Rodriguez v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia

JOSE RODRIGUEZ
OPINION BY
v. Record No. 2078-01-4 JUDGE LARRY G. ELDER
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge

Jeanne E. Klapps, Assistant Public Defender
II (Thomas H. Estes, Jr., Deputy Public
Defender; Office of the Public Defender, on
brief), for appellant.

Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

Jose Rodriguez (appellant), a juvenile, appeals from his

jury trial conviction for second degree murder. Appellant was

fourteen years old at the time of the offense. On appeal, he

challenges the constitutionality of Code § 16.1-269.1(B), which

provides for certification to the grand jury of specified

charges of murder or aggravated malicious wounding allegedly

committed by a juvenile fourteen years of age or older upon a

finding of probable cause. In the alternative, he argues the

trial court erroneously refused to suppress his statements to

police, contending that his waiver of Miranda rights was not
knowing and intelligent and that his waiver and statements were

involuntary.

We hold that certification without a transfer hearing as

required by statute did not violate appellant's constitutional

rights. We hold further that the evidence, viewed in the light

most favorable to the Commonwealth, meets the minimum standards

required to support the trial court's conclusion that

appellant's waiver of rights and confession were knowing,

intelligent and voluntary. Thus, we affirm.

I.

BACKGROUND 1

On July 30, 2000, appellant was taken into custody for the

alleged murder of Mario Rubio-Martinez (the victim) in violation

of Code § 18.2-32. On August 25, 2000, the juvenile and

domestic relations district court (district court) conducted a

preliminary hearing pursuant to Code § 16.1-269.1(B). The

district court found that appellant was fourteen years of age or

older at the time of the charged offense and that probable cause

existed to believe appellant committed that offense. It

certified the charge to the grand jury, which indicted appellant

for murder.

1
In reviewing the denial of a motion to suppress, we view
the evidence adduced at the suppression hearing and at trial in
the light most favorable to the Commonwealth. See, e.g.,
DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540,
542-43 (1987).

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 Prior to trial, appellant moved to suppress statements he

made to police when he was interrogated at the police station

shortly following the murder on the ground that the statements

were involuntary. The trial court made specific findings of

fact regarding appellant's courtroom demeanor and level of

sophistication, and it denied appellant's motion to suppress his

statements as involuntary.

Appellant then moved to dismiss on the ground that the

automatic certification provisions of Code § 16.1-269.1(B) were

a violation of his substantive due process rights and right to

counsel. The trial court denied that motion, as well.

In his subsequent jury trial, appellant was convicted for

second degree murder, and he noted this appeal.

II.

ANALYSIS

A.

CONSTITUTIONALITY OF AUTOMATIC CERTIFICATION PROCEDURE

Code § 16.1-269.1 provides in relevant part as follows:

A. Except as provided in subsections B
and C, if a juvenile fourteen years of age
or older at the time of the alleged offense
is charged with an offense which would be a
felony if committed by an adult, the court
shall, on motion of the attorney for the
Commonwealth and prior to a hearing on the
merits, hold a transfer hearing and may
retain jurisdiction or transfer such
juvenile for proper criminal proceedings to
the appropriate circuit court having
criminal jurisdiction of such offenses if
committed by an adult. Any transfer to the

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 appropriate circuit court shall be subject
to the . . . conditions [enumerated in the
statute].

B. The juvenile court shall conduct a
preliminary hearing whenever a juvenile
fourteen years of age or older is charged
with murder in violation of §§ 18.2-31,
18.2-32 or § 18.2-40, or aggravated
malicious wounding in violation of
§ 18.2-51.2.

C. . . . .

D. Upon a finding of probable cause
pursuant to a preliminary hearing under
subsection B . . . , the juvenile court
shall certify the charge, and all ancillary
charges, to the grand jury. . . .

On appeal, appellant concedes the district court acted in

accordance with Code § 16.1-269.1. However, citing Kent v.

United States, 383 U.S. 541, 553-54, 86 S. Ct. 1045, 1053-54, 16

L. Ed. 2d 84 (1966), appellant contends he had a constitutional

right to a transfer hearing and to representation by counsel at

that hearing before being stripped of his juvenile status and

being tried as an adult. We disagree with appellant's

characterization of Kent and hold that no constitutional right

exists to a transfer hearing.

Kent involved a juvenile arrested for various crimes

allegedly committed in the District of Columbia. Under the

existing statutory scheme, he was subject to the exclusive

jurisdiction of the District of Columbia Juvenile Court unless

that court, after "'full investigation,'" chose to "'waive

jurisdiction and order the child held for trial under the

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regular procedure of the court which would have jurisdiction of

such offense if committed by an adult,'" the United States

District Court for the District of Columbia. 383 U.S. at

542-48, 86 S. Ct. at 1048-51 (quoting D.C. Code § 11-914

(1961)). The juvenile court waived jurisdiction, and Kent

challenged that waiver "on a number of statutory and

constitutional grounds," contending, inter alia, that the waiver

was defective because the juvenile court held no hearing, made

no findings, stated no reasons for the waiver, and denied

counsel access to information which, presumably, it relied on in

making its decision. Id. at 552, 86 S. Ct. at 1053.

In concluding that the juvenile court's order waiving

jurisdiction was invalid, the Court held the statute provided

the juvenile court with "considerable latitude" but that "it

assumes procedural regularity sufficient in the particular

circumstances to satisfy the basic requirements of due process

and fairness, as well as compliance with the statutory

requirement of a 'full investigation.'" Id. at 552-53, 86

S. Ct. at 1053. It noted further,

[T]here is no place in our system of law for
reaching a result of such tremendous
consequences without ceremony -- without
hearing, without effective assistance of
counsel, without a statement of reasons. It
is inconceivable that a court of justice
dealing with adults, with respect to a
similar issue, would proceed in this manner.
It would be extraordinary if society's
special concern for children, as reflected
in the District of Columbia's Juvenile Court

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 Act, permitted this procedure. We hold that
it does not.

* * * * * * *

The net, therefore, is that petitioner
-- then a boy of sixteen -- was by statute
entitled to certain procedures and benefits
as a consequence of his statutory right to
the "exclusive" jurisdiction of the Juvenile
Court. In these circumstances, . . . we
conclude that, as a condition to a valid
waiver order, petitioner was entitled to a
hearing, including access by his counsel to
the social records and probation or similar
reports which presumably are considered by
the court, and to a statement of reasons for
the Juvenile Court's decision. We believe
that this result is required by the statute
read in the context of constitutional
principles relating to due process and the
assistance of counsel.

Id. at 554-57, 86 S. Ct. at 1053-55 (emphases added). Thus, the

Court's references to Kent's constitutional rights to due

process and counsel arose in the context of the hearing and

other procedures expressly provided for by the transfer statute

at issue in that case.

The Court in Kent resolved any doubt about the basis for

its decision by stating that it declined

the invitation to rule that constitutional
guarantees which would be applicable to
adults charged with the serious offenses for
which Kent was tried must be applied in
juvenile court proceedings concerned with
allegations of law violations. The Juvenile
Court Act and the decisions of the United
States Court of Appeals for the District of
Columbia provide an adequate basis for
decision of this case, and we go no further.

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Id. at 556, 86 S. Ct. at 1054-55 (emphasis added) (footnote

omitted); see also In re Gault, 387 U.S. 1, 66 n.1, 87 S. Ct.

1428, 1464 n.1, 18 L. Ed. 2d 527 (1967) (Harlan, J., concurring

in part and dissenting in part) (noting that Kent "did not

purport to rest on constitutional grounds"). The Virginia

Supreme Court has expressly agreed with this interpretation,

characterizing Kent as "upholding the right to assistance of

counsel in juvenile court proceedings . . . [under] the Juvenile

Court Act of the District of Columbia, not on the right to

assistance of counsel under the Sixth Amendment." Cradle v.

Peyton, 208 Va. 243, 245-47, 156 S.E.2d 874, 876-77 (1967).

Appellant has cited no controlling legal authority

providing that a juvenile defendant has a constitutional right

to a transfer hearing before being treated as an adult. The

cases he cites provide, at most, that juvenile proceedings,

including transfer proceedings, when provided for by statute,

"'must measure up to the essentials of due process and fair

treatment.'" Anderson v. Commonwealth, 15 Va. App. 226, 229,

421 S.E.2d 900, 902 (1992) (quoting Kent, 383 U.S. at 562, 86

S. Ct. at 107); see Cheeks v. Commonwealth, 20 Va. App. 578,

583-86, 459 S.E.2d 107, 109-11 (1995) (holding that procedure

for juvenile transfer appeal review in circuit court under

former Code § 16.1-269(E) was jurisdictional and that failure to

provide juvenile with statutory review that complied with due

process as "spelled out in Kent" required that juvenile's

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convictions be vacated); see also Lewis v. Commonwealth, 214 Va.

150, 153, 198 S.E.2d 629, 631 (1973) (noting United States

Supreme Court's holdings that, "in juvenile hearings to

adjudicate delinquency[,] . . . a juvenile is entitled to

adequate notice of the charge, the right to counsel, the right

to confrontation and cross-examination of witnesses and the

privilege against self-incrimination" but "refusing to extend

the right to trial by jury to state juvenile delinquency

proceedings").

Finally, as the Commonwealth points out, the Virginia

Supreme Court has expressly held that "the Constitution 'does

not require juvenile transfer hearings nor does it require

additional procedural safeguards for juveniles tried [for]

capital crimes.'" Thomas v. Commonwealth, 244 Va. 1, 7, 419

S.E.2d 606, 609 (1992). Although appellant contends this

language was dicta, the Court relied on this statement as one of

several bases supporting its conclusion that the accused was not

entitled to retract a waiver of his statutory right to a

transfer hearing. Id.; see also Deiter v. Commonwealth, 205 Va.

771, 775, 139 S.E.2d 788, 791 (1965) (noting that dicta is

language that is "not responsive to the question presented and

. . . not necessary to a disposition of the case").

The Supreme Court repeated this holding in Wright v.

Commonwealth, 245 Va. 177, 182-83, 427 S.E.2d 379, 384 (1993),

in which a juvenile challenged the transfer provisions of former

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Code § 16.1-269 on Eighth Amendment grounds. Although the

applicable version of the transfer statute did not list any

offenses for which trial as an adult was mandatory, it provided

for a transfer hearing on motion of the Commonwealth's Attorney

for any juvenile "15 years of age or older . . . charged with an

offense that, if committed by an adult, could be punishable by

confinement in a state correctional facility." Id. at 181 &

n.1, 427 S.E.2d at 383 & n.1. Wright contended the statute

violated his Eighth Amendment rights because it did not "mandate

[individualized] consideration of his moral responsibility and

psychological maturity." Id. at 182, 427 S.E.2d at 384. In

denying Wright's claim, the Court characterized Thomas as

"[holding] that the Constitution does not require transfer

hearings or additional procedural safeguards for juveniles tried

for capital offenses." Id. at 183, 427 S.E.2d at 384; see Novak

v. Commonwealth, 20 Va. App. 373, 382-83, 457 S.E.2d 402, 406-07

(1995) (under version of transfer statute providing that "'the

court may certify the child without making the [amenability to

treatment] finding'" when "'the alleged delinquent act is armed

robbery, rape . . . or murder,'" holding that certification

based solely on fact that charged offense was murder and not on

finding of "unamenab[ility] 'to treatment or rehabilitation'" as

juvenile violated neither equal protection nor due process

(quoting former Code § 16.1-269(A)(3)(b) (emphasis added)); see

also Hughes v. Commonwealth, 39 Va. App. 448, 454-63, 573 S.E.2d

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324, 327-30 (2002) (addressing validity of Code § 16.1-269.1 and

operation of provision divesting juvenile court of jurisdiction

upon transfer pursuant to subsection (B) or (C) in case where

offense for which defendant ultimately was convicted was not

violent felony enumerated in subsection (B) or (C) but rather a

lesser-included offense).

Thus, we reject appellant's claim that Code § 16.1-269.1 is

unconstitutional because it presumes juveniles fourteen years of

age and older who commit the serious crimes listed in that code

section are not amenable to treatment as juveniles and gives

them no opportunity to have a juvenile court make a

determination regarding such amenability.

B.

DENIAL OF MOTION TO SUPPRESS

A suspect must knowingly and intelligently waive his rights

against self-incrimination and to the assistance of legal

counsel in order for a confession made during a custodial

interrogation to be admissible in evidence against him. Morris

v. Commonwealth, 17 Va. App. 575, 579, 439 S.E.2d 867, 870

(1994). Even when a suspect has waived his Miranda rights, his

confession is inadmissible if it was involuntary for other

reasons. See id. At a hearing on a defendant's motion to

suppress a confession, the Commonwealth must prove by a

preponderance of the evidence both that the accused knowingly,

intelligently and voluntarily waived his Miranda rights and that

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the confession itself was voluntary. Mills v. Commonwealth, 14

Va. App. 459, 468, 418 S.E.2d 718, 722-23 (1992). Appellant

challenges both the waiver of his rights and the voluntariness

of his statements.

"[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). 2 In considering this

issue, "'[the trial court] evaluates the credibility of the

witnesses, resolves any conflicts in their testimony, and weighs

the evidence as a whole.'" Id. (quoting Watkins v.

Commonwealth, 229 Va. 469, 477, 331 S.E.2d 422, 429 (1985)). A

finding as to whether the waiver of Miranda rights was knowing

and intelligent must be based on the totality of the

circumstances and "'will not be disturbed on appeal unless

plainly wrong.'" Id. (quoting Watkins, 229 Va. at 477, 331

S.E.2d at 430).

"Whether a statement is voluntary is ultimately a legal

rather than a factual question, but subsidiary factual decisions

2
Appellant contends that this standard of review is "wrong"
and that Virginia courts "ought to undertake an independent
review of" the voluntariness of one's waiver of Miranda rights,
just as they do in reviewing the voluntariness of a confession,
see textual discussion infra. Because appellant cites no
controlling authority for this assertion, we consider ourselves
bound by Harrison and do not entertain appellant's claim
regarding the standard of review in this appeal.

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are entitled to a presumption of correctness." Commonwealth v.

Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)

(citing Miller v. Fenton, 474 U.S. 104, 110, 112, 106 S. Ct.

445, 449, 450, 88 L. Ed. 2d 405 (1985)). Thus, "we are bound by

the trial court's subsidiary factual findings unless those

findings are plainly wrong." Wilson v. Commonwealth, 13

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

In determining whether an individual has voluntarily,

knowingly and intelligently waived his Miranda rights, a court

must conclude

the relinquishment of the right [was]
voluntary in the sense that it was the
product of a free and deliberate choice
rather than intimidation, coercion or
deception. . . . [T]he waiver must [also]
have been made [knowingly and
intelligently,] with a full awareness of
both the nature of the right being abandoned
and the consequences of the decision to
abandon it.

Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89

L. Ed. 2d 410 (1986). Proof of "coercive police activity is

. . . a necessary predicate to a finding that a waiver of

Miranda rights is not voluntary." United States v. Cristobal,

293 F.3d 134, 141 (4th Cir. 2002). Determining whether a waiver

was knowing and intelligent, "[w]here a juvenile is involved,

'. . . includes evaluation of the juvenile's age, experience,

education, background, and intelligence [in order to determine]

whether he has the capacity to understand the warnings given

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him, the nature of his Fifth Amendment rights, and the

consequences of waiving those rights.'" Roberts v.

Commonwealth, 18 Va. App. 554, 557-58, 445 S.E.2d 709, 711

(1994) (quoting Fare v. Michael C., 442 U.S. 707, 717, 99 S. Ct.

2560, 2567, 61 L. Ed. 2d 197 (1979)); see also Potts v.

Commonwealth, 35 Va. App. 485, 495-96, 546 S.E.2d 229, 234,

aff'd on reh'g en banc, 37 Va. App. 64, 553 S.E.2d 560 (2001).

An individual's repeated exposure to Miranda warnings may weigh

in favor of concluding that the individual knowingly and

intelligently waived those rights. Correll v. Commonwealth, 232

Va. 454, 464, 352 S.E.2d 352, 358 (1987).

Assessing whether a confession is voluntary requires an

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 overborne and his capacity for self-determination

critically impaired." Schneckloth v. Bustamonte, 412 U.S. 218,

225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). Just as in

assessing whether the waiver of one's Miranda rights was knowing

and intelligent, a court determining whether a confession was

voluntary must consider both "the details of the interrogation"

and "the characteristics of the accused." Kauffmann v.

Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279, 281 (1989).

Such factors include "the purpose and flagrancy of any police

misconduct," "the length of the interview," and any "moral and

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psychological pressures to confess emanating from official

sources." Morris, 17 Va. App. at 579, 439 S.E.2d at 870. As

with the assessment of the voluntariness of a waiver of Miranda

rights, "coercive police activity is a necessary predicate to

finding that a confession is not 'voluntary' . . . ." Colorado

v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522, 93

L. Ed. 2d 473 (1986).

Although

it 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 . . . , the
mere absence of a parent or counsel does not
render a waiver invalid. . . . [T]he
presence or absence of a parent, guardian,
independent interested adult, or counsel is
. . . [but one] factor to be considered in
the totality of the circumstances . . . .

Grogg v. Commonwealth, 6 Va. App. 598, 613, 371 S.E.2d 549, 557

(1988); see also Potts, 35 Va. App. at 496, 546 S.E.2d at 235

(voluntariness of confession); Novak, 20 Va. App. at 387-88, 457

S.E.2d at 409 (voluntariness of confession). Although "[t]he

absence of a parent or counsel is 'a circumstance that weigh[s]

against the admissibility of the confession,'" Grogg, 6 Va. App.

at 613, 371 S.E.2d at 557 (quoting Miller v. Maryland, 557 F.2d

1158, 1159 (4th Cir. 1978)), we have held that the absence of a

parent or other interested adult "weighs less heavily against

the admissibility of the confession" where the juvenile is given

the opportunity to contact such a person but "decline[s] to do

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so," id. at 614, 371 S.E.2d at 557; see Roberts, 18 Va. App. at

558, 445 S.E.2d at 711; Smith v. Commonwealth, 7 Va. App. 310,

315, 373 S.E.2d 340, 343 (1988).

Here, appellant's age dictates special caution, 3 and no

evidence established he had any prior experience with the

criminal justice system. Nevertheless, we hold the totality of

the circumstances, including the trial court's specific findings

about appellant's courtroom demeanor and level of

sophistication, supported its conclusion that appellant's waiver

of his Miranda rights was knowing, intelligent and voluntary and

that his subsequent confession was voluntary, as well.

Detective Steve Shillingford asked appellant on two

separate occasions whether he wished to have a parent present

during questioning. Appellant told Detective Shillingford that

he believed both his parents were at home, but appellant

declined both of Shillingford's offers to secure the presence of

a parent. The second of those offers came after appellant

learned the victim had died, but appellant again declined the

offer. We must presume, based on the trial court's findings of

fact, that appellant "under[stood] what he [was] involved in"

3
The American Bar Association's Task Force on Youth in the
Criminal Justice System urges particular caution when evaluating
a waiver of substantive rights by "any youth fourteen years of
age or younger." ABA Criminal Justice Section Task Force on
Youth in the Criminal Justice System, Youth in the Criminal
Justice System: Guidelines for Policymakers & Practitioners 15
(2001).

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when he did so. Appellant was not under the influence of drugs

or alcohol at the time of the questioning. He was fluent in

English and had completed the eighth grade. The trial court

noted that, despite appellant's age, it "[could] take the

measure of [appellant] by the way he . . . presented himself

. . . in court [at the suppression hearing]" and that

appellant's presentation "[gave] the Court some idea of

[appellant's] level of sophistication, his ability to understand

what he [was] involved in."

The evidence also established that the police read

appellant his Miranda rights on two different occasions before

he waived them. Appellant first received his Miranda rights

from an unknown officer when he was put in a police car

following his apprehension. The second reading occurred in a

twelve-foot square interview room where only appellant and two

detectives were present. Appellant was not in handcuffs or any

other restraints at that time. Although that reading occurred

at 5:20 a.m., the stabbing itself had occurred at 3:00 a.m., and

the evidence, viewed in the light most favorable to the

Commonwealth, supported a finding that appellant was not too

tired to understand his rights and the consequences of waiving

them.

Detective Shillingford read each right to appellant, and

appellant indicated, either verbally or by nodding his head,

that he understood each right. He also agreed with the

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statement that no promises or threats had been made to him by

anyone. He then agreed to speak to Detective Shillingford about

the stabbing. Although appellant initially expressed some

hesitation about signing the waiver of rights form, he signed

the form willingly after Detective Shillingford explained his

signature indicated only that he understood his rights. In

audiotaped questioning which occurred immediately after

appellant confessed, appellant confirmed that he understood his

rights.

Finally, when appellant testified at the suppression

hearing, he ultimately admitted that Detective Shillingford had

informed him of his Miranda rights prior to questioning and that

he understood them. Although appellant had inquired prior to

being informed of his rights the second time whether he should

have a lawyer, he testified at the suppression hearing that

having his rights read to him answered that question and that he

understood his rights. The trial court concluded appellant's

question about whether he needed a lawyer "indicate[d] that

[appellant] under[stood] why he [was] there and perhaps

under[stood] the nature of what he [was] about to engage in. It

[was] not indicative of a person who was so sleepy that [he was]

not aware of what [was] going on around [him]." It noted that,

although appellant "was perhaps yawning at the station, . . . he

was not indicating anything that would make it apparent that he

wanted to sleep as opposed to undertake the business at hand."

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 Thus, despite appellant's age and the absence of a parent,

counsel, or other interested adult, the totality of the

circumstances supports the trial court's finding that

appellant's waiver of his Miranda rights was knowing and

intelligent under the specific facts of this case.

Citing his right to due process, appellant contends the

police had a duty to explain to him "the true nature of his

situation[,] . . . that he would be charged with first degree

murder, that he would automatically be certified and tried as an

adult, and that he faced the potential of life in adult prison

if he was found guilty of that charge." We disagree. We noted

in Roberts, 18 Va. App. at 558, 445 S.E.2d at 711, that where

the accused, a juvenile, "was informed that he stood charged

with murder and attempted murder, . . . his waiver [of rights]

was not invalid simply because he had not been informed of the

range of punishment for these offenses."

Under the transfer statute in effect when the events at

issue in Roberts occurred, the juvenile court had the discretion

to retain jurisdiction over a juvenile alleged to have committed

a felony or to transfer the juvenile to circuit court for trial

as an adult. See 1993 Va. Acts chs. 6, 908; 1990 Va. Acts

ch. 651 (former Code § 16.1-269). However, we see no reason to

hold that a juvenile must be informed of the punishment he might

face on a murder charge simply because the legislature has

concluded an individual charged with such an offense is not

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amenable to treatment as a juvenile rather than leaving the

decision regarding amenability to the juvenile court.

Although we find instructive the Supreme Court's holding in

Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d

325 (1962), cited by appellant, we conclude that holding does

not require a different result. In Gallegos, the Court said

that

a 14-year-old boy, no matter how
sophisticated, is unlikely to have any
conception of what will confront him when he
is made accessible only to the police.
[Such a person] is not equal to the police
in knowledge and understanding of the
consequences of the questions and answers
being recorded and . . . is unable to know
how to protect his own interests or how to
get the benefit of his constitutional
rights.

370 U.S. at 54, 82 S. Ct. at 1212; see also Haley v. Ohio, 332

U.S. 596, 601, 68 C. Ct. 302, 304, 92 L. Ed. 224 (1948) (holding

interrogation of fifteen year old without parent or attorney

violated due process).

Gallegos is distinguishable from appellant's case.

Although Gallegos confessed "immediately" after being taken into

custody, the Supreme Court noted that the "crucial evidence

introduced at the trial [was] a formal confession which he

signed . . . after he had been held for five days during which

time he saw no lawyer, parent, or other friendly adult." 370

U.S. at 50, 82 S. Ct. at 1210; see also Haley, 332 U.S. at

599-600 (noting that "police, working in relays, questioned

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[juvenile] hour after hour, from midnight until dawn"). Thus,

we do not view Gallegos as holding that a confession made by a

juvenile fourteen years old or younger is per se involuntary if

made in the absence of a parent, counsel or other interested

adult. Rather, we view it as holding that a court should use

special care in scrutinizing the voluntariness of a confession

made by a suspect of that age.

Although we are unaware of any Virginia appellate decisions

upholding the rights waiver of a fourteen-year-old suspect, our

case law makes clear that the age of a juvenile suspect,

although an important factor, is not dispositive and that we

must consider it as part of the totality of the circumstances.

Grogg, for example, involved a suspect who was "a week shy of

his sixteenth birthday," but he had completed only the seventh

grade, and intelligence testing showed his "verbal comprehension

ability fell within the low average range." 6 Va. App. at 614,

371 S.E.2d at 557-58. Under the facts of that case, we held the

evidence supported the trial court's finding that Grogg's waiver

was knowing and intelligent. Id. at 617, 371 S.E.2d at 559.

Grogg was in good physical health, was not under the influence

of any drugs or alcohol, and had one prior appearance in

juvenile court. Id. at 614, 371 S.E.2d at 557-58. He had been

advised of his Miranda rights twice before making his first

statement and an additional two times before making the

statement at issue in that appeal. Id. at 614-15, 371 S.E.2d at

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558. The evidence established that the investigating officer

read each Miranda right to Grogg individually, confirmed that he

understood each right and the nature of the offense about which

he was being questioned, and obtained Grogg's consent to speak

with them without an attorney present. Id. at 615, 371 S.E.2d

at 558.

Here, although appellant was approximately one-and-one-half

years younger than Grogg, Grogg had limited verbal comprehension

skills and had completed only the seventh grade. Appellant, by

contrast, had completed the eighth grade, and no evidence

established below-average intelligence or comprehension. The

trial court, which observed appellant testify at the suppression

hearing, was entitled, as it did, to draw inferences about

appellant's "level of . . . sophistication" and ability to

"understand[] why he [was] there" and "what he [was] involved

in."

Appellant challenges the voluntariness of both the waiver

of rights and the confession itself, alleging the assertion by

police of "authority [over] a suspect who is 'especially

susceptible'" may amount to "coercive police activity." He

makes no "specific allegations of misconduct on the part of the

police."

As the Fourth Circuit Court of Appeals recently emphasized,

"a deficient mental condition (whether the result of a

pre-existing mental illness or, for example, pain killing

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narcotics administered after emergency treatment) is not,

without more, enough to render a waiver [or confession]

involuntary. . . . The evidence [must] show that law

enforcement officials exploited [the accused's] weakened

condition with coercive tactics," Cristobal, 293 F.3d at 141,

although the degree of coercion required is lower where the

suspect's level of susceptibility is higher, see Peterson, 15

Va. App. at 488, 424 S.E.2d at 723. Under this standard, we

hold the evidence, viewed in the light most favorable to the

Commonwealth, supports the trial court's conclusion that

appellant's waiver of rights and confession were voluntary.

The trial court found that the evidence of appellant's

susceptibility to coercion was minimal. Although appellant was

only fourteen years old, he admitted receiving and understanding

his Miranda rights and expressly declined two offers to have a

parent present. The record established that he had an eighth

grade education and was fluent in English, and the trial court,

after observing appellant testify at the suppression hearing,

drew certain inferences regarding appellant's "level of

sophistication" and "ability to understand what he [was]

involved in." Although appellant claimed to have been "really

tired" and inattentive, the trial court resolved this factual

issue largely in the Commonwealth's favor, finding that although

appellant may have "yawned" some "at the station," his behavior

showed an awareness of what was going on around him, and he gave

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no indication to the detectives "that he wanted to sleep as

opposed to undertake the business at hand."

Further, the conduct of the police and the circumstances

surrounding the interview were insufficient to compel a finding

of coercion, explicit or implicit. As discussed in detail,

supra, Detective Shillingford explained the nature of the

offense about which he hoped to question appellant, gave

appellant two opportunities to have a parent present during

questioning, read appellant his Miranda rights, and ascertained

that appellant understood those rights and was willing to speak

with the officers. Detective Shillingford advised appellant of

his Miranda rights at 5:20 a.m. and completed the initial

interview, in which appellant admitted stabbing the victim,

about an hour later. The subsequent audiotaped interview, in

which appellant repeated that confession, lasted approximately

twenty minutes. The entire encounter from the reading of

appellant's rights to completion of the taped interview, lasted

only one-and-one-half hours. Appellant concedes that the police

engaged in no specific misconduct. Any pressure to confess

exerted by the detectives consisted only of Detective

Shillingford's statement that the victim's family and

appellant's friends identified appellant as the perpetrator and

Detective Shillingford's exhortation to appellant "to be

honest."

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 Thus, under the totality of the circumstances, giving

deference to the trial court's findings of fact, we hold the

evidence, although troubling based on appellant's age, supports

the conclusion that appellant's waiver of rights was knowing and

intelligent and that the waiver and confession were voluntary.

III.

For these reasons, we hold that certification of the murder

charge to a grand jury without a transfer hearing, as provided

for in Code § 16.1-269.1, did not violate appellant's

constitutional rights and that the evidence, viewed in the light

most favorable to the Commonwealth, meets the minimum standards

required to support the trial court's conclusion that

appellant's waiver of rights was knowing and intelligent and

that his waiver and confession were voluntary. Thus, we affirm

the conviction.

Affirmed.

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