Deborah L Davis v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Kelsey
Argued at Chesapeake, Virginia
DEBORAH L. DAVIS
MEMORANDUM OPINION * BY
v. Record No. 2043-01-1 JUDGE JAMES W. BENTON, JR.
NOVEMBER 12, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Stephen K. Smith for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial judge convicted Deborah L. Davis of four counts
of burglary, two counts of attempted burglary, four counts of
grand larceny, and possession of burglary tools. Davis contends
the trial judge erred in finding her confession was voluntary
and refusing her motion to suppress her confession. We affirm
the convictions.
I.
At the hearing on Davis's motion to suppress, the evidence
proved that shortly before 2:00 a.m. several officers saw Davis
leave her vehicle, approach the door of a retail cleaners, and
tamper with the locked door. After she dislodged two pipes that
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
secured the door, the door opened. Davis then ran to her
vehicle and began to drive away.
After the officers signaled Davis to stop and approached
her vehicle, the officers saw various tools on the front
passenger seat. They arrested Davis and informed her of her
Miranda rights. During the ensuing questioning, Detective
Richard Moore informed Davis of burglaries at other cleaners.
Davis denied any involvement in those break-ins. The detective
said to Davis, "it's best to go ahead and come clean, get this
off your chest, . . . get the best deal possible." The
detective also told Davis he would not be able to promise her
anything, but that the Commonwealth Attorney's Office would make
that decision. At that point, Davis asked the detective if he
would get cigarettes from her purse in her vehicle. When the
detective looked in her purse, he saw a vial containing a white
powder. Based on his experience, the detective recognized the
vial as a container used to store cocaine and believed the
powder was cocaine.
As Davis smoked a cigarette, the detective started to talk
to her again, saying he was "trying to figure out whether . . .
another burglar [was] out here that's breaking into these stores
or whether this is going to end." Davis responded, "I can
promise that . . . there will not be any more break-ins after
tonight." When Davis finished her cigarette, the detective gave
her a pen and paper and said, "Well, why don't you go ahead and
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give me a confession because you've basically confessed to me
that you did break into the other stores." Davis smiled, told
the detective he was "pretty smart," laughed, and said she
might, or might not, give him a statement.
The detective then showed Davis the vial containing the
white powder and asked whether she wanted to talk about it and
whether she wanted him to send it to the laboratory. Davis
responded, "Oh, shit" and mumbled something to herself, which
included the word "stupid." Davis then said, "Listen, I was
going to give you the statement, but after I give you the
statement, will you make sure that that disappears?" The
detective replied, "Well, you know, sure." Davis then confessed
in writing to four burglaries, two attempted burglaries, and
larcenies from the four burglaries.
The trial judge found that Davis's statements were
voluntary, uncoerced, and intelligently made. He, therefore,
denied the motion to suppress. At the conclusion of the trial,
he convicted Davis of four counts of burglary, two counts of
attempted burglary, four counts of grand larceny, and possession
of burglary tools.
II.
"The Commonwealth has the burden to prove, by a
preponderance of the evidence, that a defendant's confession was
freely and voluntarily given." Bottenfield v. Commonwealth, 25
Va. App. 316, 323, 487 S.E.2d 883, 886 (1997). "In assessing
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voluntariness, the court must determine whether 'the statement
is 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."'" Roberts v. Commonwealth, 18 Va. App. 554, 557, 445
S.E.2d 709, 711 (1994) (citations omitted). The voluntariness
issue is a question of law requiring an independent
determination on appeal. Miller v. Fenton, 474 U.S. 104, 110
(1985); Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d
655, 656 (1992). In making that independent determination,
however, "we are bound by the trial [judge's] subsidiary factual
findings unless those findings are plainly wrong." Id.
Davis's claim is a narrow one; she contends her "confession
was an involuntary statement because it was obtained by a
promise of leniency . . . [when Detective] Moore promised not to
charge [her] with possession of cocaine if she confessed to all
of the other break-ins and grand larcenies." In determining the
validity of her claim, we examine the "totality of
circumstances." Withrow v. Williams, 507 U.S. 680, 689 (1993).
Thus, we have held that when the conduct of the police is
questioned, we "must consider the interrogation techniques
employed, including evidence of trickery and deceit,
psychological pressure, threats or promises of leniency, and
duration and circumstances of the interrogation." Terrell v.
Commonwealth, 12 Va. App. 285, 291, 403 S.E.2d 387, 390 (1991).
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Standing alone, however, a promise of leniency generally is
insufficient to support a finding that the accused's will was
overborne. See Harrison v. Commonwealth, 3 Va. App. 260, 266,
349 S.E.2d 167, 170 (1986).
The evidence proved that after the officers informed Davis
of her Miranda rights, she spoke with the detective without
objection. The evidence further suggests that despite the
arrest, she was not in discomfort. The detective characterized
Davis's demeanor during the discussion as "smiles and giggles"
until he showed her the vial he found in her purse. At that
point, Davis, not the detective, initiated the suggestion of a
quid pro quo. These circumstances are not indicative of police
coercion and do not, without more, contain indicia of
involuntariness. The circumstances suggest Davis weighed the
alternatives and sought to lessen her criminal exposure by
cooperation. See Bailey v. Commonwealth, 20 Va. App. 236,
239-40, 456 S.E.2d 144, 145-46 (1995). These facts do not
support a conclusion that the detective's response to Davis's
request for leniency was impermissible or that Davis's will was
overborne. We hold that the trial judge did not err in ruling
that Davis's confession was voluntary.
Accordingly, we affirm the trial judge's ruling and the
judgment.
Affirmed.
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