COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
CHARLES AARON ARTHUR
OPINION BY
v. Record No. 1609-95-1 JUDGE WILLIAM H. HODGES
FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Robert W. Stewart, Judge
I. Lionel Hancock, III (Robert L. Bohannon;
Bohannon, Bohannon & Hancock, P.C., on
briefs), for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Charles Aaron Arthur (appellant) was convicted of murder.
He contends on appeal that the trial court erred in denying the
motion to suppress his confession where he gave an inculpatory
statement only after the police created and showed him falsified
fingerprint and DNA reports implicating him in the crime. We
disagree and affirm the conviction.
I.
Catherine Benson was beaten to death on August 24, 1993, in
the home of Jerry Hartley, where she worked as a part-time
housekeeper. Police discovered blood in a bathroom sink, and,
although neither Benson nor Hartley smoked, a red Bic cigarette
lighter was found near the body. No identifiable fingerprints,
other than the victim's and the homeowner's were found at the
scene, and no signs of forcible entry were evident.
At 2:30 a.m. on August 25, police stopped appellant as he
drove Benson's pickup truck. Appellant identified himself as
Benson's boyfriend and said he was driving to her job because she
had not returned home the previous evening, as expected.
Appellant told the police that he had been to Hartley's home at
9:00 p.m., had seen Benson's car in the driveway, and had assumed
she was out to dinner with Hartley. Appellant said he had never
been inside Hartley's home. Police did not suspect appellant of
the murder and made arrangements to take him to the medical
examiner's office to identify the body.
At the medical examiner's office, appellant, contrary to his
earlier statement, said that he had been inside Hartley's house
the day before, to use the bathroom. Detective Myers told
appellant that he was a suspect, that forensic evidence had been
sent for analysis, and that the police would contact him again.
Appellant denied that he killed Benson.
On November 9, 1993, appellant again was interviewed by the
police. He continued to deny involvement in the murder.
Although some of the lab reports had been returned, they did not
implicate appellant. Myers told appellant only that all of the
forensic reports had not come back from the lab. The remaining
reports, however, did not implicate appellant in the murder.
Police prepared "dummy" reports, indicating that a
fingerprint on the Bic lighter was appellant's and that hair
found in a drop of blood at the scene was his. Police kept the
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false documents in a file separate from the actual investigative
documents and lab reports. At an interview on March 24, 1994,
Myers told appellant that lab reports showed his hair had been
found at the scene, in the victim's blood, and that his
fingerprint had been identified on the lighter. Myers put the
false documents where appellant could read some of their
contents.
The detective asked appellant how his hair and fingerprint
could be at the scene, and suggested that either appellant had
found Benson's body, become frightened and left, was present when
Benson was killed, or was the killer. Appellant, reiterating his
earlier statements to the police, denied that he had been at the
murder scene.
Myers then told appellant that the police believed that he
loved Benson and that the killing was unintentional. The
detective said that the victim's family knew appellant was a
suspect, knew he loved the victim, but wanted to know why the
killing had happened. At that point, a teary-eyed appellant
described how he had killed Benson. Police tape-recorded
appellant's confession. Appellant initialed each page of the
transcription of the tape and signed the last page. At the
detective's suggestion, appellant, alone in the interrogation
room, wrote a letter to Benson's parents, in which he apologized
and asked for forgiveness.
The trial court held a hearing on appellant's motion to
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suppress his statements. Applying the totality of the
circumstances test, the judge found the confession was voluntary
and denied the motion.
II.
The Commonwealth must prove, by a preponderance of the
evidence, that an accused's confession was freely and voluntarily
made. Wilson v. Commonwealth, 13 Va. App. 549, 554, 413 S.E.2d
655, 658 (1992). If the accused's "'will has been overborne and
his capacity for self-determination critically impaired,' the
confession is considered involuntary and its use is
unconstitutional." Midkiff v. Commonwealth, 250 Va. 262, 268,
462 S.E.2d 112, 116 (1995) (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 225 (1973)).
The test of voluntariness is whether,
considering the totality of the
circumstances, the confession was "the
product of an essentially free and
unconstrained choice by its maker." In
assessing the surrounding circumstances,
courts will consider the defendant's
background and the details of the
interrogation.
Id. at 269, 462 S.E.2d at 116 (citation omitted).
The voluntariness of a confession "is a question of law,
subject to independent appellate review." Id. at 268-69, 462
S.E.2d at 116. This Court must "conduct an independent review"
of the question. Wilson, 13 Va. App. at 551, 413 S.E.2d at 656.
We are bound, however, by "the trial court's subsidiary factual
findings unless those findings are plainly wrong." Id.
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Virginia appellate courts consistently have held that a lie
by a law enforcement officer "does not, in and of itself, require
a finding that a resulting confession was involuntary." Rodgers
v. Commonwealth, 227 Va. 605, 616, 318 S.E.2d 298, 304 (1984).
See, e.g., Smith v. Commonwealth, 219 Va. 455, 469, 248 S.E.2d
135, 144 (1978), cert. denied, 441 U.S. 967 (1979); Novak v.
Commonwealth, 20 Va. App. 373, 380, 457 S.E.2d 402, 405 (1995).
In Wilson, we stated:
A deliberate falsehood by a police officer in
the course of his duties may undermine the
respect that significant segments of the
public may have for law enforcement and the
system of justice. This concern, however, is
not the basis upon which we must determine if
the police have obtained an involuntary
confession.
Wilson, 13 Va. App. at 554, 413 S.E.2d at 658. A falsehood by
the police "is only one factor that must be considered in
determining whether [the defendant's] will was overcome and his
capacity for self-determination critically impaired." Id.
Appellant concedes that a verbal lie by the police does not,
in itself, invalidate a confession. He invites us, however, to
draw a "bright line" where false documents are used. We reject
that invitation in favor of application of the totality of the
circumstances test. 1
1
In Sheriff, Washoe County v. Bessey, 914 P.2d 618 (Nev.
1996), the Nevada Supreme Court refused to draw such a "bright
line" in a case involving falsified reports of semen stains.
Applying the totality of the circumstances test, the court found
Bessey's confession was voluntary. But see State v. Cayward, 552
So. 2d 971 (Fla. Dist. Ct. App. 1989), review dismissed, 562 So.
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III.
As the trial judge observed, appellant was a man of normal
intelligence, serving in the Navy, and living on his own. There
was no indication that he was under the influence of any
substance of any kind at the time of the confession. The trial
judge noted that appellant had been advised of his rights on more
than one occasion, including at this interview, and had not
requested an attorney. He was fully able to make choices; he had
been interviewed several times prior to the March 24 interview,
had refused to incriminate himself, and each time had been
permitted to leave.
The officers did not threaten appellant, make promises to
him, or deprive him of food, water or use of restroom facilities.
The officers did not emphasize the evidence they had, their
ability to get a conviction, or the punishment appellant might
receive if convicted. Myers testified that he deliberately
suggested ways which the evidence might be at the scene without
appellant having been the actual killer.
Furthermore, appellant did not immediately confess after
being shown the "dummy" reports, but admitted his involvement
only after the detective later told him that the victim's parents
wanted to know why the killing had happened. Finally, appellant
confessed several times. He made a statement orally to the
2d 347 (Fla. 1990) (court drew "bright line" between verbal lie
and false written report and found that latter offended
traditional notions of due process).
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police, gave a taped statement, signed the written transcription
of his statement, and wrote a letter, in private, to the victim's
parents.
Upon our independent review of the voluntariness of
appellant's confession, we conclude that the use of the
fabricated fingerprint and DNA reports did not overcome
appellant's will or critically impair his capacity for
self-determination. Therefore, we affirm the conviction.
Affirmed.
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