                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia


DAWAIN HOPKINS, S/K/A
 DAWAIN RUSSELL HOPKINS
                                          MEMORANDUM OPINION * BY
v.   Record No. 0502-00-1                  JUDGE RICHARD S. BRAY
                                                MAY 8, 2001
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Alan E. Rosenblatt, Judge

          Michael F. Fasanaro, Jr. (Abrons, Fasanaro &
          Sceviour, on brief), for appellant.

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Dawain Hopkins (defendant) entered conditional guilty pleas

in the trial court to indictments charging murder in the first

degree and conspiracy to commit murder, preserving his right to

appeal the denial of his motion to suppress certain inculpatory

statements made to police.   Accordingly, defendant maintains

before this Court that such statements were the product of a

custodial interrogation, unattended by the requisite Miranda

warnings, and erroneously admitted into evidence.   We disagree and

affirm the convictions.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                  I.

          When a motion to suppress is reviewed on
          appeal, the burden is on the appellant to
          show that the ruling, when the evidence is
          considered in the light most favorable to
          the Commonwealth, constituted reversible
          error. We review the trial court's findings
          of historical fact only for "clear error,"
          but we review de novo the trial court's
          application of defined legal standards, such
          as "reasonable suspicion" and "custodial
          interrogation," to the particular facts of a
          case.

Ford v. Commonwealth, 28 Va. App. 249, 255, 503 S.E.2d 803, 805

(1998) (internal citations omitted).

     Viewed accordingly, the instant record discloses that

Virginia Beach Detective Shawn W. Hoffman, while investigating

the disappearance of Troy Wilson, spoke with defendant's sister

and learned defendant and Kevin Potts had information pertinent to

the "missing person report."   Defendant's mother was privy to the

conversation, and Hoffman sought and obtained her permission to

speak with defendant, then age sixteen, before locating him

shortly thereafter at Potts' home.

     Hoffman asked defendant "if he would accompany [him] to

police headquarters as we could talk with one another in regards

to the disappearance of Troy Wilson," adding that his mother had

authorized the interview.    Defendant replied, "he did not have a


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problem doing that."   Prior to leaving the residence, defendant

"was advised . . . that he was not under arrest" and, during the

ten minute trip to headquarters, "was not restrained in any

fashion" and "sat in the front seat of [the] unmarked" and

unlocked police vehicle.

     En route, defendant volunteered that "he had last seen" Troy

Wilson "two weeks prior," when he and Potts purchased marijuana

from him.   Upon arrival, Hoffman advised defendant, "we had

information that he . . . and Mr. Potts [were] somehow involved

. . . in the disappearance of Troy Wilson."   Defendant then

"indicated . . . he would tell . . . what happened," and he and

Hoffman, accompanied by Detective Byrum, proceeded to "interview

room . . . 138."   Hoffman again advised defendant "he was not

under arrest [and] . . . was free to leave" and began a videotaped

interview at approximately 3:30 p.m. 1

     The video depicts a small, Spartan room, furnished with a

table and three chairs.    Defendant and Hoffman were initially

seated at opposite ends of the table but, as the interview

progressed, Hoffman drew closer to defendant, moving his chair

along the table.   Byrum was seated beside defendant but soon left

the room and did not return.   During the interview, defendant

explained to Hoffman that Potts, a close friend, had murdered

Wilson, after Wilson threatened to "shoot" defendant as a result


     1
       The videotape was reviewed by both the trial court and
this Court.

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of an unpaid drug debt.   Defendant recalled Potts had jokingly

mentioned killing Wilson to protect defendant, but insisted he did

not solicit Potts to commit the crime, did not page or otherwise

summon Wilson to the fatal rendezvous with Potts, and was not

present during commission of the offense.    Defendant did, however,

admit assisting Potts in moving and burying the corpse

approximately two weeks following the murder.

     As the interview progressed, defendant's fear of

incarceration as a consequence of his involvement with Potts

became apparent, and Hoffman's responses to defendant's related

questions included "I don't know about that," "I can't guarantee

anything" and "Nobody's going to Beaumont or anything."     Defendant

asked, "Do I get to go home tonight?" and Hoffman answered, "We're

going to see about that," and, later, "We're working on that,

alright?" to a similar inquiry.    When defendant commented, "Well,

I just want to go home tonight," Hoffman responded, "Okay.    Hold

tight for a few minutes."    Subsequently, the following exchange

occurred between defendant and Hoffman:

          Defendant:        But I can't leave though.
          Hoffman:          You could leave, but I think
                            you wanted [sic] to sit here
                            and tell me what happened.
                            You certainly could leave.
          Defendant:        Yeah, but ain't gonna help me
                            in court. 'Cause I know I'm
                            gonna be in court for this,
                            ain't I?
          Hoffman:          Possibly . . .
          Defendant:        What I'm saying, I'm going to
                            get locked up though, huh?


                                 - 4 -
            Hoffman:        I don't know that.   I honestly
                            don't know that.

     After approximately forty minutes, at "about 1610 or 1615

hours," the audio/visual capability available in room 138 was

required by another officer, and the interview was relocated to

room 136.   While changing rooms, defendant was offered "anything

to eat or drink" and permitted to use the restroom, unaccompanied

and without restraint.     Hoffman and defendant then "talked about

the case a little bit more," "basically rehashing" the earlier

discussion, and defendant agreed to "accompany [Hoffman] out to [a

nearby] housing area and show [Hoffman] where he had buried the

body."

     Hoffman, Byrum and defendant traveled in an unmarked police

car, with defendant "direct[ing] . . . where to drive" while

riding, unrestrained in the front seat of the car.     On arrival,

defendant indicated the locations "where . . . Potts told him the

incident happened," he first observed Wilson's corpse "covered

with leaves," he and Potts buried Wilson and the two disposed of

the murder weapon.     Defendant walked freely to and about the area

and was once separated from the detectives by a "chain link fence

and row of bushes."

     At the conclusion of the site visits, Hoffman reminded

defendant he was not under arrest and "asked . . . if he would

accompany [them] back to police headquarters so we could continue

our interview."   Defendant agreed and, upon return to the station,


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was again permitted to use the restroom, unaccompanied and

unrestrained.

     Returning to room 136, Hoffman inquired, "one more time[,]

who actually paged Troy Wilson on the day of the murder."    In

response, defendant admitted that he, not Potts, had paged Wilson,

because "he knew if he got him over there that [Potts] was going

to kill him."   "At that point," Hoffman recalled, defendant "asked

. . . – told us he would like to go home," and Hoffman first

advised him that he was "in custody and . . . not free to leave."

This final exchange occurred at approximately 6:00 p.m., and

defendant was arrested for the subject offense shortly thereafter.

Hoffman testified that defendant had not previously implicated

himself in the murder of Wilson, "as far as actually being a

principal or participant," and he had not intended to arrest

defendant until he admitted summoning Wilson to the meeting with

Potts, fully aware of Potts' murderous intentions.

     The evidence is uncontroverted that defendant was not

afforded Miranda warnings prior to arrest.

                                II.

     It is well established that the safeguards of Miranda pertain

only to "custodial interrogation."     Pruett v. Commonwealth, 232

Va. 266, 271, 351 S.E.2d 1, 4 (1986).    In determining whether a

suspect is "in custody" for Miranda purposes, "'the ultimate

inquiry is simply whether there is a "formal arrest or restraint

on freedom of movement" of the degree associated with formal

                               - 6 -
arrest.'"   Harris v. Commonwealth, 27 Va. App. 554, 564, 500

S.E.2d 257, 262 (1998) (quoting California v. Beheler, 463 U.S.

1121, 1125 (1983) (citation omitted)).   "The situation must be

viewed from the vantage point of 'how a reasonable man in the

suspect's position would have understood his situation.'"    Wass v.

Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839 (1987)

(quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)).    Factors

previously identified by this Court as pertinent to resolution of

a custody issue in the context of Miranda include

            (1) the familiarity or neutrality of the
            surroundings, (2) the number of police
            officers present, (3) the degree of physical
            restraint, (4) the duration and character of
            the interrogation, (5) the presence of
            probable cause to arrest, and (6) whether
            the suspect has become the focus of the
            investigation.

Bosworth v. Commonwealth, 7 Va. App. 567, 572, 375 S.E.2d 756,

759 (1989).

     Here, in ruling "that this was not a custodial

interrogation" and overruling defendant's motion to suppress his

statements, the trial court found defendant "did, in fact,

voluntarily come down to the detective bureau with Detective

Hoffman" and willingly returned following the visit to the crime

scene.   "Additionally," the court noted, defendant "was free to go

at that time" anytime and "was so advised more than once," was

permitted use of the restroom without restraint and unaccompanied

by police, and interviewed in an unlocked room.   With reference to


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the videotape, the court commented defendant "seem[ed] to be aware

of what was going on[,] . . . appeared . . . articulate,

intelligent, and . . . not . . . under the . . . influence of

. . . narcotics or . . . alcohol."

     Guided by the factors relevant to resolution of the custody

issue and the findings of fact by the trial court, our independent

examination of the record confirms that a reasonable person,

situated like defendant, would not have considered himself under

arrest or otherwise restrained by police during the interview with

Hoffman.   While defendant clearly raised the spectre of

incarceration, his concern was focused on the possibility of

punishment resulting from involvement with Potts, not custody

attendant to the interview.   To the contrary, during the sessions

with Hoffman, defendant acknowledged his freedom to leave the

stationhouse and explained his decision to remain.   Under such

circumstances, we conclude defendant was not then in custody, as

contemplated by Miranda.

     Accordingly, the court correctly admitted the related

statements into evidence, and we affirm the convictions.

                                                     Affirmed.




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