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OCTOBER 10, 2000

Record No. 1157-99-1

Present: Judges Benton, Bumgardner and Frank

Argued at Richmond, Virginia





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


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 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

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 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 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 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.


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, 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 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 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 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 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.


[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for