                       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

                                - 2 -
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

                                 - 3 -
            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).

                                - 4 -
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

                                 - 5 -
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.

                                 - 6 -
          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.




                                - 7 -
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




                                - 8 -
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.



                               - 9 -
     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

                                - 10 -
          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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