COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Clements Argued at Alex andria, Virginia

LEVON ANDREW DICKERSON MEMORANDUM OPINION * BY v. Record No. 3003-99-4 JUDGE RICHAR D S. BRAY DECEMBER 28, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Alfred D. Sw ersky, Judge John B. Jacob, Jr., for appellant. Thomas M. McKenna, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Levon A. Dickerson (defendant) was convicted in a bench trial on an indictment ch arging two counts of malicious wounding, attempted robber y, and conspiracy to commit robbery, violations of Code §§ 18.2-51, -26 and –22, respectively. On appeal , defendant complains the trial court erroneousl y denied a motion to suppress a confession obtained by police in violatio n of the Co nstitutions of the United States an d this Commonwealth. Finding no error, we affirm the convictions. The parties are fully conversant with the reco rd, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal.On review of a trial court's denial of a motion to suppress, "[w]e view the evidence in a light most fa vorable to . . . the prevailing party below, and we grant all re asonable inferences fairly deducible from that evidence." Commonwealth v. Grimstead , 12 Va. App. 1066, 10 67, 407 S.E.2d 47, 48 (1991). In our analysis, "we ar e bound by the trial court's find ings of historical fact unless 'plainly wrong' or without ev idence to support th em." McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc ) (citing Ornelas v. Un ited States , 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 , 134 L. Ed. 2d 911 (1996)).

I. Defendant firs t maintains that he confessed involvement in the subject offe nses without the safegu ards prescribed by Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). However, [t]he Supreme Court has made it clear that [ Miranda ] . . . warnings must be given before statements are taken from suspects only where there is custodial interrogation as thus defined in Miranda : "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Coleman v. Commonwealth , 226 Va. 31, 46, 30 7 S.E.2d 864, 872 (1983) (quoting Miranda , 384 U.S. at 444, 86 S. Ct. at 1612 (footnote omitted)).

- 2 -Whether a suspect is "in custody" under Miranda is determined by the circumstances of each case, and "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with formal arrest." The determination "depends on the 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) (internal ci tations omitted). Here, while at defendant's re sidence, Alexandria Police Detectives Ellman and Purcell "asked [defenda nt] if he would be willing to come do wn to the police station" and "talk about" "some things that had happened over the la st few weeks or days." Ellman advised defend ant that "he wasn't under arrest and . . . would be free to go at an y time, . . . that we would . . . br ing him back." Defendant agre ed and "got dressed" in the "bedroom area," while the detectives waited elsewhere in the ho me. As the three departed the residenc e for the statio nhouse, defend ant's father was encountered on the "front stoop." De tective Purc ell "knew" the father, explai ned the circumst ances to him, and the father advised "that was okay." En route to the station, defendant "was calm" and "conversational, " discussing a "variety of things" with the detectives, in cluding his "under standing of the criminal justice system based upon" prio r experience. On ar rival, defendant was offered food, drin k, and the opport unity to use the bathroom. The

- 3 -door to the "int erview room," al though closed, wa s unlocked, and defendant, once seated, was again assured that he was "free to go at any time. All you ha ve to do is tell us and we will drive you back home." During the ensuing exchange, Ellm an broached the subject offenses and advised de fendant that "some ev idence led [him] to believe that [he] might be involved." When defendan t professed innocence, Ellman su ggested defendan t provide fing erprints for comparison to th ose previously connected to the crimes, "so we could positive ly eliminate [him ]." Defendant ag reed and, upon return to the in terview room, "ind icated that he . . . had been . . . involved in the case." Befo re further questi oning, however, Ellman reminded defendan t that he was "not under arrest," "free to go at any time," and "c ame down here voluntarily." Defendant then confessed to the crimes , and the detect ives returned him to his residence. Such evidence, consid ered with the entire record, es tablishes that a reasonable pe rson, similarl y situated, wo uld not have considered himself under arrest or othe rwise restrained by police. Defendant, therefore, was not in custody, as contemplated by Miranda , when he confes sed to police.

II. "However, defend ant reminds us that an y confession , 'even if obtained in full compliance with Miranda , may be inadmissible if . . . not volu ntary.'" Novak v. Commonwealth , 20 Va. App. 373,

- 4 -386, 457 S.E.2d 402, 408 (1995) (quoting Kauffmann v. Commonwealth , 8 Va. App. 400, 405, 382 S.E.2d 27 9, 281 (1989)). Review on appeal of the voluntariness of a statement requires an "independent examination" of "'the totality of all the surrounding circumstances'" to ascertain if it was "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); Gray v. Commonwealth , 233 Va. 313, 324, 356 S.E.2d 157, 163 (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973)), cert. denied , 484 U.S. 873, 108 S. Ct. 207, 98 L. Ed. 2d 158 (1987). Thomas v. Commonwealth , 16 Va. App. 851, 858, 434 S.E.2d 319, 324 (1993). Our considerat ion must include "not only the details of the interrogat ion, but also the characterist ics of the accused." Goodwin v. Commonwealth , 3 Va. App. 249, 25 3, 349 S.E.2d 161, 163-64 (1986). "While the question whether a statement is voluntary is ultimately a legal rather than a factual one, subsidiary factual determinations made by the trial court are entitled to a presumption of correctness." Bailey v. Commonwealth , 2000 WL 432386, *14 (Va. 2000). The instant reco rd discloses that defend ant, age fourteen at the time of the offenses and confession, th en attended Alexandria public schools in an "Individuali zed Education Program," a placement result ing from an "i nability to co ntrol his . . . aggressive behavior," a "Disability" char acterized on school

- 5 -records as an "E motional Disturbance." Although defendant's teacher opined th at he "functions around the first or second grade," defend ant was classi fied at an eighth grade leve l and his curriculum included math, language arts, science an d social studies. From the inceptio n of contact with police, de fendant willingly cooper ated in the in vestigation and was repeatedly assured that he was not under arre st, free to leav e and would be delivered home up on request. De fendant conv ersed with Detective Ellman on an array of topics, both prio r to and during the interview, including defendant's expe rience with the criminal justice system, without suggesti on of confusio n, threat or coercion. Such ci rcumstances, toge ther with other evidence before the court, provide abun dant support to the trial court' s finding that defendant voluntar ily spoke with police. Defendant's cont entions that police er roneously ne glected to "encourage" his fa ther to "come to the st ation" and "tricked" him into confessing throug h a ruse regarding fing erprint evid ence are also without merit. While the presen ce of parent s and police tactics are cons iderations relevant in determining the voluntariness of a juvenile's statement, such factor s are clearly not persuasive on the inst ant record. See Grogg v. Commonwealth , 6 Va. App. 598, 613, 37 1 S.E.2d 549, 557 (199 8) (juvenil e's waiver valid despite abse nce of parent); Novak , 20 Va. App. at 387-88,

- 6 -457 S.E.2d at 40 9 (deception by police in questi oning juvenile defendant did not taint conf ession). Accordingly, we affi rm the convictions. Affirmed.

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