                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia


BRAM PATRICK DAGGS
                                          MEMORANDUM OPINION * BY
v.   Record No. 2231-99-1                  JUDGE LARRY G. ELDER
                                             NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF YORK COUNTY
                     Prentis Smiley, Jr., Judge

          Charles E. Haden for appellant.

          (Mark L. Earley, Attorney General; John H.
          McLees, Jr., Senior Assistant Attorney
          General, on brief), for appellee.


     Bram Patrick Daggs (appellant) appeals his bench trial

convictions for armed robbery of a bank and use of a firearm in

the commission of robbery.    On appeal, he contends the trial

court erroneously denied a motion to suppress his confession.

He contends the confession was not knowing, voluntary and

intelligent because it resulted from police trickery, deception

and coercion.   We hold, under the totality of the circumstances,

that the confession was the product of an essentially free and

unconstrained choice by its maker, and we affirm appellant's

conviction.



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

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.   At a hearing on a defendant's motion to

suppress a confession, the Commonwealth must prove by a

preponderance of the evidence both that the accused waived his

Miranda rights and that the confession was voluntary.     See Mills

v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 722-23

(1992).

     In reviewing these issues on appeal, we conduct an

independent review of the ultimate legal question of whether a

confession was voluntary.    See Wilson v. Commonwealth, 13 Va.

App. 549, 551, 413 S.E.2d 655, 656 (1992).    However, "we are

bound by the trial court's subsidiary factual findings unless

those findings are plainly wrong."      Id.

     Assessing whether a confession is voluntary requires an

examination of the totality of the circumstances to determine

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,

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225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973).   "[A] court

must consider a myriad of factors, including the defendant's

age, intelligence, background and experience with the criminal

justice system, 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.   A lie by a law enforcement officer "does not, in and of

itself, require a finding that a resulting confession is

involuntary."   Rodgers v. Commonwealth, 227 Va. 605, 616, 318

S.E.2d 298, 304 (1984).   Whether police were truthful about the

strength of the evidence against the accused while interrogating

him is but "one factor that must be considered in determining

whether [the defendant's] will was overcome and his capacity for

self-determination critically impaired."   Wilson, 13 Va. App. at

554, 413 S.E.2d at 658.

           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)).


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     Courts are much less likely "to tolerate misrepresentations

of law."   2 Wayne R. LaFave, Jerold H. Israel & Nancy J. King,

Criminal Procedure § 6.2(c), at 458 (2d ed. 1999).    However, for

a legal or factual misrepresentation to impact the assessment of

the voluntariness of a confession, the misrepresentation must

have induced or contributed to the confession.     See, e.g., Swann

v. Commonwealth, 247 Va. 222, 232, 441 S.E.2d 195, 202 (1994).

Where the legal misrepresentation occurs after the accused

confesses, it cannot, as a matter of law, have induced or

contributed to the confession.     See Harrison v. Commonwealth,

244 Va. 576, 585-86, 423 S.E.2d 160, 165 (1992).

     At the time of the challenged questioning, appellant was a

literate nineteen-year-old with a high school equivalency

certificate.   He had previously been convicted of a misdemeanor,

and he faced pending felony charges for two robbery offenses

committed three months prior to the robbery at issue here.

Although the precise parameters of his contact with the legal

system do not appear in the record, he was not a complete

stranger to the system.   Viewing the evidence in the light most

favorable to the Commonwealth, we reject appellant's claim that

he "[did not] know how to go about this" because he had "never

been in this situation" and had "never been questioned about

anything like this."   Further, nothing indicated that appellant

was under the influence of drugs or alcohol at the time of the

interview.   During the interview, police offered appellant a

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soda and allowed him to smoke cigarettes, and the questioning

lasted only two hours, from approximately 3:00 to 5:00 p.m.     See

2 LaFave, Israel & King, supra, § 6.2(c), at 451 (questioning of

only a few hours not likely to require exclusion unless evidence

establishes defendant was "especially susceptible to coercion").

The trial court expressly found the interview was "very brief"

and that appellant's "needs and . . . desires" were attended to.

The record supports this finding.

      A.   Appellant's Receipt and Waiver of Miranda Rights

                "[A] valid waiver [of Miranda rights]
           will not be presumed simply from the silence
           of the accused after warnings are given or
           simply from the fact that a confession was
           eventually obtained." [Miranda v. Arizona,
           384 U.S. 436, 475, 86 S. Ct. 1602, 1628, 16
           L. Ed. 2d 694 (1966)]. However, . . . "in
           at least some cases waiver can be clearly
           inferred from the actions and words of the
           person interrogated." North Carolina v.
           Butler, 441 U.S. 369, 373, 99 S. Ct. 1755,
           1757, 60 L. Ed. 2d 286 (1979).

Harrison, 244 Va. at 582, 423 S.E.2d at 163-64; see Butler, 441

U.S. at 370-76, 99 S. Ct. at 1756-59 (upholding waiver

determination where defendant received rights orally at time of

arrest, read "Advice of Rights" form at FBI office, and said he

understood rights and would talk to agents but would not sign

waiver on form); Green v. Commonwealth, 223 Va. 706, 709-10, 292

S.E.2d 605, 607-08 (1982) (upholding waiver determination where

juvenile executed written statement indicating he understood

Miranda rights and explained to officers the elements of offense


                               - 5 -
he was suspected of committing before making confession).

Because the trial court here expressly found appellant indicated

verbally while in the apartment that he understood his Miranda

rights and the evidence supports this finding, we defer to the

trial court's determination, by a preponderance of the evidence,

that appellant validly waived his Miranda rights before being

questioned by police and confessing to the charged crimes.      See

Mickens v. Commonwealth, 247 Va. 395, 406-07, 442 S.E.2d 678,

686-87 (1994).

                   B.    Alleged Misrepresentations

    1.   Factual Evidence and Strength of Commonwealth's Case

     Appellant challenges the statements of interviewers that

eyewitnesses saw him at the scene of the robbery and

subsequently saw him leave the suspected getaway car and enter

apartment 103-C.   Police had a description and partial license

plate number for the vehicle used in the robbery.     Several

eyewitness descriptions of the person or people seen robbing the

bank, leaving or parking the car or entering apartment 103-C

matched the description of appellant in terms of race, height,

weight and attire.      Coupled with the fact that "Bram" borrowed

Julia Perry's car to drive it to York County, that the police

found a firearm inside, and that appellant, who was known to

Investigator Donnelly as Bram Daggs, was found inside apartment

103-C when the officers executed the search warrant, the police

were justified in representing to appellant that he had been

                                  - 6 -
positively linked to the car, the robbery and the apartment

because he had been seen in all three places.

     Appellant contends the officers' representations in this

area were worsened by the fact that they suggested the

eyewitness who saw appellant enter the apartment was a sheriff's

deputy.   We hold this is not a fair interpretation of the

officers' statements.    One inference from the statements was

that the various locations of appellant and the vehicle were

described by multiple witnesses, an inference which is supported

by the record.   The police misrepresentations, if any, were

minor and do not support the conclusion that police tactics were

unfairly coercive.   See Wilson, 13 Va. App. at 554, 413 S.E.2d

at 658 (upholding conviction where police told accused he had

been positively identified by witness who, in fact, had been

unable to identify him).

     Appellant also complains the officers falsely told him that

Edward Love, another occupant of apartment 103-C, had been

linked to the robbery and that Love said he was with appellant.

First, nothing in the record affirmatively establishes these

statements were false.   Second, even if the record established

the officers' statements about Love were untrue, they would not

require a finding, under the totality of the circumstances, that

the statements were unfairly coercive.    See Frazier v. Cupp, 394

U.S. 731, 739, 89 S. Ct. 1420, 1425, 22 L. Ed. 2d 684 (1969)

(holding false statement that one of defendant's friends

                                - 7 -
confessed to crime about which defendant was being questioned

did not render confession involuntary under totality test).

     Appellant also contends the police falsely told him that

his fingerprints had been lifted from the suspected getaway car

and the rifle found inside the car.    Again, this is not a fair

representation of the officers' statements, and the record does

not establish that the statements the officers did make were

false.

          2.   Representations About Bond and Sentencing

     During the questioning preceding appellant's first

confession, Donnelly said he would tell the magistrate appellant

had been cooperative and truthful but that "I have nothing to do

with the actual making of a bond."     Appellant then made a full

confession before engaging in any additional conversation with

the officers about bond.   Appellant eventually received a bond

of $500,000.   Although he now contends this figure was so high

it was the equivalent of no bond at all, he never asked the

officers how much the bond would be or whether it would be

"reasonable," and the officers made no representations about the

amount of the bond.

     Also prior to appellant's first confession, the officers

stated only that appellant "could" be prosecuted in federal

court, which would "not be good for [appellant]" because the

sentencing structure was "day-for-day" with "no parole" and that

the crime of "using a gun" required "automatic sentencing."

                               - 8 -
These assertions were true.   See 18 U.S.C. § 924(c) (1994 &

Supp. IV 1998); 18 U.S.C. §§ 3551-86 (1994 & Supp. IV 1998);

Project, Twentieth Annual Review of Criminal Procedure:     United

States Supreme Court and Courts of Appeals 1989-90, 79 Geo. L.

J. 591, 1163 (1991).   The officers also made clear that they

could not make any promises regarding the resolution of the

charges if appellant confessed and was prosecuted in the state

system but that they would accurately report his cooperation in

resolving the crime and recovering the stolen money.   Appellant

then made a full confession, indicating that he participated in

the planning of the robbery and drove the car, and he gave the

first names or nicknames of his accomplices.   The only

representations the officers made as appellant's confession

evolved related to the evidence against him.   They made no

further representations about trial and sentencing in the

federal system until after appellant had fully confessed the

first time.   We hold that the representations the officers made

about federal sentencing before appellant confessed were true

and that they did not override appellant's ability to make a

voluntary confession, either standing alone or in conjunction

with any of appellant's other claims.

     Only after appellant's first full confession did the

officers give appellant further information about bond and

sentencing in the state and federal systems.   Assuming without

deciding that some of the officers' subsequent statements were

                               - 9 -
false or overly coercive, appellant had already given a full

confession before these statements were made.   Thus, the

confession could not, as a matter of law, have resulted from the

challenged statements about bond or sentencing.    See Harrison,

244 Va. at 585-86, 423 S.E.2d at 165.

     For these reasons, we hold the trial court did not err in

denying the motion to suppress, and we affirm the convictions

entered on appellant's conditional guilty pleas.

                                                            Affirmed.




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