                      COURT OF APPEALS OF VIRGINIA


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


JAMES EDGAR TALBERT, III
                                          MEMORANDUM OPINION * BY
v.   Record No. 2145-01-2              JUDGE JERE M. H. WILLIS, JR.
                                               JULY 9, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          Matthew P. Geary for appellant.

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     James Edgar Talbert, III, was convicted in a bench trial of

second-degree murder, in violation of Code § 18.2-32; use of a

firearm during the commission of a murder, in violation of Code

§ 18.2-53.1; and possession of a firearm by a convicted felon, in

violation of Code § 18.2-308.2.   On appeal, he contends that the

trial court erred (1) in partially denying his motion to suppress

evidence; (2) in convicting him of second-degree murder; (3) in

convicting him of using a firearm during the commission of murder;

and (4) in convicting him of possession of a firearm by a

convicted felon.   We affirm the judgment of the trial court.



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

                          A.    THE SHOOTING

     On May 10, 2000, Talbert went to Derrell Farrow's apartment

to pick up some mail.   Knowing the neighborhood to be a

high-crime area frequented by drug dealers and having been

robbed twice in that area, he placed a handgun in his back

pocket.    Talbert was a previously-convicted felon.

     Arriving at Farrow's apartment, Talbert collected his mail

and began looking at some photos that Farrow had taken.     While

he was looking at the photos, Farrow made sexual advances toward

him, attempting to fondle his genital area.    Talbert told Farrow

to stop.    Farrow then asked to perform oral sex on him.   Talbert

refused and pulled the handgun out of his back pocket.

     Struggling for the weapon, the two men fell onto a sofa.

The handgun discharged, and Farrow suffered a fatal gunshot

wound to the chest.   Talbert fled the apartment and drove to

Shana Harvey's apartment on North 35th Street.    Before entering

her apartment, he discarded the handgun.

     From Harvey's apartment, Talbert contacted the Richmond

Police Department and reported that he had witnessed Farrow's

shooting.    He offered to provide information.   Soon thereafter,

Detectives Joyce Payne and Lloyd Redford arrived at Harvey's

apartment.




                                 - 2 -
               B.   POLICE INVESTIGATION AND INTERVIEW

     When the detectives arrived, they asked Talbert what had

happened.   According to Detective Redford:

            [Talbert] told me that he had been to visit
            a friend. While he was in there, he was in
            the back bedroom, he heard a knock at the
            door, two gentlemen came in, and he heard
            one of them tell the victim, give it up.
            Another one appeared in the doorway of the
            back bedroom, scuffled with him, one of them
            tried to take the ring off his finger, and
            he got away and ran out the door.

Talbert told the detectives that while fleeing, he heard a

gunshot.    He then jumped into his truck and drove away.

     Detective Redford went to Farrow's apartment and then

returned to Harvey's apartment.    The detectives asked Talbert

and Harvey to accompany them to the police station to put their

statements on tape.    Detective Payne told Talbert that he did

not have to go to the station.    Detective Payne said, "this is

totally on your own, if you would like to come down."      Talbert

and Harvey agreed to go and rode with the detectives to the

police station.

     At the police station, Harvey was interviewed first.

During her interview, which lasted twenty to thirty minutes,

Talbert waited outside the interview room, where he was watched

by a uniformed officer.    Talbert's interview began at

approximately 5:00 a.m.    The detectives asked him initially

whether he minded talking with them.     He replied, "ok."



                                 - 3 -
        The interview room was small and was equipped with a round

table and four chairs.    Talbert sat at the table.   Initially,

the door was closed.    Detectives Payne and Redford and Sergeant

Walker questioned Talbert for approximately an hour and a half

to two hours.    At various times Talbert was questioned by one,

two, or all three officers and the door was open.     At no time

was he told he was not free to leave.

        While questioning Talbert, the police began to doubt his

story because of inconsistencies between his account and the

physical evidence.    Talbert said four men struggled in the

apartment, but the damage was inconsistent with that claim.

Talbert also said he ran out the apartment's back door, but

there were no fingerprints on the back door.    Approximately

halfway through the interview, Detective Payne began considering

whether Talbert should be a suspect.

        The officers told Talbert repeatedly that what he was

saying did not match the evidence and that he needed to be

truthful.    About an hour into the interview, Detective Redford

decided Talbert was holding back something, but he didn't know

what.

        After Talbert was told that the evidence suggested that

only he and Farrow had been in the apartment and that a gunshot

residue test would show that he fired the gun, he recanted his

story.    He explained that the gun had discharged accidentally



                                 - 4 -
when he and Farrow were "scrambling" over it.           The following

colloquy ensued:

             Talbert:    We got to talking when I got
             there.

              *      *        *      *       *          *     *

             Talbert: Didn't want to[;] it wasn't
             supposed to happen.

             Redford: I'm sure it wasn't.        What
             happened?

             Talbert:    It accidentally went off.

             Redford: The gun accidentally went off?
             Won't nobody in there other than the two of
             y'all right?

             Talbert: Yeah. We won't gone be no
             shooting, that ain't supposed to happen. We
             was scrambling and he just squeezed my hand
             and it went off.

At that point Talbert had not been advised of his Miranda

rights. 1

     Talbert was then handcuffed.        A gunshot residue test was

performed and questioning continued.       Talbert told the police

that he had left the handgun at an abandoned house on North 35th

Street, near his girlfriend's apartment.

     The police took Talbert and Harvey back to North 35th

Street.     Their purpose was to take Harvey home and to locate the

handgun.    As they were waiting for a key to the abandoned house

where Talbert said he had left the handgun, Harvey pointed to

Patrick Henley, who was walking down the street, and said he had


     1
         Miranda v. Arizona, 384 U.S. 436 (1966).

                                   - 5 -
the handgun.   Without being asked, Talbert confirmed this.

Henley fled and threw the handgun in a storm drain, from which

it was recovered.     The police searched the abandoned house, but

found no weapon.    Forensic tests identified the handgun

discarded by Henley as the weapon that killed Farrow.

                               C.     TRIAL

     On Talbert's pretrial motion, the trial court suppressed

his statements following the portion recited above.      However, it

refused to suppress and received into evidence the recited

portion of his statements and the handgun.      It ruled that the

handgun had been found as a result of Harvey's statement, not as

a result of Talbert's statement to police.

     Talbert waived his right to a jury trial, testified, and

was convicted of second-degree murder, in violation of Code

§ 18.2-32; use of a firearm during the commission of murder, in

violation of Code § 18.2-53.1; and possession of a firearm by a

convicted felon, in violation of Code § 18.2-308.2.

                II.    MOTION TO SUPPRESS CONFESSION

     "In reviewing a trial court's denial of a motion to

suppress, 'the burden is upon [the defendant] to show that the

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'"       McGee v.

Commonwealth, 25 Va. App. 193, 197 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted).       Talbert contends that his Fifth

Amendment rights were violated when the police questioned him

                                    - 6 -
without informing him of his Miranda rights and that the trial

court erred in partially denying his motion to suppress all of

his statements to the police and the handgun.

     "[T]he protection afforded by Miranda applies only when a

suspect is subjected to custodial interrogation."     Webber v.

Commonwealth, 26 Va. App. 549, 557, 496 S.E.2d 83, 86 (1998).

In determining whether a person is in custody for Miranda

purposes, we inquire "how a reasonable man in the suspect's

position would have understood the situation."     Berkemer v.

McCarty, 468 U.S. 420, 442 (1984).     Whether a person is in

custody "depends on 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).

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

(1994), Burket was asked by police to accompany them to police

headquarters to assist with a double murder investigation.

While still at his residence, he was told that he was not under

arrest and that he was free to leave at any time.    Forty minutes

into his interview at police headquarters, he was told falsely

that some children had seen him at the murder scene on the night

of the murders.   He was also told that hair samples similar to

his were found at the victim's residence.



                               - 7 -
     Burket then admitted he was at the scene.      He then said,

"I'm gonna need a lawyer."    The investigator told him that he

was not under arrest and that he was free to leave.       Burket then

stated that he had accidentally killed the victims.       Again he

stated he thought he needed a lawyer.     At that juncture, he was

arrested and advised of his Miranda rights for the first time.

Id. at 602-604, 450 S.E.2d at 128-29.

     The Supreme Court held that Burket was not in custody until

his arrest.    It highlighted the portion of his interview where

the officers advised him that he was not under arrest.      It

concluded:

             Burket was neither formally arrested nor
             deprived of his freedom of movement until
             after he stated later during the interview
             that the murder "was an accident."
             Accordingly, we hold that the detectives
             were not required to advise Burket of his
             Miranda rights when he stated, "I'm gonna
             need a lawyer."

Id. at 606, 450 S.E.2d at 130.

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

(1998), we held that Harris was not in custody despite the

presence of three police officers, one of whom had pointed his

gun at Harris for twenty minutes, during which time Harris was

not free to turn around or leave.

     Harris was a passenger in a car that was stopped for

speeding and improper lane changes.      During the stop, a Virginia

State Trooper asked and received consent from Harris for a


                                 - 8 -
pat-down search of his clothing.    The search disclosed a

pipe-like device.    The trooper then questioned Harris, asking

him whether he used the pipe to smoke crack.       Harris replied

that he did not smoke crack.   The trooper then asked where his

tobacco was located.   Harris replied that it was in the car and

showed a tobacco pouch to the trooper.    Looking into the pouch,

the trooper discovered a vial of crack cocaine.      He then

arrested Harris and advised him of his Miranda rights.

     In concluding that Harris was not in custody until he was

arrested, we said:

          [a]mong the circumstances to be considered
          when making a determination of whether a
          suspect was "in custody" are (1) the manner
          in which the individual is summoned by the
          police, (2) the familiarity or neutrality of
          the surroundings, (3) the number of officers
          present, (4) the degree of physical
          restraint, (5) the duration and character of
          the interrogation, and (6) the extent to
          which the officers' beliefs concerning the
          potential culpability of the individual
          being questioned were manifested to the
          individual. No single factor is dispositive
          of the issue.

Id. at 565, 500 S.E.2d at 262.     We continued:

          We conclude that [Harris] was not entitled
          to Miranda warnings prior to the questioning
          by Trooper Watts that led to the discovery
          of the cocaine. At the time of Trooper
          Watts' questioning, appellant's detention
          had been transformed from one whose purpose
          was to protect officer safety and maintain
          the status quo during a traffic stop to a
          Terry stop whose purpose was to investigate




                                 - 9 -
            the appellant for suspected drug-related
            criminal activity.

Id. at 567, 500 S.E.2d at 263.

     As in Burket and Harris, Talbert was not in custody for

Miranda purposes until he admitted shooting Farrow and was

handcuffed.    Until that time, his Fifth Amendment rights were

not violated.    Although the police doubted his story, "[t]he

fact that the investigation had focused upon [Talbert] and had

become accusatory is not determinative of the question of

custody."     Smith v. Commonwealth, 219 Va. 455, 470, 248 S.E.2d

135, 142 (1978).    Talbert remained at the police station

voluntarily.    He was not told that he could not leave.   At

times, the door to the interview room was open.     He was not

restrained.    Only when he admitted shooting Farrow and was

arrested and handcuffed did his presence cease to be voluntary.

Until that time, no reasonable person in his situation would

have believed that he was not free to leave.

     Furthermore, Talbert waived his Fifth Amendment rights when

he took the witness stand at trial.      He admitted taking the

handgun to Farrow's apartment.    He admitted presenting the

handgun to rebuff Farrow's sexual advances.     He acknowledged

that Farrow was shot during the ensuing struggle.      He testified

to everything that was included in the unsuppressed portion of

his statement to the police, including the location of the

firearm.


                                - 10 -
                III.    MOTION TO SUPPRESS THE FIREARM

     Talbert next contends that the trial court erred in

refusing to suppress the handgun, which he argues was obtained

as a result of unlawful questioning.      We disagree.

     At the time the handgun was recovered, the police had

returned Talbert and Harvey to North 35th Street.        Talbert

contends that the police officers were going to the location

where he had told them the handgun was hidden.     However, viewed

in the light most favorable to the trial court's ruling, the

evidence disclosed that the police were then taking Harvey home.

At that time, she saw Henley walking down the street and told

the officers that he had the handgun.     The handgun was then

recovered.

     In recovering the gun, the police relied on Harvey's

statement, not on the statements made by Talbert during his

questioning.   Thus, the trial court did not err in admitting the

gun into evidence.      See Murray v. United States, 487 U.S. 533,

542 (1988).

                  IV.    SUFFICIENCY OF THE EVIDENCE

     The fact that Talbert carried the handgun to Farrow's

apartment and produced it as a show of force supports a finding

of malice.    Consequently, all the evidence, including Talbert's

own testimony, supports his conviction for second-degree murder,

from which flow his convictions for possession of a firearm by a



                                 - 11 -
convicted felon and use of a firearm during the commission of

murder.

     The judgment of the trial court is affirmed.

                                                       Affirmed.




                             - 12 -
