Novak v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Bray
Argued at Norfolk, Virginia

SHAWN PAUL NOVAK

v. Record No. 1416-92-1 OPINION BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA MAY 23, 1995

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge

Richard G. Brydges; Stephen C. Mahan (Brydges, Brydges
and Mahan, on briefs), for appellant.
Richard B. Smith, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.

Amicus Curiae: Youth Advocacy Clinic and Mental
Disabilities Clinic, University of Richmond Law School
(Robert E. Shepherd, Jr.; Kathe Klare; Robin Hegner, on
brief), for appellant.

Shawn Paul Novak (defendant), a juvenile, age sixteen, was

convicted by a jury on an indictment charging capital murder. On

appeal, defendant complains that he was improperly transferred from

the Juvenile and Domestic Relations District Court (J&D court) to

the trial court for prosecution as an adult, and that the trial

court failed to conduct a de novo review of such transfer.
Defendant further contends that the trial court erroneously (1)

declined to suppress his confession and certain psychiatric

evidence, (2) refused to order the Commonwealth to "open" its

"files" to his inspection, (3) overruled his motion for additional

pretrial psychiatric evaluation, (4) permitted cameras in the

courtroom, (5) denied a continuance to permit his investigation of

exculpatory evidence first disclosed during trial, and (6)

overruled his motion for a mistrial. Defendant also challenges the
sufficiency of the evidence to support the conviction. Finding no

error, we affirm the judgment of the trial court.

Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom.

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721

(1988).

On the evening of March 4, 1991, Christopher Weaver, age

seven, and Daniel Geier, age nine, did not return to their

respective homes from play. Earlier that day, both children had

briefly visited with a neighbor, Benet Stead, and were last seen by

him at "about quarter after five to 5:30," in the company of

defendant, at the edge of nearby "woods." The following morning, a

"search party" combed this wooded area, and the children's bodies

were discovered by James McKinsey hidden beneath "stacks of pine

tree limbs." According to the medical examiner, Weaver died from

"three stab wounds which would have been a quick three thrusts

resulting in incapacitation and . . . repeated cutting and slashing

of the neck until it was almost decapitated . . . ." Geier had

been killed by a "blunt force injury" and "multiple slashes" on his

neck.
Although McKinsey did not recall seeing defendant during the

search, shortly after the discovery defendant claimed to a friend,

Donald Williams, that he had personally located the bodies. The

following day, March 6, 1991, defendant related a similar story to

schoolmates and others. Later that same day, defendant commented

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to Williams's mother that he had seen the children at approximately

5:00 p.m. on the afternoon of their disappearance. She immediately

telephoned a police "hotline" in defendant's presence, and he then

spoke to a "gentleman on the phone," willingly providing his name

and address.

During the ensuing investigation, defendant, accompanied by

his mother, was interviewed by detectives at police headquarters on

three separate occasions. At the final meeting between Detective

Hoffman and defendant, Hoffman told defendant that a police officer

had observed conduct by defendant at the crime scene inconsistent

with his earlier statements, and that police had obtained

defendant's fingerprints from the clothing of a victim, all of

which was untrue. Nevertheless, Hoffman testified that he did not

regard defendant as a "suspect until . . . [he] asked, 'Did you

kill them?'" and defendant answered, "yes." This response prompted

Hoffman to immediately advise defendant of his Miranda rights,

followed by defendant's execution of a related waiver and detailed

confession to the crimes.

During a subsequent search of defendant's residence, police

discovered a knife, a book entitled "Serial Killers," and several

newspaper clippings of articles related to other violent crimes in

the region, all from defendant's bedroom. Experts testified that

the knife, or "another object having exactly the same features,"

had impressed a blood stain on the trousers of one victim and was

the "tool" used to cut tree limbs that had covered the bodies.

Prosecution of defendant was commenced in the Virginia Beach

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J&D court. However, following an ore tenus hearing pursuant to

Code § 16.1-269, 1 jurisdiction was transferred to the trial court

for treatment of defendant as an adult. In ordering transfer, the

J&D court expressly "found probable cause to believe that

[defendant] had committed" the offenses and noted that all "the

statutory requirements for transfer had been met." See Code

§ 16.1-269(A), (C). Due to the "gravity of the charges," the J&D

court did not consider defendant "amenable to treatment or

rehabilitation as a juvenile." See Code § 16.1-269(A)(3)(b).

Defendant appealed the transfer decision to the trial court,

challenging the failure of the J&D court to properly consider his

"amenability . . . to treatment within the juvenile court." He

argued that the trial court, while it need not review probable

cause, must "make its own determination" of the several statutory

factors requisite to transfer. See Code § 16.1-269. However,

"after having examined all such papers, reports and orders

pertaining hereto" and "carefully listen[ing] to arguments of

counsel," the trial court concluded that the J&D court had

"complied with [Code §] 16.1-269," and permitted the Commonwealth

to "seek an indictment against the defendant."

Incidental to the proceedings both in the J&D court and trial

courts, defendant was the subject of several psychiatric

examinations. Dr. Robert Showalter testified in behalf of

defendant that he exhibited a "schizotypal personality disorder."
1
All citations to Code § 16.1-269 in this opinion refer to the
statute as amended in 1990.

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Drs. Lee Mingione and Paul Mansheim, Commonwealth witnesses,

disagreed and opined that defendant knew right from wrong when he

murdered the victims. Dr. Mingione further noted that defendant

was "very bright," "interactive," and "evinced no unusual

personality traits for a sixteen-year-old."

I. Transfer Hearing

Defendant first contends that his transfer from the J&D court

to the circuit court for trial as an adult was unconstitutional

because the attendant proceedings lacked the "individualized and

particularized" consideration mandated by the Eighth Amendment in

death penalty cases. See Stanford v. Kentucky, 492 U.S. 361,

375-76 (1989). However, because defendant was not sentenced to

death, we find this argument moot. See Lewis v. Commonwealth, 218

Va. 31, 38, 235 S.E.2d 320, 325 (1977) (When "life term was

substituted . . . for a . . . sentence of death, the conclusion is

inescapable that the question of the constitutionality of [the

procedures leading to] the death penalty has been rendered moot.");
see also Bumper v. North Carolina, 391 U.S. 543, 545 (1968)

(complaint that jury was unconstitutionally "death qualified"

rendered moot when defendant received life sentence).

Defendant further argues that the Virginia juvenile transfer

statute unconstitutionally permits a juvenile, age fifteen or older

and charged with armed robbery, rape, or murder, to be "certified"

to the circuit court for trial as an adult without a preliminary

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finding that the accused is unamenable to treatment as a juvenile. 2

Defendant contends that such "automatic certification" denies both

equal protection and due process. We disagree.

In Hutcherson v. Commonwealth, 7 Va. App. 534, 536-37, 375

S.E.2d 403, 404 (1989), this Court approved a "finding of

nonamenability based solely on the nature of the offense," provided

the related inquiry included consideration of "circumstances

surrounding the offense," the "extent of the juvenile's

involvement[,] and the interests of society and of the child." We

also expressly recognized that a "determination of nonamenability

based solely on the face of the charge is . . . permissible when
the offense is one of those enumerated in the statute [i.e., armed

robbery, rape, and murder]." Id. at 537, 375 S.E.2d at 404

(emphasis added). Contrary to defendant's argument, this provision

does not result in "automatic certification." The statute simply

dispenses with the finding that the juvenile is unamenable "to

treatment or rehabilitation" as a prerequisite to transfer in such

instances. Code § 16.1-269(A)(3)(b). The remaining "conditions"

of Code § 16.1-269(A) must be satisfied before "[a]ny such

transfer" is ordered. Code § 16.1-269(A).
2
Code § 16.1-269(A)(3)(b) reads in pertinent part:

[W]hen the alleged delinquent act is armed robbery, rape
as provided in § 18.2-61 or murder, or when the child has
previously been tried as an adult and convicted of a
felony and is presently alleged to have committed an act
which would be a felony if committed by an adult, the
court may certify the child without making the
[amenability to treatment] finding required by this
subdivision.

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 The legislature had a rational basis for treating a juvenile

charged with murder, rape, or armed robbery differently from one

prosecuted for a less violent offense. Hutcherson, 7 Va. App. at

537, 375 S.E.2d at 404; see Ballard v. Commonwealth, 228 Va. 213,

217, 321 S.E.2d 284, 286 (1984), cert. denied, 470 U.S. 1085

(1985). Code § 16.1-269(A)(3)(b) identifies certain violent crimes

against the person as acts inconsistent with the conduct of an

offender amenable to treatment as a juvenile, a distinction both

logical and constitutional. The resulting "classification" is,

therefore, reasonably related to a "legitimate" governmental

objective, New Orleans v. Dukes, 427 U.S. 297, 303 (1976), juvenile
rehabilitation consonant with protection of the public.

Hutcherson, 7 Va. App. at 536-37, 375 S.E.2d at 404; see Code

§ 16.1-227. "[C]ourts will not overturn a statutory classification

on equal protection grounds unless it is so unrelated to the

achievement of a legitimate purpose that it appears irrational."

Ballard, 228 Va. at 217, 321 S.E.2d at 286; see Commonwealth v.
Ramey, 19 Va. App. 300, 302, 450 S.E.2d 775, 776 (1994).

II. Appeal of Defendant's Transfer

Defendant appealed the J&D transfer decision to the trial

court pursuant to Code § 16.1-269(E). In subsequent correspondence

to counsel, the trial judge noted that, although defendant was

entitled to a "hearing" on the transfer issue, a "de novo review

was not appropriate." Despite defendant's contention that the

court erred, Russell v. Commonwealth, 16 Va. App. 660, 432 S.E.2d

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12 (1993), instructs that de novo review by the circuit court is

unnecessary, provided "[t]here [is] . . . a hearing that gives

meaningful review." Id. at 665, 432 S.E.2d at 16 (emphasis added).

The record discloses that the trial court examined "all of the

papers connected with this case," including the transcript,

transfer report, and the J&D transfer order, and "carefully

listen[ed] to the arguments of counsel," before ruling that the

"requirements of [Code §] 16.1-269 were . . . complied with

. . . ." Such consideration clearly constituted the "meaningful

review" of the transfer decision contemplated by Code § 16.1-269

and Russell.
Defendant asserts for the first time on appeal that the trial

judge improperly placed the burden upon him to prove noncompliance

with Code § 16.1-269. It is well established that this Court will

not consider an argument on appeal which was not presented to the

trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405

S.E.2d 630, 631 (1991); Rule 5A:18. We, therefore, decline to

address this issue.

III. Admissibility of Confession

Defendant contends that the trial court erroneously overruled

a motion to suppress his confession, portions of which preceded

Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).

However,
[t]he Supreme Court has made it clear that the prescribed
warnings must be given before statements are taken from
suspects only where there is custodial interrogation as thus
defined in Miranda: "By custodial interrogation, we mean

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 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."

Coleman v. Commonwealth, 226 Va. 31, 46, 307 S.E.2d 864, 872

(1983), cert. denied, 465 U.S. 1109 (1984) (quoting Miranda, 384

U.S. at 444 (footnote omitted)); see Wass v. Commonwealth, 5 Va.

App. 27, 30, 359 S.E.2d 836, 837 (1987). "In determining whether

an individual was in custody, a court must examine all of the

circumstances surrounding the interrogation, but 'the ultimate

inquiry is simply whether there [was] a "formal arrest or restraint

on freedom of movement" of the degree associated with a formal

arrest.'" Stansbury v. California, ___ U.S. ___, ___, 114 S. Ct.

1526, 1528-29 (1994) (quoting California v. Beheler, 463 U.S. 1121,

1125 (1983) (per curiam)) (citation omitted); see Burket v.

Commonwealth, 248 Va. 596, 604, 450 S.E.2d 124, 129 (1994);

Commonwealth v. Milner, 13 Va. App. 556, 558, 413 S.E.2d 352, 353

(1992).

In this analysis, "the situation must be viewed from the

vantage point of 'how a reasonable man in the suspect's position
3
would have understood his situation.'" Wass, 5 Va. App. at 32,

359 S.E.2d at 839 (quoting Berkemer v. McCarty, 468 U.S. 420, 442

(1984)). On review, we must consider the evidence in the light

3
Circumstances relevant to this determination include
defendant's age, intelligence, background and experience with the
criminal justice system, police conduct, surroundings, physical
restraint, length and character of the interrogation, and the focus
of police suspicion. See Harrison v. Commonwealth, 3 Va. App. 260,
265, 349 S.E.2d 167, 169-70 (1986); Wass, 5 Va. App. at 32-33, 359
S.E.2d at 839; Kauffman v. Commonwealth, 8 Va. App. 400, 404-05,
382 S.E.2d 279, 281 (1989).

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most favorable to the prevailing party below, the Commonwealth in

this instance, id. at 30, 359 S.E.2d at 837, and the trial court's

findings will not be disturbed unless unsupported by the record.

See Lanier v. Commonwealth, 10 Va. App. 541, 555, 394 S.E.2d 495,

504 (1990).

Here, defendant, accompanied by his mother, had twice

voluntarily come to police headquarters for interviews. During a

third visit, under like circumstances, defendant confessed to the

offenses. He had been previously advised that he was neither under

arrest nor a suspect, and Detective Hoffman only wanted to

ascertain "anything . . . or anyone that [defendant] may have seen

in the area."
The interview was conducted in a carpeted room, "approximately

ten-by-twelve," furnished with a table and several chairs. A "one-

way mirror" permitted visual access from an adjoining room.

Although defendant's mother was present at the inception of the

interview, Hoffman persuaded her to leave the room, insisting that

defendant could then more comfortably discuss "his friend's

whereabouts" and "habits." Defendant was aware, however, that she

remained nearby, still in the building. Until the confession,

defendant was permitted to move about the building and "was . . .

free to leave at anytime."

This evidence, considered with the entire record, including a

video tape of the interview in issue, provided abundant support for

the trial court's determination that defendant was not "in custody"

at the time of his initial admission of guilt and prior Miranda

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warnings were, thus, unnecessary.

However, defendant reminds us that any confession, "even if

obtained in full compliance with Miranda, may be inadmissible if

. . . not voluntary." Kauffmann, 8 Va. App. at 405, 382 S.E.2d at

281. It is well established that the "Commonwealth bears the

burden of proving by a preponderance of the evidence" that the

accused knowingly, intelligently, and voluntarily waived his

Miranda rights. Mills v. Commonwealth, 14 Va. App. 459, 468, 418

S.E.2d 718, 722-23 (1992); Wilson v. Commonwealth, 13 Va. App. 549,
554, 413 S.E.2d 655, 658 (1992).

In assessing the voluntariness of a confession on appeal,

"[w]e must [independently] determine whether, in light of the

totality of the circumstances, including not only the details of

the interrogation, but also the characteristics of the accused, the

statement was the product of an essentially free and unconstrained

choice by its maker, or whether the maker's will was overcome and

his capacity for self-determination critically impaired." Goodwin
v. Commonwealth, 3 Va. App. 249, 253, 349 S.E.2d 161, 163-64

(1986); Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157,

163, cert. denied, 484 U.S. 873 (1987); Mills, 14 Va. App. at 468,

418 S.E.2d at 723. In our review of this issue, we again consider

"the evidence in the light most favorable to the prevailing party"

below, the Commonwealth in this instance, Mills, 14 Va. App. at

468, 418 S.E.2d at 723, and "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

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655, 656 (1992).

Here, the trial judge found defendant "highly intelligent" and

"articulate in his answers to the questions." He noted from the

video tape of the interview that defendant was "smoking

cigarettes," taking refreshment, "smiling," and "obviously in

complete control of himself," "with a full understanding of the

interview process and what was being said and why he was there."

From this evidence and the other circumstances attending the

interview, the court concluded that defendant "made a knowing and

intelligent waiver of [Miranda] rights," "signed the written waiver

form," and "acknowledged that he wished to make a statement." This

finding is well supported by the record.

Although defendant argues that his mother's presence in the

interview room was an indispensable ingredient to voluntariness,

"it is well established that the mere absence of a parent . . .

does not render a [juvenile's] waiver invalid." Grogg v.

Commonwealth, 6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1988).

Defendant's contention that Hoffman's use of deception tainted

the confession is also without merit. See Hutto v. Ross, 429 U.S.

28, 30 (1976). While "[a] deliberate falsehood by a police officer

in the course of his duties may undermine the respect that

significant segments of the public may have for law enforcement and

the system of justice[,]" Wilson v. Commonwealth, 13 Va. App. at

554, 413 S.E.2d at 658, "'a lie on the part of an interrogating

police officer does not, in and of itself, require a finding that a

resulting confession was involuntary.'" Id. at 555, 413 S.E.2d at

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658 (quoting Rodgers v. Commonwealth, 227 Va. 605, 616, 318 S.E.2d

298, 304 (1984)). Nothing in this record suggests that deception

by Hoffman compelled defendant's waiver or confession, against his

will and without choice.

Thus, our independent review of the record discloses that

defendant's waiver and related confession were voluntary and

properly admitted into evidence by the trial court.

IV. Suppression of Dr. Mansheim's Report and Testimony

In response to the Commonwealth's representation that "the

appointment of a psychiatrist [was] necessary for preparation of

[its] case in meeting the defendant's insanity plea," the trial

court appointed Dr. Paul Mansheim "to assist the Commonwealth and

determine (1) the defendant's mental state or condition at the time

of the alleged offense, and (2) the defendant's capacity to

appreciate the criminality of his conduct at the time of the

offense." Thereafter, Mansheim conducted an examination of

defendant in accordance with the order and prepared an attendant

report.

During a subsequent hearing, it was disclosed that the

Commonwealth was deliberately withholding this report pending

receipt of a report from defendant's psychiatrist, Dr. Showalter,

then months overdue. Defendant thereafter requested the court to

compel production of the Mansheim report pursuant to Code

§ 19.2-168.1. Defendant also asserted that the "conduct of . . .

the Commonwealth and . . . Mansheim, acting in concert," raised

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"serious doubt upon the neutrality of . . . Mansheim" and requested

the court to suppress the related evidence and "open" the

Commonwealth's "case files" to defendant's inspection. The trial

court ordered that the Mansheim report be made available to

defendant and Showalter's report be prepared and shared with the

Commonwealth, but otherwise overruled defendant's motion.

"The remedial relief to be granted by the trial court

following a discovery violation or upon the late disclosure of

evidence is within the trial court's discretion and will not be

disturbed on appeal unless plainly wrong." Moreno v. Commonwealth,

10 Va. App. 408, 420, 392 S.E.2d 836, 844 (1990); see also Frye v.

Commonwealth, 231 Va. 370, 383, 345 S.E.2d 267, 277 (1986) ("The

relief to be granted upon a violation of Rule 3A:11 is within the

discretion of the trial court . . . ."). "Late disclosure does not

take on constitutional proportions unless an accused is prejudiced

by the discovery violations depriving him of a fair trial."

Moreno, 10 Va. App. at 417, 392 S.E.2d at 842; see Davis v.
Commonwealth, 230 Va. 201, 204-05, 335 S.E.2d 375, 377-78 (1985).

Here, defendant received the Mansheim report a full two weeks

before trial, and there is no evidence of prejudice resulting from

the delayed disclosure. Accordingly, we find no error in the

ruling of the trial court.

V. Request for Additional Psychiatric Evaluation

On February 19, 1992, defendant requested transport to

Rockingham Memorial Hospital in Harrisonburg for eight days to

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permit additional "one on one" examinations by Showalter. The

court denied the motion, noting that trial was scheduled for March

2, 1992, and that Showalter, "involved since [the preceding] June,"

should conduct the interview locally to insure defendant's

availability for any necessary pretrial "proceedings." While

defendant challenges this ruling, he offers nothing to establish

any attendant prejudice. The issue was clearly a matter resting

within the sound discretion of the trial court, and we cannot say

that the court abused such discretion in this instance. See

Cardwell v. Commonwealth, 248 Va. 501, 508-09, 450 S.E.2d 146, 151

(1994).

We need not address defendant's related, but unsupported,

assertion that, by denying access to a psychiatrist, the trial

court "effectively denied [defendant] due process, equal

protection, the right to call evidence on his behalf[,] and the

effective assistance of counsel." "Statements unsupported by

argument, authority, or citations to the record do not merit

appellate consideration." Buchanan v. Buchanan, 14 Va. App. 53,

56, 415 S.E.2d 237, 239 (1992).

VI. Cameras in the Courtroom

Several days prior to trial, the court informed counsel that a

request for media coverage of the trial had been granted, and that

a camera would be located in the "back of the courtroom." 4

4
At the time of defendant's trial, the Circuit Court for the
City of Virginia Beach was among several trial courts participating
in an experimental program which permitted such coverage of

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Defendant conceded that "the ultimate decision on that is up to the

court" but "oppose[d] the . . . coverage," arguing that

"certification as an adult [did not] necessarily remove[] it from

the juvenile realm." The court recognized that Code § 19.2-266

prohibited cameras in "juvenile proceedings," but concluded that a

juvenile transferred for trial as an adult was not embraced by the

exclusion and permitted the coverage. Defendant complains that

this ruling denied him protection of the statute, due process, and

equal protection.
Code § 16.1-269(F) provides that "[a]fter the case has been

transferred or removed and the grand jury returns a true bill upon

such indictment the jurisdiction of the juvenile court as to such

case shall terminate." Id. Thus, once a juvenile is transferred

to the circuit court pursuant to Code § 16.1-269, he is thereafter

prosecuted as an adult. In such circumstances, a decision to

permit cameras in the courtroom rests with the sound discretion of

the trial court, Code § 19.2-266, and "[a]bsent a showing of

prejudice of constitutional dimensions," Chandler v. Florida, 449
U.S. 560, 582 (1981), the mere presence of cameras does not result

in an unfair trial. See Savino v. Commonwealth, 239 Va. 534, 547

n.4, 391 S.E.2d 276, 283 (1990); Fisher v. Commonwealth, 236 Va.

403, 410 n.2, 374 S.E.2d 46, 50 (1988). Defendant failed to

demonstrate "good cause" to exclude the cameras and offered no

authority for his constitutional arguments. See Code § 19.2-266.

judicial proceedings pursuant to former Code § 19.2-266.

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We, therefore, conclude that the trial court properly allowed

cameras in the courtroom during the proceedings.

VII. Motion for Continuance

On the morning of the third day of jury selection, March 4,

1992, the Commonwealth disclosed to the court and defendant

"arguably exculpatory" information, first learned after trial had

commenced, and defendant immediately requested a continuance "to

investigate." 5 However, finding that it was "clear . . . that [the

evidence in issue] . . . constitute[d] hearsay . . . and would be

inadmissible in the trial," the court denied this motion. The

court also noted that the "information" was already "in the mind of

the defendant," and he "would be the source" of it.

"The decision whether to grant a continuance is a matter

within the sound discretion of the trial court. Abuse of

discretion and prejudice to the complaining party are essential to

reversal." Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d

646, 648 (1986); see also Lowery v. Commonwealth, 9 Va. App. 304,
307, 387 S.E.2d 508, 509 (1990). Under the circumstances here, we

cannot say that the trial court abused its discretion in denying

the motion.

VIII. Motion for Mistrial

5
A "memorandum" of this "information" was apparently prepared
by the Commonwealth and provided to defendant, but it could not be
located in the record. See Turner v. Commonwealth, 2 Va. App. 96,
99, 341 S.E.2d 400, 402 (1986).

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 During recross-examination of Detective Hoffman, the

Commonwealth objected to certain inquiries pertaining to

defendant's statements to Hoffman. In the presence of the jury,

the prosecutor argued that
[w]hat [defendant] may have said -- [defendant] is a witness
available to the defense. He's not available to the
prosecution. That's why the rules of evidence are the way
they are. The issue is whether or not -- this witness can
testify certainly to what his own statements were, but not to
what the defendant may have told him. That would be hearsay.
That's what my objection is.

Following further examination of Hoffman both by counsel for both

defendant and the Commonwealth, defendant moved for a mistrial

based upon the earlier comment and was overruled.
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."

Williams v. Commonwealth, 4 Va. App. 53, 80, 354 S.E.2d 79, 94

(1987) (quoting Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d

262, 263 (1977)). "In order to prevail on appeal, [defendant] must

show that he was substantially prejudiced by the improper comments

of the Commonwealth's attorney." Jackson v. Commonwealth, 12 Va.

App. 798, 799, 406 S.E.2d 415, 416 (1991); see also 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). New trials

will be granted only "where the prosecuting attorney has so clearly

departed from the line of legitimate procedure that any reasonable

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person will conclude that the jury were certainly prejudiced

thereby." Winston v. Commonwealth, 12 Va. App. 363, 369, 404

S.E.2d 239, 242 (1991) (emphasis added).

Upon a review of the "totality of the evidence," we are not

persuaded that the comments in issue were so clearly prejudicial.

See Fain v. Commonwealth, 7 Va. App. 626, 629-30, 376 S.E.2d 539,

541 (1989). The remarks were directed to the trial judge, not the

jury, and nothing in the record suggests a reckless or deliberate

procedural impropriety by the Commonwealth. Any related

impressions gathered by the jury from the comments would be purely

conjectural. Accordingly, we find that the trial court acted

within its discretion and properly denied a mistrial. See Cheng v.

Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607 (1990).

IX. Motion to Strike/Motion to Set Aside

At the conclusion of both the Commonwealth's evidence and of

all evidence, defendant moved to strike on the grounds that the

Commonwealth had not proven premeditation and deliberation,

elements necessary to the offenses. These motions, and a similar

motion and attendant argument to set aside the verdict, were denied

by the trial court.

In assessing the sufficiency of the evidence, we must view the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom. Martin
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

The credibility of a witness, the weight accorded the testimony,

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and the inferences to be drawn from proven facts are matters solely

for the fact finder's determination. Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989). The jury's verdict will

not be disturbed unless plainly wrong or without evidence to

support it. Id.

In Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882

(1982), the Supreme Court recognized that the premeditation and

deliberation necessary to "elevate a homicide to first degree

murder" were issues within the "province of the jury." Id. at 232,

294 S.E.2d at 892. Considerations appropriate to this

determination include "the brutality of the attack, . . . whether

more than one blow was struck, the disparity in size and strength

between the defendant and the victim, the concealment of the

victim's body, and the defendant's lack of remorse and efforts to

avoid detection." Id. Here, defendant admitted brutal and

unprovoked attacks on two small children with a deadly weapon

followed by efforts to conceal the bodies. This confession,

together with the other evidence, provided abundant support to the

finding that defendant acted with the requisite premeditation and

deliberation.

For the reasons set forth above, we affirm the decision of the

trial court.

Affirmed.

- 20 -
BENTON, J., dissenting.

On Monday, March 4, two boys, age nine and age seven, were

reported missing in the City of Virginia Beach. Novak, a high

school student who six weeks earlier had turned sixteen,

participated in the search for the two boys. The police inquiry

into the murder of the boys led them to question a number of

people, including Novak. Novak had spoken to someone on the police

"hot line" the day after the bodies of the murdered boys were

discovered and said that he had seen them walk into the wooded area

where their bodies were found.
On March 6, Novak's mother received a telephone call at work

from Detective Hoover. He asked for permission to talk to her

children. Novak's mother initially replied, "no," but consented

after the detective pressed her for consent. After agreeing to the

detective's request, she called home and learned that the detective

was already in her home when he called. When she learned that the

detective was questioning Novak in the detective's vehicle, she

made arrangements to leave work.

That same afternoon, Giselle Ruff, a police evidence

technician, took photographs of Novak's bedroom. Later that

evening Detective Hoover returned and requested permission to talk

to Novak in his car. Novak's mother refused. At the detective's

request, she agreed to take Novak to the police station. She

stated, however, that when they arrived at the police station she

was not invited into the room where Novak was interviewed for two

- 21 -
hours.

Novak was upset when the police ended the questioning. The

police told Novak's mother on Wednesday night that they wanted to

talk to him again. She told them that she did not want them to

talk to Novak unless she was present.

Novak was again questioned at his home on Thursday afternoon,

March 7, by Detective Tucker and perhaps others. When Detective

Tucker called Novak's mother at work and asked for permission to

talk to Novak, she became upset because they were again in her

house talking to Novak. She told Tucker he could not talk to

Novak.
Later that day, the detective called Novak's mother again and

asked her to bring Novak back to the police station. On Thursday

evening she brought Novak to the police station. Detective Hoffman

questioned him for two hours. Again, Novak's mother was not

invited in the interview room. During questioning, the detective

discovered inconsistencies between Novak's statements and

information obtained from other witnesses. Novak's mother was

asked to bring Novak to the police department the next day for

further questioning.

Novak's mother testified that she was particularly concerned

and very protective of Novak in connection with police questioning.

Novak had no previous contact with police or court history. She

was also concerned because Novak's father, who was away on duty in

the United States Navy, could not be reached. She had complained

to the police about their previous interviews with Novak out of her

- 22 -
presence and felt that she was being manipulated by the police

department.

Novak and his mother arrived at the police station at 9:00

a.m. Saturday, March 9. When Detective Hoffman began the

interview, he advised Novak and his mother that Novak was not a

suspect and was not under arrest. The detective told her that he

only wanted to clarify some things and determine whether Novak had

seen something and not realized its significance. Novak's mother

decided to remain in the interrogation room. Unknown to Novak and

his mother, the entire session was videotaped.
Novak was not advised of his right to an attorney or to remain

silent. After about thirty minutes of questioning, Detective

Hoffman asked Novak's mother to leave the interrogation room. She

reluctantly did so after Detective Hoffman assured her that Novak

was not a suspect and that he wanted to talk with Novak about

"sensitive areas not dealing with these kids." She left the

interrogation room and remained in the lobby of the police

headquarters.

After Novak's mother left, Detective Hoffman changed his

position in the interrogation room so that he was seated facing

Novak. Detective Hoffman recommenced the interview as other

detectives viewed the interrogation through a one-way mirror and

videotaped the questioning. The interrogation was stopped on

several occasions, when Novak went to the bathroom, had a soft

drink, ate a donut, and spoke once with his mother.

Detective Hoffman told Novak that he could rely on him and

- 23 -
that he was not suspected of anything. However, Detective Hoffman

began to lie to Novak as the interview progressed. He lied about

police observations on the day of the search; he lied about the

presence of a witness who saw Novak walking with the two victims;

he lied about new laser technology which enabled them to secure

fingerprints; and he lied about Novak's fingerprints being found on

the boys' clothing.

Detective Hoffman testified that he would not have told Novak

any lies if Novak had not been a suspect. He testified that Novak

became a suspect and the primary focus of the investigation during

the course of the interrogation. He further testified, however,

that he was "suspicious" of Novak when he began the interview.
Shortly before noon, Detective Hoffman assured Novak that he

was not a suspect. He continued to interrogate Novak in a barely

audible tone using lies and information gathered from other

witnesses. Hoffman then confronted Novak with contradictions in

his statements and the evidence gathered from other witnesses. The

detective got Novak to admit being with the boys and then asked the

following:
Q Shawn, I know you cut the branches. I
know that you cut them and covered them. Isn't
that true?

A Yeah. They had been on the ground. Were
on the ground. I walk by. Monday.

Q Shawn. You can talk to me. Don't be
afraid. Get it out. Don't be afraid.
Something happened and you went too far? Is
this something that just happened?

A Yeah.

- 24 -
Q You killed them, didn't you?

A (No audible response. Shawn nods his head
in the affirmative.)

Q You killed Scott and Daniel?

A Yes.

Q Okay. Shawn, do you want to talk about
it? Huh?

[There was a knock at the door.]

DET. HOFFMAN: I'll be back in a minute.

[Whereupon a recess was taken. Shawn is left
in the room alone and is crying. After the
recess Det. Hoffman returns to the room and the
interview continues as follows:]
BY DET. HOFFMAN:

Q Shawn, are you okay?

A Yeah.

Q I need to read something to you.

You have the right to remain silent.
Anything you say can and will be used against
you in court. You have a right to talk to a
lawyer and have him present with you while you
are being questioned. If you cannot afford to
hire a lawyer one will be appointed to
represent you before any questioning, if you
wish. You can decide at any time to exercise
these rights and not answer any questions or
make any statements.

Do you understand these things that I just
told you?

A (Shawn nods head.)

Q Check here.

A (Shawn complies.)

Having these rights in mind, would you
like to talk to me?

- 25 -
 A (The witness nods head.)

Q Check here.

A (Shawn complies.)

Q Sign your name for me right here.

A (Shawn complies.)

Q Do you want me to tell her or do you want
me to wait?

A Let her know.

The detective continued to question Novak without

interruption. Two hours after she was asked to leave the room,

Novak's mother was informed by an officer of Novak's admissions.

She demanded that the interrogation be stopped and that she be

allowed to consult with a lawyer.
I.

Statements made by an accused during custodial interrogation

and without proper Miranda warnings are inadmissible as evidence.

Dean v. Commonwealth, 209 Va. 666, 667-68, 166 S.E.2d 228, 230

(1969). The Supreme Court has defined custodial interrogation as

"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." Miranda v. Arizona, 384 U.S. 436,

444 (1966) (footnote omitted). In making the determination whether

a person has been deprived of freedom of action, the situation must

be viewed from the perspective of "how a reasonable [person] in the

suspect's position would have understood his situation." Berkemer

v. McCarty, 468 U.S. 420, 442 (1984) (footnote omitted). Merely

- 26 -
"informing a suspect that he is not in custody and is free to leave

does not necessarily mean that he is not in custody." Wass v.

Commonwealth, 5 Va. App. 27, 34, 359 S.E.2d 836, 840 (1987). The

circumstances that must be considered in determining whether an

interrogation is custodial include "whether a suspect is questioned

in familiar or neutral surroundings, the number of police officers

present, the degree of physical restraint, . . . the duration and

character of the interrogation, [w]hether or when probable cause to

arrest exists[,] . . . when the suspect becomes the focus of the

investigation[,] '[t]he language used by the officer to summon the

individual, the extent to which he or she is confronted with

evidence of guilt, the physical surroundings of the interrogation,

the duration of the detention and the degree of pressure applied to

detain the individual.'" Id. at 32-33, 359 S.E.2d at 839

(citations omitted).

The evidence proved that when Novak was interrogated on

Saturday morning the circumstances effectively rendered the

interrogation custodial. By virtue of his youthful age and lack of

experience with the police, Novak had no basis upon which to

conclude that he had not been deprived of his freedom of action.

Novak was interrogated at the police station. The interrogation

occurred in a small, closed room. He had been interrogated at the

same place on two prior occasions. At each of those

interrogations, the police separated him from his mother. On this

third occasion his mother requested that she be permitted to remain

in the room during the questioning. Half an hour later, however,

- 27 -
with Novak present in the room, Detective Hoffman asked Novak's

mother to leave. Hoffman admitted deceiving Novak's mother in

order to get Novak alone in the interrogation room. When Novak's

mother left, Detective Hoffman moved his chair closer to Novak,

placing himself between Novak and the door in the small room. He

also lied to Novak at least four times during the course of the

interrogation.

Although Detective Hoffman testified that Novak did not become

a suspect until contradictory facts were elicited during the course

of the Saturday interrogation, the objective facts belie that

assertion. Hoffman also testified that he was "suspicious" of

Novak prior to the Saturday interrogation. Moreover, several

photographs of Novak's bedroom were taken four days prior to this

interrogation. In addition, the detailed questioning of Novak's

conduct, movements, and statements during interrogations which

lasted several hours each over the course of four days manifestly

establish that Novak was a suspect in the police's investigation

prior to this last interrogation. This last session was just the

culmination of an investigation that focused upon Novak as a

suspect.
The interrogation was accusatory, it was suggestive,

repetitive, and deceptive. It was the last in a series of five

interrogations that took place over a four day period. All of

these circumstances surrounding this investigation as well as the

events of the interrogation itself prove that the interrogation was

custodial. Any reasonable person in Novak's position would have so

- 28 -
understood. The detective used the opportunity to exclude Novak's

mother and to bear down upon the sixteen year old in the confines

of an interrogation room at the police station. Novak was

questioned in the coercive setting of the police station in the

absence of any Miranda warnings.

In determining that Novak was not in custody when he

confessed, the majority posits that Novak voluntarily came to the

police station with his mother that morning. Even if this

interrogation was not custodial at its inception, the evidence

proved that the atmosphere of the interrogation changed when

Novak's mother was deceived into leaving the room. Detective

Hoffman positioned himself closer to Novak, used ruses to trick

him, and extracted his confession by accusing Novak of killing the

boys. Under these circumstances, a reasonable sixteen year old

would have believed that he was required to answer the police

officer's questions and was not free to leave until he did so.
II.

"The burden is upon the Commonwealth to prove, by a

preponderance of the evidence, that [Novak'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 test to

be applied in determining voluntariness is 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.'"

Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381,

- 29 -
cert. denied, 464 U.S. 873 (1984) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973)). Thus, an inquiry must be

made into the circumstances of the interrogation, including

"evaluation of the juvenile's age, experience, education,

background, and intelligence, and into 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).
An analysis of these factors coupled with the tactics used to

extract the confession from Novak mandates the conclusion that

Novak's confession was involuntary and not a product of his own

free will. 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). That circumstance

must be given significant weight in view of Detective Hoffman's

deliberate decision to deprive Novak of the opportunity to have a

parent present who could provide assistance in asserting his

constitutional rights.

The detective knew that Novak's mother had affirmatively

stated that she wanted to be present. Novak's mother testified

that on two occasions prior to the day of Novak's confession,

police officers had called her at work asking if they could

question Novak. She was adamant that any questioning be done in

her presence. When she accompanied Novak to the police station on

Saturday morning, she asked to be in the interrogation room. After

being told that Novak was not a suspect and that Detective Hoffman

- 30 -
understood her concerns, she was asked to leave the room.

Detective Hoffman admitted misleading Novak's mother so that she

would leave Novak alone in the interrogation room. The detective's

trickery is a compounding factor to be considered in the totality

of the circumstances analysis. See Spano v. New York, 360 U.S.

315, 327 (1959).

The detective lied to Novak's mother when he stated that he

needed to talk to Novak about a sensitive matter unrelated to the

dead children. As soon as she left the room, the detective began

to question Novak about his involvement in the murders. The

detective's deceptive conduct heightened the coercive atmosphere in

which Novak made the confession and evidences the conclusion that

the officer was attempting to overcome Novak's free will. See

Commonwealth v. MacNeill, 502 N.E.2d 938, 942 (Mass. 1987)

("[D]eliberate police avoidance of a parent's participation in an

exchange between the police and a juvenile . . . would be highly

suspect.").

The opportunity for a juvenile to have a parent present to

afford protection for the free exercise of the juvenile's

constitutional rights cannot be overemphasized. The Supreme Court

has noted that "admissions and confessions of juveniles require

special caution." In re Gault, 387 U.S. 1, 45 (1967). 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 protect his own interests or how to get the

- 31 -
benefits of his constitutional rights." Gallegos v. Colorado, 370

U.S. 49, 54 (1962). Several states believe that the presence of a

parent or other adult representative is so important that they have

a per se rule that requires that a juvenile be given Miranda

warnings and the opportunity to consult with an adult who

understands these rights before an admission may be obtained from a

juvenile. See Commonwealth v. A Juvenile (No. 1), 449 N.E.2d 654

(Mass. 1983).
In addition to misleading Novak's mother, Detective Hoffman

admitted lying to Novak during the interrogation. His lies and

trickery are factors that weigh heavily against a finding of

voluntariness. Spano, 360 U.S. at 327; Rodgers v. Commonwealth,

227 Va. 605, 614, 318 S.E.2d 298, 303 (1984). The detective's

lies, coupled with leading and "suggestive questioning," Morris v.

Commonwealth, 17 Va. App. 575, 580, 439 S.E.2d 867, 871 (1994),

constitute conduct designed to provoke Novak's confession.

Detective Hoffman's tactics cannot be viewed only in light of

the nature of the questioning. His exploitative tactics were

practiced on a barely sixteen year old youth who had never before

been involved in any criminal activity. A juvenile's lack of

"[p]revious exposure to the criminal justice system" also is a

factor that weighs against a finding of voluntariness. Green v.

Commonwealth, 223 Va. 706, 710, 292 S.E.2d 605, 608 (1982).

The record clearly established that during the interrogation

Novak's responses accorded with Officer Hoffman's suggestive

questioning. Novak, who, according to the prosecutor's

- 32 -
psychiatrist, exhibited signs of "immaturity" and "a need for being

recognized and appreciated" was no match for Hoffman's skill in

extracting confessions. 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

only to the police." Gallegos, 370 U.S. at 54.

Another factor to be considered is the failure to give any

Miranda warnings until after Novak made his admissions. "Proof

that some kind of warnings were given or that none were given [is]

relevant evidence . . . of whether the questioning was in fact

coercive." Beckwith v. U.S., 425 U.S. 341, 348 (1976). The

detective testified that he considered Novak "suspicious" before

the interrogation, and that, as the interrogation proceeded, Novak

became a suspect. It was not until Novak confessed and Hoffman was

interrupted by another officer who had been observing the

questioning, however, that Miranda warnings were read to Novak.

Furthermore, the videotape of the session established that the

warning was given in barely audible tones while Novak was clearly

upset. The officer then addressed Novak's level of understanding

only in a perfunctory fashion and obtained his written waiver, by

causing him to make a check mark without explanation. The

interrogation then proceeded without interruption.

Because all of these factors unequivocally establish that

Novak was deprived of his freedom of action and that Novak's

confession was involuntary, I would hold that the Commonwealth

failed to prove that the confession was voluntary and admissible.

- 33 -
Accordingly, I would reverse his conviction. I dissent.

- 34 -