                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia


LEVON ANDREW DICKERSON
                                         MEMORANDUM OPINION * BY
v.   Record No. 3003-99-4                 JUDGE RICHARD S. BRAY
                                            DECEMBER 28, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                     Alfred D. Swersky, Judge

          John B. Jacob, Jr., for appellant.

          Thomas M. McKenna, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Levon A. Dickerson (defendant) was convicted in a bench trial

on an indictment charging two counts of malicious wounding,

attempted robbery, and conspiracy to commit robbery, violations of

Code §§ 18.2-51, -26 and –22, respectively.    On appeal, defendant

complains the trial court erroneously denied a motion to suppress

a confession obtained by police in violation of the Constitutions

of the United States and this Commonwealth.    Finding no error, we

affirm the convictions.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On review of a trial court's denial of a motion to suppress,

"[w]e view the evidence in a light most favorable to . . . the

prevailing party below, and we grant all reasonable inferences

fairly deducible from that evidence."   Commonwealth v. Grimstead,

12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).   In our

analysis, "we are bound by the trial court'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, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911

(1996)).

                                 I.

     Defendant first maintains that he confessed involvement in

the subject offenses without the safeguards prescribed by Miranda

v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

However,

           [t]he Supreme Court has made it clear that
           [Miranda] . . . warnings must be given
           before statements are taken from suspects
           only where there is custodial interrogation
           as thus defined in Miranda: "By custodial
           interrogation, we mean 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."

Coleman v. Commonwealth, 226 Va. 31, 46, 307 S.E.2d 864, 872

(1983) (quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612

(footnote omitted)).


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          Whether a suspect is "in custody" under
          Miranda is determined by the circumstances
          of each case, and "the ultimate inquiry is
          simply whether there is a 'formal arrest or
          restraint on freedom of movement' of the
          degree associated with formal arrest." The
          determination "depends on the objective
          circumstances of the interrogation, not on
          the subjective views harbored by either the
          interrogating officers or the person being
          questioned."

Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262

(1998) (internal citations omitted).

     Here, while at defendant's residence, Alexandria Police

Detectives Ellman and Purcell "asked [defendant] if he would be

willing to come down to the police station" and "talk about" "some

things that had happened over the last few weeks or days."    Ellman

advised defendant that "he wasn't under arrest and . . . would be

free to go at any time, . . . that we would . . . bring him back."

Defendant agreed and "got dressed" in the "bedroom area," while

the detectives waited elsewhere in the home.   As the three

departed the residence for the stationhouse, defendant's father

was encountered on the "front stoop."   Detective Purcell "knew"

the father, explained the circumstances to him, and the father

advised "that was okay."

     En route to the station, defendant "was calm" and

"conversational," discussing a "variety of things" with the

detectives, including his "understanding of the criminal justice

system based upon" prior experience.    On arrival, defendant was

offered food, drink, and the opportunity to use the bathroom.    The

                              - 3 -
door to the "interview room," although closed, was unlocked, and

defendant, once seated, was again assured that he was "free to go

at any time.   All you have to do is tell us and we will drive you

back home."

     During the ensuing exchange, Ellman broached the subject

offenses and advised defendant that "some evidence led [him] to

believe that [he] might be involved."    When defendant professed

innocence, Ellman suggested defendant provide fingerprints for

comparison to those previously connected to the crimes, "so we

could positively eliminate [him]."     Defendant agreed and, upon

return to the interview room, "indicated that he . . . had been

. . . involved in the case."   Before further questioning, however,

Ellman reminded defendant that he was "not under arrest," "free to

go at any time," and "came down here voluntarily."    Defendant then

confessed to the crimes, and the detectives returned him to his

residence.

     Such evidence, considered with the entire record, establishes

that a reasonable person, similarly situated, would not have

considered himself under arrest or otherwise restrained by police.

Defendant, therefore, was not in custody, as contemplated by

Miranda, when he confessed to police.

                                II.

     "However, defendant reminds us that any confession, 'even if

obtained in full compliance with Miranda, may be inadmissible if

. . . not voluntary.'"   Novak v. Commonwealth, 20 Va. App. 373,

                               - 4 -
386, 457 S.E.2d 402, 408 (1995) (quoting Kauffmann v.

Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279, 281 (1989)).

                Review on appeal of the voluntariness
           of a statement requires an "independent
           examination" of "'the totality of all the
           surrounding circumstances'" to ascertain if
           it was "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); Gray v.
           Commonwealth, 233 Va. 313, 324, 356 S.E.2d
           157, 163 (quoting Schneckloth v. Bustamonte,
           412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047,
           36 L. Ed. 2d 854 (1973)), cert. denied, 484
           U.S. 873, 108 S. Ct. 207, 98 L. Ed. 2d 158
           (1987).

Thomas v. Commonwealth, 16 Va. App. 851, 858, 434 S.E.2d 319, 324

(1993).   Our consideration must include "not only the details of

the interrogation, but also the characteristics of the accused."

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

163-64 (1986).   "While the question whether a statement is

voluntary is ultimately a legal rather than a factual one,

subsidiary factual determinations made by the trial court are

entitled to a presumption of correctness."   Bailey v.

Commonwealth, 2000 WL 432386, *14 (Va. 2000).

     The instant record discloses that defendant, age fourteen at

the time of the offenses and confession, then attended Alexandria

public schools in an "Individualized Education Program," a

placement resulting from an "inability to control his . . .

aggressive behavior," a "Disability" characterized on school

                               - 5 -
records as an "Emotional Disturbance."   Although defendant's

teacher opined that he "functions around the first or second

grade," defendant was classified at an eighth grade level and his

curriculum included math, language arts, science and social

studies.

     From the inception of contact with police, defendant

willingly cooperated in the investigation and was repeatedly

assured that he was not under arrest, free to leave and would be

delivered home upon request.   Defendant conversed with Detective

Ellman on an array of topics, both prior to and during the

interview, including defendant's experience with the criminal

justice system, without suggestion of confusion, threat or

coercion.   Such circumstances, together with other evidence before

the court, provide abundant support to the trial court's finding

that defendant voluntarily spoke with police.

     Defendant's contentions that police erroneously neglected to

"encourage" his father to "come to the station" and "tricked" him

into confessing through a ruse regarding fingerprint evidence are

also without merit.   While the presence of parents and police

tactics are considerations relevant in determining the

voluntariness of a juvenile's statement, such factors are clearly

not persuasive on the instant record.    See Grogg v. Commonwealth,

6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1998) (juvenile's waiver

valid despite absence of parent); Novak, 20 Va. App. at 387-88,



                               - 6 -
457 S.E.2d at 409 (deception by police in questioning juvenile

defendant did not taint confession).

     Accordingly, we affirm the convictions.

                                                   Affirmed.




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