Sellers v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia

ROY LEE SELLERS
OPINION BY
v. Record No. 1186-02-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 5, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge

Thomas B. Walsh (Martin, Arif, Petrovich &
Walsh, on brief), for appellant.

Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

Roy Lee Sellers was charged with and convicted of

distribution of cocaine, after having been previously convicted

of the same offense, in violation of Code § 18.2-248. The trial

court denied his motion to suppress a statement he provided to

the police that was admitted into evidence in the course of

trial. It is from this ruling that Sellers appeals. We find no

error and affirm.

STATEMENT OF FACTS

On April 19, 2001, at approximately 1:00 a.m., Sergeant

Kenneth Pedigo, working in an undercover capacity in the

narcotics section of the Fairfax County Police, entered an

apartment to make a drug purchase. Pedigo spoke with Craig S.
Cadwell in the living room of the apartment; Cadwell promised to

obtain some crack cocaine for him. Cadwell took $50 from Pedigo

and approached Sellers, who was sitting on the floor, watching

Pedigo and Cadwell. Sellers and Cadwell had a conversation that

Pedigo could not hear, after which Sellers rose, took the money

Pedigo had given Cadwell, and walked with Cadwell to a bedroom

in the back of the apartment. Pedigo testified that Sellers

"seemed normal, coherent and was talking." Pedigo observed

neither drugs nor alcohol use and testified that Sellers did not

stagger or sway when he walked. Cadwell returned with crack

cocaine and handed it to Pedigo. The police then entered the

apartment and arrested Sellers. Sergeant Brian Hall, a member

of the arrest team, observed Sellers for approximately 30

minutes at the apartment, before bringing him to the police

station. Hall testified that Sellers's speech was not slurred

and he did not appear intoxicated. At the time of his arrest,

Sellers was 48 years old and had been convicted of five prior

felonies.

At approximately 3:00 a.m., Detective Randy Shaw questioned

Sellers at the police station. He found Sellers seated and

handcuffed to a bench in the processing room, asleep. Shaw woke

Sellers, removed his handcuffs, and walked him back to the

interview room, where a uniformed deputy was also present. Both

were unarmed. Sellers had no trouble walking and did not

require assistance.

- 2 -
 Shaw read Sellers a waiver of Miranda rights form and asked

if he understood each statement in the form. Sellers said he

did. He read the form and initialed each sentence, indicating

he understood the statement. Sellers stated that he had

obtained a G.E.D. and that he could read and write. In response

to questions from Shaw, Sellers answered that he had consumed

two beers and had taken "five or six hits of crack" before his

arrest. Although Sellers appeared sleepy, Shaw did not detect

an odor of alcohol about him and Sellers did not appear

intoxicated or unable to understand the questions posed. As the

interview began, Sellers spoke in a "low, monotone voice" and

closed his eyes. Shaw snapped his fingers to wake him and said

"Roy, please wake up. I want you to listen to this and

understand this." Sellers awoke and agreed to provide a

statement, which Shaw recorded. Sellers's answers were

responsive to the questions asked. After Sellers completed

making his oral statement, he read the statement back to Shaw,

signed it, and advised Shaw that he needed to change a few

things. Shaw reviewed the statement again with Sellers, who

orally added items to his initial statement. Shaw recorded the

changes. Sellers then read and signed the amended statement.

Toward the end of the interview, Sellers began to "nod off" and

Shaw again snapped his fingers to wake him. The entire

interview lasted no more than thirty minutes.

- 3 -
 ANALYSIS

Sellers contends his confession was involuntary because it

was the product of his weakened mental state and that the trial

court erred in denying his motion to suppress it. We disagree.

The Commonwealth has the burden to prove, by a

preponderance of the evidence, that a defendant's confession was

freely and voluntarily given. Wilson v. Commonwealth, 13

Va. App. 549, 554, 413 S.E.2d 655, 658 (1992). The

voluntariness of a confession "is a question of law, subject to

independent appellate review." Midkiff v. Commonwealth, 250 Va.

262, 268, 462 S.E.2d 112, 116 (1995). This Court is bound,

however, 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.

In determining whether a statement or a confession was

voluntary, the trial court must decide whether the statement was

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 (1973); see also

United States v. Dickerson, 530 U.S. 428, 434 (2000), because of

coercive police conduct. Colorado v. Spring, 479 U.S. 564, 574

(1987). In so deciding, the trial court must consider "the

totality of all the surrounding circumstances," Colorado v.

Connelly, 479 U.S. 157, 164 (1986), including the defendant's

- 4 -
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. Morris v.

Commonwealth, 17 Va. App. 575, 579, 439 S.E.2d 867, 870 (1994).

"While mental condition . . . is relevant to an

individual's susceptibility to police coercion, mere examination

of the confessant's state of mind can never conclude the due

process inquiry." Connelly, 479 U.S. at 165. Notably, evidence

of coercive police activity "is a necessary predicate to the

finding that a confession is not voluntary within the meaning of

the Due Process Clause of the Fourteenth Amendment." Id. at

167; see also Commonwealth v. Peterson, 15 Va. App. 486, 488,

424 S.E.2d 722, 723 (1992). "The amount of coercion necessary

to trigger the due process clause may be lower if the

defendant's ability to withstand the coercion is reduced by

intoxication, drugs, or pain, but some level of coercive police

activity must occur before a statement or confession can be said

to be involuntary." Peterson, 15 Va. App. at 488, 424 S.E.2d at

723.

In United States v. Cristobal, 293 F.3d 134 (4th Cir.

2003), the Fourth Circuit Court of Appeals likened the Miranda

waiver inquiry to that conducted to determine the voluntariness

of a confession. The Court of Appeals stated, "A deficient

mental condition, whether the result of a pre-existing mental

illness or, for example, pain killing narcotics administered

- 5 -
after emergency treatment, is not, without more, enough to

render a waiver involuntary." Id. at 141. Thus, statements

made during a custodial interrogation and while intoxicated are

not per se involuntary or inadmissible. Boggs v. Commonwealth,

229 Va. 501, 512, 331 S.E.2d 407, 415-16 (1985) (citation

omitted).

On appeal, we review the evidence and all reasonable

inferences fairly deducible therefrom, in the light most

favorable to the party prevailing below, in this case, the

Commonwealth. See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991). Reviewing the circumstances

surrounding the police interrogation of Sellers as established

by the evidence viewed in the light most favorable to the

Commonwealth, we find that Sellers's statement was voluntarily

given and that his Fifth Amendment rights were not violated.

Sellers was 48 years old and had extensive experience with the

criminal justice system, having been convicted of five prior

felonies. He had a G.E.D and could read and write. When the

police met him at 1:00 a.m. at the apartment, his speech was

clear and he appeared coherent. He spoke to Cadwell with no

sign of incoherence, completed the drug transaction, and walked

away without swaying or staggering.

At 3:00 a.m., when he was questioned at the police station,

Sellers continued to have no difficulty walking or speaking

clearly. Although he claimed to have consumed "two beers" and

- 6 -
taken "six hits of crack cocaine" prior to his arrest that

evening, he did not appear intoxicated. He did not smell of

alcohol, and he was responsive to the questions posed to him.

The trial court found that Sellers was lucid at the time of the

confession and that he waived his Miranda rights, noting, in

particular, Sellers's conduct in initialing each paragraph of

the waiver of rights form, reviewing the written account of his

statement, making the changes he felt were necessary, and then

signing both the original and amended portions of the statement.

Thus, we cannot conclude that the trial judge's findings are

plainly wrong. He had the opportunity to see and hear that

evidence as it was presented, Sandoval v. Commonwealth, 20

Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations

omitted), and determining the weight and credibility of the

witnesses was within his province alone. Id. In short,

Sellers's claim that he was intoxicated and too sleepy to

understand the proceedings is belied by the record.

Sellers cites Peterson in support of his argument that his

confession should be suppressed. In Peterson, the defendant

sustained injuries in an automobile accident. Peterson, 15

Va. App. at 488, 424 S.E.2d at 423. Police questioned him in an

ambulance, on the way to the hospital. The evidence showed that

Peterson had ingested cocaine, had blurred vision and could not

understand "everything that was going on around" him. He also

experienced problems in breathing, suffered from chest pains,

- 7 -
and was connected to a heart monitor. The trial court

suppressed Peterson's statement, and this Court affirmed,

finding that the "evidence was credible and supported the trial

court's finding that the police authority, asserted when the

defendant was especially susceptible, overbore his will and,

thus, was coercive police activity rendering his statements

involuntary and inadmissible." Id.

Peterson is distinguishable from the case at bar.

Reviewing the totality of the circumstances attending his

confession, we find that Sellers's contention that his statement

was the involuntary product of his disabled mental state is

without merit. Sellers bore no symptoms of intoxication; he

walked without difficulty and was lucid. Although he was

sleepy, he did not suffer the serious and debilitating physical

problems that Peterson was suffering as he answered police

questions en route to a hospital in an ambulance. 1 See generally

Cristobal, 293 F.3d at 141 (finding the defendant's waiver of

1
The facts in this case are more analogous to those in
Boggs, 229 Va. 501, 331 S.E.2d 407. In Boggs, the defendant
argued that his confession was involuntary on the grounds that
he had consumed "a six pack of beer," shared "a fifth of
whiskey" with two friends, smoked marijuana and "ate two hits of
speed [amphetamines]." A breathalyzer test showed that he had a
blood-alcohol content of 0.22%. Id. at 511, 331 S.E.2d at 415.
In contrast to the inferences Boggs sought to have the court
draw, the officer testified that before Boggs was pulled over,
he was driving "all right; fast, but all right"; his gait was
"not unusual," his speech was clear and he did not act like he
was intoxicated. Id. The Supreme Court of Virginia upheld the
trial court's conclusion that Boggs's statement, given six hours
later, was voluntary. Id. at 512, 331 S.E.2d at 416.

- 8 -
his Miranda rights was voluntary, despite his use of pain

killers, and that police did not exploit defendant's weakened

state); Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d

371, 381 (1984) (finding that antidepressants and tranquilizers

taken in large doses did not render the confession involuntary,

where the defendant never appeared to be under the influence of

drugs, appeared to know what he was doing, and had no difficulty

understanding the police questions); Goodwin v. Commonwealth, 3

Va. App. 249, 254, 349 S.E.2d 164 (1986) (finding that a mildly

retarded defendant's statement was voluntary, despite the odor

of alcohol about him, where he told police he was not drunk,

appeared in control, answered questions coherently and was able

to make changes to his written statement).

Moreover, an examination of police actions in eliciting the

confession, in their totality, fails to support Sellers's

contention that his statement was coerced, in violation of his

Fifth Amendment rights. He was not handcuffed during the brief,

30-minute interrogation. Neither Detective Shaw nor the other

officer who was present carried firearms. Shaw did not harm or

threaten to harm Sellers in any way if he did not answer their

questions, or if he refused to sign the statement or its

amendment. Compare Beecher v. Alabama, 389 U.S. 35, 36 (1967)

(statement obtained after police held a gun to suspect's head);

Payne v. Arkansas, 356 U.S. 560, 564-65 (1958) (statement

obtained after police threatened to turn suspect over to an

- 9 -
angry mob); Brown v. Mississippi, 297 U.S. 278, 281-82 (1936)

(statement obtained after police whipped suspect). The officers

did not deprive Sellers of basic necessities. Compare Malinski

v. New York, 324 U.S. 401, 403, 406-07 (1945) (statement

obtained after forcing suspect to remain naked); Brooks v.

Florida, 389 U.S. 413, 414-15 (1967) (statement obtained after

depriving suspect of food and water). They did not confront him

with unrelenting questioning; indeed the interview was completed

in thirty minutes. Compare Ashcraft v. Tennessee, 322 U.S. 143,

154 (1944) (statement obtained after interrogating suspect

continuously for 36 hours); Davis v. North Carolina, 384 U.S.

737, 752 (1966) (statement obtained after isolating suspect for

several weeks). Sellers's responses to questioning were not the

product of deception or confusion. Spano v. New York, 360 U.S.

315, 323 (1959) (statement obtained after suspect erroneously

told that a friend, who had three children and a pregnant wife,

would lose his job); Leyra v. Denno, 347 U.S. 556, 559-61 (1954)

(statement obtained after hours with psychiatrist trained in

hypnosis, although suspect erroneously told that doctor was a

general practitioner). In short, the coercive police conduct

which the law requires as the "necessary predicate to the

finding that a confession is not voluntary within the meaning of

the Due Process Clause of the Fourteenth Amendment," Connelly,

479 U.S. at 167, was not established in this case.

- 10 -
 For the foregoing reasons, we affirm the decision of the

trial court.

Affirmed.

- 11 -