                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and Senior Judge Bumgardner
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                                MEMORANDUM OPINION ∗ BY
              v.     Record No. 1420-12-1                                        JUDGE WILLIAM G. PETTY
                                                                                    JANUARY 22, 2013
              ALVIN DANIEL GATEWOOD


                             FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                              Stephen C. Mahan, Judge

                               Victoria Johnson, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellant.

                               Gregory B. Turpin (Clarke, Dolph, Rapaport, Hull & Brunick,
                               P.L.C., on brief), for appellee.


                     Pursuant to Code § 19.2-398, the Commonwealth of Virginia appeals the decision of the

              trial court to grant Alvin Gatewood’s motion to suppress statements he made during an interview

              with a Virginia Beach Child Protective Services social worker. Specifically, the Commonwealth

              argues that the trial court erred in finding that the Commonwealth did not prove that Gatewood

              knowingly and intelligently waived his Fifth and Sixth Amendment rights. For the reasons set

              forth below, we affirm the trial court’s decision to grant the motion to suppress.

                                                                 I.

                     Because the parties are fully conversant with the record in this case and this

              memorandum opinion carries no precedential value, we recite only those facts and incidents of

              the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.



                     ∗
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       “In an appeal by the Commonwealth of an order of the trial court suppressing evidence,

the evidence must be viewed in the light most favorable to the defendant and findings of fact are

entitled to a presumption of correctness unless they are plainly wrong or without evidence to

support them.” Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992).

We review the fact finding of the trial court “with the highest degree of appellate deference.”

Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). “Even if our

opinion were to differ,” Ferguson v. Commonwealth, 51 Va. App. 427, 435, 658 S.E.2d 692, 696

(2008) (en banc), “we do not substitute our judgment for that of the factfinder,” Hamilton v.

Commonwealth, 279 Va. 94, 105, 668 S.E.2d 168, 175 (2010). Because appellate courts do not

have authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va. App.

1, 11, 602 S.E.2d 402, 407 (2004), we are “not permitted to reweigh the evidence,” Nusbaum v.

Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007). Finally, we reverse the decision of the

trial court only if it is “plainly wrong or without evidence to support it,” Davis v.

Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002), and “we give due weight to

the inferences drawn from [the] facts by resident judges,” McGee v. Commonwealth, 25

Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

                                                  II.

       No person “shall be compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V. This privilege is “the essential mainstay of our adversarial system.”

Miranda v. Arizona, 384 U.S. 436, 458 (1966). When the question to be answered is whether a

defendant waived his Fifth Amendment privilege, “a heavy burden rests on the government to

demonstrate that the defendant knowingly and intelligently waived his privilege against

self-incrimination and his right to retained or appointed counsel.” Colorado v. Connelly, 479

U.S. 157, 184-85 (1986). At trial, the Commonwealth bears the burden of proving, by a

                                                 -2-
preponderance of the evidence, “that the accused knowingly, intelligently[,] and voluntarily

waived his Miranda rights.” Rodriguez v. Commonwealth, 40 Va. App. 144, 155, 578 S.E.2d

78, 83 (2003). 1

       On appeal, “the determination of whether the waiver was made knowingly and

intelligently is a question of fact that will not be set aside on appeal unless plainly wrong.”

Angel v. Commonwealth, 281 Va. 248, 258, 704 S.E.2d 386, 392 (2011). Additionally, “even

absent the accused’s invocation of the right to remain silent [or his right to have counsel present],

the accused’s statement during a custodial interrogation is inadmissible at trial unless the

prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [Miranda]

rights’ when making the statement.” Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010)

(alteration in original) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)).

       Further, it is important to note that the

               waiver inquiry has “two distinct dimensions”: waiver must be
               “voluntary in the sense that it was the product of a free and
               deliberate choice rather than intimidation, coercion, or deception”
               and “made with a full awareness of both the nature of the right
               being abandoned and the consequences of the decision to abandon
               it.”

Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Additionally, “any evidence that the

accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant

did not voluntarily waive his privilege.” Miranda, 384 U.S. at 436. In examining the totality of

the circumstances surrounding an alleged waiver, a trial court must consider several factors,

including “the defendant’s age, intelligence, mental and physical condition, background and

       1
         Gatewood’s only argument was that he did not make a knowing and intelligent waiver
of his Miranda rights. He has not argued that the statement he ultimately provided was
involuntary in the sense that it was the product of coercion. Therefore, the question of whether
“the confession was ‘the product of an essentially free and unconstrained choice by its maker,’”
Midkiff v. Commonwealth, 250 Va. 262, 269, 462 S.E.2d 112, 116 (1995) (quoting Schneckloth
v. Bustamonte, 412 U.S. 218, 225 (1973)), is not before us.

                                                   -3-
experience with the criminal justice system, the conduct of the police, and the circumstances of

the interview.” Bottenfield v. Commonwealth, 25 Va. App. 316, 323, 487 S.E.2d 883, 886

(1997).

          Finally,

                 [u]nder our precedents, once the adversary judicial process has
                 been initiated, the Sixth Amendment guarantees a defendant the
                 right to have counsel present at all “critical” stages of the criminal
                 proceedings. Interrogation by the State is such a stage. Our
                 precedents also place beyond doubt that the Sixth Amendment
                 right to counsel may be waived by a defendant, so long as
                 relinquishment of the right is voluntary, knowing, and intelligent.
                 The defendant may waive the right whether or not he is already
                 represented by counsel; the decision to waive need not itself be
                 counseled. And when a defendant is read his Miranda rights
                 (which include the right to have counsel present during
                 interrogation) and agrees to waive those rights, that typically does
                 the trick, even though the Miranda rights purportedly have their
                 source in the Fifth Amendment.

Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (internal citations omitted).

                                                   III.

          Gatewood was charged with child abuse and neglect and second-degree murder of the

child. On the night of his arrest, Gatewood was given his Miranda rights and interviewed by a

detective. 2 Approximately two months later, Gatewood was brought to the Virginia Beach

Police Department’s detective bureau for questioning by Megan Denham, a social worker

employed by the Virginia Beach Child Protective Services. 3 Denham was assisting in the

investigation of the underlying charges for which Gatewood had been arrested. Gatewood was


          2
        The Commonwealth did not introduce any evidence concerning this waiver or interview
beyond a stipulation that it did occur.
          3
         Code § 63.2-1503 requires the local Department of Social Services, where practicable,
to develop multidisciplinary teams, including law enforcement, to share information regarding
the investigation and disposition of complaints of child abuse and neglect. The record does not
reflect whether Denham was a member of such a team.

                                                  -4-
brought from the jail in handcuffs for the interview. Unbeknownst to Gatewood, the interview

was recorded. 4 At the time of the interview, Gatewood was represented by counsel.

       Denham assured Gatewood several times that she was not affiliated with the police or

courts, and the only reason they were at the detective bureau was because she “needed a place to

interview him.” When Gatewood expressed confusion about Denham’s role, she repeatedly

responded that she was affiliated with a “civil agency” and not “criminal” and that she was there

to “help” his family. Denham also informed Gatewood that she did not have the authority to

“charge,” “punish,” or find him “guilty” of anything. Eventually, Denham passed a Miranda

rights waiver form to Gatewood entitled “Virginia Beach Department of Social Services

Advisement of Rights.” After reading over the waiver, Gatewood paused hesitantly and asked

Denham, “This can’t incriminate me?” Denham replied that any responses were voluntary and

he could refuse to answer any question. Gatewood signed the form and subsequently made

inculpatory statements. At no time did Denham orally advise Gatewood of his right to remain

silent or his right to have his attorney present, even though she knew he had an attorney and

court proceedings had been initiated against him.

       The trial court made extensive findings regarding the nature of the interview and the

manner in which the social worker represented herself and her relationship to the police.

Specifically, the court found that Denham was acting as an agent of the Commonwealth, that the

interview had been arranged in collaboration with the police detective, and that the interview was

staged in the detective bureau so that it could be surreptitiously recorded by the police. The trial

court found this to be “extraordinarily disturbing” in that “the police and Child Protective

       4
          According to Code § 63.2-1516, a person suspected of child abuse may demand that
CPS personnel record any interview. Further, the “CPS worker shall inform the alleged abuser
and/or neglector of his right to tape record any communication pursuant to § 63.2-1516.” 22
VAC 40-705-80(B)(2)(a). The record does not reflect any such declaration, and Denham
testified that she did not tell Gatewood that the interview was being recorded.

                                                -5-
Services, in collaboration with each other, engaged in the concerted effort . . . to try to find a

mechanism that was designed to subvert the Fifth and Sixth Amendment rights of the

defendant.” Concluding that the interview was a “deliberate and concerted attempt to

re-interrogate” Gatewood about his pending criminal charges, the trial court found that a

reasonable person would be unable to appreciate the nature of the interview due to the

“misleading and objectively false” circumstances. In sum, the court found that:

               the statements made by Ms. Denham were deliberate and
               considered statements intended to induce the defendant,
               Mr. Gatewood, or a reasonable person into believing that
               statements that are given to her in that context would not be used
               against that person in the ongoing criminal trial that was pending at
               the time and the defendant therefore need not be concerned about
               the presence of his attorney in that setting or the consequences of
               his attorney not being present or of a choice to continue to speak
               with Ms. Denham in that setting.

       Accordingly, the trial court held that the Commonwealth did not prove by a

preponderance of the evidence that Gatewood knowingly, intelligently, and voluntarily waived

his Fifth and Sixth Amendment rights. Based on the evidence before us, we cannot say that the

trial court’s factual finding was plainly wrong or without evidence to support it.

                                                 IV.

       The Commonwealth argues that the trial court’s factual finding was plainly wrong and

without evidence to support it because the trial court concluded that the term “Miranda” had not

been used by Denham, when in fact, Denham did mention it once. This comment by the trial

court occurred several weeks after the evidentiary hearing and appears to be based on an

agreement by counsel. Specifically, the trial court stated,

               I do want to explicitly state into the record something I know we
               cleared up in an earlier discussion, that is, Ms. Denham, during the
               course of her reinterrogation of Mr. Gatewood, did not use . . . the
               word Miranda. There was some ambiguity about that. At one time
               during her examination on the witness stand she explicitly claimed
               to have used that word or term, whatever it may constitute at this
                                                 -6-
               point but, I believe upon further inquiry from the court that counsel
               for both parties have agreed that the word or term, that is, quote,
               Miranda, end quote, was never used by Ms. Denham in
               Mr. Gatewood’s presence. 5

        Because of the Commonwealth’s concession on this issue at trial and, as we note below,

the fact that this point was a very minor part of the trial court’s factual findings and analysis, we

cannot say that the ultimate conclusion was unsupported.

       The Commonwealth further argues that because the social worker used the term Miranda,

and gave Gatewood a sheet with a list of Miranda rights on it, he had been lawfully advised of

his rights, understood the gravity of signing such a waiver, and knowingly, intelligently, and

voluntarily waived his rights. We disagree. Though a signing of a Miranda rights notice is

“strong proof of the validity of waiver,” Butler, 441 U.S. at 373, a court may properly conclude

that a Miranda waiver has occurred “only if the totality of the circumstances surrounding the

interrogation reveals both an uncoerced choice and the requisite level of comprehension,”

Burbine, 475 U.S. at 421.

       Here, the sole reference to Miranda by Denham was enveloped within a multitude of

other statements she made to Gatewood that a reasonable fact finder could conclude strongly

indicated that his right against self-incrimination was not in jeopardy. Early in the conversation,

Gatewood specifically asked Denham if the interview had anything to do with his case. Denham

replied, “Yes and no. I am a different agency.” Denham then repeatedly informed Gatewood

she was not part of the criminal investigation, which the trial court found to be “on every

measure[,] false and deceptive.” While Denham did use the term Miranda, when describing the

       5
         At the motion hearing on July 3, 2012, the DVD of the confession was submitted into
evidence. Excerpts of the DVD were played during the hearing. The court stated that “whatever
is contained thereon that the court considers from the DVD for purposes of this motion will be
filed and admitted as an exhibit” and the court reporters would not be required to
contemporaneously record or transcribe what was being played on the DVD. App. at 14-15.
Thus, there was no written transcript of the interview.

                                                -7-
waiver form, she couched the term within a confusing explanation about being required to advise

him because she could be “subpoenaed.” Denham then reiterated that she was not a part of the

criminal investigation. Moreover, Denham gave the waiver form to Gatewood sometime after

her initial use of the term Miranda, and the form was not labeled Miranda rights, but rather

“Virginia Beach Department of Social Services Advisement of Rights.” Denham told Gatewood

that she was only there to help his family and that she could not punish him, charge him, or find

him guilty. Finally, when Gatewood asked whether this would incriminate him, Denham

responded that she was “only here for the kids” and that her job was “to protect the kids.”

       The trial court characterized the interview as an “environment in which a reasonable

person would not have understood that Ms. Denham’s interrogation or re-interrogation could be

used against [Gatewood] in the criminal proceedings against him.”

               [A] waiver of the Sixth Amendment right to counsel is valid only
               when it reflects an intentional relinquishment or abandonment of a
               known right or privilege . . . . In a case arising under the Fifth
               Amendment, we described this requirement as a full awareness of
               both the nature of the right being abandoned and the consequences
               of the decision to abandon it.

Patterson v. Illinois, 487 U.S. 285, 292-93 (1988). Considering the consistently misleading

information that Denham relayed to Gatewood during the interview, the trial court could

properly infer that Gatewood did not knowingly and intelligently waive his rights. “[T]he

accused must know what he is doing so that his choice is made with eyes open.” Id. The trial

court concluded that the Commonwealth failed to meet their burden of proof that Gatewood’s

statement was knowing, intelligent, and voluntary because the social worker used “fraud,”

“deceit,” “trickery,” and ambiguity when speaking to Gatewood. We cannot say that the trial

court’s finding was plainly wrong or without evidence to support it.




                                               -8-
       Citing Burbine, 475 U.S. 412, and Arthur v. Commonwealth, 24 Va. App. 102, 480

S.E.2d 749 (1997), the Commonwealth also argues that any deception by the Child Protective

Services worker was constitutionally permissible. Again, we disagree.

       In Burbine, police officers falsely told the defendant’s attorney that they were “through”

questioning Burbine for the night; however, the officers questioned Burbine shortly thereafter

and did not inform him that his attorney had attempted to reach him. Burbine, 475 U.S. at 417.

The United States Supreme Court held that Burbine’s subsequent waiver of his Miranda rights

and confession to the crime should not be suppressed because his interaction with the police had

not undermined his ability to understand the consequences of signing a waiver. Id. at 424.

       In Arthur, the defendant confessed to murdering his girlfriend after the police showed

him false forensic reports indicating his fingerprint and blood were found at the crime scene. 24

Va. App. at 104-05, 480 S.E.2d at 750-51. This Court concluded that the interrogating

detective’s lies did not render the confession involuntary because the defendant’s will was not

overborne by the deceit. Id. at 108, 480 S.E.2d at 752.

       In both Burbine and Arthur, irrespective of information given or withheld, the defendants

absolutely knew at all times that they were speaking to a government agent and that any

information they gave would be self-incriminating. With this knowledge, the defendants

voluntarily confessed to the government agents.

       We address an entirely different issue in this case. Here, Denham’s statements to

Gatewood did not contain deceptive information about the victim or a related event designed to

induce a confession. Instead, Gatewood signed the waiver because he was purposefully led to

believe that both the interview and waiver were unrelated to the pending charges against him and

that he was not speaking to a government agent. See Massiah v. United States, 377 U.S. 201,

206 (1964) (finding Sixth Amendment violation when defendant was induced into confessing by

                                               -9-
a co-defendant who was operating on behalf of government agents to intentionally illicit

incriminating information. “In this case, Massiah was more seriously imposed upon . . . because

he did not even know that he was under interrogation by a government agent.”); see also Maine

v. Moulton, 474 U.S. 159, 176 (1985) (finding that police illegally circumvented Moulton’s

Sixth Amendment right when they arranged to record conversations between an informant and

Moulton to illicit incriminating information. “[K]nowing exploitation by the State of an

opportunity to confront the accused without counsel being present is as much a breach of the

State’s obligation not to circumvent the right to the assistance of counsel as is the intentional

creation of such an opportunity.”). Even when Gatewood exhibited repeated hesitance and a lack

of understanding about the waiver, the social worker continued to encourage him to cooperate in

the interrogation, assuaging his concerns with misleading statements about her relationship to his

criminal charges. Indeed, it is impossible for one to “knowingly” and “intelligently” waive

rights if one is intentionally led to believe that nothing is, in fact, being waived.

        Because we do not substitute our judgment for that of the trier of fact, and the findings of

the trial court are supported by the evidence, we hold that the trial court did not err when it

concluded that Gatewood did not knowingly, intelligently, and voluntarily waive his Fifth and

Sixth Amendment rights during the course of his interview with Denham.

                                                  V.

        For the foregoing reasons, we affirm the trial court’s granting of Gatewood’s motion to

suppress his statements that occurred during the course of his interview with Denham.

                                                                                           Affirmed.




                                                 - 10 -
Bumgardner, J., dissenting.

       I dissent. The factual findings and conclusions drawn are not supported by the record. In

this case, the record consists of the video recording of the interview by Child Protective Services

and the testimony of the social worker conducting that interview. The testimony is primarily a

commentary about what appeared on the video that the trial court viewed during the suppression

hearing. The definitive evidence of whether the defendant knowingly and intelligently waived

his rights and made a voluntary statement comes from viewing the video recording of the

interview. Because the events are captured in that format, which constitutes the appellate record,

any findings of fact and determinations of credibility would not be entitled to the special

deference accorded a fact finder who was evaluating live testimony, about the disputed facts,

resting on the credibility of the witness, and which is memorialized only by a cold,

one-dimensional transcript.

       The video does not provide evidence that the police and Child Protective Services

engaged in a concerted effort to subvert the Fifth and Sixth Amendment rights of the defendant.

Supposition leads to the conclusions that were drawn; a detached review of the evidence actually

presented does not. I would reverse. Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d

160, 163 (1992).




                                               - 11 -
