A Rehearing En Banc was granted for this case on June 28, 1995.
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Norfolk, Virginia
TERRELL HICKMAN
v. Record No. 1993-93-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA MAY 23, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Leonard B. Sachs, Judge
B. Cullen Gibson for appellant.
Monica Sergent, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Donald R. Curry, Senior Assistant Attorney
General, on brief) for appellee.
Terrell Hickman (defendant), a juvenile transferred for a
trial as an adult, was convicted of first-degree murder and
sentenced to life imprisonment. On appeal, defendant complains
that the trial court erroneously overruled his motion to suppress
his confession. We disagree and affirm the conviction.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to explain our
holding.
"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,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 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 overbourne and his capacity
for self-determination critically impaired."'" Wilson v.
Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992)
(citations 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 we
have recognized the presence of a parent or other "interested
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adult" as a significant consideration in assessing voluntariness
of a juvenile's confession to criminal conduct, we have also
consistently held "that the mere absence of a parent . . . does
not render a [juvenile's] waiver invalid." Grogg, 6 Va. App. at
613, 371 S.E.2d at 557.
Here, before undertaking interrogation of defendant,
Detective Squyres attempted unsuccessfully to contact defendant's
father by telephone 1 and properly advised defendant of his
Miranda rights, using a "legal rights advice" form. Defendant
assured Squyres that he could "read and write" and read aloud
"the first right" from the form to confirm his literacy.
Defendant dated the form correctly and wrote "yes" in response to
each inquiry, rewriting one answer to improve its neatness. The
interview began at 11:18 p.m., and defendant had confessed within
"fifteen or twenty minutes." Squyres advised defendant that a
"taped statement" was required, and defendant confessed "all over
again," finishing at 12:00 a.m.
Squyres then delivered the tape to a "stenographer," and a
transcript was prepared and provided to defendant. Defendant
reviewed the typed statement, noted and corrected several errors,
initialed the "top and bottom" of each page, and signed it at
4:28 a.m. While awaiting the transcript, defendant was alone in
an "interview room," which was furnished with a desk and chairs.
Squyres "checked in on him" a "couple of times," once observing
1
When defendant's father was contacted later in the evening,
he refused to "com[e] down."
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defendant's "head down on the desk," and offered to "buy him a
soda."
Squyres described defendant as "a very sharp man,"
"certainly very streetwise," and "very alert, very awake," and
"very articulate." He recalled that defendant had "no problem at
all reading" the rights form, was "very smooth, no hesitation."
Defendant similarly read "right through" the typed statement,
stopping only when he "wanted to change something."
Although defendant's psychological testing placed him in the
"mental retardation" range, 2 Dr. Thomas Pasquale, a Clinical
Psychologist, concluded that defendant's "level of intellectual
functioning is more accurately . . . in the borderline to low
average range" because the scores were "depressed" by defendant's
"sabotage" of the testing. At the time of the interview,
defendant was in the eighth grade at public school.
Defendant testified that he "didn't get that much sleep" and
was "hungry" during the interrogation period. He had no prior
experience with police questioning and recalled that he "was
scared," "didn't really understand" his Miranda rights, and spoke
to Squyres only to avoid the "detention home." He acknowledged
reading, correcting, and initialing the "rights form" and
statement. Defendant's father testified that he had "mental
problems," academic difficulties, and often misunderstood
"things." Although the trial court initially suppressed
2
"Verbal IQ of 74," "performance IQ of 61," and "Full Scale
IQ of 67."
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defendant's confession for reasons apparently attributed to
defendant's intellectual deficits, "behavorial problems," and the
absence of parent or legal guardian at the time of waiver, the
trial judge subsequently reversed this decision after reviewing
Wright v. Commonwealth, 245 Va. 177, 427 S.E.2d 379 (1993). In a
letter opinion, the trial judge found the "facts of the Wright
case . . . compellingly similar in almost every detail," "on 'all
fours'" with the instant case, and concluded that defendant
knowingly, intelligently, and voluntarily waived his Miranda
rights. We agree.
Applying the appropriate standards of review, we find that
the record provides ample support to the trial court's
determination that defendant knowingly and intelligently waived
his Miranda rights. Similarly, our independent review of the
evidence also supports the related finding that the waiver was
voluntary. The testimony of both Dr. Pasquale and Squyres
describe an alert and perceptive young defendant, fully cognizant
of his circumstance and intellectually capable of comprehending
and coping with those considerations attendant to a voluntary
waiver of his constitutional rights. See Wright, 245 Va. at 184-
86, 427 S.E.2d at 385-86.
Accordingly, we find that the trial court properly allowed
defendant's confession into evidence and affirm the conviction.
Affirmed.
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BENTON, J., dissenting.
Following an evidentiary hearing on Hickman's motion to
suppress his statement, the trial judge found that Hickman had
not voluntarily and intelligently made the statement, and he
suppressed the statement. The trial judge later admitted the
statement because he concluded that Wright v. Commonwealth, 245
Va. 177, 427 S.E.2d 379 (1993), required him to find as a matter
of law that the confession was voluntary and intelligently made.
I would reverse the trial judge's failure to suppress the
confession.
"If the interrogation [occurs] without the presence of an
attorney and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and
his right to retain or appointed counsel." Miranda v. Arizona,
384 U.S. 436, 475 (1966). Likewise, the burden is on the
government "to prove, by a preponderance of the evidence, that
[the defendant'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). The Supreme Court "has always set
high standards of proof for the waiver of constitutional rights."
Miranda, 384 U.S. at 475. See Johnson v. Zerbst, 304 U.S. 458
(1938).
"The test to be applied in determining voluntariness is
whether the statement is the 'product of an essentially free and
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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, cert. denied, 464 U.S. 873 (1984)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)).
"In determining whether the waiver was knowing and intelligent,
the court must examine the totality of the circumstances."
Roberts v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709,
711 (1994).
The Supreme Court has noted that "admissions and confessions
of juveniles requires special caution." In re Gault, 387 U.S. 1,
45 (1967). Thus, when a juvenile is involved, the inquiry into
the circumstances of the interrogation must include "evaluation
of 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 consequence of waiving those rights." Fare v. Michael
C., 442 U.S. 707, 725 (1979). Indeed, the Court has recognized
that with juveniles "we deal 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 protest his own interests or how to get the benefits
of his constitutional rights." Gallegos v. Colorado, 370 U.S.
49, 54 (1962). Under the best of circumstances, a sixteen year
old "boy, no matter how sophisticated is unlikely to have any
conception of what will confront him when he is made accessible
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only to the police." Id. Thus, the absence of a parent is "a
circumstance that weigh[s] against the admissibility of the
confession." Miller v. Maryland, 577 F.2d 1158, 1159 (4th Cir.
1978). A juvenile's lack of "previous exposure to the criminal
justice system" is also a factor that weighs against a finding of
voluntariness. Green v. Commonwealth, 223 Va. 706, 710, 292
S.E.2d 605, 608 (1982).
The trial judge's initial finding that the Commonwealth had
"failed to meet its burden" to prove the waiver of Hickman's
rights is supported by the record. Hickman was sixteen years of
age when he was questioned. He was in the interrogation room for
six hours without food or liquids. He was questioned in the
absence of his parent or other relative. Moreover, no evidence
proved that Hickman had any prior experience with the police.
The psychologist who reported to the trial judge regarding
Hickman's mental status noted that Hickman's full scale IQ was
"67 (mental retardation)." Hickman's test scores placed him in
the bottom 2.2 percent of the population. The evaluation
indicated that Hickman's "subtest profile is essentially
consistent in the well below average intellectual functioning."
The psychologist also reported that Hickman was "much younger
than his stated age, both physically and emotionally," and that
he displayed "grand immaturity." He also informed the trial
judge that Hickman's "demonstrated reading ability is rather
primitive."
Although the psychologist had the "impression that
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[Hickman's] level of intellectual functioning is more accurately
perceived as being in the borderline to low average range," the
trial judge found that distinction not to be significant when he
initially suppressed the statement. Indeed, the record contains
a report from Hickman's middle school which established that
Hickman's test score two years earlier also indicated mental
retardation and placed him in the bottom 2 percent of the
population. That report states that Hickman "appears capable of
achieving only near a low 6th grade level."
The school records also report that Hickman dropped out of
school in the fourth grade. When he returned to school in 1991,
he tested in the mental retardation range and was placed in a
class for learning disabled students. Although Hickman was in an
eighth grade class for students who are learning disabled, he was
placed at that level only because of his age. The school
psychologist stated that "he is too old to enroll in all 6th
grade classes, despite his small size" and "that special
education services should be considered for him."
This evidence proved that Hickman's actual mental capacity
was such that he was not able to comprehend the rights that he
waived. He was mentally retarded and functioned below the
intellectual level of a sixth grade child. In reading
comprehension, Hickman was "generally achieving . . . on 3rd to
4th grade levels . . . with 63% comprehension." He also lacked
the ability to grasp abstract concepts. A psychologist reported
that Hickman had "a learning difficulty making it difficult for
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him to grasp concepts." The officer's testimony that Hickman
answered that he understood his Miranda rights did not rebut the
evidence of Hickman's lack of intelligent capacity to understand
the waiver. See Cooper v. Griffin, 455 F.2d 1142 (5th Cir.
1972).
The evidence in this case is contrary to the facts upon
which the Court relied in finding voluntariness in Wright v.
Commonwealth, 245 Va. 177, 427 S.E.2d 379 (1993). The trial
judge made no findings that Hickman was not mentally retarded.
Moreover, none of the other factual circumstances proved in
Wright applied to Hickman. Finding in Wright that the evidence
proved that Wright's statement was not involuntary, the Court
stated:
Wright had experienced a number of prior
arrests. He knew that he had a right to
remain silent, to have a lawyer present, and
that what he said could be used against him
at trial.
Id. at 184, 427 S.E.2d at 385. None of these apply to Hickman.
In finding that the recitation of Miranda warnings cannot
overcome circumstances that facially negate voluntariness, the
United States Supreme Court stated:
Petitioner had been in the continuous custody
of the police for over eight hours and had
not been fed at all during that time. He had
not been given access to family, friends, or
counsel at any point. He is an illiterate,
with only a third grade education, whose
mental capacity is decidedly limited. Under
such circumstances the fact that the police
may have warned petitioner of his right not
to speak is of little significance.
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Sims v. Georgia, 389 U.S. 404, 407 (1967).
The trial judge correctly found that the evidence did not
overcome the Commonwealth's heavy burden to prove waiver.
Nothing in Wright required a different finding. For these
reasons, I would reverse the refusal to suppress the evidence.
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