Sabo v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia

KEVIN MARK SABO
OPINION BY
v. Record No. 0538-00-4 JUDGE WILLIAM H. HODGES
APRIL 9, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge

William R. Martin; Patrick O. Cavanaugh
(Christopher B. Stone; Shawn M. Wright; Dyer
Ellis & Joseph, on brief), for appellant.

Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

The appellant, Kevin Sabo, appeals his conviction for

attempted malicious wounding, in violation of Code §§ 18.2-26

and 18.2-51. Sabo contends the trial court erred in: (1)

refusing to suppress tape-recorded statements he made to Heather

Lawrence; (2) admitting those audiotaped statements at trial;

and (3) refusing to allow Dr. Julian Brantley to testify. For

the following reasons, we affirm.

BACKGROUND

Appellant and Heather Lawrence began a romantic

relationship in the summer of 1998. The relationship became

increasingly strained and in early March 1999, Lawrence ended

it. Following the break-up, Lawrence began receiving anonymous
phone calls. On March 16, 1999, Lawrence agreed to have lunch

with appellant at a local restaurant. The two had earlier

discussed the "strange phone calls," and appellant showed

concern, making Lawrence receptive toward maintaining a

friendship with appellant. After lunch, Lawrence and appellant

parted and returned to their respective offices. They did not

see each other the remainder of that day or night.

Lawrence went out after work on March 16 unaccompanied by

appellant and returned home during the early morning hours of

March 17. She parked on a side lot near her townhouse. Around

9:00 a.m. on March 17, 1999, Lawrence left her townhouse,

entered her car and proceeded to drive to work. She approached

a stop sign at an intersection and tried to stop her car;

however, her brakes did not work. Lawrence "turned the car hard

left, . . . hit a fence, a low brick wall and a tree." Lawrence

recalled seeing fluid on the ground just before she entered her

car.

Prior to trial, appellant moved to suppress the

introduction of incriminating statements he made to Lawrence in

a telephone conversation that Lawrence recorded and provided to

police.

1. MOTION TO SUPPRESS STATEMENTS

Facts

On appeal from a trial court's denial of a motion to

suppress, we must review the evidence in the light most

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favorable to the Commonwealth, granting to the Commonwealth all

reasonable inferences fairly deducible from it. Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

The findings of the trial court will not be disturbed unless

plainly wrong or without evidence to support them. See Mier v.

Commonwealth, 12 Va. App. 827, 828, 407 S.E.2d 342, 343 (1991).

When reviewing the trial court's denial of a defendant's

motion to suppress evidence, "the burden is upon [the defendant]

to show that the ruling, when the evidence is considered most

favorably to the Commonwealth, constituted reversible error."

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261

(1997) (en banc) (citations omitted).

Detective Coale investigated the March 17 incident

involving Lawrence's car. He first met with Lawrence on March

19, 1999. In addition to her brake lines being cut, Lawrence

advised him she had received "a number of [anonymous] phone

calls to her residence in the middle of the night and at

different times where people hung up and had not left a

message." Coale learned from Lawrence that her relationship

with appellant "had gone sour over the last several months" and

that "[t]here had been an incident involving a slashing of one

of her tires that coincided with a spat that her [sic] and Mr.

Sabo had had." As a result, Coale "provided her with a tape

recorder to tape anything that might - - any phone calls that

she might receive." He gave Lawrence the recording device about

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a week after first meeting with her. Coale testified that he

"told [Lawrence] not to contact the defendant. That if he

called and she wanted to make the tapes, that would be useful to

our investigation."

Lawrence testified she was extremely fearful after the

March 17 car accident. She had no idea who placed the anonymous

calls and sabotaged her brakes. She worried constantly about

future acts against her, and she was afraid of being alone in

her residence. As a result, she installed a security system,

kept mace and a whistle on her person at all times, kept a

baseball bat in her house and avoided being alone. Coale

installed the tape recorder around March 24, 1999, and provided

her with approximately six blank audiotapes, which she used to

record several conversations with appellant. Lawrence testified

that after Coale installed the recorder, he suggested that

Lawrence call appellant to tape his reaction to her accident

because Lawrence had not spoken with appellant after the

accident. 1 Lawrence shared the earliest recorded conversations

with Coale, but he advised her not to contact appellant anymore

1
Although Lawrence's recollection on cross-examination
differed from Coale's earlier testimony that he "told" Lawrence
not to contact appellant, appellant did not call Coale as a
witness and inquire into this apparent conflict. Moreover, the
fact finder was not bound by either party's testimony and could
believe that which is more favorable to the Commonwealth. See
Eaton v. Commonwealth, 240 Va. 236, 249-50, 397 S.E.2d 385, 393
(1990).

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because "[t]he conversations weren't really going anywhere."

Despite that admonition, Lawrence contacted appellant

periodically and taped more conversations. The evidence further

showed that appellant continued to telephone Lawrence and speak

with her, and Lawrence also taped portions of those

conversations.

Appellant telephoned Lawrence around 9:00 p.m. on April 20,

1999. That conversation ended around 1:00 a.m. on April 21,

1999, and was the conversation in which appellant first made

incriminating statements, the substance of which he sought to

suppress. Lawrence taped excerpts of that lengthy conversation.

Lawrence explained that she only had two audiotapes left to use,

so she paused the machine and did not record portions dealing

with innocent or personal information unrelated to Lawrence's

fears for her safety. Lawrence also admitted recording over

previously recorded portions when she needed additional tape.

During the April 20-21 conversation, appellant admitted making

anonymous phone calls to Lawrence and doing something to her

car.

On the morning of April 21, 1999, Lawrence telephoned

appellant at his office, hoping he would elaborate on his

earlier admissions. Lawrence also taped that conversation.

Appellant provided details about the incident involving her car.

He explained that he went to a bar, became intoxicated, grabbed

tools from his house, drove to her residence and did something

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to her car. Lawrence delivered the incriminating tapes to Coale

at police headquarters on two successive days. Coale listened

to one tape on April 21 and the other tape on April 22, 1999.

He testified that "[a]fter she made this first tape, we told her

just to leave it alone and go back home, and we will see how the

case develops." He also told her "that she didn't have to make

any more tapes unless [appellant] called her . . . [yet] she

went ahead and apparently made [the second tape] anyway, and she

brought it in" on April 22, 1999. After hearing appellant's

audiotaped admissions that he did something to her car, Coale

obtained a search warrant.

The trial court admitted into evidence the audio cassette

tapes of the two telephone conversations. In doing so, it

focused its analysis on whether Lawrence "when she was speaking

to the defendant and the defendant ultimately made admissions to

her, whether or not she was an agent of the state . . . in

connection with this action." Although the police provided and

installed the equipment a month before the incriminating tapes

were recorded, the police instructed Lawrence "not to call the

defendant." After Lawrence provided the April 20 tape, Coale

again instructed Lawrence not to call appellant. By ignoring

those admonitions, the trial court found that Lawrence "acted on

her own" in contacting appellant at various times. According to

the trial court, Lawrence "did not follow the instructions of

the Arlington police" when she initiated calls. After listening

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to the testimony and evidence, including the taped

conversations, the trial court determined that Lawrence had a

"separate and independent reason to find" out who was doing

these things to her "wholly apart from whether or not there was

to be any prosecution." She wanted to allay her fears and

discover who was victimizing her. To that end, she wanted to

either identify or eliminate appellant as a suspect.

Applying by analogy case law involving Fourth Amendment

searches by private individuals, the trial court ruled that

Lawrence's purpose was not to assist law enforcement to

prosecute appellant but to further Lawrence's "own ends and

goals," namely, a desire to identify and stop the person who was

placing her in constant fear. The trial court further found

that the Commonwealth had minimal and infrequent involvement in

obtaining the taped statements.

Furthermore, the trial court ruled that, even if Lawrence

were an agent, appellant's incriminating statements were

voluntary and "were not the result of any coercion."

Analysis

Appellant puts forth two arguments regarding his

incriminating statements. He contends (1) that Lawrence "was

acting as an agent for the Commonwealth," and (2) his statements

to her were involuntary "because they were the result of

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coercion, [and] threats and, thus, were observed in violation of

his fifth and fourteenth amendment rights." 2

a. Government Agent

We have not previously addressed the proper method for

determining whether an individual is acting as an agent of the

state in the context of the Fifth Amendment. However, we agree

with the trial court's application of concepts and procedures

employed in prior case law involving searches and seizures by

persons alleged to be government agents. Therefore, we hold

that the analyses employed to determine whether an individual

acted as a state agent for Fourth Amendment purposes applies

equally to situations involving alleged Fifth Amendment

violations.

Accordingly, appellant bore the initial burden to establish

that Lawrence acted as a government agent in obtaining his

incriminating statements. See Debroux v. Commonwwealth, 32 Va.

App. 364, 371, 528 S.E.2d 151, 154 (2000) (alleging search by

state actors); see also Mills v. Commonwealth, 14 Va. App. 459,

464, 418 S.E.2d 718, 720 (1992) (when defendant alleges search

was conducted by state actor, it is defendant's burden to

2
We note initially that appellant does not and cannot argue
a Miranda violation because the warnings mandated by Miranda v.
Arizona, 384 U.S. 436, 467-73 (1966), intended to safeguard a
defendant's Fifth Amendment rights, are required only when there
is custodial interrogation. Because appellant was not in
custody when he made the incriminating statements, Miranda
warnings were not required.

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establish by preponderance of the evidence that private party

acted as government instrument or agent); Duarte v.

Commonwealth, 12 Va. App. 1023, 1025, 407 S.E.2d 41, 42 (1991)

(involving search of dormitory room by school official).

In Mills, 14 Va. App. at 461, 418 S.E.2d at 719, Mills

raised a Fourth Amendment challenge to a search conducted by a

private individual, Barlow, who was hired by Mills' parents to

repair a burglar alarm system in an Illinois home in which Mills

resided. Barlow found incriminating evidence in the house and

contacted local authorities, who contacted Virginia law

enforcement authorities investigating a murder of a police

officer. Id. at 462, 418 S.E.2d at 719. After learning of

Mills' involvement in the Virginia crime, the local sheriff

asked Barlow "'if he was going to go back in the [Mills']

residence, if he would observe and see if [the items he saw

initially] were still there.'" Id. Barlow had not completed

the job and had to return to Mills' residence. Id. While

there, he again saw the incriminating items and reported his

observations to the local sheriff, who obtained a search warrant

based, in part, on Barlow's information. Id.

Mills contended Barlow acted as an agent of the police in

conducting a warrantless search of his parents' house. Id. at

463, 418 S.E.2d at 720. We explained that "[t]he Fourth

Amendment acts only as a constraint upon government or state

action. . . . Consequently, a private search, no matter how

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unreasonable, does not constitute a constitutional violation

warranting suppression of the evidence seized." Id.

"Whether a person acted privately or as an agent of the

state is a question of fact that must be decided on the

circumstances of each case. Resolution of the agency issue

'necessarily turns on the degree of the Government's

participation in the private party's activities.'" Id. (quoting

Skinner v. Railway Executives' Ass'n, 489 U.S. 602, 614 (1989)).

See also United States v. Koenig, 856 F.2d 843, 847 n.1 (7th

Cir. 1988) (holding that question is essentially one of fact,

based on the particular circumstances, but the factual inquiry

is one guided by common law agency principles). Of critical

importance, for an agency relationship between a private citizen

and the government to exist, both parties must have manifested

their consent to that relationship, either expressly or by

necessary implication from their conduct. Id. While government

knowledge of the private person's conduct obviously is critical,

it is not enough, standing alone, to establish the requisite

agency. See United States v. Kinney, 953 F.2d 863, 865 (4th

Cir. 1992).

Relying on United States v. Feffer, 831 F.2d 734, 739 (7th

Cir. 1987), we adopted in Mills "a two-part test for determining

whether an individual was acting as an agent of the state while

conducting a search." Mills, 14 Va. App. at 463, 418 S.E.2d at

720. Under that test, a trial court looks at "(1) whether the

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government knew of and acquiesced in the search, and (2) whether

the search was conducted for the purpose of furthering the

private party's ends." Id. at 463-64, 418 S.E.2d at 720 (citing

Feffer, 831 F.2d at 739). "These [two] criteria help focus the

trial court's attention on the significance and impact of the

government involvement in a search." Id. at 464, 418 S.E.2d at

720. The United States Court of Appeals for the Ninth Circuit

has referred to the second prong or factor relating to "the

purpose of furthering the private party's ends" as "the intent

of the party performing" the activity. United States v.

Walther, 652 F.2d 788, 792 (9th Cir. 1981) (challenging search

by alleged agent). However, these two criteria or factors

"should not be viewed as an exclusive list of relevant factors."

Mills, 14 Va. App. at 464, 418 S.E.2d at 720. "Other factors

include whether the private party acted at the request of

government and whether the government offered a reward." United

States v. Smith, 27 F. Supp. 2d 1111, 1115 (C.D. Ill. 1998)

(involving search); see also United States v. Garlock, 19 F.3d

441, 443 (8th Cir. 1994) (defendant must show "the government

exercised such coercive power or such significant encouragement

that it is responsible" for the individual's conduct); Stone v.

Wingo, 416 F.2d 857, 860 (6th Cir. 1969) (actions of private

party are attributed to the state where "'parties act . . .

together in pursuance of some design or in accordance with some

scheme'"). The determination of a private party's status,

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however, "can only be resolved 'in light of all the

circumstances.'" Skinner, 489 U.S. at 614 (quoting Coolidge v.

New Hampshire, 403 U.S. 443, 487 (1971)).

Lawrence received anonymous phone calls, and someone cut

her brake lines, causing her to fear for her safety. She

explained in detail the state of fear in which she lived and the

steps she took to protect herself from this unknown, yet real,

threat. Detective Coale provided Lawrence with a tape recorder

and blank tapes, and he showed her how to use it. Although he

suggested that she initially contact appellant for his immediate

reaction to the incident with her car, he expressly advised her

not to contact appellant anymore after that time. Moreover, the

initial phone conversation yielded no incriminating information.

Lawrence testified that Coale directed her not to contact

appellant after her initial call. However, she ignored that

admonition and did so anyway. Her testimony clearly reveals her

desire to find out who was terrorizing her and to put an end to

it and regain a sense of peace.

Applying the above-described factors to the facts of this

case, the evidence supports the trial court's determination

that Lawrence did not act as an agent of the Commonwealth. The

record fails to show that Coale exercised influence or authority

over Lawrence or that they worked together to achieve some

common goal or plan. Lawrence was motivated by her sense of

fear and a desire to identify her unknown antagonist. She

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wanted to end the harassment, and to that end, she ignored

Coale's admonitions and independently telephoned appellant and

engaged him in conversations, which she recorded. Coale never

supervised Lawrence or directed her to do anything. In fact,

after hearing some early taped conversations, Coale directed

Lawrence not to contact appellant anymore because the

conversations failed to implicate appellant or further the

investigation. He exercised no control or authority over her

and offered no payment or reward. Moreover, Lawrence and Coale

did not share a common purpose or plan.

Viewing all of the evidence and applying the relevant

"agency" factors, we hold that the trial court's findings were

not plainly wrong or without evidence to support them.

Accordingly, the trial court did not err in finding that

Lawrence was not a government agent.

b. Voluntariness

After a party has satisfied his burden of proving "by a

preponderance of the evidence" that an individual was an agent

for the government, "the burden shifts to the Commonwealth to

establish that the [contested actions] were constitutionally

permissible." Debroux, 32 Va. App. at 371, 528 S.E.2d at 154

(citing Mills, 14 Va. App. at 464, 418 S.E.2d at 720).

The Fifth Amendment provides that no person
shall be deprived of life, liberty, or
property, without due process of law. The
admission of an involuntary confession
violates due process. A confession will be

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 found to be voluntary only if the government
can demonstrate that, under the totality of
the circumstances and by a preponderance of
the evidence, it was not secured by the
government through psychological or physical
intimidation, but rather was the product of
a rational intellect and free will.

United States v. D.F., 63 F.3d 671, 679 (7th Cir. 1995)

(emphasis added).

"The test for voluntariness derives from federal

constitutional law relating to the Fifth Amendment as applied to

the States through the Fourteenth Amendment." Rodgers v.

Commonwealth, 227 Va. 605, 609, 318 S.E.2d 298, 300 (1984).

"Our courts have consistently held that the protections afforded

under the Virginia Constitution are co-extensive with those in

the United States Constitution." Henry v. Commonwealth, 32 Va.

App. 547, 551, 529 S.E.2d 796, 798 (2000) (quoting Bennefield v.

Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311

(1996)). Therefore, our constitution provides no greater due

process rights than those granted under the Fifth Amendment of

the United States Constitution.

"Because only state action may violate a criminal

defendant's due process rights, 'coercive police activity is a

necessary predicate to the finding that a confession is not

"voluntary" within the meaning of the Due Process Clause of the

Fourteenth Amendment.'" Bottenfield v. Commonwealth, 25 Va.

App. 316, 323, 487 S.E.2d 883, 887 (1997) (quoting Colorado v.

Connelly, 479 U.S. 157, 167 (1986)).

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 In Connelly, the United States Supreme Court explained that

"the sole concern of the Fifth Amendment, on which Miranda was

based, is governmental coercion. Indeed, the Fifth Amendment

privilege is not concerned 'with moral or psychological

pressures to confess emanating from sources other than offical

coercion.'" 479 U.S. at 170 (quoting Oregon v. Elstad, 470 U.S.

298, 305 (1985)). The Court noted that "[w]hile each confession

case has turned on its own set of factors justifying the

conclusion that police conduct was oppressive, all have

contained a substantial element of coercive police conduct."

Id. at 163-64. "Absent police conduct causally related to the

confession, there is simply no basis for concluding that any

state actor has deprived a criminal defendant of due process of

law." Id. at 164. Thus, "coercive police activity is a

necessary predicate to the finding that a confession is not

'voluntary' within the meaning of the Due Process Clause." Id.

at 167. Moreover, "[t]he most outrageous behavior by a private

party seeking to secure evidence against a defendant does not

make that evidence inadmissible under the Due Process Clause."

Id. at 166.

Because the evidence supports the trial court's finding

that Lawrence was not acting as a government agent, the Due

Process Clauses of the Fifth and Fourteenth Amendments are not

implicated. Therefore, if police are not actively involved, a

confession obtained by a private party is deemed voluntary under

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the Due Process Clause of the Fifth Amendment, thereby obviating

a voluntariness analysis. See id. at 167 (holding that coercive

police activity is necessary predicate for finding that

confession is not voluntary); Commonwealth v. Cooper, 899 S.W.2d

75, 75 (Ky. 1995) (rejecting argument that state constitution or

common law required suppression of confession improperly

obtained by private party); Darghty v. State, 530 So. 2d 27, 31

(Miss. 1988) (conduct by third party will not vitiate

voluntariness confession); State v. Carroll, 645 A.2d 82, 85

(N.H. 1994) (holding that state constitution, which offered

greater protection than federal constitution with respect to

voluntariness, did not apply absent state action); State v.

McCullough, 784 P.2d 566, 568 (Wash. Ct. App. 1990) (rejecting

argument that state constitution applied where defendant

confessed to victim). Consequently, the trial court did not err

by denying appellant's motion to suppress his statements to

Lawrence.

2. ADMISSIBILITY OF THE STATEMENTS

a. Admission of Audiotapes/Due Process

Appellant contends the "trial court erred in determining

that audiotaped statements made by Mr. Sabo were admissible when

they contained erasures, edits and intentional deletions." He

argues that the omission of certain portions of the

conversations "required the trial court to find the statement

involuntary and the tapes inadmissible." Because Lawrence was

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not a state actor, the issue of the voluntariness of appellant's

confession is not an issue. Accordingly, we do not address this

contention.

b. Foundation for Admission of Tapes

"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."

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988). "A proper foundation must be laid for the introduction

of all evidence. The burden is upon the party offering real

evidence to show with reasonable certainty that there has been

no alteration or substitution of it." Horsley v. Commonwealth,

2 Va. App. 335, 338, 343 S.E.2d 389, 390 (1986); see also

Charles E. Friend, The Law of Evidence in Virginia § 13-5, at

467 (5th ed. 1999).

Lawrence testified that the tapes contained a true and

accurate rendering of the portions of the conversations taped.

Although asserting that relevant portions of his conversations

with Lawrence had not been taped, appellant conceded on

cross-examination that he made the statements contained on the

tapes. Lawrence explained that she would use a tape until it

was full, then insert another tape. She also acknowledged

pausing the recorder during some personal or unimportant

conversations and taping over previous conversations when she

needed additional tape and had no blank ones. However, there

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was no evidence that Lawrence or the police altered or tampered

with the tapes. The fact that Lawrence did not tape her

conversations in toto and that she taped over other

conversations went to the weight and not the admissibility of

the tapes. Lawrence was subjected to cross-examination

regarding the tapes, and appellant was able to testify regarding

statements made by the parties that were not recorded.

Moreover, appellant explained in his testimony that Lawrence

failed to record threats she made to him that prompted him to

falsely admit tampering with her car. Accordingly, the trial

court did not err in admitting this evidence. 3

3. DR. BRANTLEY'S TESTIMONY

Appellant contends the trial court erred in refusing to

allow the jury to hear the testimony of Dr. Brantley,

appellant's psychiatrist. He prefaces his argument by stating

that "[t]he trial court's determination of admissibility does

not preclude the defendant from proving at trial that those

statements were involuntarily made."

At the suppression hearing, the trial court refused to

allow Dr. Brantley to testify and render an opinion as to

appellant's "mental condition" based on Dr. Brantley's

"listening to those tapes." Appellant objected, stating, "it's

3
Appellant also contends admitting the tapes "violated
[his] Due Process Rights." Appellant did not make this argument
in the trial court; therefore, we will not address it for the
first time on appeal. Rule 5A:18.

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essential that this expert be permitted to testify at least to

the susceptibility of the defendant's being overborne." The

trial court explained:

I'm not going to let him say I listened to
the tapes, and based upon my understanding
of them and my listening to them that his
will was overborne.

That's the only thing you can be asking
about, and I am not going to let him testify
about that. I've already ruled on that.

I will be the one listening to the
tapes and making the determination. And the
issue, the testimony of this doctor should
center around his visits with the defendant
in March and April of 1999, what his
condition was and what the treatment was and
how that affected his daily life.

Appellant's attorney noted his exception to the trial

court's ruling and proffered that Dr. Brantley listened to the

tapes and would testify that he

talked with the defendant about the feelings
that the defendant had while that tape was
being made, and that the doctor would say
with a reasonable degree of medical
certainty that the defendant was overborne
and that he would admit something that was
not true. . . . The doctor would certinly
testify that he was more susceptible to
being overborne and to making such an
involuntary admission.

The trial court accepted the proffer but indicated "it will

not be considered in the matter as evidence."

At trial, appellant testified at length about his personal

problems and his mental and emotional condition in 1998 and

1999. He described the up-and-down, often volatile,

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relationship he had with Lawrence. He indicated that she

continually threatened him when she did not get her way, warning

him that she would contact his ex-wife and their former boss.

Appellant explained that he suffered from depression and anxiety

for which his doctor prescribed Prozac and Xanax. He denied

doing anything to her car and testified that he only admitted

doing something because of her persistent and relentless

threats.

After appellant's testimony, appellant's attorney proffered

"the direct testimony" of Dr. Brantley from the suppression

hearing. In addition, he made the following proffer:

The testimony would be that Dr. Julian
Brantley saw and treated Kevin Sabo on March
12, March 22, March 29, April 7, April 13,
and April 30 of 1999.

In addition, he saw him and treated him
on August 16, August 23, August 27. All in
1999.

On the occasion of the August visits,
Dr. Brantley will testify that he listened
to the tapes . . . and that based upon his
earlier treatment and meetings with Mr. Sabo
in March and his review of the tapes in
August, he would say with a reasonable
degree of medical certainty that it is his
opinion that the admissions were made by Mr.
Sabo on the tapes that were played before
the jury as a result of being overborne.

And further, he would say with a
reasonable degree of medical certainty that
at the time the conversation occurred and
the tapes were made that Mr. Sabo was
susceptible to being overborne by Miss
Lawrence for the reasons that he articulated

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 in the testimony and for the reasons made in
the proffer.

Because of the trial court's ruling that Lawrence was not a

state actor, the issue of the voluntariness of appellant's

confession was no longer an issue at trial. Therefore,

Dr. Brantley's opinion testimony about appellant's will being

overborne was not relevant. Moreover, appellant testified in

detail about his mental state and indicated that he only

admitted wrongdoing to appease Lawrence and because of her

serious threats. Therefore, Dr. Brantley's testimony would also

have constituted an improper opinion as to the veracity of a

witness. See Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292

S.E.2d 798, 806 (1982).

Furthermore, appellant chose to limit Dr. Brantley's

testimony to rendering an expert opinion of appellant's

susceptibility to his will being overborne based on listening to

the tapes. He never asked Dr. Brantley to explain to the jury

the clinical conditions from which appellant suffered, his

general mental condition, the amount and type of prescription

drugs appellant took and the effect those drugs and personal

events would have on a person with such a condition. In other

words, appellant did not attempt to attack the weight and

reliability of the taped conversation. Cf. Pritchett v.

Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208 (2002)

(holding expert testimony about defendant's mental disorder

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admissible so long as expert does not opine on the truth of the

statement at issue). Instead, he chose to limit Dr. Brantley's

testimony to rendering an expert opinion as to the voluntariness

of appellant's statements based on hearing the tapes and

speaking with appellant after the fact.

Finally, Dr. Brantley's opinion that appellant's will was

overborne would have constituted both an improper comment on the

earlier legal determination made by the trial court in the

suppression motion and an invasion of the jury's function to

determine whether appellant told Lawrence the truth when he made

his admissions.

Expert testimony concerning matters of
common knowledge or matters as to which the
jury are as competent to form an opinion as
the witness is inadmissible. Where the
facts and circumstances shown in evidence
are such that men of ordinary intelligence
are capable of comprehending them, forming
an intelligent opinion about them, and
drawing their own conclusions therefrom, the
opinion of an expert based upon such facts
and circumstances is inadmissible.

Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797,

803-04 (1979), cert. denied, 444 U.S. 1103 (1980). See also

Patterson v. Commonwealth, 3 Va. App. 1, 10, 348 S.E.2d 285, 290

(1986).

Accordingly, the trial court did not abuse its discretion

in refusing to allow Dr. Brantley's testimony.

- 22 -
 For the foregoing reasons, the judgment of the trial court

is affirmed.

Affirmed.

- 23 -
Benton, J., dissenting.

For the reasons that follow I would reverse the conviction

and remand for a new trial.

I.

It is now well "recognize[d] that the government can

exercise such control over a private actor that a 'private'

action can fairly be attributed to the government for purposes

of the . . . Fifth Amendment." United States v. Garlock, 19

F.3d 441, 443 (8th Cir. 1994). "Whether a private party should

be deemed an agent or instrument of the Government for [Fifth]

Amendment purposes necessarily turns on the degree of the

Government's participation in the private party's activities, a

question that can only be resolved 'in light of all the

circumstances.'" Skinner v. Railway Labor Executives' Ass'n,

489 U.S. 602, 614 (1989). In conducting this analysis, "the

ultimate question whether a private person is actually a

government agent . . . [is] a question that requires the

application of a legal concept (agency) to facts." United

States v. Martin, 195 F.3d 961, 963 (7th Cir. 1999). Employing

the usual standard, this legal determination of agency is

subject to de novo review on appeal. See Ornelas v. United

States, 517 U.S. 690, 699 (1996).

The evidence in the record established very clearly that

the police initiated the process leading to the recording of

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Sabo's conversations with Lawrence, that the police provided

Lawrence with a tape recorder so she could record her

conversations with Sabo, that the police did so for the purpose

of furthering their investigation, and that the police used

Lawrence as their surrogate in effecting the ends of their

investigation. The trial judge's conclusion that the "minimal"

involvement of the police was insufficient to prove Lawrence was

an agent of the police is not supported by the evidence.

The evidence proved that the only information the police

had concerning the identity of the person who tampered with

Lawrence's vehicle was Lawrence's suspicion that Sabo was

involved. The police, however, did not contact Sabo. Instead,

they decided to use Lawrence as the means of investigating

Sabo's involvement. To facilitate the police investigation, the

detective instructed Lawrence, who had left her apartment and

was staying with her mother, to move back into her apartment.

There, the detective supplied Lawrence with a tape recorder,

which he had obtained from the police department. He installed

the recorder on her telephone and tested it by making calls to

the police communication section. Initially, he gave Lawrence

six tapes, instructed her in the manner of recording, and told

her to record conversations "that would be useful to [the]

investigation."

There is no conflict between Lawrence's trial testimony and

the detective's. Lawrence testified that the detective knew

- 25 -
Sabo had not contacted her after the accident and that the

detective suggested she call Sabo to record his reaction to the

accident. The detective testified, "I don't remember whether I

told her specifically not to call him or not." After Lawrence

had recorded several of her conversations with Sabo from her

home telephone and delivered them to the police, the detective

gave her an additional recording device for use on her telephone

at her place of employment. Thus, the government instigated

Lawrence's activities and directed her use of the recorder for

the specific purposes of eliciting admissions from Sabo.

This investigation to record Sabo's conversations was the

brainchild of the police. Lawrence had not contacted Sabo after

her accident and had not been contacted by him. No evidence

proved Lawrence was pursuing any private interest. Indeed, she

moved back to her apartment, where she had access to her

telephone, solely at the suggestion of the detective. In so

doing and making the recordings, she was vindicating the

interest of the government and functioning in the manner

directed by the government.

Furthermore, the police removed any technical barriers that

Lawrence may have encountered in locating or installing the

equipment. The detective tacitly assured Lawrence that her

conduct in recording the calls was lawful. By instructing

Lawrence to initiate the first telephone call, the detective

strategically set in motion the circumstance that generated

- 26 -
return calls from Sabo to Lawrence. Cf. Corngold v. United

States, 367 F.2d 1, 5-6 (9th Cir. 1966) (noting that the

government requested a private person to open a package in a

particular person's possession). Moreover, when the police

supplied the recording equipment, installed the device,

furnished the tapes, and instructed Lawrence to call Sabo,

Lawrence needed only to activate the record button and talk to

Sabo. "The fact that the Government has not compelled a private

party to perform [the questioned act] does not, by itself,

establish that the [act] is a private one." Skinner, 489 U.S.

at 615.

The notion that Lawrence was not acting as a government

agent because Sabo later initiated telephone calls to her is

fanciful in view of the detective's initial direction to

Lawrence to make the first call to Sabo. Although the detective

told Lawrence to make the call to judge Sabo's reaction, the

inevitable and reasonably expected consequence of her telephone

call was to initiate a dialogue with Sabo about the event that

was the focus of the investigation. It is of minimal relevance

to the inquiry that the detective told Lawrence not to initiate

calls to Sabo after she made the initial call. When Lawrence

followed the detective's instruction to place the initial call

to Sabo, she set in motion the desired circumstances to cause

return calls. Lawrence already had informed the detective of

the nature of her relationship with Sabo and of Sabo's

- 27 -
depression. Under those circumstances, who initiated the

resulting calls after Lawrence made the first call has no

bearing on the issue whether Lawrence was a government agent.

Likewise, the notion that Lawrence somehow was acting on a

private venture when she recorded the conversations with Sabo is

not supported by the evidence. The detective installed the

recording equipment on Lawrence's telephone. Thus, when

Lawrence called to elicit conversation that she could record,

she was acting well within the scope of the circumstances the

detective set into motion. The detective made plain his

preference for her initiation of the telephone dialogue. By

telling Lawrence he wanted to get Sabo's reaction to the

accident, he also undisputedly manifested that this was a means

of obtaining incriminating admissions from Sabo. Indeed, after

Lawrence delivered tapes of her conversations with Sabo, the

police gave her another recording device to use on the telephone

at her place of employment. We held in Abunaaj v. Commonwealth,

28 Va. App. 47, 502 S.E.2d 135 (1998), that a rape complainant

who voluntarily made a telephone call to a suspect, which was

recorded by the police, was acting in "compliance with police

requests[, which] effectively made her an agent of the police."

Id. at 54, 502 S.E.2d at 139.

I would hold that this record contains clear and

unequivocal evidence of the government's "encouragement,

endorsement, and participation" in Lawrence's activity of

- 28 -
eliciting admissions from Sabo and recording them. Skinner, 489

U.S. at 615-16. This evidence was sufficient to prove she was a

police agent and to implicate the Fifth Amendment.

II.

When the evidence proves that a private party has acted as

a government agent in procuring evidence, the burden shifts to

the government to prove the evidence was obtained by

constitutionally permissible means. Debroux v. Commonwealth, 32

Va. App. 364, 371, 528 S.E.2d 151, 154 (2000). "It is without

dispute that in Virginia the burden is upon the Commonwealth to

prove that a confession is voluntary." McCoy v. Commonwealth,

206 Va. 470, 474, 144 S.E.2d 303, 307 (1965).

The Fifth Amendment provides that no person
shall be deprived of life, liberty, or
property, without due process of law. The
admission of an involuntary confession
violates due process. A confession will be
found to be voluntary only if the government
can demonstrate that, under the totality of
the circumstances and by a preponderance of
the evidence, it was not secured by the
government through psychological or physical
intimidation, but rather was the product of
a rational intellect and free will.

United States v. D.F., 63 F.3d 671, 679 (7th Cir. 1995)

(emphasis added). The ultimate issue whether a statement is

voluntary is a legal question. Miller v. Fenton, 474 U.S. 104,

110 (1985).

The principle is well established that a promise to

withhold prosecution in exchange for a confession is the type of

- 29 -
duress that renders a statement involuntary. See Hammer v.

Commonwealth, 207 Va. 135, 147-48, 148 S.E.2d 878, 885 (1966).

Likewise, threats to interfere with an individual's custody of a

child as a means to elicit an admission will cause a confession

to "be deemed not voluntary, but coerced." Lynumn v. Illinois,

372 U.S. 528, 534 (1963). In addition, "sympathy falsely

aroused" is a factor in determining whether an induced

confession is involuntary. Spano v. New York, 360 U.S. 315, 323

(1959).

Lawrence testified that she "was after an admission" and

worked hard to elicit an admission. To induce Sabo to make

admissions, Lawrence told him she "would not bring in law

enforcement if he gave an admission." Lawrence testified that

she was "giving [Sabo] an opportunity" to make an admission by

promising not to pursue any criminal action. The tapes also

disclose that Lawrence threatened to publicize her romantic

affair with Sabo and threatened that the publicity could cause

him to be "disbarred" and to lose his "political appointment."

She promised to withhold her actions if he talked to her and

admitted tampering with her vehicle. Explaining her calls, she

testified about her conversations with Sabo as follows:

I said, if this were to come out that you
have done an illegal act, this could –- like
what we're facing right now –- this could
affect his career. This could affect his
political appointment. This could affect
his visitation with his daughter.

- 30 -
 Not that I wanted him to tell me that.
But that if he told me what he had done,
then I would go away, yes.

When Lawrence engaged in this activity, she knew Sabo had

been diagnosed with depression and was taking medication to

combat that illness. Pretending to be his confidant, she

promised to "do whatever you need me to do to help you with

this." She promised Sabo that if he admitted tampering with her

vehicle she would not pursue civil or criminal charges. She

also promised not to carry through on the threats to damage his

personal, employment, or political life. It is self-evident

that "[t]he government may not do, through a private individual,

that which it is otherwise forbidden to do." United States v.

Feffer, 831 F.2d 734, 737 (7th Cir. 1987).

I would hold that this evidence proved that Sabo's

admissions were obtained by duress, threats, and sympathy

falsely aroused and, thus, failed to prove Sabo's admissions

were voluntary.

III.

I would also hold that the trial judge improperly excluded

the testimony of Dr. Julian Brantley. While I agree with the

majority opinion that portions of the proffered testimony of

Dr. Brantley would have been improper, I disagree that all of

Dr. Brantley's testimony was inadmissible.

On the day of trial, the prosecutor challenged whether

Dr. Brantley's testimony was relevant to any issue at trial. In

- 31 -
response, Sabo's attorney argued that "[t]he issue for the Court

at the suppression hearing was the admissibility of the

statements to be made," but that the issue remaining at trial

was "the weight that [the statements] should receive." He then

informed the judge as follows:

Dr. Brantley would [testify] that . . .
[Sabo] said what he said because he was
depressed. He was suffering from acute
anxiety disorder.

And[,] he would testify as to the
conditions that are accompanying those
disorders, and that [Sabo] was overborne or
more susceptible to being overborne than a
normal person would have been.

After considering the arguments, the judge made the

following ruling:

I don't think Dr. Brantley can get up
here and testify.

I've certainly heard his testimony from
before, that because of [Sabo's] condition
what [Lawrence] said overbore his free will
and therefore the statements were not made
voluntarily.

I think I've already ruled on that as a
matter of law. And I don't think that it's
an appropriate subject before the jury.

He made the statements. Certainly,
there's enough on those tapes from what I
heard to indicate that it was not
necessarily a spontaneous utterance.

During the trial, Sabo's attorney made an additional proffer.

The trial judge simply noted the proffer for the record.

- 32 -
 Citing Crane v. Kentucky, 476 U.S. 683 (1986), the Supreme

Court of Virginia recently reaffirmed the principle that

"[w]hile the [trial judge] has the duty to determine whether [a

defendant's] confession was voluntary, it is the jury's duty to

consider its reliability." Pritchett v. Commonwealth, 263 Va.

182, 186, 557 S.E.2d 205, 208 (2002). Crane explicitly

recognized the following principle:

[R]egardless of whether the defendant
marshalled the same evidence earlier in
support of an unsuccessful motion to
suppress, and entirely independent of any
questions of voluntariness, a defendant's
case may stand or fall on his ability to
convince the jury that the manner in which
the confession was obtained casts doubt on
its credibility."

475 U.S. at 689. Thus, the defendant is entitled to have the

jury consider circumstances bearing upon the weight to be given

to his or her confession and its reliability. Id. In

particular, and as pertinent to this case, the Supreme Court

noted in Crane that "the . . . psychological environment that

yielded the confession can . . . be of substantial relevance to

the ultimate factual issue of the defendant's guilt or

innocence." Id.

In Pritchett, the Supreme Court held that a defendant is

"entitled to introduce admissible evidence to assist the jury in

determining whether the confession was reliable." 263 Va. at

186, 557 S.E.2d at 208. Accordingly, the trial judge erred in

ruling that because she had ruled on the issue of voluntariness,

- 33 -
Dr. Brantley's testimony was not "an appropriate subject before

the jury."

Furthermore, Dr. Brantley's testimony at the suppression

hearing and the proffer of his testimony establish that he was

prepared to testify about Sabo's depression and the

manifestations of his depression on his ability to function.

"Expert testimony is admissible if the area of expertise to

which the expert will testify is not within the range of the

common experience of the jury." Id. at 186-87, 557 S.E.2d at

208. Portions of Dr. Brantley's testimony were offered

particularly to explain to the jury the symptoms of Sabo's

illness and to explain that the illness would cause Sabo to

exhibit poor judgment.

Dr. Brantley testified at the suppression hearing that he

had treated Sabo in March and April of 1999 and that his

diagnosis was that Sabo "has a chronic depressive illness which

was typical of depression." Dr. Brantley testified that Sabo's

"depressive illness was characterized by depressed mood, sad

mood, despondent mood, feelings of worthlessness, helpless,

hopelessness, a very pessimistic outlook for the future,

difficulties maintaining concentration and feeling of --

unrealistic feelings of guilt, extreme feelings of guilt, often

unrealistic in this case, as well as suicidal ideation." Dr.

Brantley also said that "[a]s a symptom of his overall weakened

state of mind, weakened by his depressive illness and anxiety,

- 34 -
Mr. Sabo demonstrated to me impairments in his executive -- what

we call ego functioning. And poor judgement."

In addition, Sabo's attorney proffered at the suppression

hearing that Dr. Brantley "would certainly testify that [Sabo]

was more susceptible to being overborne and to making such an

involuntary admission." At the trial, he added to the proffer

that Dr. Brantley "further, . . . would say with a reasonable

degree of medical certainty that at the time the conversation

occurred and the tapes were made that Mr. Sabo was susceptible

to being overborne by Miss Lawrence for the reasons that he

articulated in the testimony and for the reasons made in the

proffer."

The testimony of Dr. Brantley concerned a matter that is

beyond the normal province of a jury and was offered to explain

to the jury Sabo's mental illness. His testimony would have

also given the jury an understanding of how Sabo's illness

affected his susceptability to the threats and intimidation. As

the Court held in Pritchett, "an expert may testify to a

witness's or defendant's mental disorder and the hypothetical

effect of that disorder on a person in the witness's or

defendant's situation." Id. at 187, 557 S.E.2d at 208.

The error in not permitting the expert to testify

concerning Sabo's illness was not harmless error. Although Sabo

attempted to describe his illness for the jury, his testimony

did not have the same effect of an expert who could more

- 35 -
accurately explain Sabo's mental state and its effect on his

functioning. Furthermore, while Sabo's statement and

characterization of his illness may have been viewed by the jury

as self-serving, Dr. Brantley's testimony and description of the

illness would not have been so perceived and could have provided

enhanced reliability for the jury to consider. Therefore, I

would hold the judge committed reversible error in not allowing

portions of Dr. Brantley's testimony.

IV.

For these reasons, I would hold that Lawrence was acting as

an agent of the police when she recorded her conversations with

Sabo and, further, that the evidence failed to prove Sabo's

admissions were voluntary. In addition, I would hold that the

trial judge erred in excluding Dr. Brantley's testimony.

Accordingly, I would reverse the conviction and remand for a new

trial.

- 36 -