                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Moon, Judge Annunziata and
           Senior Judge Duff
Argued at Alexandria, Virginia

MARSHALL LEE ADAIR

v.          Record No.   0795-95-4        MEMORANDUM OPINION * BY
                                        JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA                       MARCH 5, 1996


               FROM THE CIRCUIT COURT OF BLAND COUNTY
                 Kenneth I. Devore, Judge Designate

            Byron R. Shankman, for appellant.

            Brian Wainger, Assistant Attorney General
            (James S. Gilmore, III, Attorney General;
            Margaret Ann B. Walker, Assistant Attorney
            General, on brief), for appellee.



     Following a jury trial in Bland County Circuit Court, the

appellant, Marshall Lee Adair, was convicted of eluding the

police.    On appeal, Adair contends the trial court erred in

overruling his motion to suppress a statement he made to the

police and in failing to instruct the jury on reckless driving

and improper driving.    Finding no error, we affirm the

conviction.

     The relevant facts follow.      Virginia State Trooper James

Timothy Graham was seated in his patrol car operating radar

equipment in Bland County when, a little after midnight, he

witnessed two vehicles pass his vehicle, travelling side by side

at ninety-three miles per hour.      Graham immediately activated his
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
blue lights and siren and pursued the vehicles.     As he did, the

driver of one of the vehicles, Matthew Morehead, pulled over.

Adair, driving the other vehicle, increased his speed and

continued driving with Graham in pursuit.

        As Graham gave chase, he observed the lights of Adair's

vehicle extinguish.    Graham continued following Adair,

periodically losing sight of the vehicle, until, coming around a

hump and curve in the road, Graham observed the vehicle wrecked

over an embankment at a private driveway where a friend of

Adair's lived.
        When Graham arrived, Adair was trying to exit, and his

passenger, who had already exited, appeared primed to run.

Unfamiliar with the vehicle and its occupants, Graham drew his

weapon and advised the men to stop.      Graham had Adair exit the

vehicle.    Alone and concerned for his safety, Graham decided to

handcuff one of the men temporarily so he could check for

weapons.    Graham handcuffed Adair and ordered both men to lie

down.    After finding neither of the men possessed a weapon,

Graham released Adair from the handcuffs.     At that point, three

or four other police officers arrived, one of whom summoned a

police dog.

        Graham advised Adair that he had to investigate the

accident.    Pursuant to the accident form he was required to

prepare, Graham asked Adair what caused the wreck.     Adair

responded that
          as I came out of the tunnel and Matt, and



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          Matt Morehead, we got beside each other, we
          got beside each [sic] and sped up racing, we
          came and saw a car on the side of the road
          and after we went down the road, I got off at
          South Gap and went on 52, I panicked because
          I seen you, seen your lights and I tried to
          stop and the car went off the road.


As a result of his accident investigation, Graham issued Adair

four summonses for traffic violations.

     Adair objected to the admission of his statement, arguing

that it was made in violation of his Miranda rights.    However,

Graham testified that Adair was not under arrest at the time he

made the statement.   Graham testified that his investigation

focused on the accident, not the violations, and that Adair was

free to leave at the end of the accident investigation.   The

trial court overruled Adair's motion.
     Graham was charged with "racing on highway (reckless)

driving" and "reckless driving (eluding) (police)."    At the close

of the Commonwealth's evidence at trial, Adair made a motion to

merge the two charges into "one incident of reckless driving

rather than two."   The court granted Adair's motion, but merged

the charges into "one charge of eluding the police."

     In proffering jury instructions and verdict forms, the

Commonwealth made clear that it pursued only the charge of

"eluding the police."   Adair did not object to the Commonwealth's

instruction, notwithstanding the fact that it did not state the

law on the reckless driving charge.    Adair also failed to proffer

a defense instruction on the charge.



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     Instead, Adair subsequently urged the trial court to submit

to the jury his proposed verdict form which reflected a finding

of "improper driving," a lesser included offense of the "reckless

driving/eluding police charge" charge.     The Commonwealth

reiterated that it proceeded solely on the charge of eluding the

police, not the charge of reckless driving, and argued that

Adair's proffered verdict form was improper.     The court declined

to accept Adair's verdict form and submitted the case to the jury

solely on the charge of eluding the police.
                                   I

     "Miranda warnings are required whenever a suspect is subject

to `custodial interrogation.'"     Cherry v. Commonwealth, 14 Va.

App. 135, 140, 415 S.E.2d 242, 244 (1992) (quoting Miranda v.

Arizona, 384 U.S. 436, 444 (1966)).      Clearly, not every detention

constitutes "custody" for purposes of Miranda; rather, a person

is in "custody" once "`there is a formal arrest or restraint on

freedom of movement of the degree associated with a formal

arrest.'"   Id. at 140-41, 415 S.E.2d at 245 (quoting California

v. Beheler, 463 U.S. 1121, 1125 (1983) (other citation omitted)).

 Whether a detention amounts to a custodial interrogation for

purposes of Miranda depends on all of the circumstances

surrounding the detention.   Id. (citing Berkemer v. McCarty, 468

U.S. 420, 442 (1984)).

     Miranda does not apply to a police officer's "general

questioning" in the course of the fact-finding process.       Pruett




                                 - 4 -
v. Commonwealth, 232 Va. 266, 271, 351 S.E.2d 1, 4 (1986), cert.

denied, 495 U.S. 940 (1990).   Neither the location of the

interrogation nor the use of protective measures by police

officers for their safety and security will necessarily give rise

to a finding that the environment is custodial in nature.    Id.;

Burket v. Commonwealth, 248 Va. 596, 605, 450 S.E.2d 124, 129

(1994), cert. denied, 115 S. Ct. 1433 (1995);    Thomas v.

Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993),
aff'd on reh'g en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994)

(quoting United States v. Crittendon, 883 F.2d 326, 329 (4th Cir.

1989))(the use of handcuffs alone "`[does] not convert a stop and

frisk into an arrest so long as the methods of restraint used are

reasonable to the circumstances.'")    Cf. Wass v. Commonwealth, 5

Va. App. 27, 34, 359 S.E.2d 836, 840 (1987)(police officers' use

of protective measures employed for their safety and security may

give rise to a custodial situation for Miranda purposes if they

"produce a coercive environment and restrict a suspect's freedom

of movement to the degree associated with a formal arrest").

     Other factors the court may consider in determining whether

a person is subject to "custodial interrogation" are whether a

police officer informed the individual that he or she is not

under arrest, Wass, 5 Va. App. at 33, 359 S.E.2d at 840 (1987)
(quoting Davis v. Allsbrooks, 778 F.2d 168, 171-72 (4th Cir.

1985)), and whether the individual knows or has been apprised of

the nature of the investigation.   Cherry, 14 Va. App. at 139, 415




                               - 5 -
S.E.2d at 244.          The court may also consider the point at which

the suspect "becomes the focus of the investigation."           Wass, 5

Va. App. at 33, 359 S.E.2d at 839.

           In evaluating the various factors, "the situation must be

viewed from the vantage point of `how a reasonable [person] in

the suspect's position would have understood his situation.'"

Novak v. Commonwealth, 20 Va. App. 373, 385, 457 S.E.2d 402, 408

(1995) (quoting Wass, 5 Va. App. at 32, 359 S.E.2d at 839) (other

citation omitted)).          On review, this Court considers the evidence

in the light most favorable to the Commonwealth and will affirm

the trial court's findings unless unsupported by the record.              Id.

           The record in the case supports the trial court's finding

that Adair was not in custody at the time he made his statement.

 It is not disputed that Graham detained Adair as a necessary

protective measure, that the detention was relatively minimal and

that it was kept in place only as long as necessary for Graham to

secure his safety.          Cf. Wass, 5 Va. App. at 34, 359 S.E.2d at
       1
840.           Moreover, the handcuffs were removed before questioning
           1
            In Wass, the Court found that the suspect


                  was confronted by at least twelve officers,

                  all armed, some of whom were carrying

                  shotguns, arriving in two trucks and a

                  helicopter.   The trucks were parked at the

                  driveway gate, and some of the officers

                  surrounded the house.   Wass was ordered to



                                       - 6 -
began.   Although Graham received backup from three or four other

officers, the evidence also supports the court's implicit finding

that the backup was insufficient to elevate Adair's detention to
(..continued)

           secure his dogs.   One was confined in a car,

           and an officer threatened to kill the other

           if Wass could not control him.   Commander

           Reynolds directed his officers to form an

           "exterior perimeter" around the house.    Two

           more officers were stationed at the door of

           the house, and while all of these steps were

           taken to "prevent the second dog . . . from

           coming back and possibly injuring one of the

           officers," the record indicates that the

           officers stayed in position after the

           second dog had been secured.   The record

           portrays a situation in which the police

           officers, through an impressive display

            of force and manpower, seized control of

           Wass's private residence and secured the

           premises in a manner suggestive of a military

           maneuver . . . .   The atmosphere was exactly

           the type of police dominated environment

           described in Miranda.
Id.




                                - 7 -
"custody."     Id.

     Moreover, the evidence shows that Adair was questioned as

the driver of the vehicle involved in a traffic accident, not as

a "criminal suspect."    See Nash v. Commonwealth, 12 Va. App. 550,

404 S.E.2d 743 (1991).   Graham never placed Adair under arrest,

and he informed Adair that he was investigating the accident.

     Finally, even assuming Adair's Miranda rights were violated,

the erroneous admission of his statement was harmless beyond a

reasonable doubt.    The evidence in the case establishes that

Adair raced down the highway ninety-three miles per hour and

refused to pull over when Graham activated his lights and siren.

Adair attempted to elude Graham by turning his lights off.

Morehead testified that he and Adair had been speeding side by

side down the highway passed Graham.    He stated that Adair did

not stop when Graham activated his siren and flashing blue

lights.   Based on this evidence, the jury could find Adair guilty

beyond a reasonable doubt.
                                  II

     Adair also contends that the trial court erred by failing to

instruct the jury on reckless driving and/or improper driving.

However, it is clear from the record that Adair failed to ask the

court for either a reckless driving or improper driving

instruction.    For this reason, Adair is procedurally barred from

raising the issue on appeal.    See Rule 5A:18.

     Moreover, "an accused is not entitled to an instruction `on



                                - 8 -
an offense which is not a lesser included offense of the one with

which he or she is charged.'"    Crump v. Commonwealth, 13 Va. App.

286, 290, 411 S.E.2d 238, 241 (1991) (quoting Taylor v.

Commonwealth, 11 Va. App. 649, 651, 400 S.E.2d 794, 795 (1991)).

 The case was submitted to the jury solely on the charge of

"eluding the police."   While improper driving may be a lesser

included offense of reckless driving, see Code § 46.2-869, 2 it is

not a lesser included offense of eluding a police officer.    See
Shaw v. Commonwealth, 9 Va. App. 331, 334, 387 S.E.2d 792, 794

(1990) (reckless driving and eluding a police officer are

distinct offenses).

     Accordingly, Adair's conviction is affirmed.

                                                          Affirmed.




     2
      Code § 46.2-869 provides, in part:

          upon the trial of any person charged with
          reckless driving where the degree of
          culpability is slight, the court in its
          discretion may find the accused not guilty of
          reckless driving but guilty of improper
          driving.




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