COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner Argued at Salem, Virginia
LIVINGSTON PRITCHETT, III, S/K/A LIVINGSTON BUD PRITCHETT, III MEMORANDUM OPINION * BY v. Record No. 1430-99-3 JUDGE RUDOLPH BUMGARDNER, III DECEMBER 12, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Ray W. Grubbs, Judge
Cliff Harrison (James C. Turk, Jr.; Frederick M. Kellerman, Jr.; Stone, Harrison & Turk, P.C.; Long, Long & Kellerman, P.C., on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Livingston Pritchett, III was indicted for capital murder,
use of a firearm in the commission of a murder, robbery, and use
of a firearm in the commission of robbery. A jury convicted him
of first degree murder and of each of the related charges. The
defendant contends that his rights under Miranda v. Arizona, 384
U.S. 436 (1966), were not read to him, his request for an
attorney was not honored, and his confession was coerced. He
also contends the trial court erred in excluding expert
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. testimony on his mental retardation. Finding no error, we
affirm.
Viewed in the light most favorable to the Commonwealth,
Estel Singleton, Sr. was murdered the night of April 29, 1997
and his body was found early the next morning at an interstate
rest stop. His wallet laid three to four feet from his body and
contained no credit or ATM cards. A single gunshot from a
pistol pressed tightly against the victim's temple caused death.
A witness saw the defendant at the rest area and a car
similar to the one the defendant owned. He was videotaped using
the victim's ATM card shortly after the murder. Later in the
morning, the defendant made two purchases using the victim's
J.C. Penney charge card and signing the victim's name to the
charge slip. In the defendant's motel room, the police found
numerous items belonging to the victim, the items purchased at
J.C. Penney, and the murder weapon.
Police believed the defendant was the person shown using
the victim's ATM card. Under the pretense of reviewing an
earlier trial in which the defendant testified for the
Commonwealth, the police got the defendant to go to the state
police district office in Salem.
The defendant drove himself to a meeting with First
Sergeant Jerry Humphreys. They discussed the earlier case for
about thirty minutes. Then Humphreys asked the defendant if he
had heard about the Singleton murder. Humphreys told the
- 2 - defendant he resembled a composite of the suspect who used
Singleton's ATM card. The defendant admitted using the ATM
card. Humphreys suggested the defendant take a polygraph
examination to eliminate himself as a suspect. The defendant
agreed to that and went out in the hall where he remained alone
for 30-40 minutes awaiting the test.
The polygraph examiner, Agent John McDowell, had the
defendant sign a written consent to the test and a written form
waiving his Miranda rights before beginning the examination.
Upon its completion, McDowell told the defendant he had failed.
McDowell suggested the courts would probably look better upon
him if he admitted it because he would be showing some remorse.
The defendant remarked, "I think I might need an attorney" to
McDowell. McDowell concluded the examination and left the room.
First Sergeant Humphreys and Investigator Norman Croy
entered the room and showed the defendant the video taken at the
ATM machine. The defendant admitted being the person shown
using the ATM card, but maintained he found it in front of a
Kroger store. After the officers asked what had gone wrong at
the rest stop, the defendant stated angrily that Singleton was a
"faggot." The defendant continued that he was in the restroom
when Singleton entered, made a racial slur, and pulled a gun.
The defendant ran, but during a struggle, Singleton fell, and
his gun discharged. The defendant then added that he picked
- 3 - Singleton's ATM card off the ground and later threw the gun in
the dumpster at Kroger.
The defendant contends he was in custody and should have
been given his Miranda rights. The defendant only made one
incriminating statement before he executed the written Miranda
waiver form. He admitted that he used the victim's ATM card.
When the defendant made that statement, he was not in custody.
Though the police used a ruse to get him to the state police
headquarters, the defendant went there voluntarily. He was
never restrained or subjected to a strong police presence. The
defendant had regularly associated with police officers in
Roanoke and was comfortable around officers.
Police are not required to give Miranda warnings every time
they question a suspect, even when the interrogation takes place
at the police station, Bailey v. Commonwealth, 259 Va. 723,
745-46, 529 S.E.2d 570, 583 (2000), petition for cert. filed, __
U.S.L.W. __, (Sept. 6, 2000) (No. 00-6045), or "the
investigation has focused on the defendant." Bosworth v.
Commonwealth, 7 Va. App. 567, 573, 375 S.E.2d 756, 759 (1989)
(citation omitted). "'By custodial interrogation, we mean
questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom
of action in any significant way.'" Coleman v. Commonwealth,
226 Va. 31, 46, 307 S.E.2d 864, 872 (1983) (quoting Miranda, 384
- 4 - U.S. at 444). In this case, the defendant was not in custody
when he made his first statement about the ATM card.
After the defendant stated he used the ATM card, he agreed
to take the polygraph examination. The defendant sat alone in
the hallway for approximately 40 minutes and never asked to
leave. Humphreys still did not think he had sufficient evidence
to hold the defendant for the murder, and the defendant was free
to leave.
Before administering the polygraph examination, Agent
McDowell advised the defendant of his Miranda rights. The
defendant consented in writing to the test and also executed a
written waiver of his Miranda rights. The trial court found the
waiver was voluntarily and intelligently made, and the evidence
supports the finding. When Humphreys and Croy interrogated him
after the polygraph test, the defendant was acting pursuant to
that waiver.
This case is similar to Oregon v. Mathiason, 429 U.S. 492,
495 (1977). The defendant voluntarily went to the police
station at their request. When he arrived, he was told he was
not under arrest. The officer told the defendant he wanted to
talk about a burglary, which the police believed he had
committed, and falsely told the defendant his fingerprints had
been found at the scene. The defendant admitted he took the
property. Then the defendant received Miranda warnings, gave a
taped confession, and left the station without incident. The
- 5 - United States Supreme Court ruled the defendant was not in
custody or deprived of his freedom.
Next, the defendant contends he invoked his right to
counsel, but the police did not honor his requests. The
defendant made two references to getting an attorney: "I think
I might need an attorney," and later, "if I'm going to be
arrested, I need an attorney." The defendant made the first
statement after the polygraph examiner told him he had failed
the test. The phrase joined the auxiliary verb "might" to the
verb "need" to express possibility. When introduced by "I
think," the meaning indicated a thought in process, but not yet
concluded. The speaker was still considering or weighing the
decision, was still testing alternatives. The statement was not
a clear, unambiguous request for counsel.
The second reference to an attorney was also inconclusive.
The statement, "if I'm going to be arrested, I need an
attorney," is a conditional sentence. The subordinate clause
"if I'm going to be arrested," established a condition upon the
main clause. The statement told the police that if they were
going to arrest the defendant, he wanted an attorney. Such a
conditional statement was not a clear, unambiguous request.
Law enforcement officers must immediately cease questioning
a suspect who has clearly asserted his right to have counsel
present during custodial interrogation. Edwards v. Arizona, 451
U.S. 477, 484-85 (1981). However, the defendant must make an
- 6 - unequivocal request. Davis v. United States, 512 U.S. 452,
458-60 (1994). We hold that the defendant never made an
unequivocal request for counsel.
The defendant also contends the trial court erred in
finding he confessed voluntarily. He argues the techniques used
by the police were coercive when considered with the defendant's
low level of intelligence. "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, 887 (1997).
When we review the voluntariness of a confession, we must
conduct "an independent examination of the totality of the
circumstances to determine whether the statement is the product
of an essentially free and unconstrained choice by [this
particular defendant], or whether [his] will has been overborne
and his capacity for self-determination critically impaired."
Bailey v. Commonwealth, 20 Va. App. 236, 239, 456 S.E.2d 144,
145 (1995) (internal quotations and citations omitted). There
are two categories of factors to consider: the defendant's
characteristics and the police interrogation tactics. Midkiff
v. Commonwealth, 250 Va. 262, 268, 462 S.E.2d 112, 116 (1995).
"The existence of any of the . . . factors does not necessitate
a finding that the confession was involuntary." Ronald J.
Bacigal, Virginia Criminal Procedure § 7-2, 157 (4th ed. 1999)
- 7 - (footnote omitted). They are merely factors for the trial court
to consider. Id.
The defendant proffered that his IQ was 69 and he dropped
out of school in the eleventh grade. His intelligence and
education are among several factors to be considered when
determining whether a statement was voluntary. Simpson v.
Commonwealth, 227 Va. 557, 564, 318 S.E.2d 386, 390 (1984)
(twenty-year-old defendant's IQ of 78, alone, did not render his
confession involuntary). "'[A] defendant's mental condition, by
itself and apart from its relation to official coercion, should
[never] dispose of the inquiry into constitutional
"voluntariness."'" Bottenfield, 25 Va. App. at 324, 487 S.E.2d
at 888 (quoting Colorado v. Connelly, 479 U.S. 157, 164 (1986)).
While there was evidence of the defendant's intellectual
deficit, the record does not suggest that he failed to
understand the circumstances that attended the statement.
Bottenfield, 25 Va. App. at 328, 487 S.E.2d at 889.
The defendant emphasizes the police ruse to get him to the
police station. While police misrepresentations are a factor to
consider in determining whether the defendant exercised his own
free will, those misrepresentations alone do not render his
confession involuntary. Swann v. Commonwealth, 247 Va. 222,
232, 441 S.E.2d 195, 202, cert. denied, 513 U.S. 889 (1994) ("a
police officer's misrepresentation during interrogation will not
invalidate a confession unless it causes a suspect to make a
- 8 - confession he otherwise would have withheld"). Even an
officer's lie to a defendant during interrogation, or the
officer's fabrication of evidence, is not, in and of itself,
sufficient. Rodgers v. Commonwealth, 227 Va. 605, 616, 318
S.E.2d 298, 304 (1984); Smith v. Commonwealth, 219 Va. 455, 470,
248 S.E.2d 135, 144-45 (1978), cert. denied, 441 U.S. 967
(1979). "Voluntariness is not to be equated with 'the absolute
absence of intimidation.'" Bacigal, supra, § 7-2 n.17 at 160
(quoting United States v. Wertz, 625 F.2d 1128, 1134 (4th Cir.
1980)).
Considering the totality of all the circumstances, the
record indicates that the defendant's will was not overborne and
his capacity for self-determination was not impaired. "Coercive
police activity is a necessary predicate to a finding that a
confession is not 'voluntary' . . . ." Connelly, 479 U.S. at
167. The evidence supports the finding that the confession was
voluntarily made.
Next, the defendant contends the trial court erred in
excluding expert testimony about his mental retardation. The
defendant proffered the testimony of two mental health expert
witnesses. He argued the testimony would explain the factors to
be taken into consideration when determining the reliability of
a confession by someone with the defendant's level of mental
retardation. After hearing the testimony, the trial court
- 9 - excluded the evidence ruling it would invade the province of the
jury.
Dr. Bernice Marcopulos, a clinical psychologist, testified
the defendant had an IQ of 69, which indicated he was mildly
mentally retarded. The defendant functioned mentally in the
bottom two percent of the population. He would have difficulty
comprehending instructions and written or oral communications.
Next, Dr. Stephen Herrick, a forensic psychologist,
testified. He felt the defendant was highly susceptible to
negative feedback, functioned at an elementary school level, and
concluded, "I think he just went along with what they said."
The expert testimony was an opinion that the defendant did
not make the statements attributed to him by the police. During
his own testimony, the defendant maintained that he never
uttered the statements in his confession. He testified that he
only uttered "okay whatever" in response to a narrative that the
police fabricated and recited to him. The expert opinion went
directly to whether the defendant's denial of making a
confession was true. The opinion that the defendant just went
along with the police narration was a comment on the defendant's
credibility. It did not go to whether the confession, the
incriminating words which the police said he spoke, was
reliable.
An expert may not "express an opinion as to the veracity of
any witness." Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292
- 10 - S.E.2d 798, 806 (1982), cert. denied, 459 U.S. 1228 (1983);
Coppola v. Commonwealth, 220 Va. 243, 252-53, 257 S.E.2d 797,
804 (1979), cert. denied, 444 U.S. 1103 (1980). Such evidence
is a comment on an ultimate fact within the province of the jury
and must be excluded by the trial court. Davison v.
Commonwealth, 18 Va. App. 496, 504, 445 S.E.2d 683, 688 (1994).
Whether the defendant made the statements attributed to him
was a fact the jury was able to assess without the need for
expert opinion. "[W]here 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," expert opinion
"founded upon such facts is inadmissible." Schooler v.
Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992)
(quoting Venable v. Stockner, 200 Va. 900, 904, 108 S.E.2d 380,
383 (1959)).
Admission of expert testimony is committed to the sound
discretion of the trial judge. Utz v. Commonwealth, 28 Va. App.
411, 423-24, 505 S.E.2d 380, 386 (1998). A careful reading of
the proffered evidence supports the trial court's determination
that the testimony would invade the province of the jury. We
cannot say the trial court abused its discretion in excluding
testimony that elicited an opinion of veracity.
The defendant argues that if the opinion was not admissible
during his case-in-chief, it became admissible after the
- 11 - Commonwealth presented rebuttal evidence that the defendant
checked books out of the jail library. The defendant claims
that evidence opened the door to the expert testimony about his
mental state when making the confession.
The Commonwealth presented the evidence to rebut the
defendant's conflicting testimony about his ability to read and
write. It did not directly address the defendant's mental
retardation or the reliability of his confession. We conclude
that the trial court did not err in ruling that the Commonwealth
did not open the door to the expert testimony.
For the foregoing reasons, we affirm the decisions of the
trial court.
Affirmed.
- 12 - Benton, J., dissenting.
I.
The evidence proved that the police lied to Pritchett in
order to lure him to the police station for interrogation.
First Sergeant Humphreys testified that even though the police
had identified Pritchett as the person on the videotape using
Singleton's ATM card, they did not confront him with that fact
before he came to the police station. Instead, they told
Pritchett that a defendant, whom Pritchett had helped the
Commonwealth convict for murder, was appealing her conviction.
The officer who handled the earlier case told Pritchett that
they needed to "reinterview him" for that appeal and asked
Pritchett to come to the police station to give them additional
assistance. When Pritchett arrived, the police continued the
ruse by discussing the case Pritchett earlier had assisted them
in prosecuting.
First Sergeant Humphreys testified that the following then
occurred:
After [he and I] talked about [the ruse] case, I told him that a composite had been done that was disseminated . . . to all the police agencies and someone had said that he looked similar to the composite and also a white vehicle had been seen at the rest area and we needed to eliminate him because some people said, talked about the white vehicle and . . . said he looked like the composite and the best way to do that was through a polygraph . . . .
- 13 - As Pritchett waited in a hallway for the polygraph examination,
Agent McDowell read Miranda rights to him. Pritchett signed a
waiver form and took the polygraph examination. At the
conclusion of the examination, Agent McDowell told Pritchett he
had failed the test. As Agent McDowell questioned Pritchett, he
heard Pritchett say "need an attorney." He ceased questioning
Pritchett and left the room.
First Sergeant Humphreys and Investigator Croy were
watching behind a "two-way mirror." First Sergeant Humphreys
testified that Pritchett said "I think I might need an
attorney." Investigator Croy testified that someone told him
Pritchett had made that statement. Nevertheless, First Sergeant
Humphreys and Investigator Croy entered the room to confront
Pritchett. First Sergeant Humphreys testified as follows:
When he said I think I might need an attorney, Agent McDowell left the polygraph room. Norman Croy and myself entered the polygraph room pushing a, a TV with a VCR recorder. We pushed it into the polygraph room, inserted the ATM transaction video. Didn't say anything, just played the tape for Mr. Pritchett.
* * * * * * *
Once the video started playing, and, and a face came on the screen, he said, what's that, and I told him that was his, the side of his face.
First Sergeant Humphreys and Investigator Croy further
interrogated Pritchett about the murder of Singleton. They did
not first tell Pritchett he was not under arrest and that he was
- 14 - entitled to an attorney before responding. This evidence proved
Pritchett was interrogated in an atmosphere which was "police
dominated" and "inquisitorial."
II.
The failure of the police to give Miranda warnings prior to
custodial interrogations and to honor the exercise of those
rights requires suppression of evidence obtained as a result of
the interrogation. Miranda v. Arizona, 384 U.S. 436, 478-79
(1966). The United States Supreme Court has recently
underscored the constitutional nature of the Miranda warnings as
a component of the general prohibition against the admission of
involuntary confessions under the Fifth and Fourteenth
Amendments. Dickerson v. United States, 120 S. Ct. 2326, 2333
(2000). The police must provide a suspect with the four Miranda
warnings during any custodial interrogation for the confession
to be admissible evidence. Id. at 2331. In this case, the
police did not meet this requirement.
We determine whether a person is "in custody" for purposes
of Miranda by examining the circumstances of each case. "[T]he
ultimate inquiry is simply whether there is a 'formal arrest or
restraint on freedom of movement' of the degree associated with
formal arrest." Ford v. Commonwealth, 28 Va. App. 249, 256, 503
S.E.2d 803, 806 (1998) (quoting California v. Beheler, 463 U.S.
1121, 1125 (1983) (citation omitted)). In making this inquiry,
we examine the circumstances from the perspective of "how a
- 15 - reasonable [person] in the suspect's position would have
understood his situation." Berkemer v. McCarty, 468 U.S. 420,
442 (1984). "Thus, a suspect is 'in custody' when the objective
circumstances would lead a reasonable person to believe he was
under arrest, thereby subjecting him or her to pressure
impairing the free exercise of the privilege against
self-incrimination." Cherry v. Commonwealth, 14 Va. App. 135,
140, 415 S.E.2d 242, 245 (1992). "[T]he initial determination
of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either
the interrogating officers or the person being questioned."
Stansbury v. California, 511 U.S. 318, 323 (1994).
Among the factors that must be considered are whether a suspect is questioned in familiar or neutral surroundings, the number of police officers present, the degree of physical restraint, and the duration and character of the interrogation. Whether or when probable cause to arrest exists and when the suspect becomes the focus of the investigation are relevant facts to consider. "[T]he language used by the officer to summon the individual, the extent to which he or she is confronted with evidence of guilt, the physical surroundings of the interrogation, the duration of the detention and the degree of pressure applied to detain the individual" may be significant factors as well.
Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 839
(1987) (citations omitted).
The totality of the objective circumstances in this case
would lead a reasonable person in Pritchett's position to
- 16 - believe he was under arrest. See Cherry, 14 Va. App. at 140,
415 S.E.2d at 245. Pritchett was "subjected to restraints
comparable to those associated with a formal arrest." Berkemer,
468 U.S. at 441. Three police officers interrogated Pritchett.
Moreover, the interrogation was not of a short duration but
lasted approximately three and one-half hours. See id. at 441
n.34 (citing Commonwealth v. Meyer, 412 A.2d 517, 518-19, 522
(Pa. 1980) (holding that a driver who was detained for over
one-half hour was in custody for the purposes of Miranda by the
time the driver was questioned concerning the circumstances of
an accident)). A reasonable person in Pritchett's position
would clearly feel that he was unable to leave and that he was,
in fact, "in custody." I would hold, therefore, that
Pritchett's interrogation was the "functional equivalent of
formal arrest," Berkemer, 468 U.S. at 442, and created a
custodial situation requiring appropriate Miranda warnings.
Once Pritchett "expressed his desire to deal with the
police only through counsel, [he was] not subject to further
interrogation by the authorities until counsel [was] made
available to him." Edwards v. Arizona, 451 U.S. 477, 484-85
(1981). As the Court noted in Edwards, "it is inconsistent with
Miranda and its progeny for the authorities, at their instance,
to reinterrogate an accused in custody if he has clearly
asserted his right to counsel." Edwards, 451 U.S. at 485.
- 17 - Edwards set forth a "bright-line rule" that all questioning must cease after an accused requests counsel. In the absence of such a bright-line prohibition, the authorities through "badger[ing]" or "overreaching" -- explicit or subtle, deliberate or unintentional -- might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.
Smith v. Illinois, 469 U.S. 91, 98 (1984) (citation omitted).
The fact that Pritchett responded to the "further
police-initiated custodial interrogation" is insufficient to
establish that he waived his Miranda rights. See Edwards, 451
U.S. at 484. Pritchett's response after the detective informed
him of the polygraph results was to express his "need [for] an
attorney."
Pritchett's statements constitute unequivocal, unambiguous
requests for counsel. In McDaniel v. Commonwealth, 30 Va. App.
602, 518 S.E.2d 851 (1999) (en banc), we considered whether a
defendant had invoked his right to counsel by stating, "I think
I would rather have an attorney here to speak for me." Id. at
604, 518 S.E.2d at 852. We held that this unambiguous statement
was understandable to a reasonable police officer and that all
interrogation should have ceased. No substantive difference
exists between McDaniel's "I think I would rather have an
attorney here to speak for me," and Pritchett's "I think I might
need an attorney." Neither statement is a question. See, e.g.,
Mueller v. Commonwealth, 244 Va. 386, 396-97, 422 S.E.2d 380,
- 18 - 387 (1992) (holding that, "Do you think I need an attorney
here?" is not a request for counsel). The substitution of the
word "might" for "would" confers no greater uncertainty on the
request.
Edwards assumes a case in which a request for counsel is
made and is initially honored by the police. "Edwards
established a bright-line rule to safeguard pre-existing rights
. . . ." Solem v. Stumes, 465 U.S. 638, 646 (1984). When the
police cease interrogation following invocation of the right to
counsel, they send an unmistakable signal to an accused that the
rights contained in the Miranda warnings are real and will be
honored. If that is done, an interrogation initiated by the
accused takes place against the background of rights that are
real and respected by the police.
In this case, the two officers flagrantly disregarded
Pritchett's request for counsel despite Agent McDowell's
previous advice to Pritchett that he had a right to have counsel
present. By their conduct, these officers conveyed the
unmistakable message that the Miranda rights are illusory and
that Pritchett's invocation of those rights was meaningless.
Thus, the present case involves not an omission on the part of
officers to provide Miranda warnings, but an affirmative
disregard of Pritchett's invocation of the right to counsel and
a continuation of interrogation in contravention of his rights.
The continued interrogation following Pritchett's expressed
- 19 - desire to consult with an attorney unmistakably conveyed a
message which could not be erased by another similar warning.
The United States Supreme Court recognized this fact in Arizona
v. Roberson, 486 U.S. 675 (1988), and ruled as follows:
[T]o a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling. Thus, we also disagree with petitioner's contention that fresh sets of Miranda warnings will "reassure" a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled.
Id. at 686.
I would hold that Pritchett unambiguously responded with
sufficient clarity that a reasonable police officer would have
understood that he wanted an attorney. Thus, the interrogation
should have ceased. See McDaniel, 30 Va. App. at 607, 518
S.E.2d at 854; Edwards, 451 U.S. at 484-85. Because I believe
that the detectives gained Pritchett's confession by continuing
the interrogation after he had invoked his Fifth Amendment right
to counsel, I would reverse the trial judge's denial of the
suppression motion.
III.
Not only did the trial judge fail to require that the
prosecution follow the dictates of Miranda, he failed to ensure
that Pritchett's confession was voluntary as required by general
- 20 - notions of due process. See Dickerson, 120 S. Ct. at 2330. It
is fundamental "that a jury is not to hear a confession unless
and until the trial judge [or some other independent
decisionmaker] has determined that it was freely and voluntarily
given." Sims v. Georgia, 385 U.S. 538, 543-44 (1967). See
generally Jackson v. Denno, 378 U.S. 368 (1964). In determining
voluntariness, the Court must ask the following:
Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.
In determining whether a defendant's will was overborne in a particular case, the Court [must assess] the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation.
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (internal
quotations and citation omitted).
The "totality of all the surrounding circumstances"
includes the defendant's background and experience, the conduct
of the police, and the details of the interrogation. See
Midkiff v. Commonwealth, 250 Va. 262, 269, 462 S.E.2d 112, 116
(1995). "If a suspect's statements had been obtained by
'techniques and methods offensive to due process,' or under
circumstances in which the suspect clearly had no opportunity to
exercise 'a free and unconstrained will,' the statements would
- 21 - not be admitted." Oregon v. Elstad, 470 U.S. 298, 304 (1985).
Whether a statement is voluntary is a legal rather than a
factual question. See Midkiff, 250 Va. at 268-69, 462 S.E.2d at
116. Thus, we review de novo the trial judge's determination
that Pritchett's statement was voluntary. See Harris v.
Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257, 260 (1998).
"The mental condition of the defendant is 'surely relevant
to [his] susceptibility to police coercion.'" Commonwealth v.
Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722, 723 (1992)
(quoting Colorado v. Connelly, 479 U.S. 157, 165 (1986)).
Although evidence in the record of coercive police activity "is
a necessary predicate to the finding that a confession is not
'voluntary,'" id., the coercion does not have to be physical to
invalidate a confession.
"[The Supreme] Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of 'persuasion.'"
Jackson, 378 U.S. at 389-90 (citation omitted).
The evidence proved that Pritchett is mentally retarded
with an IQ of 69. As a ruse to get Pritchett into the police
station for interrogation, the police lied about their need to
have Pritchett assist them on a case in which he had previously
- 22 - assisted the police. After Pritchett went to the police station
in response to the ruse, the police then accused him of
committing the murder. During the interrogation, the police did
not tell Pritchett he was free to leave. Given Pritchett's
level of cognitive functioning, no evidence established he acted
voluntarily.
Agent McDowell gave Miranda warnings to Pritchett before
administering the polygraph. "Proof that some kind of warnings
were given or that none were given [is] relevant evidence . . .
of whether the questioning was in fact coercive." Beckwith v.
United States, 425 U.S. 341, 348 (1976). However, when
Pritchett completed the polygraph and said he needed a lawyer,
the officers ignored his request and continued the
interrogation.
The officers who deflected his request had been watching
the polygraph examination and knew that Pritchett had made the
request. They entered the room and distracted him by showing
the videotape to restart the interrogation. When Pritchett's
request for counsel was ignored, further interrogation
reinforced the coerciveness of the police conduct. With regard
to determining whether police tactics were coercive, the Supreme
Court has ruled as follows:
[T]he Court's analysis has consistently been animated by the view that "ours is an accusatorial and not an inquisitorial system," Rogers v. Richmond, 365 U.S. 534, 541 (1961), and that, accordingly, tactics
- 23 - for eliciting inculpatory statements must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment's guarantee of fundamental fairness. Indeed, even after holding that the Fifth Amendment privilege against compulsory self-incrimination applies in the context of custodial interrogations, Miranda v. Arizona, 384 U.S. 436, 478 (1966), and is binding on the States, Malloy v. Hogan, 378 U.S. 1, 6 (1964), the Court has continued to measure confessions against the requirements of due process. See, e.g., Mincey v. Arizona, [437 U.S. 385, 402 (1978)]; Beecher v. Alabama, 389 U.S. 35, 38 (1967) (per curiam).
Miller v. Fenton, 474 U.S. 104, 109-10 (1985).
The totality of these circumstances, including Pritchett's
IQ, the police tactics, and the failure to acknowledge
Pritchett's request for counsel, establish that Pritchett's
statement was not voluntarily given.
IV.
The Commonwealth argued at trial that the testimony of
Pritchett's experts was irrelevant because Pritchett did not
plead not guilty by reason of insanity. I disagree. The
Commonwealth's argument fails to recognize the significant
differences between mental illness and mental retardation.
Pritchett's counsel informed the trial judge as follows:
[T]he intent of the experts . . . is to Number one, first of all, introduce for the jury's benefit the defendant's I.Q. and how that particular I.Q. was established, and . . . in addition to that, introduce for the jury's consideration evidence with respect to the reliability of a confession that is given by someone that is mentally retarded.
- 24 - I do not intend for this, for our experts to testify to the ultimate issue, as to whether or not . . . Pritchett in fact confessed to this particular crime, and whether or not it was a valid confession.
The record contains as a proffer extensive testimony by Dr.
Bernice Marcopulos, a clinical neuropsychologist, and Dr.
Stephen Herrick, a forensic psychologist, both of whom examined
Pritchett. They testified that Pritchett is mentally retarded
and explained the cognitive limitations that accompany mental
retardation. In particular, Dr. Herrick testified that "there's
a lot of misunderstandings about mental retardation, [it's] not
just being slow." He further testified that Pritchett's
cognitive deficiencies limited his language and communication
skills and rendered him vulnerable to interrogative
suggestibility. Both expert witnesses established a sufficient
basis to render their testimony admissible to provide the jury
an explanation of Pritchett's intellectual limitations. The
trial judge's ruling, which barred the evidence, was based on
the erroneous conclusion that the experts' testimony went to the
ultimate issue of intent, rather than to the reliability of the
confession, the purpose for which it was offered.
In barring Pritchett's expert testimony, the trial judge
and the Commonwealth relied on Zelenak v. Commonwealth, 25 Va.
App. 295, 487 S.E.2d 873 (1997) (en banc), and Stamper v.
Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985). Both cases
are inapposite. In Zelenak, we held that the proffered
- 25 - testimony expressed an opinion on the ultimate issue of intent
because Zelenak's psychologist would have testified that at the
time of the crime Zelenak was suffering under a disorder which
made her "susceptible to duress." See 25 Va. App. at 300, 487
S.E.2d at 875. In Stamper, the defendant sought to "introduce
psychiatric testimony to prove that he was manic-depressive, in
a manic state on the date of the offense, and consequently
incapable of forming the intent to distribute, which is a
requisite element of the crime [with which he was charged]."
228 Va. at 715-16, 324 S.E.2d at 687. The Supreme Court held
that in the absence of an insanity defense, the trial court
properly excluded the evidence of Stamper's mental state at the
time of the offense because it was irrelevant to the issue of
guilt. See id. at 717, 324 S.E.2d at 688.
Unlike Zelenak and Stamper, Pritchett did not seek to
introduce expert testimony on the ultimate issue in the case or
on his mental state at the time of the crime. He sought to
introduce the evidence to influence the jury's view of his
confession. In ruling that Pritchett's expert testimony was
inadmissible, the trial judge said that Pritchett was "correct
in maintaining that the issue of mental retardation is not
within the range of common experience of most juries." Thus,
even the trial judge agreed that the expert "testimony related
to a matter of inquiry that was beyond the ordinary knowledge,
intelligence, and experience of a jury." Breeden v. Roberts,
- 26 - 258 Va. 411, 415, 518 S.E.2d 834, 837 (1999). "It is well
settled in Virginia that the opinion of an expert witness is
admissible where the jury, or the court trying a case without a
jury, is confronted with issues that cannot be determined
intelligently merely from the deductions made and inferences
drawn on the basis of ordinary knowledge, common sense, and
practical experience gained in the ordinary affairs of life and
thus require scientific or specialized knowledge." Schooler v.
Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992)
(internal quotations deleted).
"The manner in which a statement was extracted is, of
course, relevant to the purely legal question of its
voluntariness . . . ." Crane v. Kentucky, 476 U.S. 683, 688-89
(1986). Its relevance, however, is not limited to that
question. Pritchett's entire defense was that there was no
physical evidence to link him to the murder and that, because of
his mental retardation, his earlier admission of guilt was not
reliable. To support that defense, he sought to introduce
evidence concerning the involuntariness of his confession.
Confessions, even those that have been found to be voluntary, are not conclusive of guilt. And, as with any other part of the prosecutor's case, a confession may be shown to be "insufficiently corroborated or otherwise . . . unworthy of belief." Indeed, stripped of the power to describe to the jury the circumstances that prompted his confession, the defendant is effectively disabled from answering the one question every rational juror needs answered: If the
- 27 - defendant is innocent, why did he previously admit his guilt? Accordingly, regardless of whether the defendant marshaled the same evidence earlier in support of an unsuccessful motion to suppress, and entirely independent of any question 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.
Id. at 689 (citation omitted).
Evidence of the circumstances that yielded the confession
was all but indispensable to Pritchett's defense. "[E]vidence
about the manner in which a confession was secured will often be
germane to its probative weight . . . ." Id. at 688; see also
Connelly, 479 U.S. at 165 (stating that "mental condition is
surely relevant to an individual's susceptibility to police
coercion"). The trial judge's evidentiary ruling deprived
Pritchett of his fundamental constitutional right to a fair
opportunity to present a defense. See California v. Trombetta,
467 U.S. 479, 485 (1984).
Pritchett did not deny that he was in possession of some of
Singleton's property and that he attempted to use Singleton's
ATM and Montgomery Ward cards. He testified that he found in a
grocery store parking lot those items and the other property
belonging to Singleton. He denies, however, that he killed
Singleton. Given the circumstantial nature of the
Commonwealth's case against Pritchett and the fact that the
police did not audio or videotape his confession, Pritchett's
- 28 - expert evidence concerning his mental retardation was crucial to
the jury's determination of the voluntariness and reliability of
his confession as related by the police. "Expert testimony is
appropriate to assist triers of fact in those areas where a
person of normal intelligence and experience cannot make a
competent decision." Swiney v. Overby, 237 Va. 231, 233, 377
S.E.2d 372, 374 (1989).
Without expert testimony explaining Pritchett's particular
susceptibility to the investigative tactics because of his
mental retardation, Pritchett was deprived of the opportunity to
familiarize the jury with the circumstances concerning the
taking of his confession, including "'facts bearing upon its
weight and voluntariness.'" Crane, 476 U.S. at 688 (quoting
Lego v. Twomey, 404 U.S. 477, 486 (1972)). He was entitled to
prove that "certain interrogation techniques, either in
isolation or as applied to the unique characteristics of a
particular suspect, are so offensive to a civilized system of
justice that they must be condemned under the Due Process Clause
of the Fourteenth Amendment." Miller, 474 U.S. at 109.
Moreover, the Commonwealth later opened the door to the
expert testimony when it called a witness to testify concerning
the materials Pritchett checked out from the jail library.
Unrebutted, this testimony implied that Pritchett was not
retarded and was more intelligent than he claimed. For the
reasons explained above, I would rule that by barring the expert
- 29 - testimony, the trial judge denied Pritchett the opportunity to
present an adequate defense.
I dissent.
- 30 -