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
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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
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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
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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."
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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
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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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Bram Patrick Daggs v. Commonwealth of Virginia
Combined Opinion