                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


DAVID JAMES BUNTON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1157-99-1                JUDGE JAMES W. BENTON, JR.
                                              OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                      Jerome B. Friedman, Judge

            Robert Wagner (Donald R. Lee, Jr.;
            Frederick R. Gerson; Wagner & Wagner;
            Virginia Law & Government Affairs, P.C., on
            briefs), for appellant.

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


     A jury convicted David James Bunton of second degree

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

On this appeal, Bunton contends the trial judge erred by 1)

finding Bunton's inculpatory statement voluntary and 2) ruling

that when he made the statement he was not in custody and had

not clearly asserted his right to counsel.    For the reasons that

follow, we hold that the statement was made while Bunton was in

custody, and we reverse the convictions and remand for a new

trial.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                I.

     On November 7, 1995, City of Virginia Beach Police

Detective Al Byrum spoke to Bunton briefly at his home because

the detective suspected Bunton was implicated in the murder of

Alfonzo Lamont Pablo.   The detective knew from his investigation

that Pablo and Bunton had spoken by phone immediately prior to

Pablo's death.   After the detective's initial conversation with

Bunton, he secured search warrants for Bunton's residence and

for samples of Bunton's hair and blood.   The detective testified

that Bunton was the only suspect in the case and that the police

had Bunton under intermittent surveillance for two days.

     When the detective returned to Bunton's residence the next

day, he told Bunton he "needed to talk to him" about "an

investigation . . . that [Bunton] could be of assistance on."

He asked if Bunton would "mind just riding with me down to

police headquarters . . . to [view] . . . some pictures."    When

Bunton asked the detective whether he was required to accompany

him, the detective responded, "I'm just needing your assistance

on an investigation."   The detective testified that he did not

tell Bunton what the investigation involved until they arrived

at the police station and that Bunton did not ask him.    There is

no evidence that the detective told Bunton he was under arrest,

put Bunton in handcuffs, or informed Bunton he was not required

to accompany the detective to the police station.   Although the

detective knew Bunton's home would be searched after he and

                               - 2 -
Bunton left for police headquarters, he did not show Bunton the

search warrants for his home and his person.

     When they arrived at the police headquarters, the detective

showed Bunton several photographs.      After Bunton identified one

photograph as Pablo, the detective began questioning him further

about how he knew Pablo and when he had last seen Pablo.     The

detective assured Bunton that he was "not interested in

narcotics transactions" and continued to ask him when and where

he last saw Pablo.   Bunton said that he met Pablo to buy drugs

around "eleven thirty, twelve, quarter to twelve."     The

detective then asked Bunton if he knew that Pablo sometimes

carried a gun and asked Bunton if he knew Pablo was dead.

Bunton answered "no" to both questions.

     The detective told Bunton that he did not believe that

Bunton was "involved in this" and continued to ask him

questions.   He told Bunton that Pablo was armed the night he

died, that he did not think Pablo's death was "caused by anybody

except for [Pablo]," and that he knew Pablo "could be rather

abusive."    When the detective asked Bunton to take a polygraph,

Bunton refused.

     The detective told Bunton that he knew the drug transaction

had taken place at a different location and at a later time.

Bunton then admitted that it had taken place at a different

location and that he had lied because he read in the paper that

Pablo had been killed.   The detective later asked Bunton if

                                - 3 -
Pablo had tried to pull a gun on him and said, "[i]t's because

of the way we found him and the way his weapon was indicates

that he was getting ready to do something else."   The detective

then assured Bunton that, "if [Pablo] initiated something here,

. . . and your only recourse was to respond back, then this is a

very minimal situation."    Soon thereafter, Bunton asked if he

could go to urinate.   In response, the detective said, "I'd

rather sit here and talk to you, a minute, but I'll let you take

one, let me ask you something."   After the detective spoke for

some time, Bunton asked again if he could go to urinate.     The

detective responded, "Will you talk to me about it?"   After the

detective tried again to convince Bunton to tell him what

happened, Bunton once more asked if he could go to urinate.

Approximately five minutes after Bunton's original request, the

detective acquiesced when Bunton promised to tell him what

happened upon his return.

     Shortly after they returned to the room, Bunton said, "you

make this sound like you're sure I did something now," and said

"I need to, I guess I need to talk to an attorney."    The

detective responded, "You're not under arrest."    Bunton said, "I

know, but you're talking about, you're not under arrest you're

saying, you're making it sound like I'm involved with his

death. . . .   That's what you're making it sound like."     Bunton

stated six times that he wanted to talk to an attorney.      Each

time the detective told him you're not under arrest or said

                                - 4 -
something else to distract him.   Starting to leave, Bunton said,

"Well, . . . if I'm not under arrest, I mean, I'd like you to

give me a ride home."   When the detective continued to question

him, Bunton asked, "if I were to tell you something that you

wanted to hear, I mean, what happens then? . . .   Am I free to

walk out of here?"   The detective responded, "I don't understand

what you're saying."    When Bunton said affirmatively, "I'm going

to talk to a lawyer . . . let's go home," the detective gave

Bunton the search warrant to take his blood and said, "Here's

the search warrant on your, on your person.   I'll execute it."

The detective then left with Bunton.    Bunton had asked seven

times if he could go home.

     After the detective returned to the room with Bunton,

Bunton again asked, "Can I go home and talk to my parents."      The

detective responded, "David, you can sit here, . . . tell me

what happened and then you and I can get right in the car and

I'm going to drop you off right at your house."    The detective

told Bunton that he would not arrest him today if he would "tell

me what happened," but that if Bunton left everything would be

"off" and he would "go ahead and maximize it."    He also told

Bunton that he knew Bunton "didn't mean for this to come about"

and told Bunton "you can walk" if he would "just tell . . . what

happened."

     After spending four hours at police headquarters, Bunton

told Byrum that he shot Pablo in self-defense.    He said there

                                - 5 -
was a dispute between them concerning a previous transaction in

which Pablo had given him some defective cocaine.   When he tried

to remedy the matter with Pablo, Pablo "said something, like

I'll kill you and started reaching for a gun."   Bunton said he

shot Pablo with a sawed-off shotgun.    After Bunton made these

statements, the detective took him home.   At no time during the

interrogation did the detective advise Bunton of his Miranda

rights.   The police arrested Bunton several hours after the

detective took Bunton home.

     Bunton moved to suppress his statement and argued that his

statement was involuntary and that his Miranda rights were

violated.   The trial judge denied the motion, ruling that when

Bunton made his statement he was not in custody, his statement

was voluntary, and he did not have to be informed of his Miranda

rights.   At trial, a jury convicted Bunton of second degree

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

                                II.

     Bunton contends that when he confessed to the killing he

was in custody and should have been advised of his rights

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).    The trial

judge found that in his "opinion . . . [Bunton] was not in

custody at the time he made the statements that later ended up

incriminating him."

     The protections afforded by Miranda apply when a person is

subjected to custodial interrogation.    See Edwards v. Arizona,

                               - 6 -
451 U.S. 477, 486-87 (1981); Tipton v. Commonwealth, 18 Va. App.

832, 835, 447 S.E.2d 539, 540 (1994).    The United States Supreme

Court has defined custodial interrogation as "questioning

initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of

action in any significant way."   Miranda, 384 U.S. at 444.

     In determining whether a person was "in custody" for

purposes of Miranda, we must examine the circumstances of each

case, with "the ultimate inquiry [being] simply whether there is

a 'formal arrest or restraint on freedom of movement' of the

degree associated with formal arrest."     Ford v. Commonwealth, 28

Va. App. 249, 256, 503 S.E.2d 803, 806 (1998) (quoting

California v. Beheler, 463 U.S. 1121, 1125 (1983)).     In making

this determination, we must view the circumstances from the

perspective of "how a reasonable [person] in the suspect's

position would have understood his situation."     Berkemer v.

McCarty, 468 U.S. 420, 442 (1984).     Thus, "the initial

determination of custody depends on the objective circumstances

of the interrogation, not on the subjective views harbored by

either the interrogating officers or the person being

questioned."   Stansbury v. California, 511 U.S. 318, 323 (1994).

     Ruling that the interrogation was noncustodial, the trial

judge found persuasive that "the detective picked up the

defendant and the defendant sat in the front seat of the car

. . . [and that they] entered in the front and not through the

                               - 7 -
sally port as people who are arrested enter."   He also noted

that during the interrogation the detective told Bunton he was

not under arrest and was free to leave and that the interview

room door was not completely closed.   The trial judge failed to

assess, however, many of the circumstances which are crucial to

determining whether a suspect is in custody.    Among the factors

that should be considered are "whether a suspect is questioned

in familiar or neutral surroundings, the number of police

officers present, the degree of physical restraint, . . . the

duration and character of the interrogation, [w]hether or when

probable cause to arrest exists[,] . . . when the suspect

becomes the focus of the investigation[,] '[t]he language used

by the officer to summon the individual, the extent to which he

or she is confronted with evidence of guilt, the physical

surroundings of the interrogation, the duration of the detention

and the degree of pressure applied to detain the individual.'"

Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 839

(1987) (citations omitted).

     The record establishes that Bunton did not have any

extensive experience with the criminal justice system; it

establishes that he had only two previous charges for driving

under the influence.   His lack of experience with the criminal

justice system is significant because when the detective asked

Bunton if he would "mind just riding . . . down to police

headquarters," Bunton asked whether he was required to accompany

                               - 8 -
the detective.   Significantly, the detective did not tell him he

could refuse.    Instead, he said "I'm just needing your

assistance on an investigation."   At that time, Bunton was a

suspect in the murder.   The detective had already obtained

warrants to search Bunton's home and his person.   The detective

did not tell Bunton, however, that he was not under arrest.

Indeed, the detective did not tell Bunton that he was not under

arrest until Bunton made his first request for counsel, more

than two hours after the interrogation began.

     Although the detective told Bunton two hours into the

interrogation that he was free to leave, this Court has held

"that informing a suspect that he is not in custody and is free

to leave does not necessarily mean that he is not in custody."

Id. at 33-34, 359 S.E.2d at 840.    Moreover, Bunton obviously

thought he had to have the detective's permission even to go to

the bathroom.    The detective's conduct reinforced that belief

because Bunton asked three times before the detective relented.

Indeed, although Bunton asked the detective to let him go home

at least seven times before he confessed, the detective did not

agree to do so until after Bunton confessed.    In addition,

Bunton reasonably could have believed he could not leave without

the detective's cooperation because the detective drove him to

the police station.

     Other evidence also proves that when the detective

interrogated Bunton at the police station, the circumstances

                                - 9 -
effectively rendered the interrogation custodial.   The

interrogation occurred in a small, closed room in the police

station.    By virtue of the detective's insistence that Bunton

stay and answer questions and Bunton's lack of experience of

this nature with the police, Bunton had no basis upon which to

conclude that he had not been deprived of his freedom to leave.

Bunton asked the detective for permission to go to the bathroom

and repeatedly asked the detective to take him home, without

success.    At key points in the interrogation, the detective

moved his chair closer to Bunton, confining Bunton to a corner

of the room.   He repeatedly lied to Bunton during the course of

the interrogation.   Moreover, each of the six times Bunton said

he wanted a lawyer, the detective tried to distract him by

telling him he was not under arrest or by asking Bunton another

question.   The detective also threatened Bunton that if he

stopped talking to him and called a lawyer, the authorities

would have to "maximize the situation."

       We hold that these circumstances objectively conveyed to

Bunton that he had been "deprive[d] . . . of his freedom to

leave or freedom of action [, which] render[ed] him in custody

for purposes of Miranda."    Wass, 5 Va. App. at 32, 359 S.E.2d at

839.   Because Bunton confessed after questioning by the police,

while he was deprived of his freedom of action in a significant

way and before he had been given Miranda warnings, his

confession should have been suppressed, see Wass, 5 Va. App. at

                               - 10 -
35, 359 S.E.2d at 840, and should not have been admitted in

evidence.    See Dean v. Commonwealth, 209 Va. 666, 667-68, 166

S.E.2d 228, 230 (1969).

     For these reasons, we hold that the trial judge erred in

refusing to suppress the statement.     Because the statement must

be suppressed, we need not address whether it was voluntary.

Accordingly, we reverse Bunton's convictions and remand for a

new trial.

                                           Reversed and remanded.




                               - 11 -
