                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Baker
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 1244-99-1                  JUDGE JOSEPH E. BAKER
                                              NOVEMBER 9, 1999
MELVIN MAURICE JOHNSON


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                       Jerome James, Judge

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Michelle J. Harris (Abrons, Fasanaro &
          Sceviour, on brief), for appellee.


     In this appeal by the Commonwealth, the sole question is

whether the Circuit Court of the City of Norfolk (trial court)

erroneously suppressed Melvin Maurice Johnson's (Johnson)

inculpatory confession to robbery and related charges.    For the

reasons that follow, we hold that Johnson knowingly and

intelligently waived his Miranda rights and that his confession

was voluntary.   Accordingly, we reverse the trial court.

                                 I.

     On an appeal from a trial court's decision to suppress a

defendant's confession, "[w]e are bound by the trial court's


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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)).    But "[w]e review

de novo questions of law and 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).

     "In considering the standard of review in this case, we are

confronted with two separate questions:    (1) the standard of

review of a trial court's finding of the voluntariness of a

confession; and (2) the standard of review concerning the

finding of the validity of a waiver of Miranda rights."       Goodwin

v. Commonwealth, 3 Va. App. 249, 252, 349 S.E.2d 161, 163

(1986).   Whether a statement provided by a defendant to police

is voluntary is a legal rather than a factual question, subject

to independent review by this Court.     See Bottenfield v.

Commonwealth, 25 Va. App. 316, 324, 487 S.E.2d 883, 887 (1997).

"[T]he inquiry whether a waiver of Miranda rights was made

knowingly and intelligently 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).




                                 - 2 -
                                II.

     Viewed in the light most favorable to Johnson, the

prevailing party below, the evidence proved that on January 28,

1999, Detective Crawford's investigation of a January 4, 1999

home-invasion robbery led him to Johnson's residence.   After

talking to Johnson's cousin, Crawford had reason to believe that

Johnson, who was then seventeen years old, had been involved in

the robbery.   Upon his return home from school that afternoon,

Johnson spoke briefly with Crawford and agreed to accompany

Crawford to the police operations center (POC) for questioning.

     Johnson resided with his grandmother, Gladys Lindsey, who

was also his legal guardian.   After talking to Johnson, Crawford

spoke briefly with Lindsey and told her he wanted to question

Johnson at the POC.   He asked Lindsey to come to the POC so she

could witness Johnson's signature on the Miranda waiver form.

Initially, Crawford did not tell Lindsey that Johnson was a

suspect in the robbery investigation.

     At the POC, Crawford obtained Lindsey's signature on a

Miranda waiver form, which Johnson also read and signed.    At the

suppression hearing, Lindsey testified that the form was blank

when she signed it.   Johnson initially testified that Crawford

escorted Lindsey out of the interview room after he, Johnson,

signed the form, but Johnson later testified that Lindsey was

not present when he signed the form.    Crawford testified that

Lindsey signed the rights form in Johnson's presence, after

                               - 3 -
Johnson executed the form.    Johnson admitted reading and signing

the Miranda waiver, and Crawford testified that Johnson

indicated he understood his Miranda rights.

     After Lindsey signed the waiver form, Crawford escorted her

from the interview room because his "personal policy" showed

that usually "if you are talking to someone, they are less

inclined to speak if their parents are in there."     Crawford told

Lindsey that he was not interested in Johnson as a suspect, but

that he was after the more culpable participants in the robbery.

He also told Lindsey that Johnson would be released to go home

in approximately two hours.

     Johnson arrived at the POC at 1:45 p.m., and Crawford began

interrogating Johnson at 2:15 p.m.      Johnson initially denied any

involvement in the robbery.   Crawford indicated that he did not

believe Johnson and explained to Johnson the seriousness of the

offense.    The initial interview concluded at 2:55 p.m., after

Johnson asked for some time to "think about it for a while."

Crawford resumed the interrogation with Johnson at 4:35 p.m.      At

6:00 p.m., Crawford and Johnson visited the crime scene,

returning to the POC at 6:25 p.m.    At 8:50 p.m., Crawford

resumed the interrogation, and Johnson subsequently admitted his

involvement in the robbery.   The interrogation concluded at

9:18 p.m., after Johnson signed a written statement prepared by

Crawford.



                                - 4 -
     While Johnson was at the POC, Crawford allowed Johnson to

take bathroom breaks, and he offered Johnson food and drink on

several occasions.

     Johnson claimed he confessed only after becoming frustrated

and because he wanted to go home.   He also testified that he had

smoked a marijuana "blunt" about twenty minutes before he

initially met Crawford and that he was still "high" when he

signed the confession.   Johnson admitted that he never told

Crawford he was under the influence of marijuana, and Crawford

testified that Johnson did not appear to be intoxicated or

otherwise "under the influence."

     While Crawford was interrogating Johnson, Johnson's father

and uncle both came to the POC and attempted to see Johnson.

Police denied both men access to Johnson.

     Johnson moved to suppress his confession on the ground that

it was obtained in violation of the Fifth and Sixth Amendments to

the Constitution of the United States and Code § 16.1-247.   The

trial court found that Johnson was not deprived of any physical

comforts; that he was doing well in the 11th grade of school and

appeared to be intelligent; that he had not had "appreciable"

contact with the police nor had he previously experienced

"police interrogation"; that he had smoked a marijuana "blunt"

sometime on the day of his arrest; that he continued to be

questioned after denying any involvement in the robbery; that he

was deprived of the presence of his guardian who had been

                               - 5 -
removed from the interview room after being used to witness

Johnson's signing of the rights waiver; and that Crawford's

tactic of not permitting Lindsey to be present as Johnson was

being questioned violated the very purpose of a guardianship.

Based on these findings, the trial court suppressed Johnson's

confession.

                               III.

     Where a defendant moves to suppress a confession pursuant

to Miranda,

          [t]he prosecution bears the burden of
          proving that the defendant knowingly and
          intelligently waived the constitutional
          privilege against self-incrimination and the
          right to counsel. "[T]he prosecution may
          not use statements, whether exculpatory or
          inculpatory, stemming from custodial
          interrogation of the defendant unless it
          demonstrates the use of procedural
          safeguards effective to secure the privilege
          against self-incrimination." Although the
          defendant may waive these rights, it must be
          shown that "the waiver is made voluntarily,
          knowingly and intelligently."

Goodwin, 3 Va. App. at 252, 349 S.E.2d at 163 (quoting Miranda

v. Arizona, 384 U.S. 436, 444 (1966)).

     Whether a defendant has validly waived his Miranda rights

is determined by looking at the totality of the circumstances.

See Correll v. Commonwealth, 232 Va. 454, 464, 352 S.E.2d 352,

357 (1987).   This totality-of-the-circumstances test is equally

applicable when a juvenile is involved.   See Fare v. Michael C.,

442 U.S. 707, 725 (1979).


                               - 6 -
             The totality approach permits--indeed, it
             mandates--inquiry into all the circumstances
             surrounding the interrogation. This
             includes evaluation of the juvenile's age,
             experience, education, background, and
             intelligence, and into whether he has the
             capacity to understand the warnings given
             him, the nature of his Fifth Amendment
             rights, and the consequences of waiving
             those rights.

Id.

      One unique factor that is considered when a juvenile

decides to waive his Fifth Amendment rights is the presence or

absence of a parent or legal guardian.    "[I]t is desirable to

have a parent, counsel or some other interested adult or

guardian present when . . . a juvenile waives fundamental

constitutional rights and confesses to a serious crime.

However, it is well established that the mere absence of a

parent or counsel does not render the waiver invalid."      Grogg v.

Commonwealth, 6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1991).

      Once the Commonwealth has established a valid waiver, it

must also establish that the defendant's confession was

voluntary.    On appeal, in deciding whether the Commonwealth has

met this burden,

             [w]e must determine whether, in light of the
             totality of the circumstances, including not
             only the details of the interrogation, but
             also the characteristics of the accused, the
             statement was the product of an essentially
             free and unconstrained choice by its maker,
             or whether the maker's will was overcome and
             his capacity for self-determination
             critically impaired.


                                 - 7 -
Goodwin, 3 Va. App. at 253, 349 S.E.2d at 163-64.     See

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973).

     As in determining whether there has been a valid waiver, in

determining whether a juvenile confessed voluntarily, we look to

the totality of the circumstances.     See Novak v. Commonwealth,

20 Va. App. 373, 386-87, 457 S.E.2d 402, 408 (1995).    The mere

absence of a parent or legal guardian when a juvenile is

interrogated does not render the juvenile's confession

involuntary.   See Jackson v. Commonwealth, 255 Va. 625, 637-38,

499 S.E.2d 538, 546 (1998), cert. denied, 119 S. Ct. 796 (1999);

Wright v. Commonwealth, 245 Va. 177, 185-86, 427 S.E.2d 379,

385-86 (1993), judgment vacated on other grounds, 512 U.S. 1217

(1994); Grogg, 6 Va. App. at 613, 371 S.E.2d at 557.

     Denying family members access to a juvenile defendant is

generally immaterial to the issue of the voluntariness of his

waiver.   See Jackson, 255 Va. at 638, 499 S.E.2d at 546 (holding

that a juvenile defendant's confession was not involuntary

merely because, unbeknownst to the defendant, his mother was

initially denied access to him).   "Events occurring outside of

the presence of the suspect and entirely unknown to him surely

can have no bearing on the capacity to comprehend and knowingly

relinquish a constitutional right."    Moran v. Burbine, 475 U.S.

412, 422 (1986).   The rights guaranteed under the Fifth

Amendment are personal to the defendant, and our focus,

therefore, must be on the defendant's wishes and his state of

                               - 8 -
mind.       See Lamb v. Commonwealth, 217 Va. 307, 310, 227 S.E.2d

737, 740 (1976) (holding that an attorney could not invoke the

right to counsel that the defendant validly waived).

                                    IV.

        Johnson does not deny that Miranda warnings were given or

that he signed a waiver that his legal guardian also signed.

The trial court found that Johnson was doing well in the 11th

grade of high school and was intelligent.      In addition, it found

that Johnson was not denied creature comforts while being

interviewed.      Johnson never asked for the presence of his

grandmother, another adult, or an attorney while he was being

interrogated.      He was unaware of his father's and uncle's

attempts to see him.      There was no evidence that Crawford

threatened Johnson, or otherwise coerced him into confessing.

Finally, the fact that Crawford may have misled Lindsey, while

disconcerting, was immaterial to the voluntariness of Johnson's

confession.

        The evidence in this case was insufficient to support any

conclusion other than that Johnson knowingly and intelligently

waived his Miranda rights. 1     Moreover, based upon our independent

examination of the record in this case, we conclude that

Johnson's will was not overcome, that his capacity for


        1
       Although the trial court noted Johnson's testimony that he
had smoked marijuana prior to meeting with Crawford, the court
did not make a specific finding that Johnson's Miranda waiver
was invalid because of the marijuana use.

                                   - 9 -
self-determination was not critically impaired, and that his

confession was the product of a free and unconstrained choice. 2

Accordingly, we reverse the decision of the trial court and

remand this case to the circuit court for such further action as

the Commonwealth may be advised.

                                        Reversed and remanded.




     2
       Johnson's assertions that his statement should be
suppressed under the Sixth Amendment and pursuant to Code
§ 16.1-247 are without merit. At the time he was interrogated,
Johnson had not been charged, so his Sixth Amendment right to
counsel had not yet attached. See Grogg, 6 Va. App. at 609, 371
S.E.2d at 554 (the right to counsel under the Sixth and
Fourteenth Amendments attaches "once charges are brought, by way
of formal charge, preliminary hearing, indictment, information,
or arraignment"). We have previously held that Code § 16.1-247
"governs the placement of juveniles in detention facilities" and
was "not intended to safeguard a juvenile's Fifth and Sixth
Amendment rights." Roberts v. Commonwealth, 18 Va. App. 554,
559, 445 S.E.2d 709, 712 (1994).

                              - 10 -
