                                   COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Petty and Alston
Argued at Richmond, Virginia


DANTE LAMONT LEWIS
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0894-08-2                                    JUDGE WILLIAM G. PETTY
                                                                   AUGUST 11, 2009
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Walter W. Stout, III, Judge

                 James L. McLemore, IV, for appellant.

                 Donald E. Jeffrey, III, Senior Assistant Attorney General
                 (William C. Mims, Attorney General, on brief), for appellee.


       On February 11, 2008, Lewis was convicted of aggravated malicious wounding,

attempted murder, attempted robbery, use of a firearm in the commission or attempted

commission of robbery, use of a firearm in the commission of aggravated malicious wounding,

and possession of a firearm after being previously convicted of a felony. Lewis was sentenced to

an aggregate forty-five years with fifteen years suspended. On appeal, Lewis argues that the trial

court erred in denying his motion to suppress statements made during a police interrogation

because he claims that he did not knowingly and intelligently waive his Fifth Amendment

privilege against self-incrimination. In addition, Lewis argues that the trial court erred in

denying his motion to suppress because his confession was not freely and voluntarily given. For

the following reasons, we disagree and affirm his convictions.



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         I. BACKGROUND

       On appeal, we review the evidence in the “light most favorable” to the prevailing party

below, the Commonwealth, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003), and we grant to that party all fair inferences flowing therefrom. Coleman v.

Commonwealth, 52 Va. App. 19, 21, 660 S.E.2d 687, 688 (2008).

       Danny Teodorescu was employed by Mobile Ice Cream Corporation, and he drove an ice

cream van that was equipped to “sell[] ice cream on the street.” On October 7, 2007, around

4:00 p.m., while Teodorescu was selling ice cream, two men approached the van. One stopped

at the front of the van, and the other approached the rear passenger side window and requested

ice cream. As Teodorescu leaned down into the freezer he heard the man at the window say:

“[g]ive me all your money.” Teodorescu ignored the comment and continued to get the ice

cream. Then, while his head was still in the freezer, the van started to “shake like an

earthquake.” Teodorescu stood up and saw the man who stopped at the front of the van enter

through the driver door and attempt to take Teodorescu’s wallet, cell phone, and iPod, which he

kept on the dashboard. Teodorescu ran to the front of the van and told the man to “get out” and

pushed the man away very easily. The man got out of the van, and Teodorescu locked the door

and rolled up the window. When Teodorescu turned around, the man at the window held a black

gun inside the window, aimed, and shot Teodorescu. Both men ran away without taking

anything from Teodorescu.

       Officers of the Chesterfield County Police Department arrested Lewis for another,

unrelated, offense. Because Lewis was a suspect in the ice cream truck incident, Chesterfield

notified the Richmond Police Department that Lewis was in custody. Chesterfield County Police

Detective Burgess initiated an interview with Lewis and engaged in the following dialogue:




                                               -2-
              Burgess:       Look we want to talk to you about a lot of things,
                             different things, different people and that kind of
                             thing okay.

              Lewis:         Um hum.

              Burgess:       And I know you want to talk to me you told me you
                             did

              Lewis:         Um hum.

              Burgess:       but I gotta tell you what your rights are. Have you
                             been told your rights in the past, you ever been
                             arrested and charged?

              Lewis:         Yes sir.

              Burgess:       So you – how far you go in school?

              Lewis:         Um 10th grade but I was in a GED program.

              Burgess:       Okay. So you’re not drunk or high or nothing now?

              Lewis:         Um um.

              Burgess:       Okay. Let me go over these real quick. You
                             understand you have the right to remain silent.
                             Anything you say can be used against you in a court
                             of law. You have a right to a lawyer and have him
                             present while you’re being questioned. If you can’t
                             afford a lawyer, hire a lawyer, one will be appointed
                             to you to represent you free of charge prior to any
                             questioning. You understand your rights?

              Lewis:         Um hum.

              Burgess:       Have you ever . . . You been told these before?

              Lewis:         Um hum.

              Burgess:       You have any questions about it?

              Lewis:         No sir.

       Detective Burgess interviewed Lewis for approximately twenty-five minutes. A couple

of minutes after Detective Burgess finished his interview, Richmond Police Detective Byrd


                                              -3-
entered the interview room and started questioning Lewis about the robbery of Danny

Teodorescu. Detective Byrd asked Lewis if he wanted to talk, and Lewis replied, “Um hum.”

During the conversation between Lewis and Detective Byrd, Lewis confessed to the ice cream

truck robbery and accurately recounted the details.

       Lewis moved to suppress his statements from his interview with Detective Byrd because

he claimed they violated his Fifth Amendment privilege against self-incrimination. Lewis’

mother testified at the suppression hearing that Lewis had been diagnosed with ADHD, had

learning problems, and that someone in the juvenile justice system had previously said that he

was “borderline mentally retarded.” Nevertheless, she admitted that Lewis was familiar with the

criminal justice system and that he had legal representation in the past. She further conceded

that Lewis had been declared competent to stand trial after a competency evaluation in the

juvenile court.

       The trial judge denied Lewis’ motion to suppress because Lewis knowingly, intelligently,

and voluntarily waived his Fifth Amendment privilege against self-incrimination. While the trial

judge never specifically stated that the confession was voluntary, the court found that the

detectives did not “berate him in any way. They [did not] do psychological tactics that [would]

overbear his free will.”

       At trial, the assistant Commonwealth’s attorney relied heavily on Lewis’ confession and

presented corroborating circumstances that evidenced the fact that Lewis actually committed the

crimes for which he was charged. Lewis, however, testified that another person committed the

crimes for which he was charged and told him about all the details. When asked about his

Miranda waiver, he stated that he did not believe that his statements to Detective Byrd could be

used against him in court because Detective Byrd did not read him his Miranda rights.




                                               -4-
       The trial court convicted Lewis of aggravated malicious wounding, attempted murder,

attempted robbery, use of a firearm in the commission or attempted commission of robbery, use

of a firearm in the commission of aggravated malicious wounding, and possession of a firearm

after being previously convicted of a felony. This appeal followed.

                                           II. ANALYSIS

       In reviewing a trial court’s denial of a motion to suppress, the burden is on the appellant

to show that the denial of his motion was reversible error. McCain v. Commonwealth, 261 Va.

483, 489-90, 545 S.E.2d 541, 545 (2001). “On appeal of the denial of a motion to suppress, we

consider the evidence adduced at both the suppression hearing and at trial . . . .” Dodd v.

Commonwealth, 50 Va. App. 301, 306, 649 S.E.2d 222, 224 (2007) (citing DePriest v.

Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987)).

       At the trial court level, the Commonwealth bears the burden of proving, by a

preponderance of the evidence, “both that the accused knowingly, intelligently and voluntarily

waived his Miranda rights and that the confession itself was voluntary.” Rodriguez v.

Commonweath, 40 Va. App. 144, 155, 578 S.E.2d 78, 83 (2003). On appeal, whether the waiver

was knowing and intelligent is a question of fact that “will not be disturbed . . . unless plainly

wrong” or without evidence to support it. Id. at 156, 578 S.E.2d at 83. On the other hand,

whether the confession was voluntary is “ultimately a legal rather than factual question, but

subsidiary factual decisions are entitled to a presumption of correctness.” Id.

                                A. Knowing and Intelligent Waiver

       The Fifth Amendment to our United States Constitution provides that no person “shall be

compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This

privilege has ancient roots and is “the essential mainstay of our adversarial system.” Miranda v.

Arizona, 384 U.S. 436, 458, 460 (1966). The United States Supreme Court in Miranda held that

                                                -5-
               the prosecution may not use statements, whether exculpatory or
               inculpatory, stemming from custodial interrogation of the
               defendant unless it demonstrates the use of procedural safeguards
               effective to secure the privilege against self-incrimination . . . .
               [U]nless other fully effective means are devised to inform accused
               persons of their right of silence and to assure a continuous
               opportunity to exercise it, the following measures are required.
               Prior to any questioning, the person must be warned that he has a
               right to remain silent, that any statement he does make may be
               used as evidence against him, and that he has a right to the
               presence of an attorney, either retained or appointed. The
               defendant may waive effectuation of these rights, provided the
               waiver is made voluntarily, knowingly and intelligently.

Id. at 444.

        When it comes to a waiver of a 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.” Id. at 474-75. A

waiver is knowing and intelligent when it is made “with a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.” Rodriguez, 40

Va. App. at 156, 578 S.E.2d at 83.

        Lewis claims on appeal that the Commonwealth failed to meet its burden to prove that his

waiver was knowing and intelligent. In support, Lewis argues that he was nineteen years old and

had only finished the ninth grade, he is unable to understand things that were explained to him,

his mother heard someone in the juvenile system say once that he was “borderline mentally

retarded,” he suffered from a learning disability, and he had been treated by psychiatrist.

Further, Lewis claims that because he only thought that this crime would carry five to ten years’

incarceration proves that his waiver was not a product of a rational choice based on an

appreciation of the consequences. Because of his young age, mental infirmities, and apparent

miscalculation of his potential sentence, Lewis concludes that his waiver was not knowing and

intelligent.


                                                -6-
       The trial court must look to the totality of the circumstances including the defendant’s

age, education, experience, background, intelligence, and previous exposure to Miranda

warnings. Id. at 157, 578 S.E.2d at 83-84. Our Supreme Court has stated that “[a]n individual’s

repeated exposure to Miranda warnings may weigh in favor of concluding that the individual

knowingly and intelligently waived those rights.” Id. at 157, 578 S.E.2d at 84 (citing Correll v.

Commonwealth, 232 Va. 454, 464, 352 S.E.2d 352, 358 (1987)).

       In this case, at the suppression hearing, the trial judge noted that, after watching the

videotaped interview, Lewis was “engaged.” His conversation with Detective Byrd indicated

that Lewis had “an active mind of looking at what is going on, questions being asked and

wanting some information.” The trial judge considered the following facts: Lewis was nineteen

years old at the time of the offense which makes him an adult; he completed ten grade levels and

had pursued a GED; he was not intoxicated by alcohol or any other substance; he had a history of

significant charges and prior experience with the criminal justice system; he had an intelligent

conversation with both detectives; and there was no coercion by law enforcement. After

analyzing all of these facts, the trial court concluded, as a matter of fact, that Lewis’ waiver was

knowing and intelligent.

       In addition to those circumstances that the trial court considered at the suppression

hearing, we also consider the evidence adduced at trial. Dodd, 50 Va. App. at 306, 649 S.E.2d at

224. At trial, Lewis admitted that he did not think that Byrd could use his statements against him

because Byrd had not advised him of his Miranda rights. This statement indicates that Lewis

knew what his rights under the Fifth Amendment and Miranda were and the consequences of

waiving those rights. The fact that Lewis formed an incorrect legal conclusion regarding the

effectiveness of the Miranda warning given to him by Officer Burgess and his waiver of those

rights immediately thereafter does not mean that he did not know of the nature of his privilege

                                                -7-
against self-incrimination and the consequences of abandoning that privilege. If it did, then

anyone who is ignorant of the intricacies of our Fifth Amendment jurisprudence would be

unable, as a matter of law, to knowingly and intelligently waive those rights listed in Miranda.

To the contrary, the fact that Lewis formed a legal conclusion at all—regardless of its

accuracy—indicates that he understood his rights and knew the consequences of waiving those

rights.

          Moreover, Lewis’ incorrect legal conclusion that he would only receive a five to ten year

sentence for his crimes does not render his waiver ineffective. As the Supreme Court noted in

Oregon v. Elstad, 470 U.S. 298, 317 (1985), “a full and complete appreciation of all of the

consequences flowing from the nature and the quality of the evidence” is not the “sine qua non

for a knowing and voluntary waiver of the right to remain silent.” Rather, the standard requires

that the defendant be “full[y] aware[] of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Rodriguez, 40 Va. App. at 156, 578 S.E.2d at 83.

Thus, there is no requirement that Lewis know every possible consequence of his decision to

waive his Fifth Amendment privilege. While Lewis may not have fully appreciated the full

spectrum of consequences that might flow from his waiver, his belief that he would get five to

ten years indicates that he at least understood that he could be found guilty and sentenced to

prison for a felony offense.

          While we recognize that a “defendant’s relatively low intelligence and defective

education are factors which should be weighed, along with all surrounding circumstances, in

determining whether he voluntarily and intelligently waived his constitutional rights . . . ,”

Simpson v. Commonwealth, 227 Va. 557, 564, 318 S.E.2d 386, 390 (1984), these factors are not

dispositive. Id.; Goodwin v. Commonwealth, 3 Va. App. 249, 254-56, 349 S.E.2d 161, 164-65

(1986). Further, the only evidence Lewis presented that suggested he was of low intelligence or

                                                 -8-
defective education came from his mother. After watching her testify, the trial court obviously

rejected her testimony. This was well within the trial court’s discretion. Street v. Street, 25

Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc) (“It is well established that the trier of

fact ascertains a witness’ credibility, determines the weight to be given to their testimony, and

has the discretion to accept or reject any of the witness’ testimony.”).

       Based on the record before us, the trial court’s finding that Lewis’ waiver was knowing

and intelligent is supported by the evidence and we cannot say that it was plainly wrong.

Therefore, we hold that Lewis’ waiver was knowing and intelligent.

                                 B. Free and Voluntary Confession

       “Even when a suspect has waived his Miranda rights, his confession is inadmissible if it

was involuntary for other reasons.” Rodriguez, 40 Va. App. at 155, 578 S.E.2d at 83. Indeed, a

confession is admissible only if it was made voluntarily. Miranda, 384 U.S. at 478. On appeal,

the question of voluntariness is a question of law that we review de novo. Washington v.

Commonwealth, 43 Va. App. 291, 300, 597 S.E.2d 256, 260-61 (2004); Rodriguez, 40 Va. App.

at 156, 578 S.E.2d at 83. However, if “the factual findings of the trial court are supported by the

record . . . , we accord them substantial weight in making our determination whether [Lewis’]

statement was voluntary.” Burket v. Commonwealth, 248 Va. 596, 612, 450 S.E.2d 124, 133

(1994) (citing Miller v. Fenton, 474 U.S. 104, 112 (1985), cert. denied sub nom. Miller v.

Neubert, 479 U.S. 989 (1986)).

       “The test to be applied in determining voluntariness 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.’” Midkiff v.

Commonwealth, 250 Va. 262, 268, 462 S.E.2d 112, 116 (1995) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973)). Indeed, “evidence of coercive police activity is a

                                                -9-
necessary predicate to the finding that a confession is not voluntary.” Washington v.

Commonwealth, 43 Va. App. 291, 303, 597 S.E.2d 256, 262 (2004) (emphasis added).

       As with our knowing and intelligent inquiry above, to determine the voluntariness of the

appellant’s confession the court must consider the totality of the circumstances, including

appellant’s “age, intelligence, mental and physical condition, background and experience with

the criminal justice system, the conduct of the police, and the circumstances of the interview.”

Id. at 302-03, 597 S.E.2d at 262.

               [T]he admissibility of a confession turns as much on whether the
               techniques for extracting the statements, as applied to this suspect,
               are compatible with a system that presumes innocence and assures
               that a conviction will not be secured by inquisitorial means as on
               whether the defendant’s will was in fact overborne.

Miller, 474 U.S. at 116. Coercive interrogation techniques could include trickery and deceit,

psychological pressure, or threats or promises of leniency. Washington, 43 Va. App. at 303, 597

S.E.2d at 262. In short, we must consider “both the details of the interrogation and the

characteristics of the accused.” Rodriguez, 40 Va. App. at 157, 578 S.E.2d at 84.

       Here, the trial court found that the interrogation atmosphere was not coercive and that the

detectives were “not abusive in any way” and that they did not “berate him in any way.” Further,

contrary to Lewis’ argument on appeal, the trial court found that the detectives did not use

“psychological tactics that [would] overbear his free will.” The record supports these factual

findings, and we give them substantial weight in our determination of whether Lewis’ statements

were voluntary. Miller, 474 U.S. at 112.

       Lewis argues that his age and his mental infirmities “made him more susceptible to

coercive police tactics than most suspects.” Further, Lewis argues that “the record is replete with

the kind of coercive police activity outlined in Washington.” However, in Washington, this

Court held that the conduct of the interrogating officers was not coercive and Washington’s

                                               - 10 -
confession was voluntary. Id. at 304, 597 S.E.2d at 262-63. Nonetheless, according to Lewis’

argument, he was coerced to confess because Detective Byrd implied that Lewis would benefit

by cooperating, he implied that cooperating would help Lewis see his child, he implied that

Lewis’ continued cooperation could earn leniency in sentencing, and he told Lewis that a

videotape showed “everything.”

       Detective Byrd implied on several occasions that cooperating might help him obtain

some leniency in the future. We held in Washington that the officer’s implication of leniency in

exchange for cooperation is not coercive. 43 Va. App. at 304, 597 S.E.2d at 262 (The officer’s

statement was not an actual promise of leniency, and the officer never claimed to have the power

to affect the decision of the Commonwealth’s Attorney’s office.). Here, Detective Byrd never

guaranteed Lewis that, by cooperating, he would receive any benefit. The detective did not make

any promises to Lewis, and he never indicated that he had authority to dispense leniency in

prosecution, sentencing, or visitation rights while in prison. Therefore, according to

Washington, Detective Byrd’s implication that cooperation might help Lewis in the future is not

coercive. Moreover, Detective Byrd’s implications that cooperating would help Lewis see his

child and gain leniency in sentencing is similarly not coercive.

       Furthermore, Lewis argues that Detective Byrd deceived Lewis with his comments

regarding the videotape. Detective Byrd told Lewis that he had a videotape that showed

everything but he refused to tell Lewis specifically what the videotape showed. Lewis reasons

that because the videotape was low resolution and the assailants were unidentifiable, the

detective lied to Lewis. However, Detective Byrd never told Lewis that the videotape showed

him shooting Danny Teodorescu. In fact, Detective Byrd never told Lewis that the videotape

showed him do anything illegal. He simply stated that the videotape showed “everything.”




                                               - 11 -
Therefore, contrary to Lewis’ argument, Detective Byrd never deceived Lewis. Because his

statement regarding the videotape was not deceptive, it cannot be considered coercive.

       It is clear that Lewis’ interrogation spanned less than one hour and, during that time, he

was not denied any physical comforts, mistreated, threatened, intimidated, tricked, or deceived

by Detective Byrd or Detective Burgess before he gave his statement. The record clearly

establishes that Lewis was nineteen years old at the time of the interrogation, that he had

completed ten grade levels and pursued his GED, that he was not intoxicated by alcohol or any

drugs, and that he had prior experience with the criminal justice system. Further neither

Detective Burgess nor Detective Byrd engaged in coercive activity. The trial court characterized

Lewis’ demeanor throughout the interrogation as “engaged.” Simply put, his confession was not

a product of coercive police interrogation, but rather, it was a product of his free and

unconstrained choice. Therefore, in light of the totality of the circumstances, we hold that the

detective’s conduct did not overbear Lewis’ free will and his confession was freely and

voluntarily given.

                                         III. CONCLUSION

       Thus, we conclude that the trial court did not err by denying Lewis’ motion to suppress

his confession. Therefore, we affirm.

                                                                                           Affirmed.




                                               - 12 -
