COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

JOSEPH DEAN GARDNER 

v. Record No. 1050-95-1 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

COMMONWEALTH OF VIRGINIA MARCH 19, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Walter J. Ford, Judge 

 Ronald L. Smith for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney General 

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

 for appellee. 

 Joseph Dean Gardner (defendant) was convicted in a bench 

trial for taking indecent liberties with a child under the age 

of fourteen years, rape, and sodomy. On appeal, defendant 

complains that the trial court erroneously admitted certain 

inculpatory statements and challenges the sufficiency of the 

evidence. For the reasons set forth below, we reverse the 

convictions. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to a disposition of this 

appeal. 

 On September 5, 1993, Kathy Fallon1 notified police of the 

subject offenses, which occurred in 1976, and defendant was 

 

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

designated for publication. 

 1Also spelled "Fallen" in the record. 
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arrested at his home by Detective James B. Jarden on October 19, 

1993, at approximately 8:30 p.m. When arrested, defendant 

instructed his wife to contact "his attorney." Later, at the 

station house, defendant was advised of his constitutional rights 

in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), and 

repeated to Jarden that he "wanted to wait for his attorney," a 

Mr. King, before talking to police. However, while awaiting a 

response from King, Jarden began to question defendant relative 

to the subject offenses. 

 At approximately 10:00 p.m., Jarden telephoned King at 

defendant's request, and King advised Jarden that "he wasn't 

coming . . . to the station and had already told [defendant] not 

to answer any of [Jarden's] questions." Jarden related this 

conversation to defendant, including King's admonition not to 

speak with Jarden, but, nevertheless, resumed his interrogation 

of defendant. During the interview, defendant asked "to see" the 

victim, Fallon, and Jarden immediately arranged a meeting at the 

police station. 

 Meanwhile, defendant recounted to Jarden incidents involving 

himself and Fallon, "similar to what [she] had said," but "things 

. . . that she had initiated." In response to Jarden's further 

inquiries, defendant explained that he had not discussed Fallon's 

conduct with his wife because she was a rape victim, easily upset 

by "these kinds of things." Jarden then contacted defendant's 

wife to confirm this information and, upon learning that it was 
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untrue, confronted defendant with the conflict. Defendant became 

"quite upset," "stood up in the interview room, took off his 

glasses[,] and made a move [as if] he was going to hit [Jarden]." 

 Jarden "pushed him in the chest[,] . . . backed him up to a 

table, got a wrist lock on him[,] . . . flipped him around on the 

table[,] and handcuffed him." 

 Fallon arrived at the station during this scuffle, and the 

officer accompanying her assisted Jarden in restraining 

defendant.2

 Fallon was then seated at a desk "across the 

way . . . from" defendant, an arrangement which "allowed . . . 

them to talk," while Jarden listened "directly outside the 

door."3 During the ensuing "conversation," Fallon sought and 

obtained defendant's admission to the subject offenses. Jarden 

also participated in the exchange between Fallon and defendant, 

specifically asking defendant to verify Fallon's allegations. 

 I. ADMISSIBILITY OF STATEMENTS MADE TO VICTIM 

 It is well established that an accused has a Fifth and 

Fourteenth Amendment right to counsel during custodial 

interrogation. Correll v. Commonwealth, 232 Va. 454, 462, 352 

S.E.2d 352, 356, cert. denied, 482 U.S. 931 (1987). Once such 

right is invoked, the accused may not be "subject to further 

interrogation by the authorities until counsel has been made 

 

 2The record indicates that Fallon arrived at approximately 

12:30 a.m. 

 3To accommodate defendant, Jarden "took off one of the 

cuffs, so [defendant] could have his hands somewhat free . . . ." 
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available to him, unless the accused himself initiates further 

communication, exchanges, or conversations with the police." 

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). "If a 

confession is obtained in violation of Edwards, it is presumed to 

have been the result of an involuntary waiver of Fifth Amendment 

rights and, therefore, any evidence obtained as a result thereof 

is inadmissible." Pugliese v. Commonwealth, 16 Va. App. 82, 87, 

428 S.E.2d 16, 21 (1993) (citing Edwards, 451 U.S. at 487). 

 "Whether an individual requested counsel is a factual 

determination . . . [which] will not be disturbed on appeal 

unless clearly erroneous." Id. We similarly defer to the trial 

court's factual finding that an accused did not "initiate[] the 

discussions which led to his confession," if supported by the 

evidence. Correll, 232 Va. at 463, 352 S.E.2d at 357. 

 Here, the trial court's determination that Jarden violated 

defendant's right to counsel during Jarden's initial questioning 

is well supported by the record. Moreover, contrary to the 

court's related ruling, this police misconduct also tainted 

defendant's later statements during the meeting with Fallon. 

Jarden, obviously calculating that the confrontation would likely 

"'elicit an incriminating response,'" arranged and participated 

in the exchange, which was an integral part of a "continued 

inquiry" and interrogation of defendant that Jarden was "bound to 

cease."4 Hines v. Commonwealth, 19 Va. App. 218, 221-22, 450 

 

 4Jarden considered "a confession . . . almost a necessity to 

go forward with this case." 
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S.E.2d 403, 404 (1994) (quoting Rhode Island v. Innis, 446 U.S. 

291, 301 (1980)). Thus, defendant's statements resulting from 

the Fallon encounter were similarly inadmissible.5

 II. SUFFICIENCY OF EVIDENCE REGARDING DEFENDANT'S AGE 

 In reviewing a challenge to the sufficiency of the evidence, 

we must consider the record in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom, and will disturb the judgment of the trial 

court only if plainly wrong or without evidence to support it. 

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987). 

 Code § 18.2-370 requires that an accused be "eighteen years 

of age or over" at the time of the offense. Fallon testified 

that, at the time of the instant offense, defendant was married 

and had two children, the oldest of whom was four years old. 

Moreover, defendant was present at trial, and his "physical 

appearance may be considered" by the court as evidence of his age 

at the time of the offense. Jewell v. Commonwealth, 8 Va. App. 

353, 356, 382 S.E.2d 259, 261 (1989). Such evidence sufficiently 

established that defendant was no less than eighteen years of age 

at the time of the offenses. 

 Accordingly, we reverse the convictions and remand for 

further proceedings consistent with this opinion, if the 

Commonwealth be so advised. 

 

 5The Commonwealth's argument that this issue was not before 

the trial court is without merit. 

 Reversed and remanded.