                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Haley and Beales
Argued at Alexandria, Virginia


RONALD MICHAEL YOUNG, JR.
                                                             MEMORANDUM OPINION ∗ BY
v.     Record No. 2143-07-4                                  JUDGE JAMES W. HALEY, JR.
                                                                 OCTOBER 28, 2008
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Jane Marum Roush, Judge

                 Lavonda N. Graham-Williams (Jerri L. Fuller; Law Offices of
                 Patrick N. Anderson, P.C., on briefs), for appellant.

                 Josephine F. Whalen, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General; Karri B. Atwood, Assistant Attorney
                 General, on brief), for appellee.


                                        I. INTRODUCTION

       Convicted by a jury of robbery in Fairfax County, Ronald Michael Young maintains his

inculpatory statements made to police officers should be suppressed. Specifically, he argues that

his admittedly mistaken belief that the interview resulted from plea negotiations initiated by his

counsel, involving a different robbery in Prince William County, coupled with the failure of the

police to affirmatively advise him of his error, rendered his statements involuntary. We disagree

and affirm his conviction.

                                        II. BACKGROUND

       A summary begins with the following unchallenged facts. Young does not dispute that

he signed a written waiver of his Miranda rights, that he was orally advised of those rights, that


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
he understood those rights, that he never requested an attorney be present during his interview,

that he never sought to terminate the interview, that his statements were made free of any

physical or psychological coercion, and that the police offered no inducement or promises in

exchange for his statement.

       That being said, the interview evolved as follows.

       Young was in the Prince William County jail on charges arising in that county. Jennifer

Beth Zary had been appointed to represent him on those charges. On the afternoon of April 21,

2006, she visited him in jail. He told her he had information about a friend of his who had

participated in various bank robberies. He did not tell her he had participated in any of these

robberies nor where they had occurred. They agreed she would approach the Prince William

Commonwealth’s Attorney’s office to see “if we could use his information in order to benefit

himself.” Ms. Zary spoke with the Commonwealth’s Attorney’s office and also contacted the

Prince William Police Department, but was at that time unable to ascertain what Prince William

police officer was handling Young’s case. She never spoke with any member of the Fairfax

Commonwealth’s Attorney’s office or Fairfax police.

       Detective Gary Bailey of the Fairfax County Police Department was investigating two

bank robberies, which had occurred in that county. He received a Crime Stoppers call stating

that two men, Young and one Rogers, were the robbers and that they were incarcerated in the

Prince William County jail. A bank surveillance photo matched one of Rogers. By coincidence,

on April 21, 2006, at about 9:30 p.m., Bailey and Investigator Kenneth Fognano of the Loudoun

County Sheriff’s Department went to the Prince William County jail to interview Young. 1 At




       1
         Special Agent Bill Rodiger of the FBI accompanied the detectives but apparently did
not participate in the interview.


                                               -2-
that time there were no Fairfax charges pending against Young. As noted above, all Miranda

formalities were met.

       Even though Detective Bailey identified himself as a Fairfax County police officer

investigating Fairfax County robberies, Young mistakenly thought the officers were there as a

result of his Prince William County defense strategy developed with Ms. Zary.

       Young testified:

                      Q. When they came into the room, what was your belief
               about why they were there?

                      A. My belief was they were there because I had a
               conversation earlier that day with my Manassas lawyer.

                           *       *      *      *       *       *      *

                      Q. When you say you started the conversation out, is that
               when they immediately came into the room and started talking to
               you about it?

                      A. Right. As they were introducing themselves, I told
               them that it was my belief I knew why they were there, even
               though I was -- in the end I was wrong.

                        Q. When did you come to find out that you were wrong?

                        A. It could be a week later.

                        Q. Is that when you were charged?

                         A. Yeah. Well, even then I still didn’t believe I was wrong.
               . . . I didn’t know any better until my lawyer actually stated that
               she never sent the police over and I’m like, you’re kidding me.

Furthermore, in response to a question that he was “just being cooperative because you thought

that was what you needed to do,” Young answered “Yes.”

       During the interview, Young made statements concerning his involvement as a driver for

Rogers in the Fairfax robberies.




                                                -3-
        Detective Bailey testified on cross-examination: “Q. Anything about having

conversation with his attorney? A. No. I think initially . . . is him indicating that whether or not

we had spoken to a lawyer and the answer was, ‘No.’ There wasn’t any discussion about it

further.” 2

        Detective Fognano testified:

                      Q. [Y]ou said earlier . . . that you believed that the
               defendant was under the mistaken impression that his attorney had
               sent you. Did you ever tell the defendant that you were coming at
               the request of his attorney?

                       A. I didn’t emphasize either way.

                       Q. But you never said anything affirmative, like, along the
               lines of, yes, your attorney sent me?

                       A. No, ma’am.

                      Q. Did you ever hear Detective Bailey or Special Agent
               Rodiger say anything affirmative concerning Mr. Young’s attorney
               sending them to speak with him?

                      A. No . . . . Neither of us took advantage and said that his
               attorney did send us. We didn’t even know who his attorney then
               was. 3

                          *       *      *       *       *       *      *

                      Q. You also didn’t say that we’re not sent from the
               attorney; correct?

                       A. That’s correct.

        2
          Detective Bailey gave this testimony during a suppression hearing. On brief, Young
notes that at trial Bailey testified that when Young asked if Bailey and the others had spoken
with his attorney, the officers “just kind of nodded our heads and proceeded on.” Young did not
renew his motion to suppress at trial. Accordingly, we consider only the evidence adduced at the
suppression hearing. See United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998); United
States v. Quintanilla, 25 F.3d 694, 698 (8th Cir. 1994); United States v. Hicks, 978 F.2d 722, 724
(D.C. Cir. 1992); see also 6 Wayne R. LaFave, Search and Seizure § 11.1(b), at 18 (4th ed.
2004).
        3
         As noted, since there were no then pending Fairfax County charges, Young did not have
an attorney representing him on any such charges.

                                                -4-
       In sum, even though the detectives may have surmised Young thought his attorney had

sent them, they did nothing to confirm or disaffirm Young’s belief. And it is this failure to

disaffirm, Young maintains, that renders his statements involuntary.

                                          III. ANALYSIS

       “On appeal from a denial of a suppression motion, we examine the evidence in the light

most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.”

Barkley v. Commonwealth, 39 Va. App. 682, 687, 576 S.E.2d 234, 236 (2003). Young has the

burden of demonstrating reversible error. Davis v. Commonwealth, 37 Va. App. 421, 429, 559

S.E.2d 374, 378 (2002).

       The test of whether waiver was voluntary “‘is 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.’” Cary v. Commonwealth,

40 Va. App. 480, 487, 579 S.E.2d 691, 694 (2003) (quoting Stockton v. Commonwealth, 227 Va.

124, 140, 314 S.E.2d 371, 381 (1984)) (internal quotation marks omitted). “[E]vidence of

coercive police activity ‘is a necessary predicate to the finding that a confession is not

voluntary.’” Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722, 723 (1992)

(quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)) (internal quotation marks omitted).

Further, as the Virginia Supreme Court held in Harrison v. Commonwealth, 244 Va. 576, 581,

423 S.E.2d 160, 163 (1992): “[T]he inquiry whether a waiver of Miranda rights was made

knowingly and intelligently is a question of fact, and the trial court’s resolution of that question

is entitled to a presumption of correctness.” “‘[T]his factual finding will not be disturbed on

appeal unless plainly wrong.’” Id. (quoting Watkins v. Commonwealth, 229 Va. 469, 477, 331

S.E.2d 422, 430 (1985)).




                                                -5-
       In Harrison, 244 Va. at 578, 423 S.E.2d at 161, police officers told Harrison that

providing information against co-conspirators would help him. Citing Rodgers v.

Commonwealth, 227 Va. 605, 616, 318 S.E.2d 298, 304 (1984), the Virginia Supreme Court held

that this inducement did not render his subsequent statements involuntary. Harrison, 244 Va. at

584, 318 S.E.2d at 164-65.

        In Washington v. Commonwealth, 43 Va. App. 291, 303-04, 597 S.E.2d 256, 262

(2004), this Court applied the same reasoning. The police had told the defendant the prosecution

would look favorably on his cooperation. Id. We concluded that the defendant “plainly knew

that he had the right to remain silent and to have a lawyer present and that what he said to

[police] could be used against him at trial.” Id. at 304, 597 S.E.2d at 262.

       In this case, there is no evidence of coercion and, unlike Harrison or Washington, there

were no inducements or promises whatsoever made by the officers to Young in exchange for his

statement. Rather, those statements resulted from Young’s mistaken belief that such

inducements or promises had or were to be made.

       In Roach v. Commonwealth, 251 Va. 324, 340, 486 S.E.2d 98, 107 (1996), the Virginia

Supreme Court affirmed the trial court and wrote:

                       Roach argues that the trial court erred in refusing to
               suppress his confession as being involuntary . . . . Roach asserts
               that his waiver of Miranda rights was “questionable,” and that he
               made his statements based upon the mistaken belief that he would
               receive the benefit of a lesser penalty in exchange for admitting
               that he had shot Hughes.

       In the instant case, Young admitted that “in the end I was wrong” in his belief that the

police officers had arrived to interview him as a result of his Prince William County attorney’s




                                                -6-
efforts. It was his “mistaken belief,” not any coercive activity by those officers, which led to his

statements. 4 Accordingly, those statements were voluntarily given.

                                         IV. CONCLUSION

           For the foregoing reasons, we affirm the trial court.

                                                                                          Affirmed.




       4
          Young’s history with law enforcement lends additional support to the voluntary nature
of his statements. During the sentencing phase of the trial, the Commonwealth presented
evidence of prior convictions for armed bank robbery and petit larceny. A suspect’s experience
with law enforcement may weigh in favor of finding a voluntary, knowing, and intelligent
waiver. Giles v. Commonwealth, 28 Va. App. 527, 536, 507 S.E.2d 102, 107 (1998).

                                                  -7-
