A Rehearing En Banc was granted for this case on June 28, 1995. 

COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bray 

Argued at Norfolk, Virginia 

TERRELL HICKMAN 

v. Record No. 1993-93-1 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

COMMONWEALTH OF VIRGINIA MAY 23, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Leonard B. Sachs, Judge 

 B. Cullen Gibson for appellant. 

 Monica Sergent, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General; 

 Donald R. Curry, Senior Assistant Attorney 

General, on brief) for appellee. 

 Terrell Hickman (defendant), a juvenile transferred for a 

trial as an adult, was convicted of first-degree murder and 

sentenced to life imprisonment. On appeal, defendant complains 

that the trial court erroneously overruled his motion to suppress 

his confession. We disagree and affirm the conviction. 

 The parties are fully conversant with the record in this 

case, and we recite only those facts necessary to explain our 

holding. 

 "In order for a confession given during a custodial 

interrogation to be admissible at trial, the Commonwealth must 

show that the accused was apprised of his right to remain silent 

and that he knowingly, intelligently, and voluntarily elected to 

waive that right." Roberts v. Commonwealth, 18 Va. App. 554, 

 

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

designated for publication. 
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557, 445 S.E.2d 709, 711 (1994). A "heavy burden rests upon the 

Commonwealth" to establish a "valid waiver," and the "[c]ourts 

must indulge every presumption against" it. Grogg v. 

Commonwealth, 6 Va. App. 598, 611, 371 S.E.2d 549, 556 (1988). 

 "[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). The voluntariness issue, 

however, is a question of law which requires "an independent 

[appellate] examination of the totality of the circumstances to 

determine 'whether the statement is the "product of an 

essentially free and unconstrained choice by its maker," or 

whether the maker's will "has been overbourne and his capacity 

for self-determination critically impaired."'" Wilson v. 

Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992) 

(citations omitted). "[I]n making that determination, we are 

bound by the trial court's subsidiary factual findings unless 

those findings are plainly wrong." Id. 

 If the accused is a juvenile, we must consider "'the 

juvenile's age, experience, education, background, and 

intelligence, and . . . 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.'" Roberts, 18 Va. 

App. at 557, 445 S.E.2d at 711 (citations omitted). While we 

have recognized the presence of a parent or other "interested 
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adult" as a significant consideration in assessing voluntariness 

of a juvenile's confession to criminal conduct, we have also 

consistently held "that the mere absence of a parent . . . does 

not render a [juvenile's] waiver invalid." Grogg, 6 Va. App. at 

613, 371 S.E.2d at 557. 

 Here, before undertaking interrogation of defendant, 

Detective Squyres attempted unsuccessfully to contact defendant's 

father by telephone1 and properly advised defendant of his 

Miranda rights, using a "legal rights advice" form. Defendant 

assured Squyres that he could "read and write" and read aloud 

"the first right" from the form to confirm his literacy. 

Defendant dated the form correctly and wrote "yes" in response to 

each inquiry, rewriting one answer to improve its neatness. The 

interview began at 11:18 p.m., and defendant had confessed within 

"fifteen or twenty minutes." Squyres advised defendant that a 

"taped statement" was required, and defendant confessed "all over 

again," finishing at 12:00 a.m. 

 Squyres then delivered the tape to a "stenographer," and a 

transcript was prepared and provided to defendant. Defendant 

reviewed the typed statement, noted and corrected several errors, 

initialed the "top and bottom" of each page, and signed it at 

4:28 a.m. While awaiting the transcript, defendant was alone in 

an "interview room," which was furnished with a desk and chairs. 

 Squyres "checked in on him" a "couple of times," once observing 

 

 1When defendant's father was contacted later in the evening, 

he refused to "com[e] down." 
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defendant's "head down on the desk," and offered to "buy him a 

soda." 

 Squyres described defendant as "a very sharp man," 

"certainly very streetwise," and "very alert, very awake," and 

"very articulate." He recalled that defendant had "no problem at 

all reading" the rights form, was "very smooth, no hesitation." 

Defendant similarly read "right through" the typed statement, 

stopping only when he "wanted to change something." 

 Although defendant's psychological testing placed him in the 

"mental retardation" range,2

 Dr. Thomas Pasquale, a Clinical 

Psychologist, concluded that defendant's "level of intellectual 

functioning is more accurately . . . in the borderline to low 

average range" because the scores were "depressed" by defendant's 

"sabotage" of the testing. At the time of the interview, 

defendant was in the eighth grade at public school. 

 Defendant testified that he "didn't get that much sleep" and 

was "hungry" during the interrogation period. He had no prior 

experience with police questioning and recalled that he "was 

scared," "didn't really understand" his Miranda rights, and spoke 

to Squyres only to avoid the "detention home." He acknowledged 

reading, correcting, and initialing the "rights form" and 

statement. Defendant's father testified that he had "mental 

problems," academic difficulties, and often misunderstood 

"things." Although the trial court initially suppressed 

 

 2"Verbal IQ of 74," "performance IQ of 61," and "Full Scale 

IQ of 67." 
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defendant's confession for reasons apparently attributed to 

defendant's intellectual deficits, "behavorial problems," and the 

absence of parent or legal guardian at the time of waiver, the 

trial judge subsequently reversed this decision after reviewing 

Wright v. Commonwealth, 245 Va. 177, 427 S.E.2d 379 (1993). In a 

letter opinion, the trial judge found the "facts of the Wright

case . . . compellingly similar in almost every detail," "on 'all 

fours'" with the instant case, and concluded that defendant 

knowingly, intelligently, and voluntarily waived his Miranda

rights. We agree. 

 Applying the appropriate standards of review, we find that 

the record provides ample support to the trial court's 

determination that defendant knowingly and intelligently waived 

his Miranda rights. Similarly, our independent review of the 

evidence also supports the related finding that the waiver was 

voluntary. The testimony of both Dr. Pasquale and Squyres 

describe an alert and perceptive young defendant, fully cognizant 

of his circumstance and intellectually capable of comprehending 

and coping with those considerations attendant to a voluntary 

waiver of his constitutional rights. See Wright, 245 Va. at 184-

86, 427 S.E.2d at 385-86. 

 Accordingly, we find that the trial court properly allowed 

defendant's confession into evidence and affirm the conviction. 

 Affirmed.
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BENTON, J., dissenting. 

 Following an evidentiary hearing on Hickman's motion to 

suppress his statement, the trial judge found that Hickman had 

not voluntarily and intelligently made the statement, and he 

suppressed the statement. The trial judge later admitted the 

statement because he concluded that Wright v. Commonwealth, 245 

Va. 177, 427 S.E.2d 379 (1993), required him to find as a matter 

of law that the confession was voluntary and intelligently made. 

 I would reverse the trial judge's failure to suppress the 

confession. 

 "If the interrogation [occurs] without the presence of an 

attorney and a statement is taken, a heavy burden rests on the 

government to demonstrate that the defendant knowingly and 

intelligently waived his privilege against self-incrimination and 

his right to retain or appointed counsel." Miranda v. Arizona, 

384 U.S. 436, 475 (1966). Likewise, the burden is on the 

government "to prove, by a preponderance of the evidence, that 

[the defendant's] statement was voluntary." Williams v. 

Commonwealth, 234 Va. 168, 172, 360 S.E.2d 361, 364 (1987), cert.

denied, 484 U.S. 1020 (1988). The Supreme Court "has always set 

high standards of proof for the waiver of constitutional rights." 

Miranda, 384 U.S. at 475. See Johnson v. Zerbst, 304 U.S. 458 

(1938). 

 "The test to be applied in determining voluntariness is 

whether the statement is the 'product of an essentially free and 
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unconstrained choice by its maker,' or . . . whether the maker's 

will 'has been overborne and his capacity for self-determination 

critically impaired.'" Stockton v. Commonwealth, 227 Va. 124, 

140, 314 S.E.2d 371, 381, cert. denied, 464 U.S. 873 (1984) 

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

"In determining whether the waiver was knowing and intelligent, 

the court must examine the totality of the circumstances." 

Roberts v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709, 

711 (1994). 

 The Supreme Court has noted that "admissions and confessions 

of juveniles requires special caution." In re Gault, 387 U.S. 1, 

45 (1967). Thus, when a juvenile is involved, the inquiry into 

the circumstances of the interrogation must include "evaluation 

of the juvenile's age, experience, education, background, and 

intelligence, and . . . whether he has the capacity to understand 

the warnings given him, the nature of his Fifth Amendment rights, 

and the consequence of waiving those rights." Fare v. Michael 

C., 442 U.S. 707, 725 (1979). Indeed, the Court has recognized 

that with juveniles "we deal with a person who is not equal to 

the police in knowledge and understanding of the consequences of 

the questions and answers being recorded and who is unable to 

know how to protest his own interests or how to get the benefits 

of his constitutional rights." Gallegos v. Colorado, 370 U.S. 

49, 54 (1962). Under the best of circumstances, a sixteen year 

old "boy, no matter how sophisticated is unlikely to have any 

conception of what will confront him when he is made accessible 
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only to the police." Id. Thus, the absence of a parent is "a 

circumstance that weigh[s] against the admissibility of the 

confession." Miller v. Maryland, 577 F.2d 1158, 1159 (4th Cir. 

1978). A juvenile's lack of "previous exposure to the criminal 

justice system" is also a factor that weighs against a finding of 

voluntariness. Green v. Commonwealth, 223 Va. 706, 710, 292 

S.E.2d 605, 608 (1982). 

 The trial judge's initial finding that the Commonwealth had 

"failed to meet its burden" to prove the waiver of Hickman's 

rights is supported by the record. Hickman was sixteen years of 

age when he was questioned. He was in the interrogation room for 

six hours without food or liquids. He was questioned in the 

absence of his parent or other relative. Moreover, no evidence 

proved that Hickman had any prior experience with the police. 

 The psychologist who reported to the trial judge regarding 

Hickman's mental status noted that Hickman's full scale IQ was 

"67 (mental retardation)." Hickman's test scores placed him in 

the bottom 2.2 percent of the population. The evaluation 

indicated that Hickman's "subtest profile is essentially 

consistent in the well below average intellectual functioning." 

The psychologist also reported that Hickman was "much younger 

than his stated age, both physically and emotionally," and that 

he displayed "grand immaturity." He also informed the trial 

judge that Hickman's "demonstrated reading ability is rather 

primitive." 

 Although the psychologist had the "impression that 
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[Hickman's] level of intellectual functioning is more accurately 

perceived as being in the borderline to low average range," the 

trial judge found that distinction not to be significant when he 

initially suppressed the statement. Indeed, the record contains 

a report from Hickman's middle school which established that 

Hickman's test score two years earlier also indicated mental 

retardation and placed him in the bottom 2 percent of the 

population. That report states that Hickman "appears capable of 

achieving only near a low 6th grade level." 

 The school records also report that Hickman dropped out of 

school in the fourth grade. When he returned to school in 1991, 

he tested in the mental retardation range and was placed in a 

class for learning disabled students. Although Hickman was in an 

eighth grade class for students who are learning disabled, he was 

placed at that level only because of his age. The school 

psychologist stated that "he is too old to enroll in all 6th 

grade classes, despite his small size" and "that special 

education services should be considered for him." 

 This evidence proved that Hickman's actual mental capacity 

was such that he was not able to comprehend the rights that he 

waived. He was mentally retarded and functioned below the 

intellectual level of a sixth grade child. In reading 

comprehension, Hickman was "generally achieving . . . on 3rd to 

4th grade levels . . . with 63% comprehension." He also lacked 

the ability to grasp abstract concepts. A psychologist reported 

that Hickman had "a learning difficulty making it difficult for 
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him to grasp concepts." The officer's testimony that Hickman 

answered that he understood his Miranda rights did not rebut the 

evidence of Hickman's lack of intelligent capacity to understand 

the waiver. See Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 

1972). 

 The evidence in this case is contrary to the facts upon 

which the Court relied in finding voluntariness in Wright v. 

Commonwealth, 245 Va. 177, 427 S.E.2d 379 (1993). The trial 

judge made no findings that Hickman was not mentally retarded. 

Moreover, none of the other factual circumstances proved in 

Wright applied to Hickman. Finding in Wright that the evidence 

proved that Wright's statement was not involuntary, the Court 

stated: 

 Wright had experienced a number of prior 

arrests. He knew that he had a right to 

remain silent, to have a lawyer present, and 

that what he said could be used against him 

at trial. 

Id. at 184, 427 S.E.2d at 385. None of these apply to Hickman. 

 In finding that the recitation of Miranda warnings cannot 

overcome circumstances that facially negate voluntariness, the 

United States Supreme Court stated: 

 Petitioner had been in the continuous custody 

of the police for over eight hours and had 

not been fed at all during that time. He had 

not been given access to family, friends, or 

counsel at any point. He is an illiterate, 

with only a third grade education, whose 

mental capacity is decidedly limited. Under 

such circumstances the fact that the police 

may have warned petitioner of his right not 

to speak is of little significance. 
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Sims v. Georgia, 389 U.S. 404, 407 (1967). 

 The trial judge correctly found that the evidence did not 

overcome the Commonwealth's heavy burden to prove waiver. 

Nothing in Wright required a different finding. For these 

reasons, I would reverse the refusal to suppress the evidence.