                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia


DENNIS JACKSON MOORE
                                           MEMORANDUM OPINION * BY
v.   Record No. 1088-97-2                JUDGE JAMES W. BENTON, JR.
                                               MARCH 16, 1999
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       L.A. Harris, Jr., Judge

            Cary B. Bowen (Amy M. Curtis; Bowen, Bryant,
            Champlin & Carr, on brief), for appellant.

            Eugene Murphy, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     A jury convicted Dennis Jackson Moore of first degree

murder, use of a firearm while committing murder, robbery, and

use of a firearm while committing robbery.    On appeal, Moore

argues that the trial judge erred by (1) ruling that Moore's

statement was voluntary, and (2) refusing a jury instruction

proffered by Moore concerning the voluntariness of his statement.

Because the evidence proved that Moore's statement was voluntary,

the trial judge did not err in denying Moore's motion to

suppress.    Furthermore, the trial judge's refusal to instruct the

jury concerning voluntariness was not reversible error.

                                  I.
     As Vance Michael Horne, Jr. and Jonathan Cooper walked

through a parking lot after leaving a dance at a recreation

     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
center, someone approached them from behind and put a gun to

Cooper's back.   The assailant ordered Cooper to give him a neck

chain Cooper was wearing.   As Cooper removed his chain, Horne

turned and told the assailant "[t]here's no need for this, just

relax, everything is going to be cool."    The assailant told Horne

not to look at him and again instructed Cooper to remove his

chain.    When Cooper handed his chain to the assailant, the

assailant shot Horne and ran into a nearby wooded area.    Horne

died from a gunshot wound to the head.

       Following several months of investigation, Detective James

Dorton arrested Dennis Jackson Moore, who was seventeen years

old.   During an interrogation, Moore told the detective that he

robbed Cooper and shot Horne.    Prior to trial, Moore moved to

suppress his statement, claiming that he did not voluntarily

waive his rights pursuant to Miranda v. Arizona, 384 U.S. 436

(1966).   The trial judge denied the motion.   At trial, a jury

convicted Moore of first degree murder, use of a firearm in the

commission of murder, robbery, and use of a firearm in the

commission of robbery.

                                 II.

       "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."     Ford v. Commonwealth, 28 Va. App.

249, 255, 503 S.E.2d 803, 805 (1998).




                                 - 2 -
           Whether a statement is voluntary is
           ultimately a legal rather than factual
           question. Subsidiary factual questions,
           however, are entitled to a presumption of
           correctness. 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." In
           determining whether a defendant's will has
           been overborne, courts look to "the totality
           of all the surrounding circumstances,"
           including the defendant's background and
           experience and the conduct of the police.

Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163

(1987) (citations omitted).   "In performing such analysis, we are

bound by the trial [judge'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

(1996)).

     At the suppression hearing, the detective testified that he

first questioned Moore at Moore's home soon after the shooting.

Moore, who was at home by himself, told the detective he was

seventeen years old and he did not want to contact his parents.

Moore answered the detective's questions concerning his knowledge

of the killing.   Later that night, Moore's mother called the

detective to inquire about his visit.   The detective informed her

that he was investigating the robbery and killing.   A day later,

the detective returned to Moore's home.   Moore told the detective

that his stepfather was coming home and requested that the



                               - 3 -
detective wait for his stepfather's arrival.   When Moore's

stepfather arrived and learned that the detective wanted to

question Moore, Moore's stepfather said he would contact an

attorney and notify the detective when they could "get back

together and talk."

       Two weeks later, the detective obtained warrants for Moore's

arrest.    The detective testified that when he and another officer

went to Moore's home, Moore's stepfather took them to Moore's

bedroom where Moore was sleeping.   They arrested Moore and led

him outside.   The detective testified that he told Moore's

stepfather that either he or Moore would "be in touch" later that

day.   He denied that Moore's stepfather instructed him not to

question Moore until Moore's stepfather or his attorney was

present.

       At the Public Safety Building, the detective placed Moore in

an interview room and read to Moore Miranda warnings from a card.

He also informed Moore that because Moore was a juvenile, Moore

could have his parents present during the questioning and that

Moore could be tried as an adult.   Moore indicated he understood

his rights and was willing to talk, but he first wanted a

cigarette.   The detective gave Moore a cigarette and then left

the room to activate a videotape machine that was connected to a

camera in the interview room.   The detective returned to the

interview room and questioned Moore at length concerning the

robbery and killing.   Moore confessed that he robbed Cooper of




                                - 4 -
the chain and accidentally discharged the gun killing Horne

during the robbery.

     At the hearing, Moore introduced testimony from his

stepfather.    Moore's stepfather testified that when the detective

arrested Moore, he asked the detective not to question Moore

until he could secure an attorney or be present for the

questioning.   Moore also introduced evidence from Dr. Cobb, a

psychologist, that Moore was incapable of understanding the

Miranda warnings.     The psychologist testified that "throughout

[Moore's] academic career he's had learning problems, and poor

grades and difficulty with learning and attention deficit

disorder."

     In rebuttal, the Commonwealth introduced evidence from Dr.

Nelson, a psychologist, who testified that Moore was not retarded

or mentally ill.    Dr. Nelson also testified that Moore had no

difficulty "with his ability to comprehend and understand

directions" and had the capacity to understand the Miranda

warnings.

     The trial judge denied Moore's motion to suppress the

statement.    In his factual findings, the trial judge ruled that

(1) the detective properly advised Moore of the Miranda warnings,
(2) Moore at no time requested to stop the interview, (3) Moore's

stepfather could not legally invoke Moore's rights, (4) Moore's

stepfather did not tell the detective that he should not talk

with Moore without Moore's stepfather or attorney being present,

(5) Moore was not coerced into making his statement, (6) Moore



                                 - 5 -
waived his rights, and (7) Moore was capable of understanding the

Miranda warnings.

     Contending that the evidence proved that he was coerced into

making his statement, Moore first claims the detective ignored

his stepfather's demand that he not question Moore until either

Moore's stepfather or his attorney was present.    However, the

detective testified that Moore's stepfather made no such demand.

The trial judge, in denying Moore's motion to suppress, believed

the detective's testimony and found that Moore's stepfather never

instructed the detective not to talk with Moore.    This is a

credibility finding, based on conflicting evidence and binding on

appeal because it is supported by credible evidence.     See

Matthews v. Commonwealth, 207 Va. 915, 921, 153 S.E.2d 238, 242

(1967).    Furthermore, this Court has held that a juvenile's

statement to the police is not made invalid solely on the basis

that a parent was not present.     See Novak v. Commonwealth, 20 Va.

App. 373, 387, 457 S.E.2d 402, 409 (1995).    The evidence proved

Moore was told several times that he could have his parents

present during the interrogation.    Each time the detective asked

Moore if he wanted his parents present, Moore responded that he

did not.

     Moore next argues that the detective lied to him on several

occasions during the interrogation and that, by lying, the

detective coerced him into making his statement.    While the

detective's decision to employ lying and deceit as an

interrogation technique "'may undermine the respect that



                                 - 6 -
significant segments of the public may have for law enforcement

and the system of justice[,]'" id. (citation omitted), it "'"does

not, in and of itself, require a finding that [Moore's]

confession was involuntary."'"     Id. at 388, 457 S.E.2d at 409

(citation omitted).

     Moore next points to the detective's act of providing him

with a cigarette.   Persons under the age of 18 may not lawfully

possess cigarettes.    See Code § 18.2-371.2(B).     Furthermore, a

person may not provide cigarettes to a minor.      See Code

§ 18.2-371.2(A).    However, the detective's conduct in providing

Moore with a cigarette does not tend to prove Moore's statement

was involuntary.    Moore asked for the cigarette.    None of this

evidence tends to prove that the voluntariness of Moore's

confession was affected by the provision of the cigarette.

     Moore next argues that even if each of these circumstances

does not individually prove coercion, the totality of these

circumstances, in light of his age and mental condition, proved

coercion.   Moore presented evidence that he had failed the ninth

grade, was in special education, had been diagnosed with a

learning disability, and had failed the written portion of the

driver's exam approximately seven times.    However, the

Commonwealth's clinical psychologist testified that after

interviewing Moore and viewing the videotaped interrogation, he

did not "have any concerns about . . . Moore's capacity to

understand a Miranda warning."




                                 - 7 -
        Moore argues that the Commonwealth's psychologist only

interviewed Moore for one hour and ignored the fact that Moore

was learning disabled and suffered from a behavioral disability.

This argument speaks to the credibility of the witness'

testimony.    The trier of fact, not this Court, weighs the

credibility of expert witnesses.     Hill v. Commonwealth, 8 Va.

App. 60, 64, 379 S.E.2d 134, 137 (1989) (en banc).     The trial

judge's decision to view Dr. Nelson's testimony as more credible

than Dr. Cobb's is one that was within his discretion as trier of

fact.     See Commonwealth v. Presley, 256 Va. 465, 470, 507 S.E.2d

72, 75 (1998).    The trial judge's finding, which relied upon the

opinion of the Commonwealth's expert witness, was not plainly

wrong.

        Moore further argues that he did not fully understand the

charges against him when he waived his rights.    During the

interrogation, the detective asked whether Moore understood the

charges.    When Moore responded, "Not really," the detective

described the circumstances surrounding the shooting but did not

tell Moore the specific charges against him.    He did not tell

Moore the specific charges until the interrogation was almost

concluded and after Moore had incriminated himself.

        The essence of Moore's argument concerning these

circumstances is that he did not knowingly waive his rights.

However, that issue is barred under Rule 5A:18.    At no point

during the hearing did Moore argue that his statement was not

knowingly made.    On appeal and in brief, Moore framed the issue



                                 - 8 -
as:   "Did the trial court err in failing to suppress the

defendant's videotaped statement as being involuntary?"

Therefore, we will not rule on the issue whether Moore knowingly

waived his rights.   See Rule 5A:18.

      For these reasons, we hold that the trial judge did not err

in ruling that Moore's statement was voluntary.   Accordingly, we

affirm the judge's decision to deny Moore's motion to suppress

the statement.

                               III.

      The trial judge also denied two jury instructions proffered

by Moore concerning the voluntariness of his statement.     The

first instruction would have instructed the jury as follows:

           If you believe that Dennis Moore did not
           freely and voluntarily give a statement to
           law enforcement officers concerning his
           alleged involvement in the murder of Vance
           Michael Horn, then you should give such
           statement no weight.

The second instruction, taken from this Court's decision in

Goodwin v. Commonwealth, 3 Va. App. 249, 253, 349 S.E.2d 161,

163-64 (1986), reads as follows:

           In determining whether the statement [Moore]
           made to [the detective] was voluntary, you
           should consider whether in light of the
           totality of the circumstances, including not
           only the details of the interrogation, but
           the characteristics of [Moore], the statement
           was the product of an essentially free and
           unconstrained choice by [Moore], or whether
           [Moore's] will was overcome and his capacity
           for self-determination critically impaired.

The trial judge refused the instructions and ruled that, in light

of the general instruction regarding the weight the jury must



                               - 9 -
give all of the evidence, these instructions "unduly [select] one

piece of the evidence."

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"     Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted).

             "The purpose of an instruction is to furnish
             guidance to the jury in their deliberations,
             and to aid them in arriving at a proper
             verdict, so far as it is competent for the
             court to assist them. The chief object
             contemplated in the charge of the judge is to
             explain the law of the case, to point out the
             essentials to be proved on the one side or
             the other, and to bring into view the
             relation of the particular evidence adduced
             to the particular issues involved. In his
             [or her] instructions the trial judge should
             inform the jury as to the law of the case
             applicable to the facts in such a manner that
             they may not be misled."

Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777

(1986) (quoting 75 Am. Jur. 2d Trial § 573 (1974)).    "'Both the

Commonwealth and the defendant are entitled to appropriate

instructions to the jury of the law applicable to each version of

the case, provided such instructions are based upon the evidence

adduced.'"     Stewart v. Commonwealth, 10 Va. App. 563, 570, 394

S.E.2d 509, 514 (1990) (quoting Simms v. Commonwealth, 2 Va. App.

614, 616, 346 S.E.2d 734, 735 (1986)).    We further recognize that

"[w]hen a trial judge instructs the jury in the law, he or she

may not 'single out for emphasis a part of the evidence tending




                                - 10 -
to establish a particular fact.'"   Terry v. Commonwealth, 5 Va.

App. 167, 170, 360 S.E.2d 880, 882 (1987) (citation omitted).

     The following principle is well established:

          When a confession of the accused is offered
          into evidence, the trial judge must rule upon
          its admissibility. The duty of the trial
          judge is to determine from the evidence, in
          the absence of the jury, whether the
          confession was freely and voluntarily given.
          If the confession is freely and voluntarily
          given, it is admissible, and its credibility,
          weight, and value are for the jury to
          determine.

Jefferson v. Commonwealth, 6 Va. App. 421, 424-25, 369 S.E.2d

212, 214 (1988) (citations omitted).   See also Williams v.

Commonwealth, 11 Va. App. 149, 153, 396 S.E.2d 860, 862 (1990).

     Relying on McCoy v. Commonwealth, 206 Va. 470, 144 S.E.2d

303 (1965), the Commonwealth argues that the instructions

proffered by Moore improperly requested the jury to rule on the

admissibility, and not the weight, of his statement.   In McCoy,

the Supreme Court ruled improper an instruction that would have

informed the jury that if it found that the police coerced the

defendant into making his confession, "then the confession was

not voluntary, and you shall not consider the same."   Id. at 475

n.1, 144 S.E.2d at 308 n.1.   The Court held that the instruction

would have improperly released the jury from its duty to consider

the weight to give the evidence and would have subjected the

Commonwealth to having to prove admissibility twice.   See id. at

475, 144 S.E.2d at 308.




                              - 11 -
     The instructions proffered by Moore did not ask the jury to

rule on the admissibility of Moore's statement, but they did

instruct the jury that if the jury found that Moore's statement

was not voluntary, then the jury was to give the statement no

weight.   As in McCoy, the Supreme Court has consistently ruled

that once the trial judge has determined that the confession is

voluntary and admissible, "the jury is entitled to hear the

evidence concerning voluntariness in determining what weight the

confession is due."   Tipton v. Commonwealth, 224 Va. 256, 262,

295 S.E.2d 880, 883 (1982).   Moore's instruction would have

erroneously informed the jury that it had no discretion except to

give the confession no weight.   Cf. McCoy, 206 Va. at 475, 144

S.E.2d at 308.

     "Generally, if a defendant requests an instruction that is

wrong in either form or substance, the trial court has no

obligation to correct the instruction and give it to the jury."

Kil v. Commonwealth, 12 Va. App. 802, 811, 407 S.E.2d 674, 679

(1991).   However, "'when the principle of law is materially vital

to a defendant in a criminal case, it is reversible error for the

trial court to refuse a defective instruction instead of

correcting it and giving it in the proper form.'"   Jimenez v.

Commonwealth, 241 Va. 244, 251, 402 S.E.2d 678, 681 (1991)

(citation omitted).

     We cannot conclude that the instruction was materially vital

to Moore in this case.   First, very little if any of Moore's

counsel's argument to the jury addressed the issue of the



                              - 12 -
voluntariness of the confession.   Second, the jury was instructed

that it was the judge of the credibility of the witnesses and it

was to determine the weight to give the evidence.    Finally, if

there was error, it clearly was harmless.   The evidence of

Moore's guilt was overwhelming.    Aside from the confession at

issue, Moore told two other people that he shot someone after the

dance.   The detective testified that another person saw Moore and

another man walk behind the victim, heard a shot, and saw Moore

and the man run to a car.   In addition, Cooper identified Moore

as the individual who robbed him and killed Horne.

     For these reasons, we affirm the convictions.

                                               Affirmed.




                              - 13 -
Willis, J., concurring.

     I concur in the decision reached by the majority in this

case and in its analysis under II.      However, I would hold that

the instructions tendered by Moore and refused by the trial court

would improperly have permitted the jury to review the

admissibility of Moore's confession.

     The second refused instruction was in aid of the first.         The

first instruction permitted the jury to act, submitting to it the

issue of whether Moore's statement was "freely and voluntarily"

given and directing the jury, upon finding that the statement was

not so given, to give the statement "no weight."     This

instruction would have authorized the jury to excise the

statement from the evidence.   By submitting to the jury this

option, upon the criteria stated, the rejected instructions would

have afforded the jury a right of review of the trial court's

determination of admissibility.




                               - 14 -
