COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements Argued at Alexandria, Virginia
LEVON ANDREW DICKERSON MEMORANDUM OPINION * BY v. Record No. 3003-99-4 JUDGE RICHARD S. BRAY DECEMBER 28, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Alfred D. Swersky, Judge
John B. Jacob, Jr., for appellant.
Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Levon A. Dickerson (defendant) was convicted in a bench trial
on an indictment charging two counts of malicious wounding,
attempted robbery, and conspiracy to commit robbery, violations of
Code §§ 18.2-51, -26 and –22, respectively. On appeal, defendant
complains the trial court erroneously denied a motion to suppress
a confession obtained by police in violation of the Constitutions
of the United States and this Commonwealth. Finding no error, we
affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On review of a trial court's denial of a motion to suppress,
"[w]e view the evidence in a light most favorable to . . . the
prevailing party below, and we grant all reasonable inferences
fairly deducible from that evidence." Commonwealth v. Grimstead,
12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). In our
analysis, "we are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States,
517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911
(1996)).
I.
Defendant first maintains that he confessed involvement in
the subject offenses without the safeguards prescribed by Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
However,
[t]he Supreme Court has made it clear that [Miranda] . . . 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 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) (quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612
(footnote omitted)).
- 2 - Whether a suspect is "in custody" under Miranda is determined by the circumstances of each case, and "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with formal arrest." The determination "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned."
Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262
(1998) (internal citations omitted).
Here, while at defendant's residence, Alexandria Police
Detectives Ellman and Purcell "asked [defendant] if he would be
willing to come down to the police station" and "talk about" "some
things that had happened over the last few weeks or days." Ellman
advised defendant that "he wasn't under arrest and . . . would be
free to go at any time, . . . that we would . . . bring him back."
Defendant agreed and "got dressed" in the "bedroom area," while
the detectives waited elsewhere in the home. As the three
departed the residence for the stationhouse, defendant's father
was encountered on the "front stoop." Detective Purcell "knew"
the father, explained the circumstances to him, and the father
advised "that was okay."
En route to the station, defendant "was calm" and
"conversational," discussing a "variety of things" with the
detectives, including his "understanding of the criminal justice
system based upon" prior experience. On arrival, defendant was
offered food, drink, and the opportunity to use the bathroom. The
- 3 - door to the "interview room," although closed, was unlocked, and
defendant, once seated, was again assured that he was "free to go
at any time. All you have to do is tell us and we will drive you
back home."
During the ensuing exchange, Ellman broached the subject
offenses and advised defendant that "some evidence led [him] to
believe that [he] might be involved." When defendant professed
innocence, Ellman suggested defendant provide fingerprints for
comparison to those previously connected to the crimes, "so we
could positively eliminate [him]." Defendant agreed and, upon
return to the interview room, "indicated that he . . . had been
. . . involved in the case." Before further questioning, however,
Ellman reminded defendant that he was "not under arrest," "free to
go at any time," and "came down here voluntarily." Defendant then
confessed to the crimes, and the detectives returned him to his
residence.
Such evidence, considered with the entire record, establishes
that a reasonable person, similarly situated, would not have
considered himself under arrest or otherwise restrained by police.
Defendant, therefore, was not in custody, as contemplated by
Miranda, when he confessed to police.
II.
"However, defendant reminds us that any confession, 'even if
obtained in full compliance with Miranda, may be inadmissible if
. . . not voluntary.'" Novak v. Commonwealth, 20 Va. App. 373,
- 4 - 386, 457 S.E.2d 402, 408 (1995) (quoting Kauffmann v.
Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279, 281 (1989)).
Review on appeal of the voluntariness of a statement requires an "independent examination" of "'the totality of all the surrounding circumstances'" to ascertain if it 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.'" Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992); Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973)), cert. denied, 484 U.S. 873, 108 S. Ct. 207, 98 L. Ed. 2d 158 (1987).
Thomas v. Commonwealth, 16 Va. App. 851, 858, 434 S.E.2d 319, 324
(1993). Our consideration must include "not only the details of
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements Argued at Alexandria, Virginia
LEVON ANDREW DICKERSON MEMORANDUM OPINION * BY v. Record No. 3003-99-4 JUDGE RICHARD S. BRAY DECEMBER 28, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Alfred D. Swersky, Judge
John B. Jacob, Jr., for appellant.
Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Levon A. Dickerson (defendant) was convicted in a bench trial
on an indictment charging two counts of malicious wounding,
attempted robbery, and conspiracy to commit robbery, violations of
Code §§ 18.2-51, -26 and –22, respectively. On appeal, defendant
complains the trial court erroneously denied a motion to suppress
a confession obtained by police in violation of the Constitutions
of the United States and this Commonwealth. Finding no error, we
affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On review of a trial court's denial of a motion to suppress,
"[w]e view the evidence in a light most favorable to . . . the
prevailing party below, and we grant all reasonable inferences
fairly deducible from that evidence." Commonwealth v. Grimstead,
12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). In our
analysis, "we are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States,
517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911
(1996)).
I.
Defendant first maintains that he confessed involvement in
the subject offenses without the safeguards prescribed by Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
However,
[t]he Supreme Court has made it clear that [Miranda] . . . 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 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) (quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612
(footnote omitted)).
- 2 - Whether a suspect is "in custody" under Miranda is determined by the circumstances of each case, and "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with formal arrest." The determination "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned."
Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262
(1998) (internal citations omitted).
Here, while at defendant's residence, Alexandria Police
Detectives Ellman and Purcell "asked [defendant] if he would be
willing to come down to the police station" and "talk about" "some
things that had happened over the last few weeks or days." Ellman
advised defendant that "he wasn't under arrest and . . . would be
free to go at any time, . . . that we would . . . bring him back."
Defendant agreed and "got dressed" in the "bedroom area," while
the detectives waited elsewhere in the home. As the three
departed the residence for the stationhouse, defendant's father
was encountered on the "front stoop." Detective Purcell "knew"
the father, explained the circumstances to him, and the father
advised "that was okay."
En route to the station, defendant "was calm" and
"conversational," discussing a "variety of things" with the
detectives, including his "understanding of the criminal justice
system based upon" prior experience. On arrival, defendant was
offered food, drink, and the opportunity to use the bathroom. The
- 3 - door to the "interview room," although closed, was unlocked, and
defendant, once seated, was again assured that he was "free to go
at any time. All you have to do is tell us and we will drive you
back home."
During the ensuing exchange, Ellman broached the subject
offenses and advised defendant that "some evidence led [him] to
believe that [he] might be involved." When defendant professed
innocence, Ellman suggested defendant provide fingerprints for
comparison to those previously connected to the crimes, "so we
could positively eliminate [him]." Defendant agreed and, upon
return to the interview room, "indicated that he . . . had been
. . . involved in the case." Before further questioning, however,
Ellman reminded defendant that he was "not under arrest," "free to
go at any time," and "came down here voluntarily." Defendant then
confessed to the crimes, and the detectives returned him to his
residence.
Such evidence, considered with the entire record, establishes
that a reasonable person, similarly situated, would not have
considered himself under arrest or otherwise restrained by police.
Defendant, therefore, was not in custody, as contemplated by
Miranda, when he confessed to police.
II.
"However, defendant reminds us that any confession, 'even if
obtained in full compliance with Miranda, may be inadmissible if
. . . not voluntary.'" Novak v. Commonwealth, 20 Va. App. 373,
- 4 - 386, 457 S.E.2d 402, 408 (1995) (quoting Kauffmann v.
Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279, 281 (1989)).
Review on appeal of the voluntariness of a statement requires an "independent examination" of "'the totality of all the surrounding circumstances'" to ascertain if it 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.'" Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992); Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973)), cert. denied, 484 U.S. 873, 108 S. Ct. 207, 98 L. Ed. 2d 158 (1987).
Thomas v. Commonwealth, 16 Va. App. 851, 858, 434 S.E.2d 319, 324
(1993). Our consideration must include "not only the details of
the interrogation, but also the characteristics of the accused."
Goodwin v. Commonwealth, 3 Va. App. 249, 253, 349 S.E.2d 161,
163-64 (1986). "While the question whether a statement is
voluntary is ultimately a legal rather than a factual one,
subsidiary factual determinations made by the trial court are
entitled to a presumption of correctness." Bailey v.
Commonwealth, 2000 WL 432386, *14 (Va. 2000).
The instant record discloses that defendant, age fourteen at
the time of the offenses and confession, then attended Alexandria
public schools in an "Individualized Education Program," a
placement resulting from an "inability to control his . . .
aggressive behavior," a "Disability" characterized on school
- 5 - records as an "Emotional Disturbance." Although defendant's
teacher opined that he "functions around the first or second
grade," defendant was classified at an eighth grade level and his
curriculum included math, language arts, science and social
studies.
From the inception of contact with police, defendant
willingly cooperated in the investigation and was repeatedly
assured that he was not under arrest, free to leave and would be
delivered home upon request. Defendant conversed with Detective
Ellman on an array of topics, both prior to and during the
interview, including defendant's experience with the criminal
justice system, without suggestion of confusion, threat or
coercion. Such circumstances, together with other evidence before
the court, provide abundant support to the trial court's finding
that defendant voluntarily spoke with police.
Defendant's contentions that police erroneously neglected to
"encourage" his father to "come to the station" and "tricked" him
into confessing through a ruse regarding fingerprint evidence are
also without merit. While the presence of parents and police
tactics are considerations relevant in determining the
voluntariness of a juvenile's statement, such factors are clearly
not persuasive on the instant record. See Grogg v. Commonwealth,
6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1998) (juvenile's waiver
valid despite absence of parent); Novak, 20 Va. App. at 387-88,
- 6 - 457 S.E.2d at 409 (deception by police in questioning juvenile
defendant did not taint confession).
Accordingly, we affirm the convictions.
Affirmed.
- 7 -