COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia
QUINTON CARY
OPINION BY
v. Record No. 0277-02-2 JUDGE ROBERT P. FRANK
MAY 6, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Craig S. Cooley for appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Quinton Cary (appellant) was convicted in a bench trial of
murder, in violation of Code § 18.2-32; two counts of abduction,
in violation of Code § 18.2-48; two counts of use of a firearm in
the commission of a felony, in violation of Code § 18.2-53.1; and
attempted murder, in violation of Code §§ 18.2-26 and 18.2-32. On
appeal, he contends the trial court erred in denying his motion to
suppress his confession. He argues that, as a juvenile, he did
not knowingly, voluntarily, and willingly waive his Fifth
Amendment rights prior to his interrogation by the police. For
the reasons stated, we affirm the convictions.
BACKGROUND 1
Appellant, who was seventeen years old at the time, was
arrested at his home on July 13, 2001 and placed in a police
car. His mother tried to approach the car, but she was denied
the opportunity to talk with her son at that point. Appellant
was taken to police headquarters, but was not brought before any
judicial officer prior to questioning.
Before the interview, Detective James E. Foster advised
appellant of his Miranda rights, see Miranda v. Arizona, 384
U.S. 436 (1966). Appellant signed a waiver form, indicating he
understood his rights. He signed just below the statement, "You
may voluntarily waive or give up the above rights that have been
explained to you and make a statement if you so desire."
The police videotaped the entire interrogation, which
lasted approximately forty minutes. Initially, appellant
claimed he provided the codefendants with a gun, but did not
participate in any of the crimes. Eventually he admitted his
involvement in the offenses, although he continued to claim he
did not actually shoot either of the victims.
The detective testified at the suppression hearing that
appellant could read and write and that he appeared to
understand his rights. Appellant did not appear to be
intoxicated or on drugs. He was "attentive throughout the
1
We only recite the facts surrounding appellant's waiver of
his rights, not the facts of the offenses.
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entire interview." He appeared to "know what was going on."
Detective Foster characterized the appellant as "cordial."
Detective Foster never asked appellant if he wanted to have
a parent present during questioning. Police procedure did not
allow any family members inside the interrogation room during an
interrogation. The detective indicated during his testimony
that no one tried to contact him concerning appellant's arrest.
Michael Sherman, appellant's juvenile probation officer,
testified appellant was convicted of robbery in 2001. The
social history prepared for the disposition of that robbery
indicated appellant had no history of psychological problems.
Although he never completed the ninth grade and was a poor
student, appellant never attended special education classes. He
was frequently absent from school.
Julia T. Cary, appellant's mother, testified she was not
allowed to talk to appellant while he was in the police vehicle.
The officers told her that she would have to "call down" to the
police station. She was unsuccessful in reaching the police by
phone. The police also told Mrs. Cary to "come and see
[appellant]," but she did not do so. At 1:00 a.m., she received
a telephone call from the police, indicating appellant had been
"locked up."
A video of the entire interrogation was admitted into
evidence, and the trial court reviewed the video. In the video,
Detective Foster explained to appellant the procedure he would
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use during the interrogation. Foster said he would first advise
appellant of his rights and the pending charges. He then would
advise appellant of the evidence against him and then he would
allow appellant to tell his "side of the story." The videotape
shows Detective Foster advising appellant of his Miranda rights.
Appellant then indicated he understood those rights. At no
point in the video did appellant ask that a parent or attorney
be present.
Detective Foster, after properly reciting the Miranda
rights and upon appellant acknowledging he understood those
rights, handed appellant a form acknowledging the recitation. 2
The detective told appellant that he could voluntarily waive or
give up those rights that had been explained to him and make a
statement. Foster then said, "What I want you to do is put yes
here that I read you your rights and then sign your name."
Appellant complied with the detective's instructions.
The trial court denied the motion to suppress, finding the
waiver was voluntary and knowing.
2
The form did not provide for a waiver of the Miranda
rights. Instead, the form said, in part, "Do you understand the
rights that have been explained to you?" Appellant wrote "yes"
beside this question. The form then said, "You may voluntarily
waive or give up the above rights that have been explained to
you and make a statement if you so desire." After this
sentence, appellant signed his name.
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ANALYSIS
Appellant does not argue the police failed to inform him of
his Fifth Amendment rights, but instead contends he did not
knowingly, voluntarily, and willingly waive those rights.
Specifically, he complains (1) he was denied access to a parent
or another interested adult; (2) his age and low intelligence
prevented him from properly waiving his rights; and (3) the
procedures employed by Detective Foster prevented appellant from
fully understanding his Miranda rights.
At the trial level, "[a] heavy burden rests upon the
Commonwealth to demonstrate that the accused has made a valid
waiver. Courts must indulge every reasonable presumption
against waiver." Grogg v. Commonwealth, 6 Va. App. 598, 611,
371 S.E.2d 549, 556 (1988) (citations omitted). On appeal,
we view the evidence in the light most
favorable to the Commonwealth as the party
that prevailed below, and grant to its
evidence "all reasonable inferences
deducible therefrom." Giles v.
Commonwealth, 28 Va. App. 527, 532, 507
S.E.2d 102, 105 (1998) (citation omitted).
In addition, we review the trial court's
findings of historical fact only for "clear
error," but we review de novo the trial
court's application of defined legal
standards to the particular facts of a case.
See Ford v. Commonwealth, 28 Va. App. 249,
255, 503 S.E.2d 803, 805 (1998); see also
Ornelas v. United States, 517 U.S. 690, 700
(1996).
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Watts v. Commonwealth, 38 Va. App. 206, 213, 562 S.E.2d 699,
702-03 (2002). See also Commonwealth v. Peterson, 15 Va. App.
486, 487, 424 S.E.2d 722, 723 (1992).
Juveniles are guaranteed the same constitutional rights
against self-incrimination and right to counsel during custodial
interrogation as adults are provided; they are also permitted to
waive those rights. Grogg, 6 Va. App. at 611, 371 S.E.2d at
556.
"The test to be applied in determining
voluntariness [of waiver] is 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
self-determination critically impaired.'"
Stockton v. Commonwealth, 227 Va. 124, 140,
314 S.E.2d 371, 381 (1984) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 225
(1973)). The Commonwealth, however, must
prove not only that the waiver was
voluntary, but also knowing and intelligent.
Edwards [v. Arizona, 451 U.S. 477, 483-84
(1981)].
* * * * * * *
In deciding the question whether an accused
has knowingly and intelligently waived these
rights established in Miranda, and thus
whether statements made by an accused during
custodial interrogation are admissible
against him, an inquiry into the totality of
the circumstances surrounding the
interrogation must be made. Fare [v.
Michael C., 442 U.S. 707, 725 (1979)]
(citing Miranda, 384 U.S. at 475-77). The
Supreme Court held in Fare that the totality
of circumstances approach is appropriate
where the issue is whether a juvenile has
made a valid waiver. 442 U.S. at 725. Our
Supreme Court adopted this approach in
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Harris v. Commonwealth, 217 Va. 715, 719-20,
232 S.E.2d 751, 754-55 (1977), and Green v.
Commonwealth, 223 Va. 706, 710, 292 S.E.2d
605, 607-08 (1982).
"The totality [of the circumstances]
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." Fare, 442 U.S. at 725; see
also Green, 223 Va. at 710, 292 S.E.2d at
607; Harris, 217 Va. at 719-20, 232 S.E.2d
at 755.
Grogg, 6 Va. App. at 612, 371 S.E.2d at 556. As the Supreme
Court said in in re Gault, "the greatest care must be taken to
assure that the admission was voluntary, in the sense not only
that it was not coerced or suggested, but also that it was not
the product of ignorance of rights or of adolescent fantasy,
fright or despair." 387 U.S. 1, 55 (1967).
Appellant maintains, as a juvenile, he should have been
brought before a judge or intake officer, "in the most expedient
manner practicable," pursuant to Code § 16.1-247. 3 If the police
had followed the procedure in the Code, appellant argues, then
3
Appellant does not contend a violation of this statute has
any constitutional implications. He cites this statute only in
the context of his claim that a juvenile has a right to the
presence of a parent while police question him. See Roberts v.
Commonwealth, 18 Va. App. 554, 559, 445 S.E.2d 709, 712 (1994)
(finding Code § 16.1-247 is procedural, and any failure to
adhere to its provisions does not result in a per se violation
of appellant's Fifth Amendment rights).
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his parents would have received notice of the action taken.
Thus, appellant contends he would have had access to a parent
during questioning. Appellant contends that, without a parent
or other adult present, the officer should have asked
specifically whether he was waiving each Miranda right. 4
Under Grogg, the absence of a parent does not necessarily
invalidate a waiver, but instead constitutes a "circumstance and
factor to be considered in the totality of the circumstances."
6 Va. App. at 613, 371 S.E.2d at 557. Appellant did not request
the presence of a parent. Therefore, while their absence is a
factor to consider, we will not overturn the trial court's
ruling based on this factor alone.
Appellant also contends he was unable to knowingly waive
his rights because he was of "low intelligence," "immature,"
"susceptible," "helpless," "confused," "afraid," and "duped."
The record belies these characterizations.
Detective Foster testified appellant appeared to understand
his rights. Indeed, appellant said he understood those rights.
He appeared to understand the entire process. He did not appear
intoxicated or "on drugs." He was "cordial."
4
While appellant did not explicitly waive his rights,
either orally or in writing, no argument is made on appeal that
appellant did not waive his rights. He instead argues only that
his waiver was invalid. See North Carolina v. Butler, 441 U.S.
369 (1979) (finding waiver can be implicit); Harrison v.
Commonwealth, 244 Va. 576, 582, 423 S.E.2d 160, 163 (1992)
(noting explicit waiver is unnecessary).
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Appellant was seventeen years old. He could read and
write. The record indicates, while appellant did not complete
the ninth grade and was a poor student with poor attendance, he
was not in special education classes. He had no psychological
or psychiatric illnesses. Appellant also had prior contact with
the judicial system, having been adjudicated guilty of robbery
earlier in 2001.
The trial court reviewed the video, concluding Detective
Foster was "not impolite" and "not authoritative." The court
found the atmosphere was "very relaxed." The trial court found
"no indication to me of anything other than a voluntary and
knowing waiver."
The record does not support appellant's contention that he
was too immature and uneducated to waive his rights. The trial
court could properly find appellant was capable of understanding
and waiving his Fifth Amendment rights.
Finally, appellant challenges the procedure with which he
was advised of his Miranda rights and in which the detective
obtained his waiver. He claims Detective Foster "did not give a
clear and fair rendition of the warnings which would enable an
adolescent to understand them." He contends the detective
presented the Miranda warnings as a "collateral matter."
Appellant also claims he failed to read the rights form prior to
signing it because the detective simply told him to "put yes
here that I read you your rights and sign your name."
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The detective explained to appellant the procedure for the
interrogation. Foster said he would first advise appellant of
his rights and the charges. He then would advise appellant of
the evidence they had against him, and then he would allow
appellant to tell his "side of the story." Contrary to
appellant's claim, this procedure did not present the Miranda
rights as a collateral matter. The videotape clearly indicates
Detective Foster advised appellant of his Miranda rights. After
properly reciting the Miranda rights and upon appellant's
acknowledgement that he understood those rights, the detective
handed appellant the rights waiver form. He told appellant that
he could voluntarily waive or give up those rights that have
been explained to him and make a statement, if he so desires.
Foster then said, "what I want you to do is put yes here that I
read you your rights and then sign your name." Appellant
complied with the detective's instructions. Nothing in the
course of this procedure minimized the importance of these
rights or appeared to confuse appellant.
We conclude, after considering the totality of the
circumstances and the standard of review, that appellant
knowingly, intelligently, and voluntarily waived his Fifth
Amendment rights. Appellant was a seventeen year old who had
prior contact with the police and the judicial system. While a
parent was not present, he did not ask that an adult be present.
No evidence indicated he was of "low intelligence" or had a
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history of mental illness. Detective Foster testified appellant
did not appear intoxicated or "on drugs." Indeed, appellant was
attentive and appeared "to know what was going on."
The detective accurately advised appellant of his Miranda
rights, and appellant indicated he understood those rights. The
record does not reveal appellant was coerced into waiving these
rights. Appellant was of sufficient age, competence, and
experience to fully understand his rights and the consequences
of his waiver.
The trial court's findings are well supported by the
record. We affirm the judgment of the trial court.
Affirmed.
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