Tremaine Kevin White v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
TREMAINE KEVIN WHITE
MEMORANDUM OPINION * BY
v. Record No. 0104-02-1 JUDGE LARRY G. ELDER
DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
William P. Robinson, Jr. (Robinson, Neeley &
Anderson, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.
Tremaine Kevin White (appellant) appeals from his
convictions for four counts each of robbery, conspiracy and use
of a firearm in the commission of a felony, entered upon his
conditional guilty pleas. On appeal, he contends the trial
court erroneously denied his motion to suppress his confession
because his waiver of his Fifth Amendment rights to counsel and
silence was not voluntary, knowing and intelligent. We hold the
evidence, viewed in the light most favorable to the
Commonwealth, supported the trial court's ruling that
appellant's waiver was, in fact, voluntary, and we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal of a ruling on a motion to suppress, we view the
evidence in the light most favorable to the prevailing party,
here the Commonwealth. Mills v. Commonwealth, 14 Va. App. 459,
468, 418 S.E.2d 718, 722-23 (1992). "[W]e are bound by the
trial court's findings of historical fact unless 'plainly wrong'
or without evidence to support them[,] and we give due weight to
the inferences drawn from those facts by resident judges and
local law enforcement officers." McGee v. Commonwealth, 25
Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).
However, we review de novo the trial court's application of
defined legal standards, such as whether a confession was
voluntary, to the particular facts of the case. See Ornelas v.
United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134
L. Ed. 2d 911 (1996); Mills, 14 Va. App. at 468, 418 S.E.2d at
723.
A suspect must knowingly and intelligently waive his rights
against self-incrimination and to the assistance of legal
counsel in order for a confession made during a custodial
interrogation to be admissible in evidence against him. Morris
v. Commonwealth, 17 Va. App. 575, 579, 439 S.E.2d 867, 870
(1994). Even when a suspect has waived his Miranda rights, his
confession is inadmissible if it was involuntary for other
reasons. See id.Assessing whether a confession is voluntary requires an
examination of the totality of the circumstances to determine
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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." Schneckloth v. Bustamonte, 412 U.S. 218,
225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). In
assessing the totality of the circumstances, the court must
consider both "the details of the interrogation" and "the
characteristics of the accused." Kauffmann v. Commonwealth, 8
Va. App. 400, 405, 382 S.E.2d 279, 281 (1989).
"'Where a juvenile is involved, "[t]his includes evaluation
of the juvenile's age, experience, education, background, and
intelligence [in order to determine] whether he has the capacity
to understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those
rights."'" Potts v. Commonwealth, 35 Va. App. 485, 495-96, 546
S.E.2d 229, 234 (quoting Roberts v. Commonwealth, 18 Va. App.
554, 557-58, 445 S.E.2d 709, 711 (1994) (quoting Fare v. Michael
C., 442 U.S. 707, 717, 99 S. Ct. 2560, 2567, 61 L. Ed. 2d 197(1979))), aff'd on reh'g en banc, 37 Va. App. 64, 553 S.E.2d 560(2001).
Although "it is desirable to have a parent,
counsel or some other interested adult or
guardian present when . . . a juvenile
waives fundamental constitutional rights and
confesses to a serious crime . . . , the
mere absence of a parent or counsel does not
render the waiver invalid." The absence of
a parent is but one factor to be considered
in the totality of the circumstances and is
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insufficient by itself to render [a
juvenile's] confession involuntary.
Id. at 496, 546 S.E.2d at 234-35 (quoting Grogg v. Commonwealth,
6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1988)). Other factors
for consideration include "the purpose and flagrancy of any
police misconduct," "the length of the interview," and any
"moral and psychological pressures to confess emanating from
official sources." Morris, 17 Va. App. at 579, 439 S.E.2d at
870.
Here, as appellant conceded on brief, the trial court was
free to reject as not credible some or all of the testimony of
appellant and his mother. 1 Viewing the record in the light most
favorable to the Commonwealth, no evidence indicated that
Detective J.E. Nolan made any misrepresentations to appellant
about whether he would be permitted to leave the station when
the interrogation was over or whether appellant's mother
approved of appellant's talking to the detectives without her
being present. The remaining evidence supported the trial
court's finding that appellant's confession was voluntary.
Although appellant was seventeen years old when the
challenged interview took place and his mother was not present,
his eighteenth birthday was less than three weeks after the
1
Appellant asserted on brief that "[t]he instant case
presents a clear factual issue" and that Detective Nolan's
actions, "if true, are reprehensible." (Emphasis added).
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interview. Although the evidence left open to question whether
appellant had previously been questioned by the police, it
established that appellant was literate, "a bright kid" and "a B
student" in his eleventh grade classes. Appellant denied having
consumed any alcohol or drugs prior to the interview, was
reasonably articulate when he answered the questions of
Detectives Nolan and Grazia Moyers during the interview, and
confirmed both verbally and in writing prior to the interview
that he understood his Miranda rights.
When Detective Nolan asked appellant whether, keeping his
rights in mind, he wished to talk to the detectives, appellant
inquired whether his mother was "supposed to be [present for the
interview] because [appellant was] a minor." Detective Nolan
responded that he decided to have appellant's mother wait in the
lobby because he wanted appellant "to have an opportunity to
make open statements without being embarrassed in front of his
mother." Detective Nolan then asked appellant, "[h]aving what
has been read in mind," whether appellant wished to talk to him.
Appellant responded, "Yes sir," endorsed the advisement of
rights form, and answered Detective Nolan's questions.
Detective Nolan's tone and manner were even and
non-threatening, and the entire interview lasted less than one
hour. Detective Nolan offered appellant something to drink
before beginning the interview. Although appellant confessed to
committing the instant offenses, he unequivocally denied
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participating in the robbery of a man in a suit in the vicinity
of a particular gas station and in any robberies near Lynnhaven
Mall or in any other jurisdictions, demonstrating his confession
was "an essentially free and unconstrained choice."
Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2046; see also Arthur
v. Commonwealth, 24 Va. App. 102, 107-08, 480 S.E.2d 749, 752
(1997) (in determining effect of false incriminating documents
on voluntariness of confession, noting defendant's ability "to
make choices" by declining, during several prior interviews with
police, to incriminate himself). "He never broke down and
became 'putty in the hands' of the interrogator or a 'parrot'
for words put into his mouth." Rodgers v. Commonwealth, 227 Va.
605, 617, 318 S.E.2d 298, 305 (1984).
Finally, we would reach the same conclusion even if we were
to construe the trial court's statements on the record as
factual findings that Nolan did, in fact, tell appellant that
"[he could] go home" after the interview was over and that
"[appellant's] mother said it was okay" for appellant to speak
to the police without her being present. If the trial court
believed Detective Nolan made these statements, the totality of
the circumstances nevertheless supports the trial court's
conclusion that appellant's confession was voluntary. A lie by
a law enforcement officer "does not, in and of itself, require a
finding that a resulting confession is involuntary." Id. at
616, 318 S.E.2d at 304.
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Miranda's prohibition against threats,
trickery or cajolery was not intended to
preclude in all circumstances trickery
concerning merely one aspect of the factual
strength of the case against the accused
. . . [particularly when n]othing about the
misrepresentation impede[s the defendant's]
. . . "ability to understand the nature of
his rights and the consequences of
abandoning them."
Foster v. Commonwealth, 8 Va. App. 167, 174-75, 380 S.E.2d 12,
16 (1989) (quoting Moran v. Burbine, 475 U.S. 412, 424, 106
S. Ct. 1135, 1142, 89 L. Ed. 2d 410 (1986)).
Here, although Nolan's alleged misstatements were not about
"the factual strength of the case," they nevertheless were
factual rather than legal in nature and did nothing to "impede
[appellant's] . . . 'ability to understand the nature of his
rights and the consequences of abandoning them'" under the facts
of this case. Id. Assuming these misstatements occurred, we
hold the totality of the circumstances supports the conclusion
that appellant's confession was voluntary.
For these reasons, we hold the trial court's denial of
appellant's motion to suppress was not erroneous, and we affirm
appellant's convictions.
Affirmed.
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Benton, J., dissenting.
"[T]he rule against admitting coerced confessions [is
based] primarily, if not exclusively, on notions of due
process." Dickerson v. United States, 530 U.S. 428, 433 (2000).
The ultimate test remains that which has
been the only clearly established test in
Anglo-American courts for two hundred years:
the test of voluntariness. Is the
confession the product of an essentially
free and unconstrained choice by its maker?
If it is, if he has willed to confess, it
may be used against him. If it is not, if
his will has been overborne and his capacity
for self-determination critically impaired,
the use of his confession offends due
process.
Culombe v. Connecticut, 367 U.S. 568, 602 (1961).
The Supreme Court has "never abandoned this . . .
jurisprudence, and . . . , continue[s] to exclude confessions
that were obtained involuntarily." Dickerson, 530 U.S. at 434.
Thus, the Court recently reaffirmed the following principle:
[T]he test . . . [is] an inquiry that
examines "whether a defendant's will was
overborne" by the circumstances surrounding
the giving of a confession. The due process
test takes into consideration "the totality
of all the surrounding circumstances -- both
the characteristics of the accused and the
details of the interrogation." The
determination "depends upon a weighing of
the circumstances of pressure against the
power of resistance of the person
confessing."
Id. (citations omitted). See also Malinski v. New York, 324
U.S. 401, 404 (1945) (holding that "if all the attendant
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circumstances indicate that the confession was coerced or
compelled, it may not be used to convict a defendant").
Prior to the videotaping of the confession, Detective
Noland talked to White and separately to White's mother.
Detective Noland did not testify at trial. I believe the record
reflects that the trial judge accepted White's testimony
concerning the circumstances that occurred prior to the
videotaping of the interrogation. White testified that shortly
after his mother told him not to speak to Detective Noland,
Detective Noland spoke to White's mother. When Detective Noland
returned, he lied to White and told him his mother said he
should answer Noland's questions. He also falsely promised
White that after he answered Noland's questions his mother would
take him home. The trial judge said that he had "to hand it to
[White] for his honesty," that "he was very honest," and that
his testimony was "refreshing -- candid." He ruled, however, as
follows:
[R]egardless of whether we approve or
disapprove of tactics that the police
sometimes use in promising that if they
speak to the judge or promising to speak to
the Commonwealth or promising you can go
home or saying that your mother said it was
okay, I don't know of any case law that says
that's enough to set it aside.
I'm going to determine that he was
properly advised and that it was a voluntary
waiver that he -- what he said thereafter
was admissible into evidence.
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I believe the detective's misrepresentations were
sufficient to overbear White's will. White had never before
been interrogated by the police and relied upon the detective's
statement that his mother told him to answer the detective's
questions. His lack of "[p]revious exposure to the criminal
justice system" is a factor that weighs against a finding of
voluntariness. Green v. Commonwealth, 223 Va. 706, 710, 292
S.E.2d 605, 608 (1982). The detective's lie that White would go
home after cooperating further undermined the voluntariness of
his statement. These factors make abundantly clear the
conclusion that "the confession [was not] the product of an
essentially free and unconstrained choice by [White]."
Dickerson, 530 U.S. at 433.
The Supreme Court has addressed the question of
voluntariness of a juvenile's confession in circumstances
applicable to this case.
[The period] -- during which time the
boy's mother unsuccessfully tried to see him
and he was cut off from contact with any
lawyer or adult advisor -- gives the case an
ominous cast. . . . But a [juvenile], no
matter how sophisticated, is unlikely to
have any conception of what will confront
him when he is made accessible only to the
police. That is to say, we deal with a
person who is not equal to the police in
knowledge and understanding of the
consequences of the questions and answers
being recorded and who is unable to know how
to protect his own interests or how to get
the benefits of his constitutional rights
. . . . He cannot be compared with an adult
in full possession of his senses and
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knowledgeable of the consequences of his
admissions. He would have no way of knowing
what the consequences of his confession were
without advice as to his rights -- from
someone concerned with securing him those
rights -- and without the aid of more mature
judgment as to the steps he should take in
the predicament in which he found himself.
A lawyer or an adult relative or friend
could have given the petitioner the
protection which his own immaturity could
not. Adult advice would have put him on a
less unequal footing with his interrogators.
Without some adult protection against this
inequality, a [juvenile] would not be able
to know, let alone assert, such
constitutional rights as he had. To allow
this conviction to stand would, in effect,
be to treat him as if he had no
constitutional rights.
Gallegos v. Colorado, 370 U.S. 49, 54-55 (1962).
I would hold that the circumstance proved White's statement
was not voluntary. The officer's trickery and lies exerted
sufficient pressure to overcome White's "power of resistance,"
Dickerson, 530 U.S. at 434, and the considered advice White
received from his mother. For these reasons, I would reverse
the convictions and remand for a retrial.
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