COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Lemons and Senior Judge Baker 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 1244-99-1 JUDGE JOSEPH E. BAKER 

 NOVEMBER 9, 1999 

MELVIN MAURICE JOHNSON 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Jerome James, Judge 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 Michelle J. Harris (Abrons, Fasanaro & 

Sceviour, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 In this appeal by the Commonwealth, the sole question is 

whether the Circuit Court of the City of Norfolk (trial court) 

erroneously suppressed Melvin Maurice Johnson's (Johnson) 

inculpatory confession to robbery and related charges. For the 

reasons that follow, we hold that Johnson knowingly and 

intelligently waived his Miranda rights and that his confession 

was voluntary. Accordingly, we reverse the trial court. 

I. 

 On an appeal from a trial court's decision to suppress a 

defendant's confession, "[w]e are bound by the trial court's 
findings of historical fact unless plainly wrong or without 

evidence to support them." McGee v. Commonwealth, 25 Va. App. 

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas 

v. United States, 517 U.S. 690, 699 (1996)). But "[w]e review 

de novo questions of law and the trial court's application of 

defined legal standards to the particular facts of a case." 

Timbers v. Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 

236 (1998). 

 "In considering the standard of review in this case, we are 

confronted with two separate questions: (1) the standard of 

review of a trial court's finding of the voluntariness of a 

confession; and (2) the standard of review concerning the 

finding of the validity of a waiver of Miranda rights." Goodwin 

v. Commonwealth, 3 Va. App. 249, 252, 349 S.E.2d 161, 163 

(1986). Whether a statement provided by a defendant to police 

is voluntary is a legal rather than a factual question, subject 

to independent review by this Court. See Bottenfield v. 

Commonwealth, 25 Va. App. 316, 324, 487 S.E.2d 883, 887 (1997). 

"[T]he inquiry whether a waiver of Miranda rights was made 

knowingly and intelligently is a question of fact, and the trial 

court's resolution of that question is entitled on appeal to a 

presumption of correctness." Harrison v. Commonwealth, 244 Va. 

576, 581, 423 S.E.2d 160, 163 (1992). 

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II. 

 Viewed in the light most favorable to Johnson, the 

prevailing party below, the evidence proved that on January 28, 

1999, Detective Crawford's investigation of a January 4, 1999 

home-invasion robbery led him to Johnson's residence. After 

talking to Johnson's cousin, Crawford had reason to believe that 

Johnson, who was then seventeen years old, had been involved in 

the robbery. Upon his return home from school that afternoon, 

Johnson spoke briefly with Crawford and agreed to accompany 

Crawford to the police operations center (POC) for questioning. 

 Johnson resided with his grandmother, Gladys Lindsey, who 

was also his legal guardian. After talking to Johnson, Crawford 

spoke briefly with Lindsey and told her he wanted to question 

Johnson at the POC. He asked Lindsey to come to the POC so she 

could witness Johnson's signature on the Miranda waiver form. 

Initially, Crawford did not tell Lindsey that Johnson was a 

suspect in the robbery investigation. 

 At the POC, Crawford obtained Lindsey's signature on a 

Miranda waiver form, which Johnson also read and signed. At the 

suppression hearing, Lindsey testified that the form was blank 

when she signed it. Johnson initially testified that Crawford 

escorted Lindsey out of the interview room after he, Johnson, 

signed the form, but Johnson later testified that Lindsey was 

not present when he signed the form. Crawford testified that 

Lindsey signed the rights form in Johnson's presence, after 

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Johnson executed the form. Johnson admitted reading and signing 

the Miranda waiver, and Crawford testified that Johnson 

indicated he understood his Miranda rights. 

 After Lindsey signed the waiver form, Crawford escorted her 

from the interview room because his "personal policy" showed 

that usually "if you are talking to someone, they are less 

inclined to speak if their parents are in there." Crawford told 

Lindsey that he was not interested in Johnson as a suspect, but 

that he was after the more culpable participants in the robbery. 

He also told Lindsey that Johnson would be released to go home 

in approximately two hours. 

 Johnson arrived at the POC at 1:45 p.m., and Crawford began 

interrogating Johnson at 2:15 p.m. Johnson initially denied any 

involvement in the robbery. Crawford indicated that he did not 

believe Johnson and explained to Johnson the seriousness of the 

offense. The initial interview concluded at 2:55 p.m., after 

Johnson asked for some time to "think about it for a while." 

Crawford resumed the interrogation with Johnson at 4:35 p.m. At 

6:00 p.m., Crawford and Johnson visited the crime scene, 

returning to the POC at 6:25 p.m. At 8:50 p.m., Crawford 

resumed the interrogation, and Johnson subsequently admitted his 

involvement in the robbery. The interrogation concluded at 

9:18 p.m., after Johnson signed a written statement prepared by 

Crawford. 

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 While Johnson was at the POC, Crawford allowed Johnson to 

take bathroom breaks, and he offered Johnson food and drink on 

several occasions. 

 Johnson claimed he confessed only after becoming frustrated 

and because he wanted to go home. He also testified that he had 

smoked a marijuana "blunt" about twenty minutes before he 

initially met Crawford and that he was still "high" when he 

signed the confession. Johnson admitted that he never told 

Crawford he was under the influence of marijuana, and Crawford 

testified that Johnson did not appear to be intoxicated or 

otherwise "under the influence." 

 While Crawford was interrogating Johnson, Johnson's father 

and uncle both came to the POC and attempted to see Johnson. 

Police denied both men access to Johnson. 

 Johnson moved to suppress his confession on the ground that 

it was obtained in violation of the Fifth and Sixth Amendments to 

the Constitution of the United States and Code § 16.1-247. The 

trial court found that Johnson was not deprived of any physical 

comforts; that he was doing well in the 11th grade of school and 

appeared to be intelligent; that he had not had "appreciable" 

contact with the police nor had he previously experienced 

"police interrogation"; that he had smoked a marijuana "blunt" 

sometime on the day of his arrest; that he continued to be 

questioned after denying any involvement in the robbery; that he 

was deprived of the presence of his guardian who had been 

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removed from the interview room after being used to witness 

Johnson's signing of the rights waiver; and that Crawford's 

tactic of not permitting Lindsey to be present as Johnson was 

being questioned violated the very purpose of a guardianship. 

Based on these findings, the trial court suppressed Johnson's 

confession. 

III. 

 Where a defendant moves to suppress a confession pursuant 

to Miranda, 

[t]he prosecution bears the burden of 

proving that the defendant knowingly and 

intelligently waived the constitutional 

privilege against self-incrimination and the 

right to counsel. "[T]he prosecution may 

not use statements, whether exculpatory or 

inculpatory, stemming from custodial 

interrogation of the defendant unless it 

demonstrates the use of procedural 

safeguards effective to secure the privilege 

against self-incrimination." Although the 

defendant may waive these rights, it must be 

shown that "the waiver is made voluntarily, 

knowingly and intelligently." 

Goodwin, 3 Va. App. at 252, 349 S.E.2d at 163 (quoting Miranda 

v. Arizona, 384 U.S. 436, 444 (1966)). 

 Whether a defendant has validly waived his Miranda rights 

is determined by looking at the totality of the circumstances. 

See Correll v. Commonwealth, 232 Va. 454, 464, 352 S.E.2d 352, 

357 (1987). This totality-of-the-circumstances test is equally 

applicable when a juvenile is involved. See Fare v. Michael C., 

442 U.S. 707, 725 (1979). 

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The totality approach permits--indeed, it 

mandates--inquiry into all the circumstances 

surrounding the interrogation. This 

includes evaluation of the juvenile's age, 

experience, education, background, and 

intelligence, and into whether he has the 

capacity to understand the warnings given 

him, the nature of his Fifth Amendment 

rights, and the consequences of waiving 

those rights. 

Id.

 One unique factor that is considered when a juvenile 

decides to waive his Fifth Amendment rights is the presence or 

absence of a parent or legal guardian. "[I]t is desirable to 

have a parent, counsel or some other interested adult or 

guardian present when . . . a juvenile waives fundamental 

constitutional rights and confesses to a serious crime. 

However, it is well established that the mere absence of a 

parent or counsel does not render the waiver invalid." Grogg v. 

Commonwealth, 6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1991). 

 Once the Commonwealth has established a valid waiver, it 

must also establish that the defendant's confession was 

voluntary. On appeal, in deciding whether the Commonwealth has 

met this burden, 

[w]e must determine whether, in light of the 

totality of the circumstances, including not 

only the details of the interrogation, but 

also the characteristics of the accused, the 

statement was the product of an essentially 

free and unconstrained choice by its maker, 

or whether the maker's will was overcome and 

his capacity for self-determination 

critically impaired. 

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Goodwin, 3 Va. App. at 253, 349 S.E.2d at 163-64. See 

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). 

 As in determining whether there has been a valid waiver, in 

determining whether a juvenile confessed voluntarily, we look to 

the totality of the circumstances. See Novak v. Commonwealth, 

20 Va. App. 373, 386-87, 457 S.E.2d 402, 408 (1995). The mere 

absence of a parent or legal guardian when a juvenile is 

interrogated does not render the juvenile's confession 

involuntary. See Jackson v. Commonwealth, 255 Va. 625, 637-38, 

499 S.E.2d 538, 546 (1998), cert. denied, 119 S. Ct. 796 (1999);

Wright v. Commonwealth, 245 Va. 177, 185-86, 427 S.E.2d 379, 

385-86 (1993), judgment vacated on other grounds, 512 U.S. 1217 

(1994); Grogg, 6 Va. App. at 613, 371 S.E.2d at 557. 

 Denying family members access to a juvenile defendant is 

generally immaterial to the issue of the voluntariness of his 

waiver. See Jackson, 255 Va. at 638, 499 S.E.2d at 546 (holding 

that a juvenile defendant's confession was not involuntary 

merely because, unbeknownst to the defendant, his mother was 

initially denied access to him). "Events occurring outside of 

the presence of the suspect and entirely unknown to him surely 

can have no bearing on the capacity to comprehend and knowingly 

relinquish a constitutional right." Moran v. Burbine, 475 U.S. 

412, 422 (1986). The rights guaranteed under the Fifth 

Amendment are personal to the defendant, and our focus, 

therefore, must be on the defendant's wishes and his state of 

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mind. See Lamb v. Commonwealth, 217 Va. 307, 310, 227 S.E.2d 

737, 740 (1976) (holding that an attorney could not invoke the 

right to counsel that the defendant validly waived). 

IV. 

 Johnson does not deny that Miranda warnings were given or 

that he signed a waiver that his legal guardian also signed. 

The trial court found that Johnson was doing well in the 11th 

grade of high school and was intelligent. In addition, it found 

that Johnson was not denied creature comforts while being 

interviewed. Johnson never asked for the presence of his 

grandmother, another adult, or an attorney while he was being 

interrogated. He was unaware of his father's and uncle's 

attempts to see him. There was no evidence that Crawford 

threatened Johnson, or otherwise coerced him into confessing. 

Finally, the fact that Crawford may have misled Lindsey, while 

disconcerting, was immaterial to the voluntariness of Johnson's 

confession. 

 The evidence in this case was insufficient to support any 

conclusion other than that Johnson knowingly and intelligently 

waived his Miranda rights.1 Moreover, based upon our independent 

examination of the record in this case, we conclude that 

Johnson's will was not overcome, that his capacity for 

 1

 Although the trial court noted Johnson's testimony that he 

had smoked marijuana prior to meeting with Crawford, the court 

did not make a specific finding that Johnson's Miranda waiver 

was invalid because of the marijuana use. 

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self-determination was not critically impaired, and that his 

confession was the product of a free and unconstrained choice.2 

Accordingly, we reverse the decision of the trial court and 

remand this case to the circuit court for such further action as 

the Commonwealth may be advised. 

 Reversed and remanded.

 2

 Johnson's assertions that his statement should be 

suppressed under the Sixth Amendment and pursuant to Code 

§ 16.1-247 are without merit. At the time he was interrogated, 

Johnson had not been charged, so his Sixth Amendment right to 

counsel had not yet attached. See Grogg, 6 Va. App. at 609, 371 

S.E.2d at 554 (the right to counsel under the Sixth and 

Fourteenth Amendments attaches "once charges are brought, by way 

of formal charge, preliminary hearing, indictment, information, 

or arraignment"). We have previously held that Code § 16.1-247 

"governs the placement of juveniles in detention facilities" and 

was "not intended to safeguard a juvenile's Fifth and Sixth 

Amendment rights." Roberts v. Commonwealth, 18 Va. App. 554, 

559, 445 S.E.2d 709, 712 (1994). 

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