Deborah L Davis v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: November 12, 2002
• Docket: 2043011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Frank and Kelsey Argued at Chesapeake, Virginia

DEBORAH L. DAVIS MEMORANDUM OPINION * BY v. Record No. 2043-01-1 JUDGE JAMES W. BENTON, JR. NOVEMBER 12, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge

Stephen K. Smith for appellant.

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

The trial judge convicted Deborah L. Davis of four counts

of burglary, two counts of attempted burglary, four counts of

grand larceny, and possession of burglary tools. Davis contends

the trial judge erred in finding her confession was voluntary

and refusing her motion to suppress her confession. We affirm

the convictions.

I.

At the hearing on Davis's motion to suppress, the evidence

proved that shortly before 2:00 a.m. several officers saw Davis

leave her vehicle, approach the door of a retail cleaners, and

tamper with the locked door. After she dislodged two pipes that

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. secured the door, the door opened. Davis then ran to her

vehicle and began to drive away.

After the officers signaled Davis to stop and approached

her vehicle, the officers saw various tools on the front

passenger seat. They arrested Davis and informed her of her

Miranda rights. During the ensuing questioning, Detective

Richard Moore informed Davis of burglaries at other cleaners.

Davis denied any involvement in those break-ins. The detective

said to Davis, "it's best to go ahead and come clean, get this

off your chest, . . . get the best deal possible." The

detective also told Davis he would not be able to promise her

anything, but that the Commonwealth Attorney's Office would make

that decision. At that point, Davis asked the detective if he

would get cigarettes from her purse in her vehicle. When the

detective looked in her purse, he saw a vial containing a white

powder. Based on his experience, the detective recognized the

vial as a container used to store cocaine and believed the

powder was cocaine.

As Davis smoked a cigarette, the detective started to talk

to her again, saying he was "trying to figure out whether . . .

another burglar [was] out here that's breaking into these stores

or whether this is going to end." Davis responded, "I can

promise that . . . there will not be any more break-ins after

tonight." When Davis finished her cigarette, the detective gave

her a pen and paper and said, "Well, why don't you go ahead and

- 2 - give me a confession because you've basically confessed to me

that you did break into the other stores." Davis smiled, told

the detective he was "pretty smart," laughed, and said she

might, or might not, give him a statement.

The detective then showed Davis the vial containing the

white powder and asked whether she wanted to talk about it and

whether she wanted him to send it to the laboratory. Davis

responded, "Oh, shit" and mumbled something to herself, which

included the word "stupid." Davis then said, "Listen, I was

going to give you the statement, but after I give you the

statement, will you make sure that that disappears?" The

detective replied, "Well, you know, sure." Davis then confessed

in writing to four burglaries, two attempted burglaries, and

larcenies from the four burglaries.

The trial judge found that Davis's statements were

voluntary, uncoerced, and intelligently made. He, therefore,

denied the motion to suppress. At the conclusion of the trial,

he convicted Davis of four counts of burglary, two counts of

attempted burglary, four counts of grand larceny, and possession

of burglary tools.

II.

"The Commonwealth has the burden to prove, by a

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

freely and voluntarily given." Bottenfield v. Commonwealth, 25

Va. App. 316, 323, 487 S.E.2d 883, 886 (1997). "In assessing

- 3 - voluntariness, the court must determine whether 'the statement

is the "product of an essentially free and unconstrained choice

by its maker," or . . . whether the maker's will "has been

overborne and his capacity for self-determination critically

impaired."'" Roberts v. Commonwealth, 18 Va. App. 554, 557, 445

S.E.2d 709, 711 (1994) (citations omitted). The voluntariness

issue is a question of law requiring an independent

determination on appeal. Miller v. Fenton, 474 U.S. 104, 110

(1985); Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d

655, 656 (1992). In making that independent determination,

however, "we are bound by the trial [judge's] subsidiary factual

findings unless those findings are plainly wrong." Id.

Davis's claim is a narrow one; she contends her "confession

was an involuntary statement because it was obtained by a

promise of leniency . . . [when Detective] Moore promised not to

charge [her] with possession of cocaine if she confessed to all

of the other break-ins and grand larcenies." In determining the

validity of her claim, we examine the "totality of

circumstances." Withrow v. Williams, 507 U.S. 680, 689 (1993).

Thus, we have held that when the conduct of the police is

questioned, we "must consider the interrogation techniques

employed, including evidence of trickery and deceit,

psychological pressure, threats or promises of leniency, and

duration and circumstances of the interrogation." Terrell v.

Commonwealth, 12 Va. App. 285, 291, 403 S.E.2d 387, 390 (1991).

- 4 - Standing alone, however, a promise of leniency generally is

insufficient to support a finding that the accused's will was

overborne. See Harrison v. Commonwealth, 3 Va. App. 260, 266,

349 S.E.2d 167, 170 (1986).

The evidence proved that after the officers informed Davis

of her Miranda rights, she spoke with the detective without

objection. The evidence further suggests that despite the

arrest, she was not in discomfort. The detective characterized

Davis's demeanor during the discussion as "smiles and giggles"

until he showed her the vial he found in her purse. At that

point, Davis, not the detective, initiated the suggestion of a

quid pro quo. These circumstances are not indicative of police

coercion and do not, without more, contain indicia of

involuntariness. The circumstances suggest Davis weighed the

alternatives and sought to lessen her criminal exposure by

cooperation. See Bailey v. Commonwealth, 20 Va. App. 236,

239-40, 456 S.E.2d 144, 145-46 (1995). These facts do not

support a conclusion that the detective's response to Davis's

request for leniency was impermissible or that Davis's will was

overborne. We hold that the trial judge did not err in ruling

that Davis's confession was voluntary.

Accordingly, we affirm the trial judge's ruling and the

judgment.

Affirmed.

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