COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Petty and Senior Judge Bumgardner 

Argued at Richmond, Virginia 

ROBERT KEITH SMITH 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2498-06-2 JUDGE RUDOLPH BUMGARDNER, III 

 JANUARY 15, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Daniel T. Balfour, Judge 

 Elliott B. Bender for appellant. 

 J. Robert Bryden, II, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

Robert Keith Smith appeals his conviction of aggravated sexual battery, Code § 18.2-67.3. 

He contends the trial court erred in admitting statements made to the police. Finding no error, we 

affirm the defendant’s conviction. 

“[I]n considering a trial court’s ruling on a suppression motion, we view the evidence in 

the ‘light most favorable to . . . the prevailing party below,’ the Commonwealth in this instance, 

and the decision of the trial judge will be disturbed only if plainly wrong.” Greene v. 

Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994) (quoting Commonwealth v. 

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)). 

Officer Jason Helmlinger was investigating an allegation that the defendant sexually abused 

a nine-year-old child while visiting the child’s family in Henrico County. The thirty-year-old 

defendant lived in North Carolina with his father. He suffered from dystonia, a condition affecting 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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the muscular and nervous systems and the ability to learn. He took medications for that condition. 

The defendant had completed the seventh grade but was unemployed, largely confined to a 

wheelchair, and spent most of his time watching television. 

Officer Helmlinger telephoned the defendant at his residence. The officer had difficulty 

understanding the defendant and asked him to have his father return the call. When the father 

called back, the officer asked him and the defendant to come to Henrico County to discuss the 

allegations. Officer Helmlinger indicated that if they did not come, the defendant would likely 

be arrested. The defendant and his father met Officer Helmlinger in the lobby of the Public 

Safety Building. The officer advised that he wanted to talk to the defendant alone, and neither 

the defendant nor his father objected. The father told the officer that the defendant would 

understand what the officer was saying but might have difficulty expressing himself. The father 

waited downstairs while Officer Helmlinger and another detective took the defendant to an 

interview room on another floor. 

Officer Helmlinger told defendant that he was not under arrest and that he was free to leave 

at any time. He read the defendant his Miranda rights, and the defendant stated that he understood 

his rights. The defendant made no complaint of discomfort, hunger, or thirst. 

The defendant appeared to understand the questions and responded coherently and 

appropriately. He initially denied any knowledge of the allegations. However, when specifically 

asked about three separate incidents, the defendant gave his version of what had happened on each 

occasion. The officer concluded the interview and took the defendant back downstairs to his father. 

The interview had lasted about thirty minutes. The defendant and his father returned to North 

Carolina. He was not arrested for several weeks. 

The defendant argues his statements were inadmissible because he did not voluntarily and 

intelligently waive his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and agree to 
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speak to the police. “However, ‘police officers are not required to administer Miranda warnings 

to everyone whom they question,’ and Miranda warnings are not required when the interviewee’s 

freedom has not been so restricted as to render him or her ‘in custody.’” Harris v. 

Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 261-62 (1998) (quoting Oregon v. 

Mathiason, 429 U.S. 492, 495 (1977)). 

The defendant and his father came to Henrico County at Officer Helmlinger’s request. 

The fact that the officer wanted to speak to the defendant at the police headquarters did not 

“automatically convert the meeting into a custodial situation,” as “‘[i]t is the custodial nature 

rather than the location of the interrogation that triggers the necessity for giving Miranda

warnings.’” Aldridge v. Commonwealth, 44 Va. App. 618, 643, 606 S.E.2d 539, 551 (2004) 

(quoting Coleman v. Commonwealth, 226 Va. 31, 47, 307 S.E.2d 864, 872 (1983)). 

The police did not arrest defendant when he arrived and, in fact, informed him that he 

was free to leave. The police did not restrain defendant or deny him any physical comfort. The 

interview lasted about thirty minutes, and upon its conclusion, the defendant returned to North 

Carolina with his father. 

“Because the determination whether a suspect is ‘in custody’ requires an objective focus, 

the only relevant inquiry is how a reasonable person in the suspect’s situation would have 

understood his circumstances.” Dixon v. Commonwealth, 270 Va. 34, 40, 613 S.E.2d 398, 401 

(2005). Under these facts and circumstances, a reasonable person in the defendant’s position 

would not have understood that he was in custody during the interview. 

Even though the defendant was not in custody, the police out of an abundance of caution 

read him the Miranda rights. The defendant then waived his rights and agreed to talk with the 

officer. Nothing suggests that the waiver was other than knowingly and voluntarily made. 
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The defendant maintains his statements were not voluntary. The defendant stresses the 

testimony of a psychiatrist and argues that testimony shows the defendant was especially 

susceptible to police overreaching. However, he is not able to identify any coercive police 

activity.1

 The United States Supreme Court’s decision in Colorado v. Connelly, 479 U.S. 157 

(1986), controls this argument. In Connelly, the Court held that “coercive police activity is a 

necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the 

Due Process Clause of the Fourteenth Amendment.” Id. at 167. 

The defendant was thirty years old, and although disabled with dystonia, the condition 

did not affect his ability to understand what was happening around him. Neither the defendant 

nor his father objected to the police interviewing the defendant in private. The officer advised 

defendant that he was not under arrest and that he could refuse to speak to the police. The 

defendant said he understood. During the interview, the defendant appeared to understand the 

questions and responded appropriately. The police did not mistreat defendant in any way, and 

when the thirty-minute interview ended, the defendant returned with his father to North Carolina. 

The record contains no evidence of coercive police activity. 

 The mental condition of the defendant is “surely relevant to 

[his] susceptibility to police coercion”; however, evidence of 

coercive police activity “is a necessary predicate to the finding that 

a confession is not ‘voluntary’ within the meaning of the Due 

Process Clause of the Fourteenth Amendment.” The amount of 

coercion necessary to trigger the due process clause may be lower 

if the defendant’s ability to withstand the coercion is reduced by 

intoxication, drugs, or pain, but some level of coercive police 

activity must occur before a statement or confession can be said to 

be involuntary. 

Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722, 723 (1992) (quoting 

Connelly, 479 U.S. at 165, 167). 

 1

 The trial court did admit the psychiatrist’s testimony on the issue of the weight to be 

given to the defendant’s statements. 
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The defendant was not in custody, and the police activity was not coercive. The trial 

court properly denied the motion to suppress. Accordingly, we affirm. 

Affirmed.