                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                        MEMORANDUM OPINION * BY
v.        Record No. 0101-98-3       JUDGE JERE M. H. WILLIS, JR.
                                             MAY 26, 1998
LEONARD CARL FERGUSON


             FROM THE CIRCUIT COURT OF WYTHE COUNTY
                    J. Colin Campbell, Judge
          Robert B. Beasley, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Thomas G. Hodges (Hodges, Campbell & Stanley,
          on brief), for appellee.



     The trial court found:
          [T]he Defendant's statement was not a product
          of an essentially free and unconstrained
          choice, but his capacity for self[-]
          determination was critically impaired to such
          degree that his statement was involuntarily
          given.


Because the evidence supports that conclusion, we affirm the

judgment of the trial court.   We need not address whether

Ferguson was in custody when he gave the suppressed statement.

     "The Commonwealth has the burden to prove, by a

preponderance of the evidence, that a defendant's confession was

freely and voluntarily given."   Bottenfield v. Commonwealth, 25

Va. App. 316, 323, 487 S.E.2d 883, 886 (1997).   In determining

voluntariness, we must inquire whether "the statement is the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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."

Roberts v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709,

711 (1994) (citations omitted) (internal quotation marks

deleted).    See also Midkiff v. Commonwealth, 250 Va. 262, 268,

462 S.E.2d 112, 116 (1995).    In making such a determination,

"'courts look to the totality of all the surrounding

circumstances,' including the defendant's background, experience,

mental and physical condition and the conduct of the police."
Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722,

723 (1992) (citation omitted).    While we must conduct an

independent review of the question of voluntariness, we are bound

by the trial court's subsidiary findings of fact unless they are

plainly wrong.    Wilson v. Commonwealth, 13 Va. App. 549, 551, 413

S.E.2d 655, 656 (1992).

     Although Ferguson operated his own taxicab business, the

trial court found that he was "a rather unsophisticated mentally

slow individual with no apparent prior criminal history and no

evidence of any understanding of the Constitutional rights

protected under Miranda."     This finding is supported by the trial

court's observation of Ferguson and his demeanor in the

courtroom.   The evidence disclosed that Ferguson came to Richmond

in response to a summons from investigators of the Attorney

General's Office.   Entering the building, he passed an armed




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guard who admitted him.    Going to an upper floor, he was met by

two investigators of the Attorney General's Office who separated

him from the family members who had accompanied him to Richmond

and took him into a conference room, which required the unlocking

of a door for entry.   The investigators closed the door behind

themselves and Ferguson.   Ferguson thought the door relocked when

it closed.   Ferguson was not permitted to leave the room

unaccompanied, even to go to the bathroom.   The investigators

explained that they did not want him to become lost in the maze

of offices, but the existence of that maze and of that

accompaniment supported Ferguson's feelings of being ensnared.

Ferguson testified that he was not informed that he was free to

leave or that he could decline to make a statement.   This

evidence supports the trial court's conclusion that, as a matter

of fact, a person of Ferguson's character and capabilities would

not feel free to exercise unconstrained choice but would feel

obliged to submit to the demands of the investigators.   This

factual determination supports the legal conclusion that

Ferguson's statement was involuntarily given.
     The judgment of the trial court is affirmed.

                                                         Affirmed.




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