                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued at Chesapeake, Virginia


SYLVESTER JONES, S/K/A
SYLVESTER L. JONES
                                                            MEMORANDUM OPINION* BY
v.     Record No. 2637-02-1                               JUDGE RUDOLPH BUMGARDNER, III
                                                                 OCTOBER 28, 2003
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                               Westbrook J. Parker, Judge

                 Timothy E. Miller, Public Defender (Office of the Public Defender,
                 on brief), for appellant.

                 Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       The trial court found Sylvester L. Jones violated probation by not completing a polygraph

examination and revoked his suspended sentence. He contends the probation officer had no

authority to unilaterally change the conditions of probation to require a polygraph test. He also

contends the trial court abused its discretion and punished him for invoking his Fifth Amendment

rights against self-incrimination and to counsel. Finding no error, we affirm.

       In April 2000, the trial court convicted the defendant of taking indecent liberties with a

child. It imposed a five-year sentence, suspended three years, and placed the defendant on

supervised probation. The sentencing order directed the defendant to "comply with all the rules

and requirements set by the probation officer." The defendant signed a written statement of the




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
conditions of his probation, which included the condition that he "follow the Probation and

Parole Officer's instructions and be truthful, cooperative, and report as instructed."

       In July 2002, a police officer informed the probation officer that the defendant was a

suspect in the attempted abduction of an eleven-year-old girl. The probation officer was unable

to locate the defendant from July 23 to August 27 although he tried on six separate days and at

different hours of the day. The last contact had been on July 11. When the officer finally

located the defendant on August 28, the defendant gave him unverifiable employment

information. The defendant also conceded he had been in contact with females but could not

provide their last names or addresses.

       The probation officer imposed additional, special conditions because he was unable to

determine whether the defendant was complying with the terms of probation. The special

conditions included a requirement that the defendant submit to a polygraph test. The officer read

and explained the special instructions to the defendant, and the defendant signed the form

acknowledging his consent to the new conditions. The probation officer made clear that if the

defendant refused to take the polygraph test, "a [probation] violation would be in order." The

defendant agreed to take the test, and the probation officer arranged for it.

       The defendant initially answered the polygraph examiner's questions, but he "basically

just froze up" when the examiner asked questions about his involvement in the attempted

abduction. The defendant refused to answer further questions and "said that he thought he

needed to talk to an attorney." The test was immediately stopped and never completed.

       The probation officer reported to the trial court that the defendant failed to cooperate with

the polygraph test, represented a "danger to the public," and was "not amenable to supervision."

After a revocation hearing, the trial court found the defendant had violated probation and

revoked a portion of the suspended sentence.

                                               -2-
       The defendant was a convicted felon.          He accepted probation willingly, and he

voluntarily and knowingly agreed to the conditions imposed. The sentencing order directed him

to comply with the probation officer's rules and requirements. This mandate explicitly gave the

probation officer discretion to set further conditions.    The probation officer exercised that

discretion when he was unable to locate the defendant after a report of suspected criminal

behavior. The defendant never objected to the conditions of probation at sentencing or when the

additional conditions were imposed.

       The defendant claims he had no meaningful choice but to accept and comply with the

special instructions, otherwise he would go to jail. The criminal process forces difficult choices.

McKune v. Lile, 536 U.S. 24, 41-42 (2002). See also John L. Costello, Virginia Criminal Law

and Procedure § 43.6-2, 585 (3d ed. 2002) ("[A] person is not compelled . . . merely because he

must choose between two lawful courses of action.").

       In Minnesota v. Murphy, 465 U.S. 420 (1984), the defendant confessed to crimes

unrelated to his probation during an interview with his probation officer instead of asserting the

privilege against self-incrimination.   The Court concluded there was no Fifth Amendment

violation despite the compulsory nature of the meeting and the defendant's fear that he would

receive additional prison time if he remained silent. In Anderson v. Commonwealth, 256 Va.

580, 507 S.E.2d 339 (1998), a probationer accepted a plea agreement that waived his rights

against unreasonable searches and seizures. The Court rejected his claim that he was coerced

and had no choice. The defendant gained his freedom, and the Commonwealth gained a useful

method of verifying his compliance with probation through the plea agreement. "[A] defendant

can voluntarily agree to a bargain that provides for one of two undesirable options." Id. at 585,

507 S.E.2d at 341. To hold otherwise would render all plea agreements "invalid on the basis of

coercion." Id.

                                             -3-
       In this case, the requirement of a polygraph examination was a reasonable condition

given the nature of the defendant's offense, his background, and the circumstances surrounding

his whereabouts and behavior while on probation. The test provided an effective tool to monitor

compliance with probation conditions after he could not account for his activities. It was aimed

at ensuring his good behavior and preventing his re-offending. "Just as other punishments for

criminal convictions curtail an offender's freedoms, a court granting probation may impose

reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding

citizens." United States v. Knights, 534 U.S. 112, 119 (2001). See United States v. Dotson, 324

F.3d 256, 261 (4th Cir. 2003) (requirement of a polygraph test as a condition of probation related

to defendant's treatment and was a reasonable tool).

       The defendant maintains the trial court erred in revoking his suspended sentence when he

invoked his Fifth Amendment right against self-incrimination. The defendant did not raise this

argument to the trial court.1 Rule 5A:18 bars our consideration of this argument for the first time

on appeal. Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1994).

Additionally, the defendant made no incriminating statement and none was used against him.2

       The defendant also contends the revocation was punishment for asserting his Fifth

Amendment right to counsel.3 The right to counsel applies to custodial interrogations. Edwards

v. Arizona, 451 U.S. 477, 482 (1981); Miranda v. Arizona, 384 U.S. 436, 470 (1966). The


       1
          Moreover, the defendant did not invoke this privilege during the polygraph
examination. At the revocation hearing, the defendant argued he was invoking his right to
counsel. He stated, "I didn't say I wasn't going to take the polygraph. I asked for my attorney to
be present while I take it."
       2
        White v. Commonwealth, 41 Va. App. 191, 583 S.E.2d 771 (2003), does not affect the
outcome of this case because no polygraph test results were admitted as evidence.
       3
      In his brief, the defendant argues for the first time that he was asserting his Sixth
Amendment right to counsel.

                                             -4-
defendant was never in custody while taking the test. We need not decide whether the defendant

unequivocally invoked his right to counsel.

       The defendant failed to abide by a reasonable condition of probation by failing to

complete the polygraph examination. The trial court properly exercised its discretion in revoking

probation. Accordingly, we affirm.

                                                                                       Affirmed.




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