COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0101-98-3 JUDGE JERE M. H. WILLIS, JR.
MAY 26, 1998
LEONARD CARL FERGUSON
FROM THE CIRCUIT COURT OF WYTHE COUNTY
J. Colin Campbell, Judge
Robert B. Beasley, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Thomas G. Hodges (Hodges, Campbell & Stanley,
on brief), for appellee.
The trial court found:
[T]he Defendant's statement was not a product
of an essentially free and unconstrained
choice, but his capacity for self[-]
determination was critically impaired to such
degree that his statement was involuntarily
given.
Because the evidence supports that conclusion, we affirm the
judgment of the trial court. We need not address whether
Ferguson was in custody when he gave the suppressed statement.
"The Commonwealth has the burden to prove, by a
preponderance of the evidence, that a defendant's confession was
freely and voluntarily given." Bottenfield v. Commonwealth, 25
Va. App. 316, 323, 487 S.E.2d 883, 886 (1997). In determining
voluntariness, we must inquire whether "the statement is the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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."
Roberts v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709,
711 (1994) (citations omitted) (internal quotation marks
deleted). See also Midkiff v. Commonwealth, 250 Va. 262, 268,
462 S.E.2d 112, 116 (1995). In making such a determination,
"'courts look to the totality of all the surrounding
circumstances,' including the defendant's background, experience,
mental and physical condition and the conduct of the police."
Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722,
723 (1992) (citation omitted). While we must conduct an
independent review of the question of voluntariness, we are bound
by the trial court's subsidiary findings of fact unless they are
plainly wrong. Wilson v. Commonwealth, 13 Va. App. 549, 551, 413
S.E.2d 655, 656 (1992).
Although Ferguson operated his own taxicab business, the
trial court found that he was "a rather unsophisticated mentally
slow individual with no apparent prior criminal history and no
evidence of any understanding of the Constitutional rights
protected under Miranda." This finding is supported by the trial
court's observation of Ferguson and his demeanor in the
courtroom. The evidence disclosed that Ferguson came to Richmond
in response to a summons from investigators of the Attorney
General's Office. Entering the building, he passed an armed
- 2 -
guard who admitted him. Going to an upper floor, he was met by
two investigators of the Attorney General's Office who separated
him from the family members who had accompanied him to Richmond
and took him into a conference room, which required the unlocking
of a door for entry. The investigators closed the door behind
themselves and Ferguson. Ferguson thought the door relocked when
it closed. Ferguson was not permitted to leave the room
unaccompanied, even to go to the bathroom. The investigators
explained that they did not want him to become lost in the maze
of offices, but the existence of that maze and of that
accompaniment supported Ferguson's feelings of being ensnared.
Ferguson testified that he was not informed that he was free to
leave or that he could decline to make a statement. This
evidence supports the trial court's conclusion that, as a matter
of fact, a person of Ferguson's character and capabilities would
not feel free to exercise unconstrained choice but would feel
obliged to submit to the demands of the investigators. This
factual determination supports the legal conclusion that
Ferguson's statement was involuntarily given.
The judgment of the trial court is affirmed.
Affirmed.
- 3 -