                      COURT OF APPEALS OF VIRGINIA


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


ANGELA LYNN NACKE
                                          MEMORANDUM OPINION * BY
v.   Record No. 2501-99-1              JUDGE JEAN HARRISON CLEMENTS
                                              NOVEMBER 7, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   Everett A. Martin, Jr., Judge

          Ronald F. Schmidt (Ronald F. Schmidt, P.C.,
          on brief), for appellant.

          Michael T. Judge, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Juvenile appellant Angela Lynn Nacke was convicted of felony

murder, hit and run, eluding a police officer, grand larceny, and

conspiracy.   On appeal, she contends the trial court erred in

denying her motion to suppress the inculpatory statement she gave

to police detectives following her arrest. 1   Finding no error, we

affirm the judgment of the trial court.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Pursuant to a plea agreement, appellant entered
conditional guilty pleas to the charges of which she was
subsequently convicted reserving a right to appeal the trial
court's ruling on her suppression motion.
value, this opinion recites only those facts necessary to a

disposition of this appeal.

     Specifically, Nacke asserts on appeal that given her age, her

mental capacity, her condition at the time the statement was

given, her naiveté in the criminal justice system, and the "adult"

method used by detectives to advise her of her rights and obtain

her waiver, she did not knowingly, intelligently, and voluntarily

waive her Miranda rights.   It was, she contends, error, therefore,

on the part of the trial court to deny her motion to suppress the

confession she gave to the police during a custodial

interrogation.

     On appeal from a trial court's denial of a motion to

suppress, we review the evidence in the light most favorable to

the Commonwealth granting to the Commonwealth all reasonable

inferences fairly deducible from it.    E.g., Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

Furthermore, we are bound by the trial court's findings of

historical fact unless plainly wrong or without evidence to

support them.    E.g., McGee v. Commonwealth, 25 Va. App. 193,

198, 487 S.E.2d 259, 261 (1997) (en banc).   However, we review

de novo "the trial court's application of defined legal

standards to the particular facts of a case."    Timbers v.

Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998).

     When an accused seeks suppression of a confession given

during a custodial interrogation, the Commonwealth has the

                                - 2 -
burden of proving that the accused was apprised of her Miranda

rights and that she knowingly, intelligently, and voluntarily

waived those rights.    Grogg v. Commonwealth, 6 Va. App. 598,

611, 371 S.E.2d 549, 556 (1988).   "A heavy burden rests upon the

Commonwealth to demonstrate that the accused has made a valid

waiver."    Id.

       In assessing whether a waiver was knowingly and

intelligently made, "the court must examine the totality of the

circumstances," including, when the accused is a juvenile, "'the

juvenile's age, experience, education, background, and

intelligence,'" and whether the juvenile has the "'capacity to

understand the warnings given [her], the nature of [her] Fifth

Amendment rights, and the consequences of waiving those

rights.'"    Roberts v. Commonwealth, 18 Va. App. 554, 557, 445

S.E.2d 709, 711 (1994) (quoting Fare v. Michael C., 442 U.S.

707, 725 (1979)).   The presence of a parent, guardian, counsel,

or some other interested adult when a juvenile waives

constitutional rights and admits to a crime is a factor weighing

in favor of a determination that the waiver was knowingly and

intelligently made.    See Grogg, 6 Va. App. at 613, 371 S.E.2d at

557.   Conversely, a juvenile's lack of previous exposure to the

criminal justice system is a factor weighing against a finding

that the waiver was knowing and intelligent.    See Green v.

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

issue of whether a waiver was knowingly and intelligently made

                                - 3 -
"is a question of fact, and the trial court's resolution of that

question is entitled on appeal to a presumption of correctness."

Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163

(1992).

     The voluntariness issue, on the other hand, is a question

of law requiring an independent determination on appeal.    E.g.,

Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655,

656 (1992).   However, like the knowing and intelligent issue, it

too requires an examination of the totality of the

circumstances.   Id.   "In assessing voluntariness, the court must

determine whether 'the statement is the product of an

essentially free and unconstrained choice by its maker, or . . .

whether the maker's will has been overborne and [her] capacity

for self-determination critically impaired.'"    Roberts, 18 Va.

App. at 557, 445 S.E.2d at 711 (omission in original) (quoting

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

(1984) (internal quotations omitted)).   In making that

independent determination, "we are bound by the trial court's

subsidiary factual findings unless those findings are plainly

wrong."   Wilson, 13 Va. App. at 551, 413 S.E.2d at 656.

"Conflicts in evidence present factual questions that are to be

resolved by the trial court" which "must evaluate the

credibility of the witnesses, resolve the conflicts in their

testimony and weigh the evidence as a whole."    Mills v.

Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992).

                                - 4 -
     Relevant factors in determining voluntariness include the

details of the interrogation, such as whether the police used

coercive or deceitful tactics, and the characteristics of the

accused, such as her physical and psychological condition at the

time of the interrogation.   See Riddick v. Commonwealth, 22 Va.

App. 136, 146, 468 S.E.2d 135, 140 (1996).   Moreover, when the

accused is a juvenile, "'the greatest care must be taken to

assure that the admission was voluntary, in the sense not only

that it was not coerced or suggested, but also that it was not

the product of ignorance of rights or of adolescent fantasy,

fright or despair.'"   Grogg, 6 Va. App. at 612-13, 371 S.E.2d at

556 (quoting In re Gault, 387 U.S. 1, 55 (1967)).

     Here, the record discloses that the accused was 14 1/2

years of age at the time the custodial interrogation took place.

She attended high school where she was a B and C student.   She

had never been arrested before.

     At the suppression hearing, appellant's expert, a licensed

clinical psychologist, testified that Nacke's reading

comprehension was at the mildly retarded level.   Her verbal

comprehension and verbal IQ, however, were within the normal

range of intelligence, and her overall IQ was in the "low

normal" range.   The expert concluded that Nacke's "intellectual

capabilities and her academic skills were clearly above the

retarded range."



                               - 5 -
     Nacke was arrested at approximately midnight and was

transported to a hospital for treatment of her sprained ankle.

Despite having gotten only a few hours of sleep in the preceding

day and a half, the accused was alert, fully awake, cooperative,

and not under the influence of alcohol or drugs when apprised of

her Miranda rights at the hospital by Detective Goldberg.

Nacke's mother was present while Nacke was given her legal

rights.

     Upon meeting her at the hospital, Goldberg told Nacke he

would need to advise her of her legal rights before he could

talk to her.   In response to the detective's initial questions,

Nacke indicated that she could read and write and that she

understood English.   At Goldberg's request, she wrote the date

on the Norfolk Police Department Legal Rights Advice Form given

to her by the detective and then read aloud the first right from

that form.   She read it, according to Goldberg, clearly,

accurately, and without hesitation.    When asked by the detective

if she understood that right, she said she did, and when asked

to explain her understanding of it, she said, "I don't have to

talk to you if I don't want to."

     Directing Nacke to follow along, the detective then read

aloud the rest of the rights form and Nacke initialed and wrote

"yes" by each item after it was read, indicating that she

understood the specific enumerated right, that her rights had

been fully explained to her and she understood them completely,

                               - 6 -
that she waived the rights and wished to make a statement, and

that her statement was freely and voluntarily made without any

threat or promise.   Detective Goldberg testified at the

suppression hearing that this was the same method he used when

advising adults of their Miranda rights and the same method he

had been using all eleven years he had been on the police

department.

     Although invited by Detective Goldberg to ask any questions

about Nacke's legal rights as he was going through the form,

neither Nacke nor her mother asked any questions.   Nacke then

signed and dated the rights form at 1:56 a.m., and her mother

and Goldberg signed as witnesses.   At no point during the

reading of the rights or during the subsequent interrogation and

review of Nacke's statement did Nacke or her mother indicate

that Nacke did not wish to speak with Goldberg or that she

wanted to have a lawyer present.

     Nacke did indicate, however, when asked by Detective

Goldberg, that she wanted her mother to wait out in the lobby

during the interview itself.   Nacke testified at the suppression

hearing that she asked her mother to leave while she gave her

statement because she did not want her mother to know everything

she had done and she could tell her about it herself later.

Before leaving, Nacke's mother told her daughter to "tell the

truth," and Nacke said she would.



                               - 7 -
     Detective Goldberg then talked with Nacke for approximately

an hour.   During the interview, Nacke was alert, emotionally

stable, articulate, and able to precisely describe the details

of the crimes that she and her cohorts committed.

     Following the initial interview, Goldberg took a recorded

statement from the accused.   At the beginning of that statement,

Nacke acknowledged that Goldberg had gone over her legal rights

with her while her mother was present and that, knowing and

understanding her legal rights, she desired to give a taped

statement to the police regarding her criminal activities.    At

the end of the statement, the accused acknowledged that her

statement had been given voluntarily without any threat or

promise by the police.    The statement was completed at

approximately 3:42 a.m.

     Goldberg then, after notifying Nacke's mother that the

interview was over and that she could go see her daughter, went

to the police station to have a typewritten transcript of the

accused's statement prepared.   Once the statement was

transcribed, the detective returned to the hospital, where the

accused was still under treatment and observation by physicians.

He gave the transcript to Nacke, who, with her mother present,

reviewed it, corrected several errors in it, initialed the top

and bottom of each page, and signed it at 9:01 a.m.   Nacke's

mother also read the statement, both along with her daughter and

on her own when Nacke was taken to a different room for about

                                - 8 -
twenty minutes for a CAT scan.    Goldberg testified that it took

"a while" for Nacke to read the 29-page statement.   When asked

at the suppression hearing if she had problems reading the

statement, Nacke testified that she "did not have any problems

reading it" but "kept dozing off every now and then."

     The accused also testified at the suppression hearing that

she did not understand at the time she waived her rights what

the word "waive" meant.   She acknowledged, however, that she

knew what "voluntarily" meant.    She testified she was afraid to

ask questions during the reading of her rights because she did

not want to appear ignorant.   She also testified that, while she

understood that she could have had a lawyer at the interrogation

and knew from watching television that "lawyers were there to

help people and defend their clients," she did not believe she

needed a lawyer at the custodial interrogation because she

thought the detectives, unlike the uniformed police, were there

to help her.   She thought, according to her testimony, that she

would be able to go home if she cooperated with the detectives.

     Noting the accused's age, her lack of previous contact with

the criminal justice system, her low reading-comprehension test

score, her lack of sleep, and the time of day the interrogation

occurred, the trial court nevertheless found that Nacke

knowingly and intelligently waived her Miranda rights.    The

trial court pointed to the fact that Nacke's mother was present

when the juvenile was apprised of and waived her rights, that

                                 - 9 -
Nacke's verbal-comprehension test score was in the normal range,

that Nacke was a "B, C student," and that Nacke was able to

understand the questions she was asked at the suppression

hearing and answer them appropriately without hesitation or

befuddlement.   The trial court also noted, in looking at Nacke's

statement, that Nacke answered the questions asked of her during

the interrogation appropriately, that she reviewed and made

corrections to the transcript of her statement, and that she

testified at the suppression hearing that she understood her

statement.   Based on the testimony of Nacke and of the

detectives who interrogated her, the court determined that Nacke

understood her legal rights, validly waived them, and

voluntarily confessed.   We agree.

     Applying the appropriate standards of review, we find that

the credible evidence in this case was sufficient to support the

trial court's finding that Nacke knowingly and intelligently

waived her Miranda rights.   We also find that the trial court's

finding was not plainly wrong.

     Furthermore, based upon our independent examination of the

totality of the circumstances, as reflected in the record, we

conclude that, in waiving her legal rights and in giving her

statement to the police, Nacke's will was not overborne, her

capacity for self-determination was not critically impaired, and

her confession was the product of an essentially free and

unconstrained choice in the sense not only that it was not

                              - 10 -
coerced or improperly induced by the police, but also that it

was not the product of ignorance of rights or of adolescent

fantasy, fright, or despair.   We find in the record the

description of an alert, responsive, articulate, and perceptive

juvenile who had sufficient intellect to, and who did in fact,

know and understand her Miranda rights and the ramifications of

waiving those rights.   She knew that she did not have to speak

with Detective Goldberg and knew she could have a lawyer present

if she wanted one, but she willingly chose to give a statement

that could be used against her to Detective Goldberg without a

lawyer there to represent her.   We, like the trial court, are

not persuaded by the accused's uncorroborated testimony that she

thought the detectives were there to help her and that if she

cooperated with them she would get to go home.    The rest of the

record belies such a lack of savvy on her part.

     Moreover, appellant's mother was with her when she waived

her rights.   In fact, after Detective Goldberg advised Nacke of

her Miranda rights, Nacke's mother, who testified that she

understood all of her daughter's Miranda rights, did not tell

the detective that she wanted an attorney for her daughter or

that she did not want her daughter to talk to the police.     She

simply told her daughter to "tell the truth."

     Furthermore, there is nothing in the record suggesting that

the accused was pressured, intimidated, or tricked by the police

into making her confession.    Thus, we conclude that Nacke

                               - 11 -
voluntarily waived her rights and confessed.   The trial court

did not, therefore, err in refusing to suppress her inculpatory

statement.

     Accordingly, we affirm the trial court's decision to

overrule Nacke's motion to suppress her confession and affirm

appellant's convictions.

                                                        Affirmed.




                             - 12 -
