COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
BRANDON LEE KING
v. Record No. 0295-95-3 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA MARCH 19, 1996
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
William F. Quillian, III, for appellant.
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Brandon Lee King (defendant) was convicted by a jury for
aggravated malicious wounding, the related use of a firearm, and
feloniously discharging a firearm from a motor vehicle. On
appeal, defendant complains that the trial court erroneously (1)
declined to suppress his inculpatory statement to police and (2)
failed to declare a mistrial after the Commonwealth referenced
defendant's failure to testify during closing argument. Finding
no error, we affirm the convictions.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to a disposition
of this appeal.
In the early morning hours of April 22, 1994, Bernie
Bernatavicius was shot in the neck and permanently injured. The
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
following day, juvenile petitions were obtained for defendant,
then 16 years of age, and Lynchburg Police Investigator Viar and
Commander Burnette proceeded to defendant's grandmother's home to
effect his arrest. The grandmother, also defendant's "legal
guardian," advised that defendant was not then at the residence.
She authorized the officers "to talk" with defendant, once
apprehended, and requested that they contact her, although she
expressed no desire to be present during questioning. Several
hours later, defendant was arrested, handcuffed, and transported
to police headquarters, arriving at approximately 12:35 a.m. En
route, defendant was advised of his constitutional rights
pursuant to Miranda v Arizona, 384 U.S. 436 (1966), and denied
knowledge of the offenses.
At the stationhouse, defendant was seated at a desk located
in an "office area" of the "investigation bureau." The handcuffs
were removed, and police again advised defendant of his Miranda
rights, using a departmental "rights form," which was read to
1
defendant, "word for word," and reviewed by him. This form
included an affirmation that defendant had read and understood
his constitutional rights and was "willing to make a statement
and answer questions at this time," without "any threats or
promises . . . by the police." Defendant signed and dated the
form at approximately 12:40 a.m.
During the ensuing interview, defendant initially denied
1
The compliance of this form with Miranda is not in issue.
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involvement in the offenses and stated that "he wanted to talk to
a lawyer." Viar replied, "fine," but, as the officers began to
leave the room, defendant volunteered, "[W]ell, I don't really
want to talk to a lawyer right now . . . eventually I'm going to
have to talk to one." 2 Defendant then confirmed that he wanted
"to keep answering . . . questions" and confessed soon
thereafter, repeating his statement for an audio tape which was
completed at 1:22 a.m.
At the time of arrest, defendant was 16 years of age, had
completed the ninth grade, was literate, and possessed an I.Q.
"in the middle of the average range." He was described by the
officers as "very coherent," "intelligently speaking," and alert
during the interview, which spanned approximately 45 minutes.
Although defendant did not request his grandmother's presence
before or during the interrogation, Burnette telephoned
defendant's grandmother twice before beginning the interrogation
and once thereafter, receiving no answer on any occasion.
I. THE ADMISSIBILITY OF DEFENDANT'S CONFESSION
"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,
2
Defendant acknowledges on brief that his request for
counsel was "withdrawn" and argues no violation of Edwards v.
Arizona, 451 U.S. 477 (1981).
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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 reasonable 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 overborne and his capacity for
self-determination critically impaired."'" Wilson v.
Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992)
(citation 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 it is
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desirable to have a juvenile's parent, legal guardian or other
"interested adult" present when the juvenile is interrogated or
waives his or her constitutional rights, "the mere absence of a
parent or [legal guardian] . . . does not render a [juvenile's]
waiver invalid," although it is "a circumstance and factor to be
considered in the totality of circumstances when determining
whether a waiver is knowing and intelligent." Grogg, 6 Va. App.
at 613, 371 S.E.2d at 557; see also Novak v. Commonwealth, 20 Va.
App. 373, 387, 457 S.E.2d 402, 409 (1995).
Here, defendant was fully advised of his constitutional
rights on two occasions and elected to confess to police only
after expressly waiving these safeguards. Defendant's age,
education, intellectual capacity, and conduct, including his
declarations on the "rights form," together with the
circumstances of the interview, all indicate that he acted
knowingly, intelligently, and voluntarily. Although the presence
of defendant's grandmother was not a prerequisite to a valid
waiver of his Miranda rights, police, nevertheless, pursued
reasonable efforts to contact her following defendant's arrest.
We, therefore, find that defendant's statement was properly
admitted into evidence.
Defendant argues, for the first time on appeal, that his
confession was tainted by detention in violation of Code
§ 16.1-247. However, it is well established that this Court will
not consider an argument which was not presented to the trial
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court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d
630, 631 (1991); see Rule 5A:18. Accordingly, we decline to
address this issue.
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II. DENIAL OF MOTION FOR MISTRIAL
During closing argument to the jury, the prosecuting
attorney, after reviewing the Commonwealth's evidence, stated,
And, against that, the defense has offered
the defendant's grandmother to say he
couldn't have done it because he was at home
a half an hour or twenty minutes before the
shooting took place. I'm not saying Mrs.
Clay is a liar. I'm not saying that she is
telling you anything she believes to be a
falsehood. I submit to you that Mrs. Clay is
being a good grandmother and doing everything
she could possibly do for her grandson. But
I also submit to you that Mrs. Clay is
mistaken.
Defendant contends that these comments indirectly referenced his
failure to testify, necessitating a mistrial.
In determining whether a remark falls
within the boundary of the prohibition that a
prosecutor shall not make an adverse comment
before the jury on a defendant's failure to
testify, the test is whether, in the
circumstances of the particular case, "the
language used was manifestly intended or was
of such character that the jury would
naturally and necessarily take it to be a
comment on the failure of the accused to
testify."
Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263
(1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th
Cir. 1955)); Winston v. Commonwealth, 12 Va. App. 363, 370, 404
S.E.2d 239, 243 (1991). The challenged argument in this instance
merely contrasted the weight and credibility of the conflicting
evidence, without inviting either intended or unintended
attention to defendant's silence. Moreover, the trial court
expressly cautioned the jury against such consideration. See
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Martinez v. Commonwealth, 10 Va. App. 664, 669, 395 S.E.2d 467,
470 (1990), aff'd as modified, 241 Va. 557, 403 S.E.2d 358
(1991).
Accordingly, we affirm the convictions.
Affirmed.
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BENTON, J., dissenting.
While I agree that the admission of a juvenile's confession
must be viewed under "the totality of the circumstances," Fare v.
Michael C., 442 U.S. 707, 724-25 (1979); Green v. Commonwealth,
223 Va. 706, 710, 292 S.E.2d 605, 607-08 (1982), failure of the
police to notify appellant's legal guardian that appellant was in
custody and would be interrogated is a significant factor that,
when combined with the other circumstances, renders the
confession involuntary and requires suppression. I would hold
that the record establishes that the Commonwealth did not prove
"by a preponderance of the evidence . . . that [appellant'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).
Special considerations must be addressed when examining
juveniles' confessions. In re Gault, 387 U.S. 1, 55 (1967). The
court must evaluate "the juvenile's age, experience, education,
background, and intelligence, and . . . whether [the juvenile]
has the capacity to understand the warnings given him, the nature
of his Fifth Amendment rights, and the consequence of waiving
those rights." Fare, 442 U.S. at 725. This extensive evaluation
is necessary because "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
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or despair." In re Gault, 387 U.S. at 55. In this evaluation,
the absence of a parent or guardian is "a circumstance that
weigh[s] against the admissibility of the [juvenile's]
confession." Miller v. Maryland, 577 F.2d 1158, 1159 (4th Cir.
1978).
Appellant's grandmother, his legal guardian, asked that she
be notified as soon as the police officers located her grandson.
When the police officers spoke to the grandmother, she initially
gave them a telephone number that was her former number. She
then gave them another number saying she had gotten "a new phone
fairly recently." In addition, however, the police officers knew
where she lived because they spoke to her at her residence when
they were looking for appellant.
When the police officers arrested appellant at his friend's
house, they did not call appellant's grandmother from the
friend's residence and did not stop at her residence. They told
the friend's mother that they "were going to contact [appellant's
grandmother]." They did not. Instead, they put handcuffs on
appellant, and, during the ride to the police station, they began
to talk to him about the crime. When he denied involvement, the
police officers told him "he could be tried as an adult" and that
"he could spend a very long time in prison." Thus, they began
pressuring him before they attempted to contact his grandmother.
Later, when the police officers began to interview appellant
at the police station, he told the officers that he wanted to
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talk to a lawyer. One of the officers "told him fine, that he
would be transported on over to the detention home." Appellant
then said he would continue to talk. The record establishes that
the police officers did not then suspend questioning until
appellant could either consult with a lawyer or discuss with his
grandmother whether to waive his right to counsel.
The grandmother testified that she made three telephone
calls to the police station and that "they wouldn't tell me if
[appellant] was there or not." The following evidence also
suggests that during the interrogation the police officer learned
that appellant's grandmother had called and, even then, made no
effort to send an officer for her:
A. Well, when we placed him under arrest, we
were on Pacos Street, which is off of
Leesville Road here in the city, and placed
him in our patrol car, the car we were
driving, and transported him to the station.
When we got to the station I tried to call
the grandmother at the phone number two
different times. And the phone rang and rang
and I received no answer on the phone?
We went on and talked to Brandon. A short
while later, I don't remember how long it
was, I received a note from the detention
people on duty at the Police Department that
Brandon's grandmother had called and
requested that I call her. I'm not sure
whether she may have been notified that
Brandon had been picked up or what the case
was? I again tried to call her and received
no answer.
We interviewed Brandon, and shortly after
the interview was over the grandmother was on
the phone again to the Detention Unit. They
held her on the phone and contacted me in my
office and transferred the call to me. I
talked to her at that time.
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The police officer's effort was plainly inadequate. The
police officer never checked to determine if he had written the
correct phone number. The police officer also failed to retain
the telephone number he called. Even if he called the correct
number, the record clearly reveals that the grandmother had
difficulty hearing. From the discussion on the record, her
difficulty was apparent and should have been obvious to the
police officer when he spoke to her in person. Even if the
hearing problem had gone unnoticed, the police officer certainly
should have suspected that either appellant's grandmother did not
hear her phone after midnight or he was dialing the wrong number.
The police officers arrested and interrogated appellant
between the late night hours of midnight and 1:30 a.m. Appellant
was placed in handcuffs, warned that he would be treated as an
adult and imprisoned, and taken to the police station. He was
sixteen years of age and of average intelligence. When he asked
for an attorney, he was told that he would be put in the
detention home. Because the police officers had spoken in person
with the grandmother at her home, they knew she lived only a
short distance from the police department. Even though numerous
patrol cars were on duty, the police officers who arrested and
interrogated appellant did not direct any officer to drive to the
grandmother's residence and inform her personally. Clearly, the
police officers exerted a minimal amount of effort in contacting
appellant's grandmother.
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When appellant's grandmother did not answer her phone after
midnight, the police officers commenced an interrogation in which
the appellant waived his Fifth Amendment rights. The police
officers were "deal[ing] 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 protect his own interests or how to get the benefits of
his constitutional rights." Gallegos v. Colorado, 370 U.S. 49,
54 (1962). Other states have recognized the importance of the
presence of a parent or guardian by requiring that an interested
adult be present or available for consultation during the
interrogation of a juvenile and the solicitation of waiver of any
constitutional rights. See Commonwealth v. A Juvenile (No. 1),
449 N.E.2d 654 (Mass. 1983); People v. Saiz, 620 P.2d 15 (Colo.
1980); Commonwealth v. Henderson, 437 A.2d 387 (Pa. 1981).
Indeed, this Court has stated "that it is desirable to have a
parent, counsel or some other interested adult or guardian
present when the police interrogate a juvenile, and . . . even
more desirable to have an interested adult present when a
juvenile waives fundamental constitutional rights and confesses
to a serious crime." Grogg v. Commonwealth, 6 Va. App. 598, 613,
371 S.E.2d 549, 557 (1988).
When the police officers informed appellant of drastic
consequences that he faced, responded to his request for counsel
by preparing him for detention, and provided no opportunity for
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him to consult with his guardian before questioning, their
conduct was unreasonable under the circumstances. As a result,
the police effectively denied appellant the opportunity at a
critical juncture to speak with an adult prior to the
interrogation. The record fails to establish a need to act
hastily at one o'clock in the morning and interrogate this
juvenile without the presence of his grandmother. I would hold
the confession involuntary under "the totality of the
circumstances," because the police took little care to assure the
confession was voluntary when the law demands that the "greatest
care" be exercised. In re Gault, 387 U.S. at 55.
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Brandon Lee King v. Commenwealth
Combined Opinion