COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Seni or Judge Bumgardner Argued at Richmond, Virginia

ROBERT KEITH SMITH MEMORANDUM OPINION * BY v. Record No. 2498-06-2 J UDGE RUDOLPH BUMGARDNER, III JANUARY 15, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Daniel T. Balfour, Judge Elliott B. Bender for appellant. J. Robert Bryden, II, Assist ant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Robert Keith Smith appeals his conviction of ag gravated sexual battery , Code § 18.2-67.3. He contends the trial cour t erred in admitting stat ements made to the polic e. Finding no error, we affirm the defendant’s conviction. “[I]n considering a trial cour t’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 wh ile visiting the child’s family in He nrico County. Th e 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 opin ion is not designated for publication.- 2 - the muscular and nervous systems and the ability to learn. He took medications for th at condition. The defendant had completed the seventh grade but was unemployed, la rgely confined to a wheelchair, and spent most of hi s 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 defend ant 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 a nd his father met Officer Helmli nger in the lobby of the Public Safety Building. The officer advi sed that he wanted to talk to the defendant alone, and neither the defendant nor his father objected. The fath er told the officer th at 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 ma de no complaint of discomfo rt, hunger, or thirst. The defendant appeared to understand the ques tions and responded coherently and appropriately. He initially denied any knowledge of the allegations. Howe ver, when specifically asked about three separate incidents, the defendant gave his version of what had happened on each occasion. The officer concluded th e interview and took the defendant back downstairs to his father. The interview had lasted about thirty minutes. Th e defendant and his fath er returned to North Carolina. He was not arre sted for several weeks. The defendant argues his statements were in admissible because he did not voluntarily and intelligently waive hi s rights pursuant to Miranda v. Arizona , 384 U.S. 436 (1966), and agree to- 3 - speak to the police. “However, ‘police officers are not required to administer Miranda warnings to everyone whom th ey 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 po lice 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 defenda nt 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 it s 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 su spect’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 hi s rights and agreed to talk with the officer. Nothing suggests that the waiver wa s other than knowingly and voluntarily made.- 4 - The defendant maintains his statements were not voluntary. The de fendant 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 alt hough disabled with dyst onia, 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 interv iew, the defendant appeared to understand the questions and responded appropriately. The polic e 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 defe ndant is “surely relevant to [his] susceptibility to police coercion”; however, evidence of coercive police activity “is a necessa ry 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 with stand 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.- 5 - The defendant was not in custody, and the pol ice activity was not coercive. The trial court properly denied the motion to suppress. Accordingly, we affirm.

Affirmed.