                   COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


MICHAEL LEE SAMMONS
                                          MEMORANDUM OPINION * BY
v.   Record No. 0089-00-2              JUDGE JEAN HARRISON CLEMENTS
                                                MAY 29, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    John F. Daffron, Jr., Judge

           D. Gregory Carr (Bowen, Bryant, Champlin &
           Carr, on brief), for appellant.

           Eugene Murphy, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Appellant Michael Lee Sammons was convicted in a bench trial

of first degree murder, use of a firearm in the commission of

murder, robbery, and use of a firearm in the commission of

robbery.   On appeal, he contends the trial court erred in denying

his motion to suppress inculpatory statements he gave to police.

Finding no error, we affirm the judgment of the trial court.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Specifically, Sammons asserts on appeal that the police, over

a lengthy period of time in a cramped room, made numerous promises

of leniency, applied psychological pressures, threatened to

prosecute members of his fiancee's family, and led him to believe

that his freedom or life depended on his cooperation with them.

His inculpatory statements, he argues, were not voluntary and it

was error, therefore, on the part of the trial court to deny his

motion to suppress them.

     On appeal from a trial court's denial of a motion to

suppress, the burden is on the appellant to show that the denial

of the motion constituted reversible error.   See Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.

denied, 449 U.S. 1017 (1980).   We review the evidence in the light

most favorable to the Commonwealth, granting to the Commonwealth

all reasonable inferences fairly deducible from it.   E.g.,

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).

     "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).   The voluntariness issue is a

question of law requiring an independent determination on appeal.

E.g., Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d

655, 656 (1992).   "In assessing voluntariness, the court must

determine whether 'the statement is the product of an essentially

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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)

(quoting Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d

371, 381 (1984) (internal quotations omitted)).   In making that

independent determination, "we are bound by the trial court's

subsidiary factual findings unless those findings are plainly

wrong."   Wilson, 13 Va. App. at 551, 413 S.E.2d at 656.

"Conflicts in evidence present factual questions that are to be

resolved by the trial court," which "'must evaluate the

credibility of the witnesses, resolve the conflicts in their

testimony and weigh the evidence as a whole.'"    Mills v.

Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992)

(quoting Albert v. Commonwealth, 2 Va. App. 734, 738, 347 S.E.2d

534, 536 (1986)).

     In determining voluntariness, we look to the "'totality of

all the surrounding circumstances,' including the defendant's

background, experience, mental and physical condition and the

conduct of the police."   Commonwealth v. Peterson, 15 Va. App.

486, 488, 424 S.E.2d 722, 723 (1992) (citation omitted).     In

considering the conduct of the police, 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."

                               - 3 -
Terrell v. Commonwealth, 12 Va. App. 285, 291, 403 S.E.2d 387, 390

(1991).

     Here, Sammons was arrested and taken into custody by

Chesterfield County police on January 16, 1998, for unrelated

charges in a "church burglary."      After Sammons signed a waiver of

his Miranda rights, he was interviewed by Detectives Truehart and

Baker.    Truehart told Sammons,

             I expect you to tell me the truth. I told
             you I'd be square with you and I'd help you
             to the fullest, didn't I? If I catch you in
             a lie, I'm gonna hammer you. And you got a
             baby coming here, be due, in what, a couple
             months.

     After the officers questioned Sammons about the unrelated

"church burglary," the interview shifted to the murder of James

Lambrecht.    Sammons first asked what was going to happen to him,

whether he would be going to jail or would "get off."      Truehart

told Sammons he had no control over whether Sammons went to jail,

but he would put in a "very good word" for him with the

Commonwealth's attorney.    Truehart implored Sammons to tell him

the truth, and Baker told Sammons it would help him a lot if he

told them about the murder.    Truehart reminded Sammons again about

the baby Sammons was expecting and told Sammons he needed to think

of himself.    Thereafter, Sammons gave a version of the murder that

implicated solely his codefendant, Jason Gregory.

     Later during the same interview, Sammons asked for the

officers' help, reminding them that he had a baby on the way.


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Truehart responded that he was going to help Sammons and that

Sammons had to look out for himself.    Truehart also told Sammons

that the more he did for the officers, the more they would do for

him.   Truehart further advised Sammons, "[Y]our life depends on

you this moment and you got to tell us everything you know."

       Later in the interview, Baker and Sammons engaged in the

following exchange:

                 Baker: Mike, we will help you out the
            best we can. We'll go to the Commonwealth's
            attorney and help you out the best we can.
            But we're going to need your help on this,
            too.

                 Sammons: I will go to court and testify
            for you all, but I cannot go to jail. I will
            not be able to handle that mentally. Not
            again.

                 Baker: Well, we can't tell you that
            you're not going to go to jail. Okay.
            That's not up to us. That's not our shot.
            You know what will happen. Right here today
            you'll have to go in front of the magistrate.
            And we can, we, Detective Truehart and I,
            will both go to the magistrate and tell that
            you've cooperated with us. But we can't make
            any promises to you. You know that.

Baker also implored Sammons to be totally honest and assured him

that they knew Gregory was the "bad guy" and that they were "not

looking to hammer" Sammons.

       During the interview, the officers twice offered Sammons a

drink and permitted him to go to the restroom when he requested to

do so.   Throughout the interview, Sammons blamed Gregory for the

murder, insisting that Gregory had acted independently and that


                                - 5 -
Sammons was unaware of Gregory's intention to rob or kill

Lambrecht.

     Subsequently, Baker and Detective Steve Smith interviewed

Sammons.   Smith began the interview by accusing Sammons of having

lied to the officers earlier.    He told Sammons that Gregory had

accused Sammons of shooting Lambrecht.    Smith also implied that,

if Sammons did not tell the truth, the police might have to

involve Sammons's future father-in-law in the murder investigation

and charge Sammons's fiancee's sister, who was in the car after

the murder, as an accessory after the fact.

     When Sammons refused to change his version of what happened,

Smith, who knew from other evidence that Sammons was involved in

the killing, told Sammons:

             Let me tell you something, son. You're
             lying. I'm telling you that straight up.
             Now do you want to face a capital murder
             charge, robbery, and death in result of a
             robbery? . . . Now let me tell you one more
             time. You better start telling the truth.
             If you don't, you're going to be the worst
             guy in this whole scenario.

Smith further told Sammons that a jury would not believe his

inconsistent story and that he had better start "singing," because

he was "digging [his] hole deeper."

     When Smith and Baker suggested to Sammons that they knew

where to get the gun Sammons used to shoot Lambrecht, Sammons

confessed his part in the robbery and murder and apologized for




                                - 6 -
lying to the officers.   At no time did Sammons seek to terminate

the interview or talk to an attorney.

     The record in this case contains a transcript of the initial

interview with Sammons; an audiotape, videotape, and transcript of

the second interview; and brief testimony of Detectives Smith and

Baker regarding the second interview.   Other than what is revealed

in the transcript of the first interview, we have no record of the

circumstances of that interview.   Nor can we ascertain from the

record when the second interview occurred or how long it

continued, although the videotaped portion of that interview

lasted no more than two hours, including breaks in the

questioning.   Sammons is seen smoking a cigarette during that

interview.

     At the suppression hearing, the trial court determined that,

while the police "were alternately leaning on [Sammons],

challenging his statements, telling him he was lying on matters,

and . . . making other [vague and oblique charges] as to his

[fiancee's] sister, to his potential father-in-law and to what may

happen with him vis-à-vis the co-defendant," the police did not as

a matter of law, overbear the will of the accused.   Thus, the

trial court concluded, even though it was the result of a

"spirited interrogation," Sammons's confession was voluntary.    We

agree.

     From our independent review of the record, we conclude that

Sammons made no inculpatory statements to the police during the

                               - 7 -
first interview.   He was advised of his Miranda rights and chose

to talk to the officers.    He was given breaks and a drink upon

request.   At various points during the interview, the officers

expressed their opinion that Sammons's cooperation and

truthfulness would help him.   They advised Sammons that they would

speak to those in authority on his behalf if he cooperated and

told the truth.    But they further indicated they had no authority

themselves to make any promises regarding the nature of the

charges or their outcome.    In telling Sammons that he needed to

think about his unborn child and himself, the detectives, who were

unaware at the time of Sammons's role in the killing, were, it

could reasonably be surmised, simply warning Sammons that he

needed to take the interview seriously, as his answers would have

an important effect on his and his future family's lives.

     By the time the second interview commenced, the officers had

obtained Gregory's version of the events, which incriminated

Sammons.   The officers then used that information, along with

other information from their investigation, to encourage Sammons

to reveal his true involvement in the crimes.   In asking Sammons

if he wanted "to face a capital murder charge," the police were,

we believe, advising, rather than threatening, Sammons that

Gregory, the suspected triggerman, was fingering Sammons as

Lambrecht's killer.   Without the truth from Sammons, Gregory's

version of the facts might prevail and Sammons might be prosecuted

for capital murder.    The police further advised Sammons that, in

                                - 8 -
weighing his credibility, a jury might disbelieve him because he

was telling so many versions of what occurred.   Furthermore, the

officers knew that one of the guns involved in the murder belonged

to Sammons's future father-in-law and that Sammons's fiancee's

sister, Victoria DeMaio, was a passenger in the car with Sammons

and Gregory after the killing.    This knowledge formed the basis of

the officers' claims that Sammons, because he was being

untruthful, was "dragging [his future father- and sister-in-law]

into this."

     Thus, in considering the totality of the circumstances, we

hold that the officers merely persuaded, rather than coerced,

Sammons to confess and that, as evidenced by Sammons's apology to

the officers for his previous lies, Sammons's confession was

voluntary.    Hence, the trial court did not err in refusing to

suppress Sammons's inculpatory statements.

     Accordingly, we affirm the trial court's ruling denying

Sammons's motion to suppress his confession and affirm appellant's

convictions.

                                                          Affirmed.




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