                   COURT OF APPEALS OF VIRGINIA


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


BRANDON LEE KING

v.         Record No. 0295-95-3        MEMORANDUM OPINION * BY
                                       JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA                  MARCH 19, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                     Richard S. Miller, Judge
          William F. Quillian, III, for appellant.

          Thomas C. Daniel, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Brandon Lee King (defendant) was convicted by a jury for

aggravated malicious wounding, the related use of a firearm, and

feloniously discharging a firearm from a motor vehicle.    On

appeal, defendant complains that the trial court erroneously (1)

declined to suppress his inculpatory statement to police and (2)

failed to declare a mistrial after the Commonwealth referenced

defendant's failure to testify during closing argument.    Finding

no error, we affirm the convictions.

     The parties are fully conversant with the record in this

case, and we recite only those facts necessary to a disposition

of this appeal.

     In the early morning hours of April 22, 1994, Bernie

Bernatavicius was shot in the neck and permanently injured.      The
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
following day, juvenile petitions were obtained for defendant,

then 16 years of age, and Lynchburg Police Investigator Viar and

Commander Burnette proceeded to defendant's grandmother's home to

effect his arrest.   The grandmother, also defendant's "legal

guardian," advised that defendant was not then at the residence.

She authorized the officers "to talk" with defendant, once

apprehended, and requested that they contact her, although she

expressed no desire to be present during questioning.      Several

hours later, defendant was arrested, handcuffed, and transported

to police headquarters, arriving at approximately 12:35 a.m.       En

route, defendant was advised of his constitutional rights

pursuant to Miranda v Arizona, 384 U.S. 436 (1966), and denied

knowledge of the offenses.

     At the stationhouse, defendant was seated at a desk located

in an "office area" of the "investigation bureau."      The handcuffs

were removed, and police again advised defendant of his Miranda

rights, using a departmental "rights form," which was read to
                                                   1
defendant, "word for word," and reviewed by him.       This form

included an affirmation that defendant had read and understood

his constitutional rights and was "willing to make a statement

and answer questions at this time," without "any threats or

promises . . . by the police."    Defendant signed and dated the

form at approximately 12:40 a.m.

     During the ensuing interview, defendant initially denied
     1
      The compliance of this form with Miranda is not in issue.




                                 - 2 -
involvement in the offenses and stated that "he wanted to talk to

a lawyer."    Viar replied, "fine," but, as the officers began to

leave the room, defendant volunteered, "[W]ell, I don't really

want to talk to a lawyer right now . . . eventually I'm going to

have to talk to one." 2   Defendant then confirmed that he wanted

"to keep answering . . . questions" and confessed soon

thereafter, repeating his statement for an audio tape which was

completed at 1:22 a.m.
     At the time of arrest, defendant was 16 years of age, had

completed the ninth grade, was literate, and possessed an I.Q.

"in the middle of the average range."    He was described by the

officers as "very coherent," "intelligently speaking," and alert

during the interview, which spanned approximately 45 minutes.

Although defendant did not request his grandmother's presence

before or during the interrogation, Burnette telephoned

defendant's grandmother twice before beginning the interrogation

and once thereafter, receiving no answer on any occasion.

         I.    THE ADMISSIBILITY OF DEFENDANT'S CONFESSION

     "In order for a confession given during a custodial

interrogation to be admissible at trial, the Commonwealth must

show that the accused was apprised of his right to remain silent

and that he knowingly, intelligently, and voluntarily elected to

waive that right."    Roberts v. Commonwealth, 18 Va. App. 554,
     2
      Defendant acknowledges on brief that his request for
counsel was "withdrawn" and argues no violation of Edwards v.
Arizona, 451 U.S. 477 (1981).




                                - 3 -
557, 445 S.E.2d 709, 711 (1994).   A "heavy burden rests upon the

Commonwealth" to establish a "valid waiver," and the "[c]ourts

must indulge every reasonable presumption against" it.    Grogg v.

Commonwealth, 6 Va. App. 598, 611, 371 S.E.2d 549, 556 (1988).

     "[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).    The voluntariness issue,

however, is a question of law which requires "an independent

[appellate] examination of the totality of the circumstances to

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 his capacity for

self-determination critically impaired."'"    Wilson v.

Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992)

(citation omitted).   "[I]n making that determination, we are

bound by the trial court's subsidiary factual findings unless

those findings are plainly wrong."     Id.

     If the accused is a juvenile, we must consider "'the

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

intelligence, and . . . 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.'"    Roberts, 18 Va.

App. at 557, 445 S.E.2d at 711 (citations omitted).   While it is



                               - 4 -
desirable to have a juvenile's parent, legal guardian or other

"interested adult" present when the juvenile is interrogated or

waives his or her constitutional rights, "the mere absence of a

parent or [legal guardian] . . . does not render a [juvenile's]

waiver invalid," although it is "a circumstance and factor to be

considered in the totality of circumstances when determining

whether a waiver is knowing and intelligent."    Grogg, 6 Va. App.

at 613, 371 S.E.2d at 557; see also Novak v. Commonwealth, 20 Va.

App. 373, 387, 457 S.E.2d 402, 409 (1995).
     Here, defendant was fully advised of his constitutional

rights on two occasions and elected to confess to police only

after expressly waiving these safeguards.    Defendant's age,

education, intellectual capacity, and conduct, including his

declarations on the "rights form," together with the

circumstances of the interview, all indicate that he acted

knowingly, intelligently, and voluntarily.   Although the presence

of defendant's grandmother was not a prerequisite to a valid

waiver of his Miranda rights, police, nevertheless, pursued
reasonable efforts to contact her following defendant's arrest.

We, therefore, find that defendant's statement was properly

admitted into evidence.

     Defendant argues, for the first time on appeal, that his

confession was tainted by detention in violation of Code

§ 16.1-247.   However, it is well established that this Court will

not consider an argument which was not presented to the trial




                               - 5 -
court.   Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d

630, 631 (1991); see Rule 5A:18.   Accordingly, we decline to

address this issue.




                               - 6 -
               II.   DENIAL OF MOTION FOR MISTRIAL

     During closing argument to the jury, the prosecuting

attorney, after reviewing the Commonwealth's evidence, stated,
          And, against that, the defense has offered
          the defendant's grandmother to say he
          couldn't have done it because he was at home
          a half an hour or twenty minutes before the
          shooting took place. I'm not saying Mrs.
          Clay is a liar. I'm not saying that she is
          telling you anything she believes to be a
          falsehood. I submit to you that Mrs. Clay is
          being a good grandmother and doing everything
          she could possibly do for her grandson. But
          I also submit to you that Mrs. Clay is
          mistaken.

Defendant contends that these comments indirectly referenced his

failure to testify, necessitating a mistrial.
               In determining whether a remark falls
          within the boundary of the prohibition that a
          prosecutor shall not make an adverse comment
          before the jury on a defendant's failure to
          testify, the test is whether, in the
          circumstances of the particular case, "the
          language used was manifestly intended or was
          of such character that the jury would
          naturally and necessarily take it to be a
          comment on the failure of the accused to
          testify."


Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263

(1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th

Cir. 1955)); Winston v. Commonwealth, 12 Va. App. 363, 370, 404

S.E.2d 239, 243 (1991).   The challenged argument in this instance

merely contrasted the weight and credibility of the conflicting

evidence, without inviting either intended or unintended

attention to defendant's silence.   Moreover, the trial court

expressly cautioned the jury against such consideration.    See



                               - 7 -
Martinez v. Commonwealth, 10 Va. App. 664, 669, 395 S.E.2d 467,

470 (1990), aff'd as modified, 241 Va. 557, 403 S.E.2d 358

(1991).

     Accordingly, we affirm the convictions.

                                               Affirmed.




                              - 8 -
BENTON, J., dissenting.


     While I agree that the admission of a juvenile's confession

must be viewed under "the totality of the circumstances," Fare v.

Michael C., 442 U.S. 707, 724-25 (1979); Green v. Commonwealth,

223 Va. 706, 710, 292 S.E.2d 605, 607-08 (1982), failure of the

police to notify appellant's legal guardian that appellant was in

custody and would be interrogated is a significant factor that,

when combined with the other circumstances, renders the

confession involuntary and requires suppression.    I would hold

that the record establishes that the Commonwealth did not prove

"by a preponderance of the evidence . . . that [appellant's]

statement was voluntary."     Williams v. Commonwealth, 234 Va. 168,

172, 360 S.E.2d 361, 364 (1987), cert. denied, 484 U.S. 1020

(1988).

     Special considerations must be addressed when examining

juveniles' confessions.     In re Gault, 387 U.S. 1, 55 (1967).    The

court must evaluate "the juvenile's age, experience, education,

background, and intelligence, and . . . whether [the juvenile]

has the capacity to understand the warnings given him, the nature

of his Fifth Amendment rights, and the consequence of waiving

those rights."   Fare, 442 U.S. at 725.   This extensive evaluation

is necessary because "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



                                 - 9 -
or despair."     In re Gault, 387 U.S. at 55.   In this evaluation,

the absence of a parent or guardian is "a circumstance that

weigh[s] against the admissibility of the [juvenile's]

confession."     Miller v. Maryland, 577 F.2d 1158, 1159 (4th Cir.

1978).

     Appellant's grandmother, his legal guardian, asked that she

be notified as soon as the police officers located her grandson.

When the police officers spoke to the grandmother, she initially

gave them a telephone number that was her former number.     She

then gave them another number saying she had gotten "a new phone

fairly recently."    In addition, however, the police officers knew

where she lived because they spoke to her at her residence when

they were looking for appellant.
     When the police officers arrested appellant at his friend's

house, they did not call appellant's grandmother from the

friend's residence and did not stop at her residence.     They told

the friend's mother that they "were going to contact [appellant's

grandmother]."    They did not.    Instead, they put handcuffs on

appellant, and, during the ride to the police station, they began

to talk to him about the crime.      When he denied involvement, the

police officers told him "he could be tried as an adult" and that

"he could spend a very long time in prison."     Thus, they began

pressuring him before they attempted to contact his grandmother.

     Later, when the police officers began to interview appellant

at the police station, he told the officers that he wanted to



                                  - 10 -
talk to a lawyer.   One of the officers "told him fine, that he

would be transported on over to the detention home."   Appellant

then said he would continue to talk.   The record establishes that

the police officers did not then suspend questioning until

appellant could either consult with a lawyer or discuss with his

grandmother whether to waive his right to counsel.

     The grandmother testified that she made three telephone

calls to the police station and that "they wouldn't tell me if

[appellant] was there or not."   The following evidence also

suggests that during the interrogation the police officer learned

that appellant's grandmother had called and, even then, made no

effort to send an officer for her:
          A. Well, when we placed him under arrest, we
          were on Pacos Street, which is off of
          Leesville Road here in the city, and placed
          him in our patrol car, the car we were
          driving, and transported him to the station.
           When we got to the station I tried to call
          the grandmother at the phone number two
          different times. And the phone rang and rang
          and I received no answer on the phone?

             We went on and talked to Brandon. A short
          while later, I don't remember how long it
          was, I received a note from the detention
          people on duty at the Police Department that
          Brandon's grandmother had called and
          requested that I call her. I'm not sure
          whether she may have been notified that
          Brandon had been picked up or what the case
          was? I again tried to call her and received
          no answer.

             We interviewed Brandon, and shortly after
          the interview was over the grandmother was on
          the phone again to the Detention Unit. They
          held her on the phone and contacted me in my
          office and transferred the call to me. I
          talked to her at that time.



                              - 11 -
     The police officer's effort was plainly inadequate.    The

police officer never checked to determine if he had written the

correct phone number.   The police officer also failed to retain

the telephone number he called.   Even if he called the correct

number, the record clearly reveals that the grandmother had

difficulty hearing.   From the discussion on the record, her

difficulty was apparent and should have been obvious to the

police officer when he spoke to her in person.   Even if the

hearing problem had gone unnoticed, the police officer certainly

should have suspected that either appellant's grandmother did not

hear her phone after midnight or he was dialing the wrong number.
     The police officers arrested and interrogated appellant

between the late night hours of midnight and 1:30 a.m.   Appellant

was placed in handcuffs, warned that he would be treated as an

adult and imprisoned, and taken to the police station.   He was

sixteen years of age and of average intelligence.    When he asked

for an attorney, he was told that he would be put in the

detention home.   Because the police officers had spoken in person

with the grandmother at her home, they knew she lived only a

short distance from the police department.   Even though numerous

patrol cars were on duty, the police officers who arrested and

interrogated appellant did not direct any officer to drive to the

grandmother's residence and inform her personally.   Clearly, the

police officers exerted a minimal amount of effort in contacting

appellant's grandmother.



                              - 12 -
     When appellant's grandmother did not answer her phone after

midnight, the police officers commenced an interrogation in which

the appellant waived his Fifth Amendment rights.    The police

officers were "deal[ing] with a person who is not equal to the

police in knowledge and understanding of the consequences of the

questions and answers being recorded and who is unable to know

how to protect his own interests or how to get the benefits of

his constitutional rights."     Gallegos v. Colorado, 370 U.S. 49,

54 (1962).   Other states have recognized the importance of the

presence of a parent or guardian by requiring that an interested

adult be present or available for consultation during the

interrogation of a juvenile and the solicitation of waiver of any

constitutional rights.     See Commonwealth v. A Juvenile (No. 1),

449 N.E.2d 654 (Mass. 1983); People v. Saiz, 620 P.2d 15 (Colo.

1980); Commonwealth v. Henderson, 437 A.2d 387 (Pa. 1981).

Indeed, this Court has stated "that it is desirable to have a

parent, counsel or some other interested adult or guardian

present when the police interrogate a juvenile, and . . . even

more desirable to have an interested adult present when a

juvenile waives fundamental constitutional rights and confesses

to a serious crime."     Grogg v. Commonwealth, 6 Va. App. 598, 613,

371 S.E.2d 549, 557 (1988).

     When the police officers informed appellant of drastic

consequences that he faced, responded to his request for counsel

by preparing him for detention, and provided no opportunity for




                                - 13 -
him to consult with his guardian before questioning, their

conduct was unreasonable under the circumstances.    As a result,

the police effectively denied appellant the opportunity at a

critical juncture to speak with an adult prior to the

interrogation.   The record fails to establish a need to act

hastily at one o'clock in the morning and interrogate this

juvenile without the presence of his grandmother.    I would hold

the confession involuntary under "the totality of the

circumstances," because the police took little care to assure the

confession was voluntary when the law demands that the "greatest

care" be exercised.   In re Gault, 387 U.S. at 55.




                              - 14 -
