COURT OF APPEALS OF VIRGINIA

Present: Judges Fran k, Kelsey and Alston Argued at Chesapeake, Virginia

LAROD NAYQUA N ROBINSON OPINION BY v. Record No. 0207-13-1 J UDGE ROSSIE D. ALSTON, JR. APRIL 29, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge Christina E. James for appellant. Kathleen B. Martin, Senior Assist ant Attorney General (Kenneth T. Cuccinelli, II, 1 Attorney General, on brief), for appellee.

Larod Nayquan Robinson (appellant) appeals his convictions of r obbery, two counts of use of a firearm, possession of a firearm as a juvenile, and aggravated maiming. On appeal, appellant alleges that the trial court (i) “erred in denying appellant’s motion to suppress despite Detective Rodey’s refusal of appellant’s multiple requests to speak to his mother during his custodial interrogation, rendering th e subsequent statements invol untary,” and (ii) “erred in denying appellant’s motion to suppress despite Dete ctive Rodey’s misreprese ntation to appellant of his legal status as a juvenile and the consequences of failing to make a statement to the police

in violation of his Fifth Amendment ri ghts.” Finding no error, we affirm. I. Background On November 6, 2010, appellant, fifteen y ears old at the time, and two friends approached Nathaniel Gleaton ou tside a Miller Mart in Hamp ton, Virginia. During the

1 Mark R. Herring succeeded Kenneth T. Cuccinelli, II, as Attorney General on January 11, 2014.PUBLISHED- 2 - encounter, appellant pointed a silver ha ndgun at Gleaton and demanded he hand over a distinctive gold necklace he was wearing. Appe llant and Gleaton strugg led, and appellant fired two gunshots, one of which hit Gleat on in his abdomen and the other in his chest. Gleaton fell to the ground, and his necklace was take n. At that time, a witness driving by saw appellant running from the Miller Mart while putting a gun in hi s pocket. A black knit hoody sweatshirt was found at the scene and tested for DNA, which la ter came back as a match for appellant. At some point after the attack, appellant let Ronald Lee wear Gl eaton’s necklace. Lee took pictures of himself wearing the neck lace, which Diamond Johnson later posted on Facebook. Detective Steven Rodey of the Hamp ton Police Department became aware of the Facebook postings and questioned Ms. Johnson, who identified Lee as the person in the photographs wearing Gleaton’s necklace. Detectiv e Rodey obtained a search warrant for Lee’s home, where he found a silver handgun. Forensic ballistics testing determ ined that the silver handgun found at Lee’s home was the gun used to shoot Gleaton. Lee informed Detective Rodey that appellant gave him the handgun to hold at his house and Lee left it there when they went to a game. In late May/early June of 2011, Detective Rodey, armed with wa rrants for appellant’s arrest, picked up appellant at Newport News Detention Center 2 and transported him to the Hampton Police Department for questioning re garding Gleaton’s shooting. Appellant was placed in an interview room, given a drink, and le ft alone for approximately six minutes before

2 Appellant was in the Newport News Detention Center awaiting sentencing on convictions for armed robbery and malicious wou nding. Somewhat signifi cant for the analysis herein is that the events givi ng rise to appellant’s convictio ns in these matters occurred chronologically after Gl eaton’s shooting at the Miller Mart. However, appellant was arrested, certified as an adult, and found guilty of these offenses prior to being identified and brought in for questioning regarding his involvement in Gl eaton’s shooting. For purposes of this opinion, we will refer to those offenses to which appellan t had already pled guilty as appellant’s “prior convictions” or the “prior charges.”- 3 - Detective Rodey commenced the interview. 3 Detective Rodey conducted the interview, sitting across from appellant, and Detective Gainer was al so present for much of it. At the beginning of the interview, Detective Rodey presented appell ant with a Miranda waiver form and read his rights out loud to appellant. Appellant initialed the form on each line and signed the waiver. Detective Rodey advised appellant that he wanted to talk to him about an incident that occurred

outside a Miller Mart in November 2010. Init ially, appellant denied any involvement. Approximately sixteen minutes into questioni ng, appellant asked for his mother. In response to appellant’s first request, Detective R odey told him he could call his mother when he went over to “lock up” and that, due to his cert ification as an adult in his prior convictions, appellant was “a man” and therefore considered an adult. Appellant proceeded to ask for his

mother five more times over the course of the next ten minutes. Detective Rodey responded that appellant could talk to his mother but would ha ve to speak to him (Detective Rodey) first. Detective Rodey also told appellant that hi s mother would be defensive and probably tell appellant not to say anything to the officers and that would hu rt appellant. Appellant began crying after his fifth request for his mother and subsequently confessed to his involvement in robbing and shooting Gleaton out side the Miller Mart. The entire interview lasted approximately five and a half hours total, however the releva nt portion leading up to appellant’s confession lasted approximately twenty-five minutes. Appella nt was later indicted on one count of robbery, two counts of using a firearm while committing a felony, one count of possession of a firearm while under 18 years of age, and one c ount of aggravated malicious wounding. Prior to trial appellant moved to suppress hi s confession, asserting th at Detective Rodey’s refusal to allow appellant to speak to his mother when the request was made and the misrepresentation of appellant’s st atus as an adult violated appella nt’s Fifth Amendment rights.

3 The interview was videotaped, and a DVD of the interview was admitted into evidence at trial.- 4 - At the hearing on appellant’s motion to suppress, Timothy Prioleau, appellant’s parole officer at the time he was committed by the Hampton Circuit Court in May 2011 as a result of his prior convictions, testified. Prioleau testified that appellant was identified as emotionally disturbed by Newport News Pub lic Schools in November 2009. Pr ioleau also testified that appellant attended Newport Academy, New Horiz ons Regional Educational Center, for the 2010-2011 school year as a ninth gr ade student. According to Pr ioleau, appellant was absent from school twenty-nine days the first semester. That same semester, appellant earned four C’s, three D’s, and one A. Appellant’s mother, Phyllis Shanay Wesley, also testified and stated that appellant had been in an alternat ive school since third grade. Ms. Wesley testified that appellant read at a seventh grade level and that her s econd grade daughter was a better writer than appellant. The trial court denied appellant’s motion to suppress, finding appe llant’s confession was voluntary. As a result, appellan t entered conditional pleas of guilty pursuant to Code § 19.2-254 on the four felony counts against him and entered an Alford plea 4 on the misdemeanor count of possession of a firearm while under 18 years of ag e. The trial court subsequently sentenced appellant to forty years’ incar ceration with thirty years susp ended on the robbery conviction, three years’ incarceration on the first conviction for use of a fi rearm, five years’ incarceration on the second conviction for use of a firearm, tw elve months’ incarceration on the conviction for possession of a firearm as a juvenile, and forty ye ars’ incarceration with thirty years suspended on the aggravated malicious wounding c onviction. This appeal followed.

4 North Carolina v. Alford, 400 U.S. 25 (1970).- 5 - II. Analysis 5 On appeal, appellant asserts that the trial court erred in denying his motion to suppress because Detective Rodey’s refusal to honor appella nt’s requests to see his mother rendered his subsequent confession involuntary. Appellant also argues that De tective Rodey’s representation of appellant’s status as an adult, based on his cer tification as an adult for the prior charges, was incorrect and therefore misled appellant and violated his Fifth Amendment rights. “On appeal, we review the evidence in the li ght most favorable to the Commonwealth as the party that prevailed below, and grant to its evidence ‘all reasonable inferences deducible therefrom.’” Cary v. Commonwealth, 40 Va. App. 480, 486, 579 S.E.2d 691, 694 (2003). “[W]e review the trial court’s find ings of historical f act only for ‘clear error,’ but we review de

novo the trial court’s application of defined legal sta ndards to the particular facts of a case.” Id. “‘Whether a statement is voluntary is ultimatel y a legal rather than a factual question, but subsidiary factual decisions are entitled to a presumption of correct ness.’” Rodriguez v. Commonwealth, 40 Va. App. 144, 156, 578 S.E.2d 78, 83 (2003) (quoting Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)). “Thus, ‘[this Court is] bound by the trial court’s subsidiary factual findings unless those findings ar e plainly wrong.’” Id. (quoting Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992)). “In assessing voluntariness, the [C]ourt must 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 overborne and his capacity for sel f-determination critically impaired.’” Roberts v. Commonwealth, 18 Va. App. 554, 557, 445 S.E .2d 709, 711 (1994) (quoting Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381, cert. denied, 469 U.S. 873 (1984)). “Just as in assessing whether th e waiver of one’s Miranda righ ts was knowing and intelligent, a

5 Because both of appellant’s assignments of error address the voluntariness of his confession, we will discuss both as signments of error together.- 6 - court determining whether a confession was voluntar y must consider both ‘the details of the interrogation’ and ‘the charac teristics of the accused.’” R odriguez, 40 Va. App. at 157, 578 S.E.2d at 84 (quoting Kauffman v. Comm onwealth, 8 Va. App. 400, 405, 382 S.E.2d 279, 281 (1989)). “Such factors include ‘the purpose and flagrancy of a ny police misconduct, ’ ‘the length of the interview,’ and any ‘moral or psychological pressures to c onfess from official sources.’” Id. (quoting Morris v. Common wealth, 17 Va. App. 575, 579, 439 S.E.2d 867, 870 (1994)). “As

with the assessment of the voluntariness of a waiv er of Miranda rights, ‘coercive police activity is a necessary predicate to finding that a confessi on is not “voluntary” . . . .’” Id. at 157-58, 578 S.E.2d at 84 (quoting Colorado v. Co nnelly, 479 U.S. 157, 167 (1986)). “‘Inasmuch as the degree of pressure necessary to crush one’s will varies with the

individual and the circumstan ces of the arrest and detent ion, a finding of coercion and involuntariness must be based upon a careful consideration of the totality of th e circumstances.’” Hill v. Commonwealth, 52 Va. App. 313, 319, 663 S.E.2d 133, 136 (2008) (quoting Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir. 1977)). “The totality [of the circumstances] approach permits - - indeed, it mandates - - inquiry into all the circumstances surrounding the interrogation. This includes eval uation of the juvenile’s age, experience, education, backgr ound 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.” Grogg v. Commonwealth, 6 Va. App. 598, 612, 371 S.E.2d 549, 556 (1988) (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). A conf ession may be involuntary when induced by a “‘threat or promise of illegitimate action.’” Hill, 52 Va. App. at 322, 663 S.E.2d at 137 (quoting United States v. Contreras-Del Toro, 892 F. Supp. 159, 160 (N.D. Tex. 1995)). However, “[v]oluntariness is not equated w ith the absolute absence of intim idation.” Id. at 319, 663 S.E.2d at 136 (citing United States v. Pelton, 835 F.2d 1067, 1072 (4th Cir. 1987)). Indeed, while “[a]- 7 - deliberate falsehood by a police officer in the co urse of his duties” is not condoned, it will not render a confession involuntary unl ess it “impede[s the defendant’s] . . . ‘ability to understand the nature of his rights and the consequences of abandoning them.’” Wilson, 13 Va. App. at 554, 413 S.E.2d at 658 (quoting Foster v. Comm onwealth, 8 Va. App. 167, 174-75, 380 S.E.2d 12, 16 (1989)).

Federal and state courts have long-recognized the importance of taking particular care when assessing whether a juvenile ’s admissions are voluntary. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense that not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adol escent fantasy, fright, or despair. In re Gault, 387 U.S. 1, 55 (1967). The presence of a parent, however, is not dispositive of whether a juvenile’s confession was made voluntar ily. Rather, the absence of a parent is “‘a circumstance that weigh[s] against the admissi bility of the confession.’ ” Grogg, 6 Va. App. at 613, 371 S.E.2d at 557 (quoting Miller v. Mary land, 577 F.2d 1158, 1159 (4th Cir. 1978)). In Potts v. Commonwealth, 35 Va. App. 485, 546 S.E.2d 229 (2001), we considered a similar factual scenario to that presented in this case. In Potts, the seventeen-year-old suspect, Kevin Potts, was arrested outsi de of his mother’s house and taken to a police station for questioning. Id. at 489, 546 S.E.2d at 231. Detec tive Mollen placed Potts in an interview room, removed his handcuffs, and offered him a drink and an opportunity to use the restroom. Id.

Detective Mollen read Potts his Mi randa rights at the beginning of the interview and asked Potts if he understood his rights, to which Potts re sponded he did. Id. at 490, 546 S.E.2d at 231.

Detective Mollen knew that Potts had not been attending school regula rly and that he had previously been arrested on othe r minor charges. Id. While the detective did not know if Potts had experienced police interrogation before, he “ likely knew” that Potts’s mother made several- 8 - demands to officers that her son not be questioned without the pr esence of an attorney. Id. Approximately one minute into the interview, Potts st ated that he wanted to speak to an attorney. Id. Potts also asked if he could speak with his mother, to which Detective Mollen answered “Nope.” Id. at 490, 546 S.E.2d at 232. Potts re sponded “Nope? What’s up with the lawyer

then?” Id. Detective Mollen stated that Potts “would get [a lawyer] when [he] got one.” Id. Potts then asked, “What’s that mean?” Id. at 491, 546 S.E.2d at 232. Dete ctive Mollen said he could not put him on the phone with a lawyer at that moment, but that Potts was “arrested, and [he would] be charged and we’ll ju st go from there.” Id. Potts then stated he did not want a lawyer, asked Detective Mollen what he wanted to know, and subsequently confessed. Id.

This Court affirmed the trial court’s deni al of appellant’s motion to suppress his confession, holding it was voluntary. Id. at 497, 546 S.E.2d at 235. The Court noted that Potts, though a high-school dropout, was intelligent an d articulate, seemed fine and sober; was responsive to questions; did not have trouble focusing, and remained calm, despite crying at times. Id. at 496, 546 S.E.2d at 234. Furthermor e, the Court found no evidence of coercion as Potts was questioned in a room big enough for him to move around in by one plainclothes detective, he wore no restraints, and Detective Mo llen never threatened him or told him to keep talking after Potts requ ested an attorney. Id. at 496-97, 546 S.E.2d at 235. As coercion is a “necessary predicate for a finding that a confe ssion is involuntary,” Potts’s confession was voluntary. Id. at 497, 546 S.E.2d at 235. In this case, many of the circumstances su rrounding Potts’s confessi on were the same for appellant. 6 Appellant was placed in a room without restraints, given a drink, and an opportunity to use the restroom. He gave no indication of being under the influence of drugs, responded to questions asked, and remained calm, despite cryi ng towards the end of the interview when he

6 Notably, however, unlike Potts, ap pellant never asked for counsel.- 9 - confessed. The portion of the inte rview leading up to appellant’s c onfession lasted less than half an hour. Additionally, Detective Rodey read appe llant his Miranda rights aloud at the beginning of the interview and appellant signed the waiver form. Thro ughout the videotaped interview, 7 Detective Rodey sat across a table from appellant and his demeanor, tone, and language while questioning appellant were neither aggressive nor threatening. While it is clear from Prioleau’s and appellant’s mother’s testimony that appellant had some emotional an d learning disabilities, those issues did not prevent appellant from progressing thro ugh school and earning passing grades. While his attendance and academic records are not ideal, neither are they so lacking that we can say appellant’s ability to understand the extent and nature of his rights was so impaired as to render his confession involuntary. Furthermore, while Detective Rodey’s statements to appellant that he was considered an adult for purposes of the ne w charges were inaccurate, 8 appellant never argued that the

7 Because the interview was videotaped and ma de part of the record, the Court took the opportunity to view the relevant portion.

8 It appears from the record that based on th e fact that appellant had previously been certified as an adult with resp ect to the prior convictions for which he was being held at the Newport News Detention Center, Detective Rode y believed appellant would be charged as an adult. Detective Rodey had conferred with th e Commonwealth’s Attorney and obtained warrants for appellant’s arrest for his involvement in Gleaton’s shooting. Detective Rodey was advised sometime after appellant’s confession that due to the fact that appellan t had already been found guilty on the prior charges, appellant would have to be held in custody on petitions through the juvenile and domestic relations district court for the new ch arges arising from Gleaton’s shooting. We note that Code § 16.1-271 does not apply in this case. Code § 16.1-271 provides in relevant part that: Any juvenile who is tried and c onvicted in a circuit court as an adult under the provisions of this article shall be considered and treated as an adult in any criminal proceeding resulting from any alleged future criminal acts and any pending allegations of delinquency which have not been disposed of by the juvenile court at the time of the crim inal conviction. (Emphasis added.)- 10 - misrepresentation was intentional or made in ba d faith. More importantly, the misrepresentation

does not rise to the level of su ch deliberate deception or coercion as would compel appellant to involuntarily confess. Indeed, Detective Rodey’ s statement did not “impede [appellant’s] . . . ‘ability to understand the nature of his rights and the consequences of abandoning them.’” Wilson, 13 Va. App. at 554, 413 S.E.2d at 658 (quo ting Foster, 8 Va. App. at 174-75, 380 S.E.2d at 16). Appellant had been made aware of a nd acknowledged his Miranda rights and, moreover, it was not his first experien ce with the justice system. For these same reasons, we cannot say that Detective Rodey’s refu sal of appellant’s requests to see his mother rendered appellant’s confession involuntary or coerced. At its core, this case assesses the significance of a juveni le’s request for a pare nt in the context of determining the voluntariness of a subsequent confe ssion, an issue that has not been specifically addressed by the Supreme Court or this Court. Indeed, while this case may highlight significant concerns previously raised in the jurispruden ce relating to law enforcement personnel declining to honor a minor’s request to see his parent when subjected to custodial interrogation, given the specific facts of this case, we cannot say that appellant’s confession was coerced. Appellant was not unfamiliar with the justice system. He had recently pled guilty to and was awaiting sentencing on very similar charges of armed robbery and malicious wounding. Detective Rodey did not do anything to overbear appellant’s will or physically intimidate appellant to obtain the confession. To the contrary, Detect ive Rodey stated that appellant c ould talk to his mother later. Finally, before ever asking for his mother and less than thirty minutes before his confession,

Because the events giving rise to appellant ’s prior convictions occurred chronologically after Gleaton’s shooting at the Miller Mart, Gleaton’s shooti ng was not an “alleged future criminal act.” Furthermore, charges against a ppellant for Gleaton’s shoo ting were not pending at the time of appellant’s prior convictions. Ther efore, Detective Rodey’s statement to appellant that he was considered an adult, while ma de in good faith, was in fact inaccurate.- 11 - appellant had been informed of his Miranda rights, acknowledged his understanding of them, signed a waiver to that effect , and never requested counsel. 9 For these reasons, we hold that appellant’s confession was voluntar y and that the trial

court did not err in re fusing to suppress it.

Affirmed.

9 To this end we necessarily conclude that an effective invocation of the right to counsel does not stand on an equal analytical framework to a request for a parent.