Bottenfield v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia

CHRISTOPHER D. BOTTENFIELD
OPINION BY
v. Record No. 0921-96-3 JUDGE JOHANNA L. FITZPATRICK
JULY 29, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge

Roland S. Carlton, Jr., for appellant.
Daniel J. Monroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Christopher D. Bottenfield (appellant) was convicted in a

jury trial of aggravated sexual battery in violation of Code

§ 18.2-67.3 and of taking indecent liberties with a minor in

violation of Code § 18.2-370. On appeal, appellant contends that

the trial court erred in: (1) overruling his motion to suppress

his confession; (2) preventing him from arguing the absence of

Miranda warnings to the jury; and (3) allowing the Commonwealth

to amend the indictment. For the following reasons, we affirm.

I. BACKGROUND

On August 25, 1995, Sergeant Dwight Wood (Wood) of the

Augusta County Sheriff's Department asked Christopher D.

Bottenfield (appellant) to come to the Sheriff's Department to

discuss allegations of sexual abuse made by the victim, Kelly

Bottenfield (Kelly). Before the interview began, Wood told

appellant that no charges were pending against him and that he

did not have to discuss the allegations. However, appellant
agreed to meet and talk with Wood regarding the allegations.

The interview, which occurred the following day, lasted

approximately thirty-four minutes and was not recorded. Wood

realized at the beginning of the interview that appellant was

"slow," and he phrased his questions to appellant accordingly.

Following the question and answer part of the interview, Wood

made a list of short statements (a "very, very simple" statement)

relating to the questions and answers. He went over these

statements several times with appellant. Appellant signed the

bottom of the page, and the interview terminated. At no time,

either before or during the interview, were Miranda warnings

given to appellant. After the interview, Wood wrote down from

memory his questions and appellant's responses.

On September 1, 1995, appellant was arrested and on October

23, 1995, he was indicted for attempted rape, sodomy, aggravated

sexual battery, and taking indecent liberties. Appellant filed a

motion to suppress statements made during the August 26, 1995

interview on the basis that this confession was involuntary. On

March 18, 1996, the suppression hearing was held, and the trial

court overruled appellant's motion, finding as follows:
[W]e've got a case here where [] an adult has
been charged with engaging in sexual activity
with a child under the age of thirteen years.
And [] an experienced police investigator
calls him on the phone and asks him if he
will voluntarily come to the Sheriff's
Department. This individual then drives his
own vehicle . . . to the Augusta County
Sheriff's Department.

. . . And the [] investigator talks to him

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 and determines that he is slow. But he also
determines that he has been employed for
seven years and that he does drive. He asks
him some questions. I haven't seen the
questions. I haven't seen the statement. I
don't know what he asked him. I don't know
what the answers are. I don't know whether
the man signed it. The police officer,
again, of twenty some years, believed this
man understood what he was admitting to.
And, if that's the case, gentlemen, the
statement was voluntary.

. . . And if the interrogation is not
custodial, the Miranda . . . presumption
doesn't apply. And this is not a custodial
interrogation.

Wood testified at the jury trial that at the time of the

August 26, 1995 interview, no arrest warrants or charges were

pending against appellant. Wood stated that appellant was free

to leave at any time and that appellant was never told that he

was under arrest or going to be charged. Appellant was not

searched, frisked, or placed in handcuffs. Wood further

testified that, although he realized appellant was "slow,"

appellant was able to carry on an intelligent conversation.

Dr. Joseph Conley, Jr. (Dr. Conley) testified on behalf of

appellant and was qualified as an expert in neuropsychology.

Prior to trial, he interviewed and examined appellant, and

determined that his IQ was sixty-one, which is, according to Dr.

Conley, in the mentally retarded range. He testified at trial

regarding appellant's intelligence, reading ability, reading

comprehension, spelling ability, and mathematics ability, and

concluded that appellant was unable to comprehend the terminology

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used in the confession he signed.

In admitting appellant's statement into evidence, the court

stated that:
[T]he jury is . . . not gonna hear evidence
concerning the . . . admissibility of this
confession. It's not gonna hear evidence
concerning whether this confession was
voluntary, as that . . . term is a legal term
. . . . But, certainly, this man's mental
capability and his ability to understand
words and whatever -- certainly, that is
admissible, because the jury is gonna have to
determine what weight to give to this
confession; not being limited in any respect
with that regard.

(Emphasis added).

At the conclusion of the Commonwealth's case, appellant

moved to strike the Commonwealth's evidence. The motion was

overruled. The Commonwealth then requested to change the code

section of the taking indecent liberties charge, and the court

allowed the amendment. The court specifically found that "the

amendments are technical in nature; they don't change the nature

of the charge in either . . . situation."

II. MOTION TO SUPPRESS

Appellant argued at the pretrial suppression hearing that

the confession obtained during his questioning on August 26, 1995

was "not voluntary as is required by the Due Process Clause of

the Fifth and Fourteenth Amendments." On appeal, appellant

contends that the trial court erred in finding that his

confession was voluntary, because the trial court failed to

independently evaluate the circumstances surrounding his

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confession. Although we agree that the trial court erred when it

apparently relied primarily on Wood's determination that

appellant's statement was voluntary, we also conclude, based on

our independent review of the record, that appellant's confession

was voluntary.

The Commonwealth has the burden to prove, by a preponderance

of the evidence, that a defendant's confession was freely and

voluntarily given. See Wilson v. Commonwealth, 13 Va. App. 549,

554, 413 S.E.2d 655, 658 (1992); Campbell v. Commonwealth, 194
Va. 825, 830, 75 S.E.2d 468, 471 (1953). In determining whether

a statement or a confession was voluntary, the trial court must

decide whether the statement was 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." Commonwealth v.

Peterson, 15 Va. App. 486, 487-88, 424 S.E.2d 722, 723 (1992)

(citations omitted). In so deciding, the trial court must look

to "the totality of all the surrounding circumstances." Id.

(emphasis added). The court must consider the defendant's age,

intelligence, mental and physical condition, background and

experience with the criminal justice system, the conduct of the

police, and the circumstances of the interview. See id.; Morris

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

(1994). Because only state action may violate a criminal

defendant's due process rights, "coercive police activity is a

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necessary predicate to the finding that a confession is not

'voluntary' within the meaning of the Due Process Clause of the

Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167,

107 S. Ct. 515, 522 (1986).

"On appeal, we consider the entire record in determining

whether the trial court properly denied appellant's motion to

suppress." Patterson v. Commonwealth, 17 Va. App. 644, 648, 440

S.E.2d 412, 415 (1994) (citing DePriest v. Commonwealth, 4 Va.

App. 577, 583, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S.
985 (1988)). "[T]he standard for appellate review of whether a

confession is voluntary [] requir[es] an independent examination

of the totality of the circumstances . . . ." Wilson, 13 Va.

App. at 551, 413 S.E.2d at 656; see also Midkiff v. Commonwealth,

250 Va. 262, 268-69, 462 S.E.2d 112, 116 (1995) (voluntariness of

a confession "is a question of law, subject to independent

appellate review").

"The defendant's relatively low intelligence and defective

education are factors which should be weighed, along with all

surrounding circumstances, in determining whether . . . his

confession was voluntary." Simpson v. Commonwealth, 227 Va. 557,

564, 318 S.E.2d 386, 390 (1984) (citation omitted); see also

Connelly, 479 U.S. at 165, 107 S. Ct. at 520-21 (stating that

"mental condition is surely relevant to an individual's

susceptibility to police coercion). However, "a defendant's

mental condition, by itself and apart from its relation to

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official coercion, should [never] dispose of the inquiry into

constitutional 'voluntariness.'" Connelly, 479 U.S. at 164, 107

S. Ct. at 520.

Indeed, in Colorado v. Connelly, the United States Supreme

Court recognized that a defendant's mental condition is "surely

relevant to an individual's susceptibility to police coercion."

Connelly, 479 U.S. at 165, 107 S. Ct. at 521 (holding that

defendant's statement was voluntary, even though defendant argued

that he suffered from chronic schizophrenia and command

hallucinations that interfered with his volitional abilities).

However, the Court also determined that the "mere examination of

the confessant's state of mind can never conclude the due process

inquiry." Id. In its analysis of a defendant's ability to make

a voluntary confession, the Court reasoned that, "[a]bsent police

conduct causally related to the confession there is simply no

basis for concluding that any state actor has deprived a criminal

defendant of due process of law." The Court ultimately held that

"coercive police activity is a necessary predicate to the finding
that a confession is not 'voluntary' within the meaning of the

Due Process Clause of the Fourteenth Amendment." Id. at 167, 107

S. Ct. at 522 (emphasis added). In relying on the Supreme

Court's holding in Connelly, we held that "[t]he amount of

coercion necessary to trigger the due process clause may be lower

if the defendant's ability to withstand the coercion is reduced

. . . but some level of coercive police activity must occur

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before a statement or confession can be said to be involuntary."

Peterson, 15 Va. App. at 488, 424 S.E.2d at 723.

We first hold that the trial court's ruling that appellant's

confession was voluntary was erroneous because the trial court

did not base its conclusion on an analysis of the totality of the

circumstances. In its ruling, the trial court stated:
[Sergeant Wood] asked [appellant] some
questions. I haven't seen the questions. I
haven't seen the statement. I don't know
what he asked him. I don't know what the
answers are. I don't know whether the man
signed it. The police officer, again, of
twenty some years, believed this man
understood the questions that he was being
asked; he understood what he was admitting
to. And, if that's the case, gentlemen, the
statement was voluntary.

(Emphasis added). The trial court apparently adopted Wood's

determination that appellant "understood what he was admitting

to." Because the trial court did not independently consider the

circumstances relevant to the issue of voluntariness, its

decision to deny appellant's motion to suppress his confession

was based upon an erroneous predicate.

However, based upon our review of the entire record adduced,

we hold that appellant's oral confession to Wood was voluntary.

Appellant was asked by Wood to come to the Sheriff's Department

to discuss the allegations against him, and he voluntarily drove

himself to the Sheriff's Department for the interview. Wood told

appellant that no charges were pending against him and that he

did not have to discuss the allegations or speak further. Wood

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testified that the door to his office was open during the entire

interview and that appellant was free to leave at any time. The

first part of the interview consisted of an oral discussion of

the victim's allegations against appellant. Wood phrased his

questions simply and made notes of appellant's oral responses.

Wood testified that he noticed that appellant was "limited in

education" and that he had "to ask [his] questions sometimes more

than once and in different ways, for [appellant] to understand

them." During this stage of the interview, appellant stated

that, among other things, he had made the victim touch and put

her mouth on his penis and that he had touched and placed his

finger inside the victim's vagina. 1
1
At appellant's trial, Wood testified that he had made
notes of his questions and appellant's answers during the oral
stage of the interview. He then read these notes into evidence:

Okay. As I said, this interview was on the
26th of August, and in my office at
approximately 7:30 P.M. "[The victim] said
you have touched her and made her do some
things that she didn't like." His answer,
with no denial, "I've done some things."
"[The victim] said you have--you took her
clothes off, and yours." His answer, "Just
one time." "[The victim] said you laid on
top of her." His reply, "Yes, but I didn't
do anything." My reply to that, "you
didn't-you didn't have any clothes on or she.
That's something that you shouldn't have
done." His answer, "Yes, I guess so."
"Kelly said you made her touch your penis.
She called it your private. Also, that she
put her mouth on your private." His answer,
"Yes, but that's all." I asked him, "Do you
think that's wrong?" His reply, "No, I know
I shouldn't have done that." I asked--I
said, "[Appellant], what do you call
private?" And then I detailed that further

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 The evidence regarding this stage of the interview does not

indicate that appellant's oral confession was coerced in any way

by Wood. In addition, Wood did not use complex questions or

other tactics aimed at exploiting appellant's disability in order

to compel an unintentional confession. On the contrary, Wood

testified that he framed his questions simply and repeated them

several times when it appeared that appellant did not understand.

Here, appellant identifies no coercive tactics used by the

police to overbear his will nor any circumstances that caused him

to be "especially susceptible." Appellant's low IQ standing

alone is insufficient to outweigh all other considerations and to

render the statement involuntary. See also Goodwin v.

"[the victim's]". His answer, "Her doodle."
I asked, "Did you touch her doodle?" His
answer, "One time." I asked, "What did you
touch her doodle with?" His reply, "Finger."
I asked, "Did you put your finger inside?"
His reply, "Just a little. I shouldn't have
done that." And I replied "You're right."
"You touched her with your penis, too," my
question. His answer, "Yes, but not much."
Kelly said your private felt sticky. His
answer--or question, "Did she get you off?"
And then I further asked, "Did you come?"
His answer to that, "I did get off, but not
in her; not on her." I asked [appellant],
"Why did you do these things?" His reply was
he didn't know. I asked him "how long have
you done this?" His answer, "Just a little
while." I said, No, how long? How many
times?" His answer to that, "Just that
time." I asked him, "Are you sure?" His
reply, "Yes." "[The victim] said that you've
done this in your bedroom." His answer,
"Yes." I asked, "Who else have you done this
with?" And he said "Just her."

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Commonwealth, 3 Va. App. 249, 349 S.E.2d 161 (1986) (holding that

defendant's mental retardation and intoxication did not interfere

with his ability to make a voluntary confession).

Appellant additionally contends that his confession was

involuntary because he did not understand the written confession

that he signed. We disagree that appellant's signature on the

written confession amounted to a constitutional violation. The

record indicates that after the oral portion of the interview,

Wood drafted a confession containing eight statements. The

record also indicates that the content of these written

statements merely summarized appellant's oral responses to Wood's
2
questions about his sexual activity with the victim. Wood read

each statement to appellant, and appellant signed the written

confession. Appellant's expert, Dr. Conley, testified that

appellant probably did not understand the content of this written

confession because the eight statements were "drafted . . . at a

higher level than that which . . . [appellant] was capable of

comprehending." However, no evidence in the record impugned

2
At trial, Wood read the written statement that appellant
signed. It said:

I have touched [the victim] in her privates
with my finger. I touched Kelly with my
penis. I touched her doodle with my penis.
I had Kelly put her mouth on my penis. I had
Kelly rub my penis. I did get off, but not
on her. I had my clothes off and Kelly's
too. I realize what I did was wrong.

Under his signature, appellant wrote, "I went to ten grade."

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appellant's ability to respond accurately to Wood's oral

questions. Because the content of the written confession did not

vary from the content of appellant's oral confession, which was

the "product of an essentially free and unconstrained choice," we

conclude that appellant's due process rights were not violated

when Sergeant Wood had him sign the written confession.

Accordingly, the record establishes that appellant "was

fully cognizant of his situation, was in control of his cognitive

powers, understood the circumstances, and was exercising his free

will when he admitted his involvement in the crime[s] . . . the

circumstances . . . were not so compulsive or coercive that

[appellant] was prevented from weighing his options,

understanding the situation, and making a knowing and calculated

decision to confess to his involvement." See Wilson, 13 Va. App.

at 554, 413 S.E.2d at 658. The standard used by the trial court

when ruling on the voluntariness issue, while erroneous, worked

no injustice. Upon review of the entire record, we hold that the

confession was voluntarily given.

III. MIRANDA WARNINGS

Next, appellant argues that the trial court erred in

admitting the confession despite the absence of Miranda warnings,

and that the issue of the absence of the warnings should have

been argued to the jury.

"'[T]he Supreme Court has made it clear that the prescribed

warnings must be given before statements are taken from suspects

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only where there is custodial interrogation as thus defined in

Miranda: "By custodial interrogation, we mean questioning

initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action

in any significant way."'" Novak v. Commonwealth, 20 Va. App.

373, 384-85, 457 S.E.2d 402, 407 (1995) (quoting Coleman v.

Commonwealth, 226 Va. 31, 46, 307 S.E.2d 864, 872 (1983), cert.

denied, 465 U.S. 1109 (1984)). Whether a detention amounts to a

custodial interrogation for purposes of Miranda depends on all of
the circumstances surrounding the detention. See Cherry v.

Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 244 (1992).

Factors we may consider include, inter alia, whether Wood

informed appellant that he was not under arrest, whether

appellant knew or had been apprised of the nature of the

investigation, and the point at which appellant became the focus

of the investigation. See Wass v. Commonwealth, 5 Va. App. 27,

32-34, 369 S.E.2d 836, 839-40 (1987); Cherry, 14 Va. App. at 139,

415 S.E.2d at 244.

On appeal, we must consider the evidence in the light most

favorable to the Commonwealth, the prevailing party below.
Novak, 20 Va. App. at 385, 457 S.E.2d at 408. Additionally, in

our analysis, we must view the situation from the vantage point

of a "reasonable man in the suspect's position." Id.

The record demonstrates that appellant's statements were

made during an informal interview that was conducted as part of

13
Wood's investigation. Miranda does not apply to a police

officer's general questioning in the course of the fact-finding

process. See Pruett v. Commonwealth, 232 Va. 266, 271, 351

S.E.2d 1, 4 (1986), cert. denied, 495 U.S. 940 (1990). Wood

informed appellant that no charges were pending against him, that

he was not under arrest, and he informed appellant of the nature

of the allegations. The record also makes clear that appellant's

freedom was not constrained in any way during the interview. We

hold that the trial court correctly found that appellant was not

in custody at the time of the confession. Accordingly, no
Miranda warnings were required. See Oregon v. Mathiason, 429

U.S. 492 (1977); Addison v. Commonwealth, 224 Va. 713, 299 S.E.2d

521 (1983).

Appellant further contends that, in order to support his

theory of voluntariness, he should have been allowed to argue to

the jury the fact that he received no Miranda warnings. However,

appellant cites no authority to support this argument. The issue

of whether Miranda rights were required is a question of law,
properly determined by the trial court and not, as appellant

contends, a question of fact that could be considered by a jury

in determining the weight to be given to the confession.

IV. AMENDMENT OF THE INDICTMENT

Lastly, appellant argues that the trial court erred in

allowing the Commonwealth to amend the indictment at the close of

its case-in-chief, because the amendment changed the nature and

14
character of the offense charged. The Commonwealth was permitted

to amend the indictment charging appellant with taking indecent

liberties from Code § 18.2-370.1, which requires proving a

supervisory relationship between the accused and the victim, to

Code § 18.2-370, which does not contain such a requirement.

Code § 19.2-231 states in pertinent part as follows:
If there be any defect in form in any
indictment . . . or if there shall appear to
be any variance between the allegations
therein and the evidence offered in proof
thereof, the court may permit amendment of
such indictment . . . at any time before the
jury returns a verdict or the court finds the
accused guilty or not guilty, provided the
amendment does not change the nature or
character of the offense charged . . . . If
the court finds that such amendment operates
as a surprise to the accused, he shall be
entitled, upon request, to a continuance of
the case for a reasonable time.

Additionally, "Rule 3A:6 provides that an error in the citation

of the statute which defines the offense . . . shall not be

ground for dismissal of an indictment . . . 'unless the court

finds that the error or omission prejudiced the accused in

preparing his defense.'" George v. Commonwealth, 242 Va. 264,

281, 411 S.E.2d 12, 22 (1991), cert. denied, 503 U.S. 973 (1992)

(quoting Rule 3A:6).

Accordingly, we hold that the trial court did not err in

allowing the amendment. Notably, appellant did not allege

surprise at the time of the amendment or request a continuance of

the case. Code § 18.2-370 is the same offense as Code

§ 18.2-370.1, except the former does not require proof that the

15
offender was in a custodial or supervisory relationship with the

victim. The amendment did not add elements to the charges or

otherwise jeopardize appellant's opportunity to adequately defend

himself. Finally, the original indictment gave appellant

adequate notice of the essential elements of the charge against

him. See George, 242 Va. at 280-81, 411 S.E.2d at 22 (no error

in permitting the Commonwealth, after resting its case, to amend

the indictment to correct a wrong code section, where amendment

did not prejudice the accused in preparing his defense).
Finding no reversible error, we affirm.

Affirmed.

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