Elwood Lewis Thomas v. Commonwealth of Virginia

VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 16th day of April, 2024.

Elwood Lewis Thomas, Appellant,

against Record No. 1429-22-4
Circuit Court Nos. FE-2020-515, FE-2021-37 and FE-2021-38

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On March 26, 2024, the appellee, by the Attorney General of Virginia, filed a petition requesting that

the Court set aside the judgment rendered on March 12, 2023, and grant a rehearing en banc on the issue(s)

raised in the petition.

On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,

the Court grants the petition for rehearing en banc and reinstates the appeal of those issues on the docket. The

Court stays the mandate previously entered in this case pending the Court’s en banc decision.

The parties must file briefs in compliance with the schedule set forth in Rule 5A:35(b).

A Copy,

Teste:

A. John Vollino, Clerk

original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court

Deputy Clerk
 COURT OF APPEALS OF VIRGINIA

Present: Judges Causey, Raphael and Senior Judge Clements
UNPUBLISHED

Argued at Richmond, Virginia

ELWOOD LEWIS THOMAS
MEMORANDUM OPINION* BY
v. Record No. 1429-22-4 JUDGE JEAN HARRISON CLEMENTS
MARCH 12, 2024
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Grace Burke Carroll,1 Judge

Bryan Kennedy, Senior Assistant Public Defender (Jessica Newton,
Assistant Public Defender, on briefs), for appellant.

Collin C. Crookenden, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.

A jury convicted Elwood Lewis Thomas of two counts of rape, two counts of animate object

sexual penetration, and two counts of aggravated sexual battery committed against A.R. See Circuit

Court No. FE-2021-37. Subsequently, Thomas pleaded guilty to two unrelated counts of

aggravated sexual battery for crimes against two other victims. See Circuit Court Nos.

FE-2020-515; FE-2021-38. The trial court sentenced Thomas in all three cases at a joint sentencing

hearing.

Thomas challenges his jury convictions on three grounds. First, he argues that the trial court

erred by denying his motion to suppress incriminating statements he made to law enforcement

during a custodial interrogation. Second, he argues that the trial court violated his due process right

*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
Judge David Bernhard presided over Thomas’s suppression motion. Judge Stephen C.
Shannon considered Thomas’s pretrial motion to exclude the Commonwealth’s expert. Judge
Grace Burke Carroll presided over the trial and sentencing.
to present a defense by excluding his mother’s testimony about facts that he contends would have

shown those incriminating statements were false. Third, he argues that the trial court abused its

discretion by allowing the Commonwealth to present expert testimony about delayed reporting and

memory formation in child victims. Thomas also challenges his sentences in all cases on the

ground that the trial court did not properly consider his mitigating evidence. We agree with Thomas

that the trial court erred by not suppressing his incriminating statements. Accordingly, we reverse

his jury convictions and remand for further proceedings. But we affirm Thomas’s sentences for the

aggravated sexual battery convictions arising from his guilty pleas.

BACKGROUND

We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing

party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting

Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the

evidence of the accused in conflict with that of the Commonwealth, and regard as true all the

credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”

Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018)).

Thomas’s grandmother operated a daycare at her house, where Thomas also lived. A.R.

attended that daycare from 2008 to 2012, when she was between 4 and 8 years old and Thomas

was between 24 and 28 years old.

Thomas “raped [A.R.] multiple times” at the daycare. On one occasion, he carried her

downstairs, removed her pants, and put his penis in her vagina. A.R. testified that Thomas put

his penis in her vagina “more than 20 times” from 2008 to 2012 but could not remember exactly

how often he had done so. Thomas also inserted his finger into A.R.’s vagina on numerous

occasions. A.R. described two such incidents as representative but again could not remember

how often Thomas had abused her in that way. Thomas repeatedly told A.R. not to tell anybody

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about the abuse. A.R. did not disclose the abuse until July 2019, when she told her mother that

Thomas had sexually abused her. A.R.’s mother contacted the police, who interviewed A.R.

Child abuse forensic interviewer Anissa Tanksley also interviewed A.R. in July 2019. A.R.

waited so long to disclose the abuse because she “felt scared” that “something was going to

happen to” her if she reported Thomas.

A.R. was not Thomas’s only victim at the daycare. In 2013, the trial court convicted him

of aggravated sexual battery of a victim under 13 years old for an offense he committed in 2002

against a victim other than A.R. For that offense the trial court sentenced Thomas to 8 years in

prison with 7 years suspended, conditioned upon 20 years of supervised probation. Thomas

served his active sentence and began probation. The requirements of his probation included

conditions related to his status as a sex offender as well as standard probation conditions,

including that he follow his probation officer’s instructions, be truthful and cooperative, and

report as instructed.

Thomas’s probation officer, Joseph Samluk, closely monitored Thomas’s life for more

than five years. He regulated Thomas’s internet usage and prohibited him from visiting many

public places. He also subjected Thomas to regular polygraph tests during which Thomas had to

discuss intimate details about his life.

Based on A.R.’s delayed disclosures, Fairfax County police officers coordinated with

Samluk to arrest Thomas at Samluk’s office in September 2019. The police wanted to arrest

Thomas at the probation office so that they could control the environment and minimize the risk

to officer safety. Consistent with the plan, Samluk called Thomas and asked him to come to the

probation office. When Thomas arrived for what he thought was a regular probation

appointment, four law enforcement officers arrested him, searched him, and transported him to

an interrogation room at the police headquarters.

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 Detective Steven Carter asked Samluk to introduce him and Detective Jerome Gadell, Jr.,

to Thomas. According to Samluk, the detectives wanted Thomas to “know that [Samluk] was

there.” After Thomas had waited in the interrogation room for about 25 minutes,2 Samluk

entered with Carter and Gadell. Carter told Thomas that he wanted Samluk to introduce them to

Thomas so they could “talk about some things.” Samluk then told Thomas, “This is Detective

Carter, Detective Gadell. They need to talk to you about some things. I’m going to be here for a

little bit, but just go ahead and chat with them today, okay?” Samluk then left the room. The

detectives did not ask Samluk to say those specific words. Both detectives admitted that they

had never asked a suspect’s probation officer to introduce them during a custodial interrogation.

After obtaining Thomas’s basic information, Carter handed Thomas a Miranda consent

form, saying that he was doing so because “we’re the government and the government loves our

forms.” He also told Thomas, “I know you’re going to have questions about everything, and I’m

happy to talk about that stuff with you, but we have to go over this form first.” When Carter told

Thomas that he was writing “sexual assault” on the form, Thomas sighed loudly and buried his

head in his hand. Carter then read the Miranda3 warnings from the consent form. He paused

after each line on the form to ask if Thomas understood; Thomas sometimes nodded his head and

sometimes sat silently. After reading each right, Carter asked Thomas if they all “ma[d]e sense.”

Thomas stated, “Yeah. I just can’t believe this is happening again.” Carter responded that he

was more than willing to talk to Thomas about it and “clear up some things” but they needed to

go through the form first.

2
During that period, Gadell brought Thomas food and water; he removed Thomas’s
handcuffs before leaving the room but handcuffed Thomas’s left hand to the arm of his chair.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
-4-
 Carter then stated that “the next part is I know what my rights are. I am willing to make a

statement without a lawyer present. I understand and know what I am doing. No promises or

threats have been made to me by anyone.” Carter read that part of the form quickly without

pausing between sentences. He then told Thomas that Thomas did not have to sign the form, that it

would help the detectives if he did so, and that he could still agree to talk to the detectives even if he

did not sign the form. Thomas signed the form.

Thomas made incriminating statements throughout the approximately three-hour

interview. For example, he admitted to putting his mouth on A.R.’s vagina three or four times

and fondling her six or seven times when she “was about maybe seven or eight” years old. At

one point, Carter told Thomas that A.R. alleged that Thomas’s “private part” had touched A.R.’s

“private part.” Thomas responded that he did not remember that happening but stated that if

A.R. said it happened, it probably did. Carter suggested that maybe Thomas rubbed his penis

against A.R.’s vagina without penetrating her. Thomas responded that he possibly did so.

Thomas wrote a letter during the interview, stating, “Dear [A.R.] I hope you can find it in your

heart to forgive me one day. I hope everything will be good with you. I hope you can still have

a bless[ed] life and I want nothing but the best from and for you.”

Before trial, Thomas moved to suppress the incriminating statements, arguing that they

were involuntary because he had been forced to choose between waiving his Miranda rights and

violating his probation conditions. At the suppression hearing, Detectives Gadell and Carter

testified that Thomas had more than a dozen police contacts during the 2012 investigation and at

one point provided a voluntary statement after being read his Miranda rights. Both detectives

acknowledged that Thomas had been described as “mentally retarded” or “intellectually

disabled” in a 1999 police report. Gadell knew that Thomas attended an alternative school and

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had a “mental health history” with the county government. Carter knew Thomas had attended an

alternative school but was not aware whether Thomas had a mental health diagnosis.

The trial court denied Thomas’s suppression motion, finding that he knowingly,

intelligently, and voluntarily waived his Miranda rights. The court found that Thomas appeared

to be in disbelief about what was happening to him but otherwise understood his circumstances

and “appeared at ease.” In finding that Thomas understood his rights, the court emphasized

Thomas’s prior experience with the criminal justice system. The court suggested that the result

might have been different had Samluk told Thomas to “[a]nswer all the[ detectives’] questions

truthfully” but found that Samluk’s instruction to Thomas did not render his Miranda waiver

involuntary.

The Commonwealth provided notice of intent to introduce expert testimony from Anissa

Tanksley, the forensic interviewer who had interviewed A.R. Before trial, Thomas moved to

exclude her testimony, arguing that it improperly opined on the ultimate issue of A.R.’s credibility.

The court denied Thomas’s motion “subject to the Commonwealth laying a proper foundation at

trial.”

Tanksley testified at trial that she worked at a children’s advocacy center as a forensic

interviewer. After graduating college in 2014, she trained in victim advocacy and began working in

victim services. She transitioned to sexual assault response services, where she worked with two

children’s advocacy centers and became a forensic interviewer in 2017. She had attended trainings

in child development, maltreatment, trauma, memory, and disclosure of physical and sexual abuse.

She began her current role in 2020, which involves interviewing children regarding allegations of

abuse. She had interviewed more than 600 children in her career. She was not a psychologist,

psychiatrist, or neuroscientist, nor had she published any peer-reviewed research.

-6-
 The Commonwealth moved to admit Tanksley as an expert in “child forensic interviewing

with a focus on . . . disclosures of sexual assault and memory formation.” Thomas objected,

arguing that (1) Tanksley was not an expert in memory formation and merely relied on articles she

had read, which were impermissible hearsay; (2) her testimony improperly opined on the ultimate

issue in the case—A.R.’s credibility; and (3) delayed disclosure was within the average juror’s

understanding. The trial court overruled Thomas’s objections.

Tanksley testified that delayed disclosure is common in child abuse cases and that children

vary in how long they wait before disclosing. She explained that most children do not disclose, and

it is “rare that a child will disclose immediately after an abusive incident.” She also discussed

various reasons children choose not to immediately disclose abuse. In her “training and

experience,” the most common explanation for delayed disclosure is fear. She added that it is

common for children to disclose only part of the abuse they suffered, particularly when they have

been abused repeatedly.

Tanksley also discussed how memories form in children and how children recall those

memories. She explained that it can be difficult to recall specific episodes. Instead, “when a child

remembers an account of what usually happened when they experienced abuse, that can actually

lead to the fading of memory of some of those episodic details.” Accordingly, “for children who are

recalling information about historical abuse, it may be difficult for them to speak to how many times

something occurred.” She admitted that much of her research in memory formation came from five

articles she had read that discussed international studies. She testified that those articles were

consistent with her training and experience in interviewing children and that it was common for

those in her field to rely on similar articles. Tanksley testified that she does not evaluate a child’s

credibility during a forensic interview and does not keep statistics about how often a child’s claims

are verified.

-7-
 In his defense, Thomas sought to introduce his mother’s testimony that he was forgetful

and susceptible to other people’s suggestions. He argued that the testimony was relevant to show

that at least some of his incriminating statements were false. The court excluded the proposed

testimony as “too speculative.”

The jury convicted Thomas of two counts of rape, two counts of animate object sexual

penetration, and two counts of aggravated sexual battery against A.R.4 The trial court denied

Thomas’s subsequent motion to set aside the verdict. Thomas also pleaded guilty to aggravated

sexual battery in two other cases involving two unrelated victims.

The court held a joint sentencing hearing for all three cases. Thomas filed a memorandum

before the hearing, asserting that he had completed sex offender treatment, had not reoffended, and

generally had been successful on probation. The memorandum also explained that Thomas had

several mental health disorders, including attention deficit hyperactivity disorder, Tourette’s

syndrome, and various intellectual disabilities. Finally, Thomas claimed that he had experienced

extreme physical and sexual abuse as a child, sometimes from his mother’s boyfriends and

sometimes from his teachers who did not know how to deal with his mental disorders.

Thomas’s stepfather testified that Thomas had a childlike nature and that other people

regularly took advantage of him. Thomas’s family would support him upon his release as they had

while he was on probation. Samluk testified that he had a good relationship with Thomas and that

Thomas had successfully completed sex offender treatment while on probation. In fact, in 2019,

Samluk considered requesting that the court terminate Thomas’s probation early because it had been

successful.

4
The jury acquitted Thomas of two counts of rape. The trial court struck the evidence of
a sodomy charge and one additional count of rape.
-8-
 The Commonwealth asked the trial court to sentence Thomas to life in prison. Thomas

countered that his success on probation showed that he could be rehabilitated and that a life sentence

was inappropriate. He instead requested an active sentence of four or five years.

The trial court sentenced Thomas to ten years’ imprisonment for each of the aggravated

sexual battery charges to which he had pleaded guilty. For the crimes against A.R., the court

sentenced Thomas to four life terms plus five years in prison for each of the aggravated sexual

battery convictions, to run concurrently. The court found that Thomas was “a serial pedophile” and

the court “ha[d] no way of protecting the community . . . other than to impose a life sentence.”

When Thomas objected that the court did not give due consideration to his mitigating evidence, the

court responded that it had “considered all of the things . . . presented by both sides.”

ANALYSIS

I. The trial court erred by denying Thomas’s suppression motion.

A. The governing legal framework

“No person . . . shall be compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V. “A defendant does not lose this protection by reason of his conviction of

a crime.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984). Thus, “notwithstanding that a

defendant is . . . on probation [when] he makes incriminating statements, if those statements are

compelled they are inadmissible in a subsequent trial for a crime other than that for which he has

been convicted.” Id.

Although one seeking the Fifth Amendment’s protection “ordinarily must assert the

privilege,” the Supreme Court of the United States has held that the privilege is “self-executing” in

certain, inherently coercive settings. Id. at 429-30 (emphasis added); see also United States v.

Riley, 920 F.3d 200, 204 (4th Cir. 2019) (“Exceptions to this general rule arise in certain situations

that are viewed as inherently coercive.”). No invocation is required in those circumstances. The

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most common setting in which the privilege is self-executing is a custodial interrogation. Murphy,

465 U.S. at 429 (“A well-known exception to the general rule addresses the problem of

confessions obtained from suspects in police custody.”).5 The Supreme Court has long recognized

that custodial interrogation “contains inherently compelling pressures which work to undermine

the individual’s will to resist and to compel him to speak where he would not otherwise do so

freely.” Miranda v. Arizona, 384 U.S. 436, 467 (1966); see also Chavez v. Martinez, 538 U.S.

760, 769 (2003) (noting that the Supreme Court’s “cases provide that those subjected to coercive

police interrogations have an automatic protection from the use of their involuntary statements

. . . in any subsequent criminal trial”).

The “inherently coercive” nature of a custodial interrogation creates “a substantial risk

that the police will inadvertently traverse the fine line between legitimate efforts to elicit

admissions and constitutionally impermissible compulsion.” Moran v. Burbine, 475 U.S. 412,

426 (1986). Thus, “[i]t is presumed that without proper safeguards the circumstances of

custodial interrogation deny an individual the ability freely to choose to remain silent.” Garner

v. United States, 424 U.S. 648, 657 (1976). Indeed, that setting is so inherently coercive that the

Supreme Court has erected a long-settled procedural hurdle to preserve the Fifth Amendment’s

protections: the prosecution may not “us[e] 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.” Keepers v.

Commonwealth, 72 Va. App. 17, 34 (2020) (emphasis added) (quoting Miranda, 384 U.S. at

444); Garner, 424 U.S. at 657 (“Because of the danger that custodial interrogation posed to the

5
The Supreme Court recognizes two additional exceptions, which make the privilege
self-executing: the so-called “classic penalty” situations, see, e.g., Lefkowitz v. Cunningham, 431
U.S. 801, 806 (1977); Garrity v. New Jersey, 385 U.S. 493 (1967), and certain tax-gambling
cases, see, e.g., Marchetti v. United States, 390 U.S. 39 (1968); Grosso v. United States, 390
U.S. 62 (1968).
- 10 -
adversary system favored by the privilege, the Court in Miranda was impelled to adopt the

extraordinary safeguard of excluding statements made without a knowing and intelligent waiver

of the privilege.”). At a minimum, the police must inform a suspect in their custody that he

possesses certain rights, including the right to remain completely silent during questioning.

Thomas v. Commonwealth, 72 Va. App. 560, 574 (2020) (citing Miranda, 384 U.S. at 479). “A

confession made during a custodial interrogation will be suppressed unless police advise the

defendant of his rights under Miranda . . . , and the defendant knowingly, intelligently, and

voluntary waives those rights.” United States v. Giddins, 858 F.3d 870, 879 (4th Cir. 2017)

(emphasis added) (quoting United States v. Holmes, 670 F.3d 586, 591 (4th Cir. 2012)).

It is undisputed that Thomas was subjected to a custodial interrogation; thus, Thomas was

not required to invoke his Fifth Amendment privilege because the protections of the Fifth

Amendment were “self-executing.” Our dissenting colleague acknowledges this critical factor

but still relies heavily on non-custodial cases and insists that “the invocation requirement

reattach[ed]” once Detective Carter read Thomas the Miranda warning.6 Post at 37. This view

is incorrect. Even when the police provide proper Miranda warnings, the Commonwealth still

must prove under the totality of the circumstances that the suspect waived his rights “knowingly,

6
See, e.g., Salinas v. Texas, 570 U.S. 178, 182 (2013) (noting that the subject “interview
was noncustodial”); Murphy, 465 U.S. at 430 (noting that the defendant “was not ‘in custody’
when he made his incriminating admissions” to his probation officer); United States v. Linville,
60 F.4th 890, 895 n.3, 897 (4th Cir. 2023) (noting that, when the suspect’s probation officer
questioned him at the probation office, the suspect “was neither in custody nor were the
circumstances sufficiently coercive to require Miranda warnings”); Husske v. Commonwealth,
252 Va. 203, 207, 217 (1996) (noting that “the defendant, just as in Murphy, was not in custody
for purposes of receiving Miranda protection” when he made incriminating statements during a
voluntary “suicide screening” with a doctor); Rivera-Padilla v. Commonwealth, 55 Va. App.
304, 311 n.5 (2009) (noting that the custodial interrogation exception “clearly ha[d] no
application” to the defendant’s interview with the Virginia Department of Social Services
concerning her eligibility for public benefits). The distinction between a custodial and a
non-custodial interrogation, however, is pivotal. “Concerns under Miranda only arise when a
defendant is in custody and subjected to interrogation.” Giddins, 858 F.3d at 879.
- 11 -
intelligently, and voluntarily.” Rodriguez v. Commonwealth, 40 Va. App. 144, 155 (2003); see In

re S.W., 124 A.3d 89, 105 (D.C. 2015) (excluding the suspect’s incriminating statements as

involuntary despite finding that the detective provided proper Miranda warnings and the suspect

never asserted the privilege). The dispositive question presented here is not whether Thomas

failed to invoke the Fifth Amendment privilege; rather, the question is whether Thomas’s waiver

of his Miranda rights was voluntary.

In the context of “a Fifth Amendment self-incrimination challenge, ‘[v]oluntariness is a

question of law, subject to independent appellate review.’” Secret v. Commonwealth, 296 Va.

204, 225 (2018) (alteration in original) (quoting Avent v. Commonwealth, 279 Va. 175, 195

(2010)). Thus, we review the voluntariness of Thomas’s Miranda waiver de novo. Tirado v.

Commonwealth, 296 Va. 15, 28 (2018) (citing Gray v. Commonwealth, 233 Va. 313, 324

(1987)). “Subsidiary factual questions, however, are entitled to a presumption of correctness.”

Secret, 296 Va. at 225 (quoting Avent, 279 Va. at 195).

When conducting our independent appellate review, we apply a well-established test for

voluntariness by asking whether Thomas’s Miranda waiver 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.” Tirado, 296 Va. at 28 (quoting Gray, 233 Va.

at 324); see also Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (“The ultimate test

remains . . . . Is the [waiver] the product of an essentially free and unconstrained choice by its

maker?” (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961))); Jackson v.

Commonwealth, 267 Va. 178, 190 (2004) (same); Swann v. Commonwealth, 247 Va. 222, 231

(1994) (same); Jenkins v. Commonwealth, 244 Va. 445, 453 (1992) (same). “If the suspect’s will

has been overborne and his capacity for self-determination critically impaired, the confession is

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considered involuntary and its use is unconstitutional.” Avent, 279 Va. at 195 (quoting Midkiff v.

Commonwealth, 250 Va. 262, 268 (1995)).

Under settled precedent, we assess voluntariness by examining “the totality of the

circumstances,” including “the defendant’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.”7 Thomas, 72 Va. App. at 582 (quoting Keepers, 72 Va. App. at

37); Jackson, 267 Va. at 190 (“When determining whether a defendant’s statement was

voluntarily given, we examine the totality of the circumstances, which include the defendant’s

background and experience as well as the conduct of the police in obtaining the waiver of

Miranda rights and confession.”); Midkiff, 250 Va. at 268 (same); Rodriguez, 40 Va. App. at 157

(holding that “a court determining whether a confession was voluntary must consider both ‘the

details of the interrogation’ and ‘the characteristics of the accused’” (quoting Kauffmann v.

Commonwealth, 8 Va. App. 400, 405 (1989))); see also Bustamonte, 412 U.S. at 226 (collecting

cases and explaining that determining voluntariness requires “a careful scrutiny of all the

surrounding circumstances”).

Manifestly, the maker’s choice is not free and unconstrained if it is the product of

intimidation, coercion, or deception by the police. Tirado, 296 Va. at 28 (quoting Moran, 475 U.S.

at 421). “[E]vidence of coercive police activity ‘is a necessary predicate to the finding that a

[Miranda waiver] is not “voluntary.”’” Washington v. Commonwealth, 43 Va. App. 291, 303

7
The vileness of the crime and the severity of the ultimate sentence are not relevant
factors under the totality of the circumstances test. The Fifth Amendment protects not only the
innocent, but also those who are guilty of even heinous crimes. Thus, the prosecution may not
introduce incriminating statements obtained in violation of Miranda at a defendant’s capital
sentencing hearing. Estelle v. Smith, 451 U.S. 454, 462-63 (1981). See also Culombe, 367 U.S.
at 569 (acknowledging “the anxious task of reconciling the responsibility of the police for
ferreting out crime with the right of the criminal defendant, however guilty, to be tried according
to constitutional requirements” (emphasis added)).
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(2004) (quoting Commonwealth v. Peterson, 15 Va. App. 486, 488 (1992)). Coercive activity may

include “the interrogation techniques employed, including evidence of trickery and deceit,

psychological pressure, threats or promises of leniency, and duration and circumstances of the

interrogation.” Id. (quoting Terrell v. Commonwealth, 12 Va. App. 285, 291 (1991)). “[A]ny

evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show

that the defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at 476.

We agree with our dissenting colleague that the record here, including the trial court’s

subsidiary factual findings, does not present a “classic penalty situation,”8 a circumstance that also

would make the Fifth Amendment privilege self-executing. See Murphy, 465 U.S. at 435. We

disagree, however, about the significance of Thomas’s custodial status and Samluk’s role at its

inception. Simply put, this is not an invocation case and our resolution of it requires no new

exception to the invocation rule. Instead, this case fits comfortably within the long-settled

exception for custodial interrogations. See id. at 429 (“A well-known exception to the general

[invocation] rule addresses the problem of confessions obtained from suspects in police

custody.”). Clearly established and widely recognized precedent demonstrates that in the

inherently coercive custodial interrogation setting the defendant need not invoke his Fifth

Amendment privilege; rather, in that circumstance, the privilege is self-executing. Miranda, 384

U.S. at 467-68; Murphy, 465 U.S. at 429-30; United States v. Frierson, 945 F.2d 650, 660 (3d

Cir. 1991) (explaining that in custodial interrogation settings, absent a valid Miranda waiver,

“statements are deemed ‘compelled’ and are inadmissible although the privilege was never

claimed” (emphasis added)). The Commonwealth bore the burden of proving that the

8
The State creates a “classic penalty situation” if it “either expressly or by implication,
asserts that invocation of the privilege would lead to revocation of probation.” Murphy, 465 U.S.
at 435. In such a circumstance, a suspect’s failure to assert the privilege would be excused, and
his answers would be “deemed compelled and inadmissible in a criminal prosecution.” Id.
- 14 -
government followed all the required procedural safeguards to ensure that Thomas’s waiver of

the self-executing privilege was the product of a free and unconstrained choice. Tirado, 296 Va.

at 28; Gray, 233 Va. at 324; see also Bustamonte, 412 U.S. at 225. That burden is nothing new or

unique to the facts of this case. The Commonwealth bears that burden in all custodial interrogation

cases, irrespective of a probation officer’s participation. See Rodriguez, 40 Va. App. at 155 (citing

Mills v. Commonweatlh, 14 Va. App. 459, 468 (1992)). With that proper and well-settled

framework in mind, we examine de novo whether Thomas’s Miranda waiver was voluntary under

the totality of the circumstances presented here. As we explain, under the unique and specific

circumstances of this case, it was not.

B. The officers’ coercive conduct

The specific facts and circumstances of this case demonstrate that the detectives employed

coercive tactics. To begin, they exploited Thomas’s relationship with Samluk, who had supervised

Thomas for more than five years. As a condition of his probation, Thomas had to obey all of

Samluk’s instructions or risk the revocation of his suspended seven-year sentence.9 The detectives

capitalized on that relationship and circumstance. First, they had Samluk summon Thomas to the

probation office for what Thomas thought was a routine probation appointment. Then, when

Thomas reported as instructed, detectives arrested, handcuffed, and transported him to police

headquarters. At Detective Carter’s request, Samluk also went to police headquarters.10 Once

there, the detectives asked Samluk to introduce them to Thomas before the interrogation, so that

9
The interrogation predated the enactment of Code § 19.2-306.1. Accordingly, the trial
court could have revoked the entirety of Thomas’s suspended sentence for any probation
violation. See Code § 19.2-306(A) (2019); 2021 Va. Acts Spec. Sess. I ch. 538.
10
The trial court found that Samluk placed himself “in an unusual situation” by going to
the police station, which the court found was “not the best idea.”
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Thomas would “know that [Samluk] was there.” During those introductions, Samluk instructed11

Thomas to “go ahead and chat with” the detectives “today.” He also told Thomas that he would

remain at police headquarters for “a little bit.”

Those circumstances were, even by the detectives’ account, unusual. Detectives Carter and

Gadell each stated that they had never enlisted a suspect’s probation officer in this way during a

custodial interrogation despite Carter having conducted “hundreds” of interviews.12 The trial

court found “the instruction is kind of, ‘Chat with them a little bit,’” but that Samluk did not tell

Thomas to answer the officers’ questions ‘“or else’ in so many words,” so we agree with the dissent

that the trial court’s finding forecloses the “classic penalty situation” exception. (Emphasis added).

But we are persuaded that the finding also acknowledges the tacit pressure to speak.13 An expressly

spoken “or else” was unnecessary because Thomas was under compulsion to follow Samluk’s

instructions as a condition of his probation and Samluk’s instruction conflicted with Thomas’s

Fifth Amendment right to remain silent. Cf. S.W., 124 A.3d at 104 (“In any custodial interrogation

‘the seemingly benign transmittal of information to an accused may resemble the kind of mental

games that largely generated the Miranda decision itself.’” (quoting United States v. Brown, 737

A.2d 1016, 1021 (D.C. 1999))).

11
Our dissenting colleague characterizes Samluk’s action as a “request” but the trial
court expressly found that Samluk instructed Thomas to speak with the officers. Post at 44, 45.
12
Despite criticizing us for applying an unprecedented approach to Samluk’s preliminary
participation in the custodial interrogation, the dissent does not identify a single case approving
similar participation by a probation officer. The trial court lamented the lack of precedent and
found that the case presented “a question of first impression.”
13
The Fifth Amendment is concerned with “governmental coercion,” not merely the
coercion stemming from Thomas’s immediate interrogators. See Colorado v. Connelly, 479 U.S.
157, 170 (1986). Indeed, Samluk’s instruction to Thomas to “chat with” the officers, presented
what the trial court found was a “close call.” Many of the trial court’s other factual findings, such
as the court’s finding that Thomas appeared to “understand what was going on,” pertained to
whether Thomas waived his rights knowingly and intelligently, an issue we do not consider here.
- 16 -
 Moreover, unlike the probationer in Murphy, Thomas’s probation obligation included not

only being truthful with Samluk, but also following all of Samluk’s instructions. Thomas signed a

form at the outset of his probation acknowledging that condition and his understanding that failure

to comply with his probation conditions could result in his probation being revoked. Thomas thus

could not simultaneously comply with Samluk’s instruction to “chat with” the detectives “today”

and invoke his Fifth Amendment right to remain silent. Cf. United States v. Saechao, 418 F.3d

1073, 1079 (9th Cir. 2005) (“The Fifth Amendment proscribes the use in a separate criminal

proceeding of a statement obtained pursuant to a probation condition that requires a probationer to

‘choose between making incriminating statements and jeopardizing his conditional liberty by

remaining silent.’” (quoting Murphy, 465 U.S. at 436));14 People v. Garcia, 391 P.3d 1153, 1156

(Cal. 2017) (holding that, because a probation condition compelled the defendant’s statements,

those statements could not “lawfully be used against him a criminal proceeding”); State v. Eccles,

877 P.2d 799, 801 (Ariz. 1994) (en banc) (holding that a probation condition that requires a

defendant to waive his Fifth Amendment rights is unconstitutional). The dissent notes that the

Arizona Supreme Court noted in Eccles that the improper probation condition could be revised to

meet constitutional standards. Post at 41-42. The proposed revisions notably omitted questioning

by police officers investigating crimes for which the probationer has not been convicted. Eccles,

877 P.2d at 801. And here, the questions put to Thomas could and did incriminate him in future

criminal proceedings. Cf. id. (noting that the “sanitized condition” only required a defendant “to

respond to questions that could not incriminate him in future criminal proceedings” (emphasis

added)). Thus, Thomas’s position in custody made Samluk’s instruction coercive.

14
In Saechao, the Ninth Circuit distinguished Murphy and held that a probation condition
requiring a probationer to “promptly and truthfully answer all reasonable inquiries . . . by
implication forecloses a probationer’s ability to exercise [his Fifth Amendment] right by remaining
silent.” Saechao, 418 F.3d at 1079.
- 17 -
 The trial court’s subsidiary factual findings do not undermine our conclusion because

“[s]ubtle psychological coercion suffices . . . and at times [may be] more effective[], to overbear ‘a

rational intellect and a free will.’” United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981)

(holding a confession involuntary where the interrogating officer’s statements caused the defendant

to fear that she would not see her children for a long time unless she cooperated); see also

Bustamonte, 412 U.S. at 228 (explaining that coercion that is “subtly . . . applied” may render

involuntary a suspect’s consent to search under the Fourth Amendment); S.W., 124 A.3d at 101

(“[W]e take great care to assess the impact of subtle interrogation tactics.”). Neither did the officers

provide any assurance that no penalty would be exacted if he disregarded Samluk’s instruction to

“chat with” the officers. Cf. Missouri v. Seibert, 542 U.S. 600, 611 (2004) (plurality) (“[T]elling a

suspect that ‘anything you say can and will be used against you,’ without expressly excepting [an

incriminating statement already given] could lead to an entirely reasonable inference that what he

has just said will be used, with subsequent silence being of no avail.” (emphasis added)).

By focusing on the lack of an explicit threat and contending that our “rationale hinges on the

probation officer’s” statement, the dissent wrongly divorces Samluk’s instruction from the context

in which it occurred. Post at 35. Settled precedent requires that our voluntariness analysis consider

the totality of the circumstances. Bustamonte, 412 U.S. at 226; Secret, 296 Va. at 226; Thomas, 72

Va. App. at 582; Jenkins, 244 Va. at 454. In undertaking that analysis, “we eschew any

‘divide-and-conquer analysis’ that ignores the ‘totality of the circumstances.’” Shifflett v.

Commonwealth, 58 Va. App. 732, 740 (2011) (quoting United States v. Arvizu, 534 U.S. 266,

274 (2002)); see also People v. Stewart, Mich. No. 162497, 2023 WL 4874412, at *11 (Mich.

July 31, 2023) (recognizing that “we must consider the circumstances collectively and their

cumulative effect on defendant’s free will”); State v. Baker, 465 P.3d 860, 870 (Haw. 2020)

(“Crucially, a court must not analyze the individual circumstances in isolation, but must weigh

- 18 -
those circumstances in their totality.”); State v. Fernandez-Torres, 337 P.3d 691, 696 (Kan. Ct.

App. 2014) (“Voluntariness ultimately must be determined holistically.”); S.W., 124 A.3d at 93

(“We reinforce the necessity of looking holistically at every custodial interrogation in reaching a

conclusion specific to the facts presented.”).

Samluk was not required to remind Thomas of his probation conditions every time he gave

Thomas an instruction. Even if Samluk subjectively did not intend to revoke Thomas’s probation,

we will not impose on Thomas the obligation to discern the probation officer’s subjective intent

because Thomas had no way to assess it. See Mace v. Amestoy, 765 F. Supp. 847, 851 (D. Vt.

1991) (“The petitioner could not possibly assess the likelihood of prosecution which is totally

dependent upon the discretion of the state’s attorney.”). Thomas reasonably could have

understood, based on the literal meaning of Samluk’s words, that he was required as a condition of

his probation to talk to the detectives “today.” Thomas also reasonably could have interpreted

Samluk’s statement that he would remain at police headquarters “for a little bit” to indicate that he

would know if Thomas had not obeyed his instruction to speak with the detectives, further raising

the specter of revocation for non-compliance.

No new per-se rule follows from our recognition that the unique and specific facts of this

case demonstrate Thomas was subjected to coercive pressures to waive his Miranda rights.15

The line between proper and permissible police conduct and
techniques and methods offensive to due process is, at best, a
difficult one to draw, particularly in cases such as this where it is
necessary to make fine judgments as to the effect of
psychologically coercive pressures and inducements on the mind
and will of an accused.

15
The problem presented here is not that Samluk was “involved” in the interrogation.
Post at 35, 44. The problem is that Samluk specifically instructed Thomas to speak with the
officers.
- 19 -
United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (quoting Haynes v. Washington,

373 U.S. 503, 515 (1963)). Rather, we consider the tacit pressure Samluk’s instruction created

“as a relevant circumstance to be considered as one factor in the voluntariness analysis, which is

consistent with decades of established caselaw.” Stewart, 2023 WL 4874412, at *10.

C. The Miranda warning was ineffective

The detectives did not cure the effects of their coercive conduct merely by reciting

Thomas’s Miranda rights. The Supreme Court has recognized that “it would be absurd to think that

mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance.”

Seibert, 542 U.S. at 611. If the surrounding circumstances show that the Miranda warnings were

ineffective to safeguard the privilege, the resulting Miranda waiver is not voluntary. Id. “[U]nless

the warnings could place a suspect” in a position to make a genuinely informed choice, “there is no

practical justification for accepting the formal warnings as compliance with Miranda.” Id. at 612.

“The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth

Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.”

Miranda, 384 U.S. at 476. Indeed, a “confession, even if obtained in full compliance with Miranda,

may be inadmissible if it was not voluntary.” Kauffman, 8 Va. App. at 405.

Miranda warnings may be ineffective because of law enforcement conduct during or

preceding the warnings. See, e.g., Stewart, 2023 WL 4874412, at *11 (improper promises of

leniency); Giddins, 858 F.3d at 883 (misleading responses about the effect of the statements).

For example, when an officer deliberately obtains a prewarning confession before advising the

suspect of his Miranda rights, later warnings are ineffective unless they clarify that the suspect may

remain silent notwithstanding his earlier decision to speak. Seibert, 542 U.S. at 612-14.

Similarly, when an officer has a lengthy prewarning conversation with a suspect that

“soften[s]-up” that suspect to waive his rights before the officer formally advises him of those

- 20 -
rights, the formal advisement is ineffective. People v. Honeycutt, 570 P.2d 1050, 1054-55 (Cal.

1977). Miranda warnings may also be ineffective when the officers “downplay[] the importance of

the advisement and the rights contained therein,” and “impl[y] that the advisement [is] a mere

formality.” People v. Smiley, 530 P.3d 639, 649 (Colo. 2023). Thus, special caution should be

applied in circumstances where pre-warning conduct “obscure[s] both the practical and legal

significance of the admonition when finally given.” Secret, 296 Va. at 223 (quoting Seibert, 542

U.S. at 620 (Kennedy, J. concurring)). As with the rest of the analysis, therefore, we must

consider the totality of the circumstances when determining whether Miranda warnings neutralized

the coercive circumstances present here.16

Under the facts of this case, Carter’s recital of the Miranda warnings was ineffective to cure

the coercive circumstances. As noted, the warnings did not clarify that Samluk’s instruction that

Thomas “chat with” the detectives had no bearing on Thomas’s right to remain silent. Neither

Samluk nor the detectives clarified that Thomas would not suffer any adverse probationary

consequences if he chose to stand on his self-executing right to remain silent even though doing so

would violate Samluk’s express instruction. Cf. Seibert, 542 U.S. at 612-14. Samluk’s prewarning

statement coercively primed Thomas to waive his rights before Carter read from the Miranda form,

and the officers provided no additional procedural safeguards to cure that problem. See, e.g.,

16
Relying on Oregon v. Elstad, 470 U.S. 298 (1985), the dissent asserts that “courts
normally presume that [Miranda] warnings neutralize the coercion implicit in custodial settings
enough to shift back to the defendant the obligation to invoke his Fifth Amendment rights.” Post
at 37. But as the Seibert Court recognized, Elstad did not involve any coercive police conduct.
Seibert, 542 U.S. at 614-16. And Elstad itself made clear that the Court did not “condone
inherently coercive police tactics or methods offensive to due process that . . . undermine the
suspect’s will to invoke his rights once they are read to him.” Elstad, 470 U.S. at 317. “Indeed,
as the Court explained, the Miranda exclusionary rule ‘sweeps more broadly than the Fifth
Amendment itself’ because the Fifth Amendment only prohibits the use of compelled testimony
by the prosecution in its case in chief.” Secret, 296 Va. at 218 (quoting Elstad, 470 U.S. at
306-07).
- 21 -
Giddins, 858 F.3d at 883 (recognizing the importance of how a reasonable person would understand

the pre-warning statements authorities made).

Additionally, when the Miranda warning finally came, Carter repeatedly deemphasized its

importance and presented it as a mere formality. Smiley, 530 P.3d at 649. Throughout, Carter kept

the focus on the Miranda waiver form, which he presented as an administrative box they needed to

check before he could answer Thomas’s questions. Carter told Thomas that they needed to discuss

the form because “we’re the government and the government loves our forms.” He presented the

form as impeding his ability to help Thomas explaining, “I know you’re going to have questions

about everything, and I’m happy to talk about that stuff with you, but we have to go over this form

first.” Rather than emphasize that he was asking Thomas to waive his constitutional rights, Carter

characterized the form’s waiver language as merely “the next part” of the form before reading the

rights being waived or the consequences of the waiver without explanation or pause. Carter then

told Thomas that it would help the detectives if Thomas signed the form but that he could “still

agree” to talk to them even if he did not sign it. Carter’s characterization of the Miranda rights as a

mere formality, in the context of the doubly coercive environment the officers had created, rendered

the warnings ineffective to resolve the apparent conflict between Thomas’s rights and Samluk’s

instruction.

D. Thomas’s will was overborne

Settled precedent requires us to examine the totality of the circumstances to determine

whether Thomas made a free choice to waive his rights. Tirado, 296 Va. at 28; Gray, 233 Va. at

324; Bustamonte, 412 U.S. at 225; Stewart, 2023 WL 4874412, at *13. The totality of the

circumstances presented here demonstrate that Thomas’s waiver was not the product of a free and

unconstrained choice. The trial court made no findings concerning Thomas’s education or

- 22 -
intellectual ability, but the record demonstrates that Thomas’s background and experience made

him particularly vulnerable to the coercion applied in this case.

“An individual’s repeated exposure to Miranda warnings may weigh in favor of

concluding that the individual knowingly and intelligently waived those rights.” Rodriguez, 40

Va. App. at 157 (emphasis added). And “a low intelligence quotient, in and of itself, does not

mean that a suspect is incapable of waiving his rights.” Rankin v. State, 1 S.W.3d 14, 19 (Ark.

1999). Nevertheless, “[i]f mental impairment of whatever kind should have reasonably been

apparent to the interrogators, special care should have been exercised, and a lesser quantum of

coercion would render the confession involuntary.” United States v. Sablotny, 21 F.3d 747, 752

(7th Cir. 1994). “Coercive tactics that can overbear an individual’s will include both physical

intimidation and psychological pressure.” Stewart, 2023 WL 4874412, at *4; Smith v.

Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990) (explaining that, “while a finding of

involuntariness cannot be predicated solely upon [a defendant’s] mental instability, his mental

state is relevant ‘to the extent it made him more susceptible to mentally coercive police tactics’”

(quoting Andersen v. Thieret, 903 F.2d 526, 530 n.1 (7th Cir. 1990))).

Indeed, “the degree of pressure necessary to crush one’s will varies with the individual.”

Robinson v. Commonwealth, 63 Va. App. 302, 311 (2014) (quoting Hill v. Commonwealth, 52

Va. App. 313, 319 (2008)). A person “of normal intelligence . . . is more resistant to interrogation

than a person who is very young, uneducated or weak minded.” Miller v. Fenton, 796 F.2d 598,

606 (3d Cir. 1986). It simply “takes less” in terms of sophisticated police interrogation

techniques “to interfere with the deliberative processes of one whose capacity for rational choice

is limited than it takes to affect the deliberative processes of one whose capacity is not so

limited.” Preston, 751 F.3d at 1023 (quoting Duckworth, 910 F.2d at 1497). Compare id.

(considering defendant’s “reduced mental capacity” as among the circumstances rendering his

- 23 -
confession involuntary); Thomas v. North Carolina, 447 F.2d 1320, 1322 (4th Cir. 1971) (finding a

confession involuntary in part because of the defendant’s “low mentality” and “limited education”),

with Avent, 279 Va. 195 (finding the defendant’s Miranda waiver voluntary in part because the

defendant was “a man of at least average intelligence”); Jackson, 267 Va. at 190 (“The court also

noted that the defendant had a reported IQ score of 100 and an educational level sufficient to

read and write.”); Roach v. Commonwealth, 251 Va. 324, 341 (1996) (“The record shows that

Roach was of average intelligence, and that he telephoned Sheriff Morris to initiate the

questioning.”); Swann, 247 Va. at 231 (“Swann, a high school graduate who had attended one

semester of college, was no stranger to the judicial system.”). Moreover, a suspect who “suffers

from mental disabilities and deficiencies” is “less likely to clearly invoke his right to counsel or to

remain silent,” is “more likely to ‘parrot’ back the details the officers suggested, whether or not they

[are] true,” and is “more likely to place stock in any promises or threats that the officers made,

however ambiguous they might be.” State v. Rettenberger, 984 P.2d 1009, 1016-17 (Utah 1999).

The record establishes that detectives knew that an earlier police report had described

Thomas as “intellectually disabled.”17 They also knew that Thomas had attended an alternative

school and had a mental health history with the county government. Thomas’s impaired

functioning made it more likely that he would have understood Samluk’s instruction as an implied

threat. See id.

Thomas’s experience with the criminal justice system also rendered him more susceptible to

the tacit pressure present here than the average suspect.18 We will not reflexively hold any prior

The trial court made no factual findings concerning Thomas’s personal characteristics
17

and how those characteristics impacted his ability to resist the coercion brought to bear against
him.

We are of course bound by the trial court’s factual determinations about Thomas’s
18

experience. Secret, 296 Va. at 225. The effect of that experience on the voluntariness of
Thomas’s waiver, however, is a legal question.
- 24 -
experience with the criminal justice system against a defendant in all cases. Rather, as settled

precedent requires, we must view this case under the totality of the circumstances, considering the

implications of that experience for Thomas under the facts of this case. The Commonwealth

emphasizes Thomas’s experience during the 2012 investigation, but Thomas’s interactions with the

criminal justice system did not end in 2012. To the contrary, he had participated in highly

structured supervised probation as a sex offender for nearly six years before the interrogation,

forgoing many rights enjoyed by non-probationers. For example, Samluk routinely monitored

Thomas’s internet browsing and had instructed him to stay away from certain public places like

libraries, parks, and schools. Thomas had to disclose to Samluk—often as part of a polygraph

test—such personal details about his life as his romantic partners, how often he masturbated, and

what he watched on television. And the record evidence confirms that Thomas consistently

complied with Samluk’s instructions. In other words, Thomas’s experience with the criminal

justice system was dominated by compelled disclosures and acquiescence to Samluk’s instructions,

even regarding the most intimate areas of his life. Despite Thomas’s prior experience with

Miranda, the challenged interrogation was the first time he had been asked to reconcile his Miranda

rights with his apparently competing and compelling probation obligations.

E. Totality of the circumstances

Thomas is a man of limited intellectual functioning who for years had obeyed his probation

officer’s instructions because he knew that failure to do so could result in the loss of the “grace” the

prior sentencing court had extended to him. Garibaldi v. Commonwealth, 71 Va. App. 64, 69

(2019). The detectives subjected Thomas to an inherently coercive custodial interrogation

exacerbated by the tacit pressure of a possible probation revocation. The detectives’ subsequent

reading of the Miranda warnings—presented to Thomas as a mere formality—failed to cure the

coercive circumstances presented here, which overbore Thomas’s ability to make a free and

- 25 -
unconstrained choice. We thus conclude that, under the unique circumstances of this case,

Thomas’s Miranda waiver was involuntary, and his incriminating statements were inadmissible.

F. Admitting the involuntary statements was not harmless error

Admitting Thomas’s incriminating statements was not harmless error. When analyzing

constitutional harmless error, we ask whether it is “clear beyond a reasonable doubt that a rational

[factfinder] would have found the defendant guilty absent the error.” Commonwealth v. White, 293

Va. 411, 422 (2017) (alteration in original) (quoting Neder v. United States, 527 U.S. 1, 17 (1999)).

“A confession is like no other evidence.” Arizona v. Fulminante, 499 U.S. 279, 296 (1991).

Incriminating statements, “deliberately made, precisely identified and clearly proved afford[]

evidence of a most satisfactory nature and may furnish the strongest and most convincing evidence

of truth.” Prince v. Commonwealth, 228 Va. 610, 613 (1985). Here, Thomas’s incriminating

statements were powerful evidence, without which the Commonwealth’s case rested primarily on

A.R.’s testimony. A fact finder should access A.R.’s credibility without the improperly admitted

statements.

In sum, applying well-settled precedent, we hold that based on the totality of the

circumstances presented in this case, Thomas’s Miranda waiver was not the product of a free and

unconstrained choice, and the trial court erred in reaching a contrary conclusion. That error was not

harmless. Accordingly, we reverse Thomas’s jury convictions and remand for a new trial should

the Commonwealth be so advised.19

19
Given our holding that Thomas’s Miranda waiver was involuntary, we do not address his
separate argument that it also was not knowing or intelligent. “[T]he doctrine of judicial restraint
dictates that we decide cases ‘on the best and narrowest grounds available.’” Taylor v.
Commonwealth, 78 Va. App. 147, 157 (2023) (quoting Commonwealth v. Swann, 290 Va. 194, 196
(2015)).
In addition, when we remand a case for a new trial, we generally address only the issues in
the appeal that are likely to arise on remand. Cain v. Lee, 290 Va. 129, 136 (2015); Campbell v.
Commonwealth, 162 Va. 818, 831-32 (1934). Thomas’s first assignment of error argues that the
trial court erred by excluding his mother’s testimony, which was relevant to explain why he made
- 26 -
 II. The trial court did not abuse its discretion by allowing Tanksley’s expert testimony.

“It is well-settled that ‘[d]ecisions regarding the admissibility of evidence “lie within the

trial court’s sound discretion and will not be disturbed on appeal absent an abuse of

discretion.”’” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021) (quoting Blankenship

v. Commonwealth, 69 Va. App. 692, 697 (2019)). “A court has abused its discretion if its

decision was affected by an error of law or was one with which no reasonable jurist could agree.”

Tomlin v. Commonwealth, 74 Va. App. 392, 409 (2022). Whether to admit or exclude expert

testimony is similarly “a matter within the sound discretion of the circuit court, and we will

reverse the circuit court’s judgment only when the court has abused this discretion.” Lucas v.

Riverhill Poultry, Inc., 300 Va. 78, 92 (2021).

Generally, expert testimony is permitted if three conditions are met. First, the witness must

be “qualified as an expert by knowledge, skill, experience, training, or education.” Va. R. Evid.

2:702(a)(i)-(ii). Second, the testimony must be “scientific, technical, or other specialized

knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in

issue.” Id. Finally, the testimony must be “beyond the knowledge and experience of ordinary

persons, such that the jury needs expert opinion in order to comprehend the subject matter, form an

intelligent opinion, and draw its conclusions.” Va. R. Evid. 2:702(a)(ii).

Thomas contends that Tanksley’s testimony was inadmissible because (1) the average juror

already understands delayed disclosure; (2) the testimony commented directly on A.R.’s credibility;

and (3) the testimony was inadmissible hearsay.20 We address each argument in turn.

the incriminating statements. Given our holding, the controversy surrounding that testimony is
unlikely to arise on remand in the same posture that it is presented to us in this appeal. Accordingly,
we do not consider that assignment of error. The admissibility of Tanksley’s testimony, however, is
likely to arise on remand. Thus, we consider Thomas’s challenge to that testimony.

Thomas conceded at oral argument that he is not challenging Tanksley’s qualifications
20

on appeal.
- 27 -
 Binding precedent forecloses Thomas’s first argument. We have previously held that

experts can possess knowledge in delayed disclosure above that possessed by the average juror.

See, e.g., Stevens v. Commonwealth, 72 Va. App. 546, 553-56 (2020) (holding that an expert

witness’s “general testimony about the circumstances faced by child sexual abuse victims and the

reasons why they often delay reporting the abuse . . . was appropriate for the jury’s consideration”

and that the expert possessed knowledge of child abuse reporting “beyond that of persons of

common intelligence and ordinary experience” (quoting Justiss v. Commonwealth, 61 Va. App. 261,

271 (2012))); Kilby v. Commonwealth, 52 Va. App. 397, 411 (2008) (holding that the

Commonwealth’s delayed disclosure expert “clearly ha[d] ‘a degree of knowledge of a subject

matter beyond that of persons of common intelligence and ordinary experience’” (quoting Conley v.

Commonwealth, 273 Va. 554, 560 (2007))). Although the average juror may understand that

delayed reporting sometimes occurs, they can still benefit from context about why and how often

provided by an expert in the field.

Turning to Thomas’s second argument, jurisdictions are split on whether to admit expert

testimony about children’s behavior following alleged abuse. A majority of states permit general

expert testimony about how sexually abused children act after being abused but do not allow direct

or indirect endorsement of a child’s credibility. See, e.g., State v. Celis-Garcia, 344 S.W.3d 150,

159-60 (Mo. 2011) (en banc) (explaining that expert testimony about “the general behaviors and

characteristics commonly found in children who have been sexually abused” may be admitted but

“particularized testimony . . . regarding the specific victim’s credibility . . . usurps the jury’s

province to determine a witness’s credibility”); State v. Hazelton, 987 A.2d 915, 921-22 (Vt. 2009)

(explaining that “expert testimony regarding the profile of young sexual assault victims” is

admissible but may not be “tantamount to a direct comment that the complainant [is] telling the

truth about the alleged sexual assault” (alteration in original)); Commonwealth v. Federico, 683

- 28 -
N.E.2d 1035, 1038-40 (Mass. 1997) (allowing a “description of the general or typical characteristics

shared by child victims of sexual abuse” but disallowing commentary on a specific child’s

behavior).21

This Court has not directly addressed the argument that delayed disclosure testimony usurps

the jury’s function in determining credibility. Thomas relies on Davison v. Commonwealth, 18

Va. App. 496, 499-501 (1994), in which the Commonwealth proffered the victims’ therapist as an

expert in why a child victim might recant an allegation of sexual abuse. This Court held that the

expert’s testimony was inadmissible because the proffered expert had read only a single article on

child recantation and thus was not qualified to testify as an expert about that issue. Id. at 503. In

addition, the Court held that the expert’s testimony was offered solely to bolster the credibility of

one of the victims, violating the rule that “an expert may not ‘express an opinion as to the veracity

of any witness.” Id. at 504 (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 630 (1982)). As

we explained, “[s]uch evidence is a comment on an ultimate fact within the province of the jury and

must be excluded by the trial court.” Id. at 504.

In allowing delayed disclosure testimony, Stevens and Kilby distinguished Davison, but only

as to the degree of qualifications of the experts involved. See Stevens, 72 Va. App. at 555-56; Kilby,

52 Va. App. at 411. Stevens and Kilby suggest that expert testimony about delayed disclosure is

admissible in Virginia, but neither case directly addressed Thomas’s ultimate fact argument.22

21
A minority of states bar generalized expert testimony while others allow testimony
particularized to the victim. Compare, e.g., Sanderson v. Commonwealth, 291 S.W.3d 610,
612-14 (Ky. 2009) (explaining that, in Kentucky, expert testimony that it is common for sexually
abused victims to delay reporting the abuse is inadmissible), with Townsend v. State, 734 P.2d
705, 707-08 (Nev. 1987) (“[I]t was proper for the State’s expert to express an opinion on the
issue of whether the child had, in fact, been sexually assaulted or abused.”).
22
In Kilby, the defendant raised that argument on appeal but failed to preserve appellate
review by not raising it in the trial court. Kilby, 52 Va. App. at 408. In Stevens, the defendant
waived his challenge to the Commonwealth’s expert’s delayed disclosure testimony by introducing
his own expert testimony on the same subject. Stevens, 72 Va. App. at 556-57. And although this
- 29 -
Noting some tension between Davison and Kilby, one commentator has stated that “[i]t appears that

Virginia will permit a qualified expert to testify to some extent, but it is not altogether clear what

will or will not be permitted.” 7 Jones on Evidence § 57:60 (7th ed. 2023).

We now clarify our case law. An expert may provide general testimony about memory

formation and common post-abuse behavior but may not directly comment on the credibility of any

witness. Expert testimony that child abuse victims often delay disclosing their abuse may make it

more likely that the jury believes a victim’s testimony, but that consequence is different from an

expert opining that the victim is credible. Thus, expert testimony about memory formation and the

reason for and frequency of delayed disclosures can help the jury contextualize the victim’s

testimony without usurping the jury’s ultimate role in determining credibility.

Here, Tanksley testified that abused children often delay disclosing their abuse but she did

not suggest that delayed disclosures by child victims were more or less credible than contemporary

disclosures or disclosures by adult victims. In fact, she testified that she does not evaluate the

credibility of the children she interviews and expressly stated she does not know how often

allegations turn out to be true. Thus, Tanksley’s testimony was materially different from the

expert’s testimony in Davison. In that case, the expert witness testified that “the majority of the

times kids don’t lie about” being abused and that the most common reason for a victim to recant

“may apply directly to this case.” See Davison, 18 Va. App. at 501-02.

Finally, Tanksley’s reliance on studies not entered into evidence does not render her

testimony impermissible hearsay. “Generally, an expert witness in Virginia has not been permitted

to base [her] opinion on facts not in evidence.” Simpson v. Commonwealth, 227 Va. 557, 565-66

(1984) (citing Ortiz v. Barrett, 222 Va. 118, 130 (1981)). Yet an expert may rely on “objective data

Court addressed the defendant’s argument challenging the Commonwealth’s memory formation
testimony in Stevens, that challenge was solely to the expert’s qualifications. Id. at 558-59.
- 30 -
customarily relied on by other experts in the field . . . when that data has not been prepared for the

sole purpose of arriving at a specific opinion in the case.” Papuchis v. Commonwealth, 15 Va. App.

281, 284 (1992) (citing Kern v. Commonwealth, 2 Va. App. 84, 87-88 (1986)). For example, we

have allowed an expert in forensic serology to rely on published studies of population statistics to

form an opinion about the prevalence in the general population of the victim’s blood characteristics.

See Funderburk v. Commonwealth, 6 Va. App. 334 (1988). The Commonwealth may not, however,

enter those studies into evidence. Papuchis, 15 Va. App. at 285. Hearsay materials on which an

expert relies are not admissible in a criminal case. Id.

Thomas’s reliance on Papuchis is misplaced because, as he concedes, the Commonwealth

did not offer into evidence the articles on which Tanskley relied.23 Thomas, though, contends that

Tanksley’s repeated references to what the “research suggested” was “tantamount to admitting the

articles themselves.” We reject that contention because it clashes with the relevant precedents and

would overly restrict expert testimony. Just as the expert’s testimony in Funderburk about

population statistics was not the functional equivalent of entering those studies into evidence,

Tanksley’s testimony about the “research” was not impermissible hearsay. See Stevens, 72

Va. App. at 559 (noting that the expert “based her testimony on her ‘training, experience, and . . .

[the] literature’”).

Tanksley testified that the articles she had read were consistent with her training and

experience and that it was common for those in her field to rely on such articles. Based on that

testimony, we cannot say that the trial court abused its discretion in allowing Tanksley to testify

about the research or in denying Thomas’s motion to set aside the verdict on that basis.

Thomas’s reliance on Earnest v. Commonwealth, 61 Va. App. 223 (2012), is similarly
23

misplaced. In Earnest, this Court held that the witness could not testify about outside reports or
cases because he was not a qualified expert. Id. at 228-29.
- 31 -
 III. The trial court did not abuse its sentencing discretion.

Determining the sentence “lies within the sound discretion of the trial court. A

sentencing decision will not be reversed unless the trial court abused its discretion.” Garibaldi,

71 Va. App. at 67 (quoting Martin v. Commonwealth, 274 Va. 733, 735 (2007)). “Criminal

sentencing decisions are among the most difficult judgment calls trial judges face.” Minh Duy

Du v. Commonwealth, 292 Va. 555, 563 (2016). “Because this task is so difficult, it must rest

heavily on judges closest to the facts of the case—those hearing and seeing the witnesses, taking

into account their verbal and nonverbal communication, and placing all of it in the context of the

entire case.” Id. Consequently, “when a statute prescribes a maximum imprisonment penalty

and the sentence does not exceed that maximum, the sentence will not be overturned as being an

abuse of discretion.” Id. at 564 (quoting Alston v. Commonwealth, 274 Va. 759, 771-72 (2007)).

It is also within the trial court’s purview to weigh a defendant’s mitigation evidence. Keselica v.

Commonwealth, 34 Va. App. 31, 36 (2000).

The trial court sentenced Thomas to 10 years’ imprisonment for each count of aggravated

sexual battery of a victim under 13 years old to which he pleaded guilty.24 Each of those offenses

carried a statutory sentencing range of 1 to 20 years in prison. Code § 18.2-67.3(B). “[O]nce it is

determined that a sentence is within the limitations set forth in the statute under which it is

imposed, appellate review is at an end.” Thomason v. Commonwealth, 69 Va. App. 89, 99

(2018) (quoting Minh Duy Du, 292 Va. at 565). The trial court was not required to mention any of

Thomas’s mitigation evidence or explain the weight it attached to that choice. See Bowman v.

Commonwealth, 290 Va. 492, 500 n.8 (2015) (“Absent a statutory requirement to do so, ‘a trial

24
Because we reverse Thomas’s jury convictions, we do not address the challenge to his
sentences for those convictions.
- 32 -
court is not required to give findings of fact and conclusions of law.’” (quoting Fitzgerald, 223 Va.

at 627)).

Finally, Thomas is not entitled to a remand for resentencing for the offenses against different

victims based on our reversal of his convictions for the charges related to A.R. Our Supreme Court

has held that, where the defendant is sentenced jointly for multiple offenses, the reversal of some of

those convictions and affirmance of others does not entitle the defendant to resentencing on the

affirmed convictions. Woodard v. Commonwealth, 287 Va. 276, 281-82 (2014). Because the

sentencing guidelines “are discretionary, rather than mandatory” and cannot serve as the basis for

relief on appeal, the defendant does not show prejudice by showing that the guidelines would be

different on resentencing. Id. (citing Code § 19.2-298.01(F)); see also Fazili v. Commonwealth, 71

Va. App. 239, 248-49 (2019). Moreover, although the trial court held a joint sentencing hearing, it

imposed separate sentences for each of Thomas’s offenses. Accordingly, Thomas has not shown

prejudice based on his contention that the evidence would be different during resentencing.

“The statutes dealing with probation and suspension are remedial and intended to give the

trial court valuable tools to help rehabilitate an offender.” Howell v. Commonwealth, 274 Va. 737,

740 (2007). “When coupled with a suspended sentence, probation represents ‘an act of grace on the

part of the Commonwealth to one who has been convicted and sentenced to a term of

confinement.’” Hunter v. Commonwealth, 56 Va. App. 582, 587 (2010) (quoting Price v.

Commonwealth, 51 Va. App. 443, 448 (2008)). Defendants who spurn that act of grace are

routinely punished. But Thomas presents the opposite side. He has substantially availed himself of

the rehabilitative tools provided him. He has completed sex offender treatment. He has been

successful on probation. And most importantly, he has not committed any new offenses. We

commend Thomas for his substantial efforts. That said, it is not for us to weigh Thomas’s

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mitigation evidence. The precedent in this area is clear and binding, and we affirm Thomas’s

sentences.

CONCLUSION

Because Thomas did not voluntarily waive his right to remain silent, the trial court should

have suppressed his confession. Accordingly, we reverse his jury convictions and remand for a new

trial should the Commonwealth be so advised. See Circuit Court No. FE-2021-37. The trial court

did not abuse its discretion in allowing the Commonwealth’s expert testimony. We affirm

Thomas’s sentences for the offenses to which he pleaded guilty. See Circuit Court Nos.

FE-2020-515 and FE-2021-38.

Affirmed in part, reversed in part, and remanded.

- 34 -
Raphael, J., dissenting in part.

I join parts II and III of the majority’s analysis, but I respectfully dissent from part I. The

majority properly affirms Thomas’s convictions for aggravated sexual battery of two young

children (a boy and a girl) at the home daycare where Thomas lived. (FE-2020-515,

FE-2021-38.) But the majority reverses Thomas’s six convictions for rape and other sex crimes

against another victim, A.R., committed from the time she was four until she was eight.

(FE-2021-37). The trial court concluded that Thomas is a “serial pedophile,” sentencing him for

the crimes against A.R. to four life sentences plus five years. The sentencing judge found that

there was “no way of protecting the community from this man other than to impose a life

sentence.” The majority now reverses those convictions and vacates the life sentences because it

finds that Thomas’s Miranda waiver was involuntary and that his videotaped confession should

have been suppressed. The majority’s rationale hinges on the probation officer’s saying, after

introducing the detectives to Thomas at the start of the interview, “I’m going to be here for a

little bit, but just go ahead and chat with them today, okay?”

The majority reaches this surprising result by fashioning what amounts to a per-se rule

that if a probation officer is involved in a custodial interrogation, he must tell the probationer that

his probation will not be jeopardized by invoking his right to remain silent. The majority would

require such a disclosure—on top of Miranda warnings—even though the majority concedes that

the government here did not expressly or implicitly threaten the defendant with the loss of

probation if he asserted his privilege against self-incrimination. Because such a supplemental

warning is unprecedented and unwarranted, I respectfully dissent.

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 I. The trial court properly denied the motion to suppress.

A. The Invocation Requirement and its two exceptions

“It has long been settled that the privilege [against self-incrimination] ‘generally is not

self-executing’ and that a witness who desires its protection ‘“must claim it.”’” Salinas v. Texas,

570 U.S. 178, 181 (2013) (quoting Minnesota v. Murphy, 465 U.S. 420, 425, 427 (1984)). The

Supreme Court calls this the “invocation requirement.” Id. at 183, 186. The defendant must

generally invoke his right to remain silent in order to claim its benefit. The invocation

requirement applies, for instance, to

the ordinary witness at a trial or before a grand jury who is
subpoenaed, sworn to tell the truth, and obligated to answer on the
pain of contempt . . . . The answers of such a witness to questions
put to him are not compelled within the meaning of the Fifth
Amendment unless the witness is required to answer over his valid
claim of the privilege.

Murphy, 465 U.S. at 427 (emphasis added).

So “in the ordinary case, if a witness under compulsion to testify makes disclosures

instead of claiming the privilege, the government has not ‘compelled’ him to incriminate

himself.” Id. (quoting Garner v. United States, 424 U.S. 648, 654 (1976)). “Thus it is that a

witness . . . ordinarily must assert the privilege rather than answer if he desires not to incriminate

himself.” Id. at 429. Our appellate courts too have repeatedly recognized the invocation

requirement. See, e.g., Husske v. Commonwealth, 252 Va. 203, 217 (1996) (“[N]o one required

Husske ‘to choose between making incriminating statements and jeopardizing his conditional

liberty by remaining silent.’” (quoting Murphy, 465 U.S. at 436)); Rivera-Padilla v.

Commonwealth, 55 Va. App. 304, 311 (2009) (“[T]he issue is not whether [the defendant] was

compelled to attend the meeting with DSS and answer questions in order to claim benefits, but

whether she was coerced to surrender her privilege to claim benefits.”).

- 36 -
 The United States Supreme Court has recognized exceptions to the invocation

requirement when “a witness’[s] failure to invoke the privilege must be excused [because]

governmental coercion makes his forfeiture of the privilege involuntary.” Salinas, 570 U.S. at

184. To date, however, the Court has crafted only “two exceptions.” Id.

The first exception involves custodial interrogation. “Thus, in Miranda, [the Court] said

that a suspect who is subjected to the ‘inherently compelling pressures’ of an unwarned custodial

interrogation need not invoke the privilege.” Id. (quoting Miranda v. Arizona, 384 U.S. 436,

467-68 (1966)). “Due to the uniquely coercive nature of custodial interrogation, a suspect in

custody cannot be said to have voluntarily forgone the privilege ‘unless [he] fails to claim [it]

after being suitably warned.’” Id. at 184-85 (alterations in original) (quoting Murphy, 465 U.S.

at 429-30). Proper Miranda warnings, however, make all the difference: “the privilege against

self-incrimination is self-executing” only as to “unwarned statements obtained through custodial

interrogation.” United States v. Riley, 920 F.3d 200, 207 (4th Cir. 2019) (emphasis added).

In other words, once the defendant in a custodial interrogation is properly advised of his

rights, the invocation requirement reattaches. To benefit from the privilege, the defendant must

then affirmatively invoke it. Oregon v. Elstad, 470 U.S. 298, 311 (1985). Indeed, “[i]f the

individual indicates in any manner, at any time prior to or during questioning, that he wishes to

remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74. But the burden is on

that individual, having been duly warned, to invoke the privilege.

The first exception to the invocation requirement applies here because Thomas was in

custody when questioned by the detectives. But as explained below, Detective Carter

administered thorough Miranda warnings. And courts normally presume that such warnings

neutralize the coercion implicit in custodial settings enough to shift back to the defendant the

obligation to invoke his Fifth Amendment rights if he wants to remain silent in response to

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incriminating questions. See Elstad, 470 U.S. at 310-11 (“[A] careful and thorough

administration of Miranda warnings serves to cure the condition that rendered the unwarned

statement inadmissible.”). A duly administered Miranda warning “conveys the relevant

information and thereafter the suspect’s choice whether to exercise his privilege to remain silent

should ordinarily be viewed as an ‘act of free will.’” Id. at 311 (quoting Wong Sun v. United

States, 371 U.S. 471, 486 (1963)).

A signed Miranda waiver, of course, is not dispositive—a “confession, even if obtained

in full compliance with Miranda, may be inadmissible if it was not voluntary.” Kauffman v.

Commonwealth, 8 Va. App. 400, 405 (1989). “Just as ‘no talismanic incantation [is] required to

satisfy [Miranda’s] strictures,’ it would be absurd to think that mere recitation of the litany

suffices to satisfy Miranda in every conceivable circumstance.” Missouri v. Seibert, 542 U.S.

600, 611 (2004) (plurality) (quoting California v. Prysock, 453 U.S. 355, 359 (1981) (per

curiam)).

Still, “‘[t]he inquiry is simply whether the warnings reasonably “conve[y] to [a suspect]

his rights as required by Miranda.”’” Id. (quoting Duckworth v. Eagan, 492 U.S. 195, 203

(1989)). And “cases in which a defendant can make a colorable argument that a

self-incriminating statement was ‘compelled’ despite the fact that the law enforcement

authorities adhered to the dictates of Miranda are rare.” Berkemer v. McCarty, 468 U.S. 420,

433 n.20 (1984).

The second exception to the invocation requirement applies when the government

coerces the defendant to give up the privilege against self-incrimination by threatening to impose

a penalty, like “withdraw[ing] a governmental benefit such as public employment.” Salinas, 570

U.S. at 185 (citing Garrity v. New Jersey, 385 U.S. 493, 497 (1967); Lefkowitz v. Cunningham,

431 U.S. 801, 802-04 (1977); and Lefkowitz v. Turley, 414 U.S. 70, 84-85 (1973)). Such threats

- 38 -
make the “exercise of the privilege so costly that it need not be affirmatively asserted.” Id. But

“[i]n each of the so-called ‘penalty’ cases, the state not only compelled an individual to appear

and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening

to impose economic or other sanctions ‘capable of forcing the self-incrimination which the

Amendment forbids.’” Murphy, 465 U.S. at 434 (quoting Cunningham, 431 U.S. at 806).

In one of the majority’s cases, for instance, the court found that the Miranda waiver

signed by the juvenile defendant was not voluntary because the detective, before reading the

Miranda warnings, suggested that if the defendant “remained silent, he would face fabricated

charges for things that he did not do.” In re S.W., 124 A.3d 89, 103 (D.C. 2015). The court

described that scenario as “a ‘rare’ instance in which . . . a self-incriminating statement was

‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of

Miranda.” Id. at 92.

As the majority here concedes, neither the probation officer nor the detectives ever

threatened Thomas with the loss of probation if he invoked his right to remain silent in response

to the detectives’ questions. Ante at 14 & n.8, 16. So the “penalty” exception to the invocation

requirement does not apply.

Beyond these two exceptions, the Supreme Court has been reluctant “to craft . . . new

exception[s] to the ‘general rule’ that a witness must assert the privilege to subsequently benefit

from it.” Salinas, 570 U.S. at 186 (quoting Murphy, 465 U.S. at 429). Salinas, for example,

rejected a proposed “third exception to the invocation requirement for cases in which a witness

stands mute [during a noncustodial encounter] and thereby declines to give an answer that

officials suspect would be incriminating.” Id. As the Court explained, “So long as police do not

deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendment

- 39 -
violation” by introducing evidence that the defendant stood silent when asked an incriminating

question during a noncustodial encounter. Id. at 191.

B. No exception for probationers in noncustodial settings

In Murphy, the Court rejected another proposed exception to the invocation requirement,

urged by a probationer in a noncustodial setting who failed to invoke the privilege when

questioned by his probation officer. 465 U.S. at 440. Although Murphy was not in custody, he

had to “be truthful with the probation officer ‘in all matters.’” Id. at 422. The Court made clear

that “the nature of probation is such that probationers should expect to be questioned on a wide

range of topics relating to their past criminality.” Id. at 432.

But Murphy also made clear that a probationer’s duty to be truthful with his probation

officer did not excuse him from having to invoke the privilege when questioned about things that

would incriminate him. Id. at 440. It makes no difference whether “the probation officer

consciously [seeks] incriminating evidence.” Id. at 431. “[P]olice officers questioning persons

suspected of crimes often consciously seek incriminating statements,” and “the probation

officer’s knowledge and intent [has] no bearing” on whether the probationer must invoke the

privilege. Id. (emphasis added). The pressure that Murphy felt to speak with his probation

officer was “indistinguishable from that felt by any witness who is required to appear and give

testimony.” Id. at 437. The probationer, no less than the compelled witness, must “exercise the

privilege in a timely manner.” Id. As a result, the government “may require a probationer to

appear and discuss matters that affect his probationary status; such a requirement, without more,

does not give rise to a self-executing privilege.” Id. at 435.

To be sure, Murphy does not control the outcome here because Thomas was in custody

when questioned; Murphy was not. Footnote five of Murphy reserved deciding whether the

invocation requirement would apply to a defendant “interviewed by his probation officer while

- 40 -
being held in police custody or by the police themselves in a custodial setting.” Id. at 429 n.5.

But the majority here is wrong to think that footnote five renders everything else in Murphy

irrelevant. I would hold that the invocation requirement recognized in Murphy applies equally to

a probationer in a custodial setting, provided he is given proper Miranda warnings, is not

coerced into confessing, and is not expressly or implicitly threatened with probation revocation

for exercising his privilege against self-incrimination.

C. Cases involving coercive threats to revoke probation

Whether or not the defendant is in custody, his confession is involuntary if obtained by

threat of probation revocation for exercising his privilege against self-incrimination. As Murphy

put it, “if the state, either expressly or by implication, asserts that invocation of the privilege

would lead to revocation of probation, it would . . . create[] the classic penalty situation, the

failure to assert the privilege would be excused, and the probationer’s answers would be deemed

compelled and inadmissible in a criminal prosecution.” Id. at 435.

That is precisely what happened in two of the principal cases that the majority relies on.

In State v. Eccles, 877 P.2d 799 (Ariz. 1994) (en banc), the Arizona Supreme Court invalidated a

condition of probation that required the defendant “to waive his privilege against

self-incrimination.” Id. at 800. The court said that “Murphy makes clear that the state cannot

make waiver of the privilege against self-incrimination a condition of probation.” Id. The court

ruled that the condition could be permissibly revised, however, to require that the defendant

“answer truthfully, any questions [asked by] the probation officer, counselors, polygraph

examiners, or any other agent of the Probation Department’s treatment programs.” Id. at 801.

“Like the condition at issue in Murphy, this sanitized condition would merely proscribe false

statements and require defendant to respond to questions that could not incriminate him in future

criminal proceedings.” Id. “[I]t would not prohibit him from validly asserting the privilege

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against self-incrimination and would not penalize him for so doing.” Id. But the court was

emphatic that the defendant “must assert the privilege at the appropriate time . . . if he desires not

to incriminate himself.” Id.

The majority’s other principal case, United States v. Saechao, 418 F.3d 1073 (9th Cir.

2005), also involved a “classic penalty situation.” Id. at 1075. Saechao held that a defendant’s

confession to his Oregon probation officer of a federal firearms offense was properly suppressed

because a condition of his probation required “him to ‘promptly and truthfully answer all

reasonable inquiries’ from the officer or face revocation of his probation.” Id. The Ninth Circuit

distinguished that probation condition from the one in Murphy. Murphy’s condition required

him “only to ‘be truthful with his probation officers in all matters,’ and did not impose any

affirmative obligation to respond to his probation officer’s questions: ‘On its face, [the]

probation condition proscribed only false statements; it said nothing about his freedom to decline

to answer particular questions . . . .’” Id. at 1078 (quoting Murphy, 465 U.S. at 436). The

Oregon probation condition was problematic, the Ninth Circuit explained, because Oregon law

allowed the State to revoke the defendant’s probation for refusing to answer questions that would

incriminate him in separate criminal proceedings. Id. at 1079-80. In Murphy, by contrast,

Minnesota had “represented that it could not (and would not) have revoked the defendant’s

probation had the probationer invoked the Fifth Amendment.” Id. at 1080 n.5.

Echoing the Supreme Court in Murphy, the Fourth Circuit recently rejected a challenge to

a federal condition of release that, like Thomas’s, required the defendant “to truthfully answer

questions from his probation officer.” United States v. Linville, 60 F.4th 890, 893 (4th Cir.

2023). The court explained that the requirement to truthfully answer questions did “not actually

require a choice between revocation and asserting the privilege.” Id. It did “not expressly state

that if [Linville] exercised his Fifth Amendment right to remain silent, he risked criminal

- 42 -
penalty.” Id. And “Linville had no reasonable basis for believing that he risked revocation of

his supervised release if he invoked the Fifth Amendment.” Id. “[A]s Murphy emphasized,

‘[Supreme Court] decisions have made clear that the State could not constitutionally carry out a

threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.’” Id. at

898 (second alteration in original) (quoting Murphy, 465 U.S. at 438).

The Fourth Circuit found Saechao unpersuasive because Oregon law permitted a

defendant’s probation to be revoked for invoking the privilege against self-incrimination. Id. at

898-99. “Unlike the Oregon law from Saechao, clear federal law provides that invoking the

Fifth Amendment could not constitutionally be grounds for revoking supervised release.” Id. at

898.

Thomas’s probationary conditions resemble those in Murphy and Linville. Thomas was

required to “report to [his] probation officer, be truthful, cooperative and report as instructed,”

and to “follow” his probation officer’s instructions. As in Murphy, Thomas’s probation

conditions “proscribed only false statements; [they] said nothing about his freedom to decline to

answer particular questions and certainly contained no suggestion that his probation was

conditional on his waiving his Fifth Amendment privilege with respect to further criminal

prosecution.” Murphy, 465 U.S. at 437. So the probation condition here did “not actually

require a choice between revocation and asserting the privilege.” Linville, 60 F.4th at 897.

Indeed, neither Thomas nor the majority cites any authority to suggest that Thomas’s

probation could be revoked if he chose to invoke the privilege in response to questions from his

probation officer or the detectives. We explained nearly two decades ago that decisions of the

United States Supreme Court “‘have made clear that the State could not constitutionally carry out

a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege,’ for, in

doing so, the government would be imposing a penalty upon an individual who ‘elects to

- 43 -
exercise his Fifth Amendment right.’” Venable v. Commonwealth, 48 Va. App. 380, 387 (2006)

(first quoting Murphy, 465 U.S. at 438; and then quoting Cunningham, 431 U.S. at 805).

D. The majority’s implicit new exception to the Invocation Rule

The majority agrees “that the record here, including the trial court’s subsidiary factual

findings, does not present a ‘classic penalty situation.’” Ante at 14. So the majority concedes

that nothing said by the probation officer or the detectives, “either expressly or by implication,

assert[ed] that [Thomas’s] invocation of the privilege would lead to revocation of probation.” Id.

at 14 n.8 (quoting Murphy, 465 U.S. at 435). Upon that premise, the majority insists it is

creating “[n]o new per-se rule” establishing an exception to the invocation requirement when a

probation officer is involved in a custodial interrogation. Id. at 19. Instead, the majority says

that it is simply considering the probation officer’s request that Thomas speak with the detectives

“as a relevant circumstance to be considered as one factor in the voluntariness analysis.” Id. at

20 (quoting People v. Stewart, No. 162497, 2023 WL 4874412, at *10 (Mich. July 31, 2023)).

The majority also downplays the significance of this case, characterizing it as an outlier

involving “unique” circumstances. Id. at 15, 26.

The majority’s assurance that it does not view this case as a “classic penalty situation” is

difficult to square with its reliance on Eccles and Saechao, cases that did involve threats to

revoke the defendant’s probation if he invoked the privilege. It is also difficult to see how, under

the majority’s logic, law-enforcement officers could ever involve a probation officer in a

custodial interrogation without being required to give special warnings going beyond Miranda.

Although the majority denies imposing such a per-se warning requirement, its opinion

repeatedly implies that the probation officer or the detectives here had to tell Thomas that he

could invoke his Fifth Amendment privilege without jeopardizing his probation. The majority

says, for instance, that

- 44 -
 • the detectives failed to “provide any assurance” to Thomas “that no penalty would

be exacted if he disregarded Samluk’s instruction to ‘chat with’” them;

• Miranda warnings alone were insufficient because they did not “clarify” that the

probation officer’s request for Thomas to speak with the detectives “had no

bearing on Thomas’s right to remain silent”;

• neither the probation officer nor the detectives “clarified that Thomas would not

suffer any adverse probationary consequences” if he invoked the privilege; and

• despite the Miranda waiver signed by Thomas, “the officers provided no

additional procedural safeguards to cure [the] problem” that the majority says was

caused by the probation officer’s asking Thomas to chat with the detectives.

Ante at 18, 21.

The majority wrongly suggests that such mandatory disclosures in a custodial setting—on

top of standard Miranda warnings—are required by the Supreme Court’s decision in Seibert, 542

U.S. at 600. Id. at 18, 20-21. They’re not. “Seibert provides a narrow exception to the general

rule” that Miranda warnings suffice to inform a suspect of his constitutional rights. Keepers v.

Commonwealth, 72 Va. App. 17, 38 (2020). Although no single opinion in Seibert commanded a

majority, the Court invalidated a confession obtained by police who deliberately circumvented

Miranda by using the two-step, question-first method of interrogation. Seibert, 542 U.S. at

604-05 (plurality). Police first obtained a confession from an un-Mirandized defendant in

custody, then administered Miranda warnings, and then obtained the same confession again for

use in court. Id. “The object of question-first is to render Miranda warnings ineffective by

waiting for a particularly opportune time to give them, after the suspect has already confessed.”

Id. at 611. “What is worse, telling a suspect that ‘anything you say can and will be used against

you,’ without expressly excepting the statement just given, could lead to an entirely reasonable

- 45 -
inference that what he has just said will be used, with subsequent silence being of no avail.” Id.

at 613.

Justice Kennedy concurred in the judgment in Seibert on the narrowest grounds, see id. at

618-22, so “his concurring opinion . . . provides the controlling law,” Secret v. Commonwealth,

296 Va. 204, 222 (2018) (quoting United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006)).

“Under Justice Kennedy’s subjective-intent based test, in such cases where ‘an interrogator uses

this deliberate, two-step strategy, predicated upon violating Miranda during an extended

interview, postwarning statements that are related to the substance of prewarning statements

must be excluded absent specific, curative steps.’” Id. at 223 (quoting Seibert, 542 U.S. at 621

(Kennedy, J., concurring in the judgment)). But Justice Kennedy made clear that this test applies

“only in the infrequent case . . . in which the two-step interrogation technique [is] used in a

calculated way to undermine the Miranda warning.” Seibert, 542 U.S. at 622 (emphases added).

Seibert is not on point because this case does not involve the two-step interrogation

technique condemned there. But even if we were to read Seibert expansively to condemn all

police tactics intended to coerce a Miranda waiver, that case would not help the majority. For

the facts here fail to show that anyone intended to trick Thomas into waiving his Fifth

Amendment rights.

Judge Bernhard specifically found that the probation officer introduced the detectives to

Thomas because “he was just being helpful and courteous.” The court further found that the

probation officer’s statement to Thomas to “chat with them today” did not amount to a directive.

The probation officer did not say, “Answer all their questions truthfully . . . ‘or else,’ in so many

words, using the power of probation.” When asked if he had introduced the detectives to

Thomas in order to “trick” Thomas into confessing, the probation officer testified,

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unequivocally, “absolutely not.” Judge Bernhard found, instead, that the officers were “trying to

make the accused feel at ease, and he appeared at ease.”

Those subsidiary factual findings, amply supported by the record, preclude requiring a

Seibert-like warning. Such subsidiary factual findings “are entitled to a presumption of

correctness.” Secret, 296 Va. at 225 (quoting Midkiff v. Commonwealth, 250 Va. 262, 268

(1995)). They cannot be set aside unless “plainly wrong or without evidence to support [them].”

Id. at 226 (alteration in original) (quoting DeMille v. Commonwealth, 283 Va. 316, 323 (2012)).

Subsidiary factual findings include whether the trial court found the absence of “coercion”

during the interrogation, id. at 226, and whether law-enforcement officers acted deliberately to

circumvent Miranda, id. at 223-24.

To sum up, when the government does not expressly or implicitly threaten the defendant

with probation revocation for invoking his Fifth Amendment rights, the traditional invocation

requirement applies as stated in Murphy and Salinas. There is no reason not to apply that rule in

a custodial setting when, as here, law-enforcement officers have properly advised the defendant

of his constitutional rights. Properly administered Miranda warnings will normally suffice to

apprise such defendants of the privilege against self-incrimination. It is then up to the defendant

whether to invoke his right to remain silent in response to questions that could incriminate him.

E. Thomas’s voluntary Miranda waiver

I would resolve this case by applying the traditional standard to determine the

voluntariness of Thomas’s Miranda waiver. The trial court must consider whether, under “the

totality of the circumstances, the free will of the suspect was overborne.” Thomas v.

Commonwealth, 72 Va. App. 560, 580 (2020). In doing so, “the finder of fact must examine the

surrounding circumstances and the entire course of police conduct with respect to the suspect in

evaluating the voluntariness of his statements.” Secret, 296 Va. at 220 (quoting Elstad, 470 U.S.

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at 318). Voluntariness is a question of law that we review do novo on appeal. Id. at 225. But

subsidiary factual determinations by the trial court are presumed correct and will not be set aside

unless plainly wrong or without evidence to support them. Id. “The fact that a suspect chooses

to speak after being informed of his rights is, of course, highly probative.” Id. at 220 (quoting

Elstad, 470 U.S. at 318).

Applying that traditional standard, I conclude that Thomas’s will was not overborne and

that the waiver of his Fifth Amendment rights and his confession were voluntary. To start, I note

that Thomas followed along as Detective Carter read him the Miranda warnings, printed on the

“Warning and Consent” form. The trial judge too “thought the most important [evidence] was

where [Thomas] is given his Miranda Rights.” Carter twice said he was investigating Thomas

for “Sexual Assault.” And Thomas showed that he knew what that meant: he tilted his head left

and right before tilting forward and resting his head in the palm of his hand for several seconds,

crestfallen.

Detective Carter then carefully reviewed with Thomas each Miranda warning. Carter

read the first warning aloud: “I have the right to remain silent. I am not required to say anything

to anyone at any time or to answer any questions.” Carter paused and asked Thomas, “Does that

one make sense?” Carter nodded his head in the affirmative. Next, Carter read aloud, “Anything

I do or say can and will be used against me in a court of law.” Carter asked Thomas,

“Understand?” Thomas again nodded in the affirmative. Carter then added, “if you have

questions, please let me know, okay?” And Thomas again nodded his head in the affirmative.

Detective Carter next read, “I have the right to talk to a lawyer before being questioned,

and I also have the right to have the lawyer with me while being questioned.” Carter asked,

“Pretty straightforward?” Thomas again nodded his head in the affirmative; he also showed his

understanding by saying, “Yeah.” True, Thomas did not nod or react after Carter read the fourth

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and fifth warnings aloud, elaborating on Thomas’s right to counsel.25 But after reading all five

warnings, Carter asked if “all five” of them “make sense? They’re all pretty straightforward but

I always want to doublecheck to make sure.” Thomas responded, “Yeah—I can’t believe this is

happening again.”

Carter then read Thomas the “Consent to Speak” text on the waiver form, where the

suspect’s signature was requested. It said, “I know what my rights are. I am willing to make a

statement without a lawyer present. I understand and I know what I am doing. No promises or

threats have been made to me by anyone.” Carter told Thomas, “You don’t have to sign it. It

helps if you do. But you can still agree to talk to us if you don’t want sign it. So it’s up to you.

Do you mind signing right here for me?” Thomas responded, “Yeah,” and he signed the waiver.

The majority errs in minimizing the significance of Thomas’s express Miranda waiver,

claiming that Detective Carter characterized Thomas’s signing the form as a “mere formality”

and some kind of bureaucratic exercise. Ante at 22, 25. For one thing, Carter made clear to

Thomas that he was not required to sign the waiver. The video shows that Thomas did so

willingly. For another, binding precedent instructs us that Thomas’s “express written and verbal

statements of waiver of his rights are strong proof of the validity of his waiver.” Angel v.

Commonwealth, 281 Va. 248, 259 (2011).

25
Those warnings were:

4. If I cannot afford a lawyer, and want one, one will be provided
to me.

5. If I want to answer questions now without a lawyer present, I
will still have the right to stop answering questions at any time. I
also have the right to stop answering questions at any time if I
want to talk to a lawyer.

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 In fact, we have rejected claims that police “diluted” Miranda warnings by downplaying

their significance to a suspect, such as when police described the warnings as “just procedural

stuff.” Keepers, 72 Va. App. at 29, 37. What is important here is that Thomas was apprised of

his “Miranda rights” and told he “was free to refuse to answer any questions and could stop

talking any time.” Id. at 37. He then “signed a pre-printed form listing [his] Miranda warnings,

and [he] did not express any confusion or hesitation in [his] discussions with police.” Id.

Whether a defendant fails to fully appreciate that it may harm his legal interest to speak with

law-enforcement officers, rather than remain silent, “does not affect the validity of his waiver.”

Tirado v. Commonwealth, 296 Va. 15, 29 (2018) (quoting United States v. Yunis, 859 F.2d 953,

965 (D.C. Cir. 1988)).

After Thomas voluntarily waived his Fifth Amendment rights, the officers then took a

bathroom break, telling Thomas that he could use the bathroom whenever he needed. When the

group returned from the first bathroom break, the detectives removed the handcuff securing

Thomas’s left arm to the table, and they conducted the rest of the interview without restraints.

The video recording matches the testimony of the detectives and the probation officer at

the suppression hearing. They never threatened Thomas. The detectives and the probation

officer said they did not intend to trick Thomas into speaking with them. The detectives’ tones

were “[c]onversational,” “friendly, professional and respectful.”

Judge Bernhard specifically found that the detectives’ interrogation “was professionally

done.” As noted above, the trial court found that the probation officer introduced the detectives

to be “helpful and courteous,” trying to make Thomas feel “at ease”—not to pressure him into

waiving his right to remain silent for fear of having his probation revoked. Judge Bernhard

found that Thomas understood “what was going on.”

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 The majority is wrong to hint that the detectives acted malignly because they had “never”

previously asked a probation officer to introduce them to a suspect for a custodial interrogation.

Ante at 4, 16. The majority overlooks that the probation officer testified that “these are routine

things that we do to help the police.” And in any case, the majority cannot point to any

custom-and-practice evidence to impugn what the probation officer did here. That gap in the

majority’s argument contrasts with Seibert, which canvassed several sources to show that the

two-step, question-first interrogation method had gained “popularity” across the country to evade

Miranda. See Seibert, 542 U.S. at 609-11 & nn.2-3 (plurality).

Judge Bernhard buttressed his conclusion that Thomas voluntarily waived his rights by

finding that Thomas’s decision was “partially based on his prior experiences” with law

enforcement. As the majority notes, “Thomas had more than a dozen police contacts during the

2012 investigation and at one point provided a voluntary statement after being read his Miranda

rights.” Ante at 5. But the majority then draws the wrong inference: that Thomas’s “experience

with the criminal justice system . . . rendered him more susceptible” to government coercion. Id.

at 24 (emphasis added). Our caselaw shows that the opposite inference—drawn by Judge

Bernhard—is more appropriate. See, e.g., Midkiff, 250 Va. at 269 (finding Midkiff’s confession

to be voluntary, noting that he was “no stranger to the criminal justice system . . . . It is apparent

that Midkiff has experienced several prior police interrogations.”); Washington v.

Commonwealth, 43 Va. App. 291, 304 (2004) (stating that the defendant “was well experienced

in dealing with the police, having previously been convicted of three felonies”).

The majority overemphasizes that the detectives would have known that Thomas

attended an alternative school and “that an earlier police report had described Thomas as

‘intellectually disabled.’” Ante at 24. In fact, Thomas “graduated 12th grade” and could read and

write. The majority’s emphasis is also misplaced because our precedents make clear that a

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defendant’s diminished mental capacity is not enough to show that his waiver of rights was

involuntary. E.g., Terrell v. Commonwealth, 12 Va. App. 285, 292 (1991) (finding waiver

voluntary, despite that defendant had “an IQ between 71 and 75,” because he “had experience

with the criminal justice system through four previous felony convictions”); see also Murphy,

465 U.S. at 433 (“Murphy’s regular meetings with his probation officer should have served . . .

to insulate him from psychological intimidation that might overbear his desire to claim the

privilege.”).

In short, the majority opinion fails to fully credit the trial court’s subsidiary factual

findings. Those findings are not plainly wrong or without evidence to support them. They are

amply supported by the interrogation video and the witnesses’ testimony at the suppression

hearing.

On the ultimate question of voluntariness, Judge Bernhard found that Thomas voluntarily

waived his privilege against self-incrimination after being informed of his right to remain silent:

[I]t appeared that based on his—partially based on his prior
experiences, on his demeanor, that he knew full well what was
going on and that he made [a] voluntary choice to waive his right
against self-incrimination after he was advised that he didn’t need
to speak to the police and that it wouldn’t be held against him . . . .

And maybe there was an element there that . . . the officers were
very professional, they were kind to him, they got him food, they
got him at ease, and he took the occasion to kind of pour his heart
out and maybe take responsibility for things that he indicated he
had done . . . .

But under the totality of the circumstances, I find that his Miranda
waiver was voluntary, knowing and intelligent . . . .

Upon de novo review, Secret, 296 Va. at 225, I agree that Thomas’s Miranda waiver was

voluntary, knowing, and intelligent.

The probation officer’s statement that Thomas should “just go ahead and chat with” the

detectives did not threaten the revocation of his probation for invoking the privilege against

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self-incrimination. The probation officer made “no suggestion that [Thomas’s] probation was

conditional on his waiving his Fifth Amendment privilege.” Murphy, 465 U.S. at 437. Nor is

there any evidence that Thomas confessed “because he feared that his probation would be

revoked if he remained silent.” Id.

“‘The inquiry is simply whether the warnings reasonably “conve[y] to [a suspect] his

rights as required by Miranda.”’” Seibert, 542 U.S. at 611 (plurality) (quoting Eagan, 492 U.S.

at 203). Here, the detectives’ very careful Miranda warnings did just that. And even assuming

for argument’s sake that Thomas “harbor[ed] a [subjective] belief that his probation might be

revoked for exercising the Fifth Amendment privilege”—something not supported by anything

in this record—“that belief would not have been reasonable.” Murphy, 465 U.S. at 438. For the

Supreme Court has made clear that “the State [cannot] constitutionally carry out a threat to

revoke probation for the legitimate exercise of the Fifth Amendment privilege.” Id.; Linville, 60

F.4th at 898 (same); Venable, 48 Va. App. at 387 (same).

In sum, Thomas’s motion to suppress his confession was properly denied.

II. The trial court properly excluded the testimony of Thomas’s mother.

Because the Court reverses Thomas’s six convictions for crimes against A.R., remanding

those counts for a new trial should the Commonwealth be so advised, the majority does not reach

Thomas’s first assignment of error. Ante at 26-27 n.19. Thomas argues that the trial court erred by

excluding testimony from his mother during the guilt phase of the case. Because I would affirm the

convictions, I address that argument here.26

26
The majority also does not reach Thomas’s challenge to the sentence imposed on the
convictions involving A.R. Ante at 32 n.24. But I would hold, for the same reasons given by the
majority in rejecting Thomas’s challenges to the other sentences, id. at 32-33, that the trial court
did not err in sentencing Thomas for his crimes against A.R. Thomas does not dispute that the
four life sentences (imposed on two counts of rape and two counts of animate-object penetration)
were permitted under Code §§ 18.2-61 and 18.2-67.2. See Minh Duy Du v. Commonwealth, 292
Va. 555, 564 (2016) (“[W]hen a statute prescribes a maximum imprisonment penalty and the
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 The defense proposed calling Thomas’s mother, Jacqueline Thomas Black, to testify about

Thomas’s slow development and diminished intellectual functioning. In support of the proffer, the

trial judge permitted defense counsel to question Black outside the presence of the jury. Black

described Thomas’s slow development from about the “age of one” and the difficulties he had

remembering things into adulthood. Thomas’s mother had to lay out his clothes for him. She used

“little cards” and a “chart” to remind him to do such things as brush his teeth, put on deodorant, put

on socks, and use soap when showering. And when Thomas lived by himself, his friends would

sleep in his house, borrow his things, and eat his food.

The Commonwealth moved to exclude Black’s testimony, arguing that it was inadmissible

mental-condition evidence under Code § 19.2-271.6 and that the defense had failed to provide the

required notice of its intent to introduce such evidence. The defense responded that the evidence

was not being offered to show that Thomas “did not have the intent required for the offense

charged.” Code § 19.2-271.6(B). Instead, the evidence was offered to show that Thomas’s

statements in his confession were entitled to less weight because of his “susceptibility” to

questioning and his faulty memory.

Thomas relied on Crane v. Kentucky, 476 U.S. 683 (1986), and Pritchett v.

Commonwealth, 263 Va. 182 (2002). In Crane, the Supreme Court held that a defendant has a

due-process right to present evidence at trial “about the physical and psychological environment

in which the confession was obtained” to show that his confession “was unworthy of belief.”

sentence does not exceed that maximum, the sentence will not be overturned as being an abuse
of discretion.” (quoting Alston v. Commonwealth, 274 Va. 759, 771-72 (2007))). And Thomas’s
claim is without merit that the trial court “made no mention of any mitigation, or even that it
considered mitigation in fashioning its sentence.” Thomas ignores the trial court’s statement at
sentencing that it had “considered all of the things that [were] presented by both sides.” “Barring
clear evidence to the contrary, this Court will not presume that a trial court purposefully ignored
mitigating factors in blind pursuit of a harsh sentence.” Bassett v. Commonwealth, 13 Va. App.
580, 584 (1992). Thomas offers no such “clear evidence” here.
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476 U.S. at 684, 691. The defendant’s right to present such evidence is not affected by the fact

that the trial judge determined the confession to be voluntary, nor by the fact that the defendant

“marshaled the same evidence earlier in support of an unsuccessful motion to suppress.” Id. at

689. Applying Crane, our Supreme Court held in Pritchett that the trial court erred in excluding

the testimony of the defendant’s two mental-health experts. 263 Va. at 187. The experts would

have testified to Pritchett’s intellectual disabilities and the “susceptibility” of such persons “to

suggestive police interrogation in connection with the defendant’s contention that his confession

was unreliable.” Id. at 183.

After hearing Black’s testimony, the trial court excluded it as “too speculative to sync up

to [Thomas’s] confession in 2019.”27 I would find no abuse of discretion in that ruling.

An “accused does not have an unfettered right to offer [evidence] that is incompetent,

privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484

U.S. 400, 410 (1988). The Constitution permits the exclusion of evidence that is “only

marginally relevant” or that “poses an undue risk of . . . confusion of the issues.” Holmes v.

South Carolina, 547 U.S. 319, 326-27 (2006) (quoting Crane, 476 U.S. at 689-90). “The

admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion.” Barnes v. Commonwealth, 33

Va. App. 619, 626 (2000) (quoting Crews v. Commonwealth, 18 Va. App. 115, 118 (1994)).

“‘Relevant evidence’ means evidence having any tendency to make the existence of any

fact in issue more probable or less probable than it would be without the evidence.” Va. R. Evid.

2:401. “Evidence that is not relevant is not admissible.” Va. R. Evid. 2:402(a). “Evidence of

collateral facts or those incapable of affording any reasonable presumption or inference on

27
Although the trial court excluded Black’s testimony in the guilt phase, the defense
detailed Thomas’s intellectual challenges at sentencing.
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matters in issue, because too remote or irrelevant, cannot be accepted in evidence.” McMillan v.

Commonwealth, 277 Va. 11, 22 (2009) (quoting Smith v. Commonwealth, 223 Va. 721, 723

(1982)). In other words, “evidence that produces only speculative inferences is irrelevant . . .

and should be excluded.” 29 Am. Jur. 2d Evidence § 295 (2019).

Our opinion in Barnes provides a good example of evidence that was properly excluded

as too attenuated and speculative. The trial court there barred a defense witness from testifying

that Barnes “worked five days a week doing manual labor for minimum wage.” 33 Va. App. at

624. Barnes argued that the evidence showed that he “was not a drug dealer,” since “a drug

dealer who was making $600 per day would not engage in minimum wage work.” Id. We

upheld the witness’s exclusion, however, because Barnes “neither proffered nor presented

evidence of the relationship between minimum wage employment and drug dealing,” thus

requiring the factfinder “to speculate as to that relationship.” Id. at 626. Moreover, the time

frame when Barnes worked the minimum wage job ended before the period when he allegedly

used an underling to sell drugs. Id. So the “proffered testimony” also “concerned facts remote

in time.” Id. at 626-27.

The trial court here likewise did not abuse its discretion in excluding Black’s testimony

as “too speculative to sync up to [Thomas’s] confession in 2019.” Black did not describe any

instance in which Thomas was encouraged by others to admit to something he did not do. And

the defense presented no connection—no “evidence of the relationship,” Barnes, 33 Va. App. at

626—between Thomas’s slow development and forgetfulness, on the one hand, and his being

prone to falsely confess to police, on the other. The examples offered by Black about Thomas’s

behavior in his younger years were also “remote in time,” id. at 627, to his confession in 2019,

when Thomas was 35 years old.

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 Excluding that testimony did not violate Crane. Crane entitled Thomas to “introduce

testimony about the physical and psychological environment in which the confession was

obtained” to show that his incriminating statements were “unworthy of belief.” 476 U.S. at 684.

But Black’s testimony did not address Thomas’s confession. The jury would have had to engage

in rank speculation to connect Black’s testimony about Thomas’s developmental issues when

younger to his suggestibility or propensity to falsely confess at age 35.

Nor did the trial court’s ruling violate Pritchett, where the trial court erred by disallowing

the testimony of two “experts in the field of psychology.” 263 Va. at 185. Their testimony

directly addressed the risk of false confessions and was admissible under Crane “to assist the

jury in determining whether the confession was reliable.” Id. at 186. One expert, a clinical

neuropsychologist, testified that her testing showed that Pritchett had an IQ of 69 and was

intellectual disabled. Id. at 185. The other, a forensic psychologist, testified that such low IQ’s

correlate with a tendency to “go along with [authority] figures” and with “leading questions.” Id.

(alteration in original). That expert had also administered a test to Pritchett to confirm his

willingness to go along with the questioner. Id. at 185-86. Black, by contrast, was not a mental

health expert and her testimony did not address Thomas’s susceptibility to leading questions, let

alone his propensity to admit to things he did not do.

In short, the trial court did not err by excluding Black’s testimony.

***

There is much in the majority’s opinion with which I agree. But the majority commits a

grave error by tacking a codicil onto standard Miranda warnings for cases involving probationers

in custodial settings. This new exception to the invocation requirement finds no support in our

caselaw or that of any other jurisdiction. The cost of that error here is to vacate Thomas’s four

life sentences for his vile crimes against A.R. That is bad enough. What is worse—and

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incalculable—is the disruption the majority’s stealth rule will inject into future cases in which

probation officers have any involvement in custodial interrogations. “Miranda’s clarity is one of

its strengths . . . .” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the judgment). What the

majority does today only “undermine[s] that clarity.” Id.

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