was neither formally arrested nor 

deprived of his freedom of movement until 

after he stated later during the interview 

that the murder "was an accident." 

Accordingly, we hold that the detectives 

were not required to advise Burket of his 

Miranda rights when he stated, "I'm gonna 

need a lawyer." 

Id. at 606, 450 S.E.2d at 130. 

 In Harris v. Commonwealth, 27 Va. App. 554, 500 S.E.2d 257 

(1998), we held that Harris was not in custody despite the 

presence of three police officers, one of whom had pointed his 

gun at Harris for twenty minutes, during which time Harris was 

not free to turn around or leave. 

 Harris was a passenger in a car that was stopped for 

speeding and improper lane changes. During the stop, a Virginia 

State Trooper asked and received consent from Harris for a 

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pat-down search of his clothing. The search disclosed a 

pipe-like device. The trooper then questioned Harris, asking 

him whether he used the pipe to smoke crack. Harris replied 

that he did not smoke crack. The trooper then asked where his 

tobacco was located. Harris replied that it was in the car and 

showed a tobacco pouch to the trooper. Looking into the pouch, 

the trooper discovered a vial of crack cocaine. He then 

arrested Harris and advised him of his Miranda rights. 

 In concluding that Harris was not in custody until he was 

arrested, we said: 

[a]mong the circumstances to be considered 

when making a determination of whether a 

suspect was "in custody" are (1) the manner 

in which the individual is summoned by the 

police, (2) the familiarity or neutrality of 

the surroundings, (3) the number of officers 

present, (4) the degree of physical 

restraint, (5) the duration and character of 

the interrogation, and (6) the extent to 

which the officers' beliefs concerning the 

potential culpability of the individual 

being questioned were manifested to the 

individual. No single factor is dispositive 

of the issue. 

Id. at 565, 500 S.E.2d at 262. We continued: 

We conclude that [Harris] was not entitled 

to Miranda warnings prior to the questioning 

by Trooper Watts that led to the discovery 

of the cocaine. At the time of Trooper 

Watts' questioning, appellant's detention 

had been transformed from one whose purpose 

was to protect officer safety and maintain 

the status quo during a traffic stop to a 

Terry stop whose purpose was to investigate 

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the appellant for suspected drug-related 

criminal activity. 

Id. at 567, 500 S.E.2d at 263. 

 As in Burket and Harris, Talbert was not in custody for 

Miranda purposes until he admitted shooting Farrow and was 

handcuffed. Until that time, his Fifth Amendment rights were 

not violated. Although the police doubted his story, "[t]he 

fact that the investigation had focused upon [Talbert] and had 

become accusatory is not determinative of the question of 

custody." Smith v. Commonwealth, 219 Va. 455, 470, 248 S.E.2d 

135, 142 (1978). Talbert remained at the police station 

voluntarily. He was not told that he could not leave. At 

times, the door to the interview room was open. He was not 

restrained. Only when he admitted shooting Farrow and was 

arrested and handcuffed did his presence cease to be voluntary. 

Until that time, no reasonable person in his situation would 

have believed that he was not free to leave. 

 Furthermore, Talbert waived his Fifth Amendment rights when 

he took the witness stand at trial. He admitted taking the 

handgun to Farrow's apartment. He admitted presenting the 

handgun to rebuff Farrow's sexual advances. He acknowledged 

that Farrow was shot during the ensuing struggle. He testified 

to everything that was included in the unsuppressed portion of 

his statement to the police, including the location of the 

firearm. 

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III. MOTION TO SUPPRESS THE FIREARM

 Talbert next contends that the trial court erred in 

refusing to suppress the handgun, which he argues was obtained 

as a result of unlawful questioning. We disagree. 

 At the time the handgun was recovered, the police had 

returned Talbert and Harvey to North 35th Street. Talbert 

contends that the police officers were going to the location 

where he had told them the handgun was hidden. However, viewed 

in the light most favorable to the trial court's ruling, the 

evidence disclosed that the police were then taking Harvey home. 

At that time, she saw Henley walking down the street and told 

the officers that he had the handgun. The handgun was then 

recovered. 

 In recovering the gun, the police relied on Harvey's 

statement, not on the statements made by Talbert during his 

questioning. Thus, the trial court did not err in admitting the 

gun into evidence. See Murray v. United States, 487 U.S. 533, 

542 (1988). 

IV. SUFFICIENCY OF THE EVIDENCE

 The fact that Talbert carried the handgun to Farrow's 

apartment and produced it as a show of force supports a finding 

of malice. Consequently, all the evidence, including Talbert's 

own testimony, supports his conviction for second-degree murder, 

from which flow his convictions for possession of a firearm by a 

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convicted felon and use of a firearm during the commission of 

murder. 

 The judgment of the trial court is affirmed. 

 Affirmed.

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