Opinion
Record No. 0843-93-1
September 28, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK LEONARD B. SACHS, JUDGE.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellant.
(Thomas A. Connor; Connor, Pennington Price, on brief), for appellee. Appellee submitting on brief.
Present: Judges Barrow, Benton, and Coleman.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The Commonwealth brings this pretrial appeal, pursuant to Code § 19.2-398, contending that the trial judge erred in finding that Teresa Ann Towler's statement to police was involuntary and, thus, erred in suppressing that statement. We affirm the decision.
The issue on this appeal is whether the trial judge was plainly wrong in concluding that the police conduct of which Towler complains was sufficient to overbear her will, Goodwin v. Commonwealth, 3 Va. App. 249, 253, 349 S.E.2d 161, 163 (1986), or otherwise "raise in [her] mind . . . the hope and belief that, if [she] told what [she] knew about this crime . . . [she] would not be prosecuted." Belcher v. Commonwealth, 160 Va. 891, 905, 168 S.E. 468, 473 (1933). If either of these circumstances existed, the trial judge did not err in finding that Towler's statement to police was involuntary. Id. at 905-06, 168 S.E.2d at 473.
Viewing the evidence in the light most favorable to Towler, who prevailed at the suppression hearing, Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980), we conclude that the trial judge could have reasonably relied on the evidence to conclude that the standard for disallowing the confession was met. Towler testified concerning several events that occurred during the course of the police investigation that overpowered her will. On two different occasions, Towler was interrogated by police and a social worker for several house regarding possible child abuse. Towler testified that during those sessions Officer Beacham accused her of abusing her child. The first interrogation lasted from 5 p.m. until after 11 p.m. Towler denied abusing her child.
The next time Towler was questioned by the investigators, she had not been allowed to see her child, the doctors would not give her information, and the investigators were not telling her anything. She testified that she was afraid of the police bothering her at her workplace and that her confusion and fear were great. When she talked to the investigators, she was repeatedly asked if she abused the child or "could . . . have done it." She testified that she was questioned about statements her husband made. She also testified as follows:
Well, [Officer Beacham] had told me we don't think Tim [Towler's husband] did it. We think you did it. Then she was being nice to me. Well, we can see how these things happen. [Beacham said:] A lot of times I feel like wringing my kids' necks, getting next to me, trying manipulation.
Towler said that she continued to deny abusing the child after Officer Beacham made that disarming statement.
During that session, Officer Beacham made other statements that tended to put Towler at ease about any pending criminal charges. Most significantly, Officer Beacham admitted that she told Towler, "I am not looking to send you to prison for life or anything like that. We are looking at finding out what has happened to this child, in getting you the help you need. . . ." Towler said that when she continued to deny that she had harmed her child, the investigators showed their displeasure.
Well, Ms. Moore was sitting in the office and Ms. Beacham was there, and I am like, you know, you don't want to believe the truth. You don't want to believe the truth, and it is like, you know, what did you want me to do, lie? I mean, Ms. Beacham had walked out of the room and Ms. Moore was still sitting in there. I am like I can't believe this. It is like I am telling the truth. You don't want to hear it. You people just don't want to hear the truth. I said what do you want me to do, lie about it? Next time, fine. Next time I will make something up. Exactly what I said.
Towler testified that Officer Beacham then "threw us out" of the Police Operations Center and that Officer Beacham "was not nice about it."
As Towler and her husband were walking out of the building, Officer Beacham and Towler's husband were having a stressful conversation. When Towler got into the car with her husband, her husband told her that only her statement could keep him out of jail. Towler then went back inside the Police Operations Center and gave a statement.
"Voluntariness is determined 'in [the] light of the totality of the circumstances, including not only the details of the interrogation, but also the characteristics of the accused, [whether] the statement was a product of an essentially free and unconstrained choice by its maker, or whether its maker's will was overcome and [the maker's] capacity for self-determination critically impaired." Venable v. Commonwealth, 12 Va. 358, 359, 404 S.E.2d 74, 75 (1991). The evidence was sufficient to prove that Officer Beacham solicited a statement in exchange for "counselling," "help," and no incarceration. Beacham's statements to Towler were tantamount to an offer of immunity. The Commonwealth's argument that the statement was simply a promise not to seek a life prison term is, under the circumstances, narrow and strained.
Officer Beacham made the statement not to a legally trained person, but to an obviously distraught lay person with a tenth grade education, who had consistently denied abusing her children and whose children had been separated from her by the Department of Social Services. In addition, the evidence proved that Towler's husband had been given a suspended sentence when he pled guilty to a previous incident of child abuse. He was at risk of being returned to prison by having his suspended sentence revoked. Officer Beacham's statement to Towler that the police did not want to put her in "prison for life or anything like that," was an inducement that conveyed an offer of freedom and had the tendency to lead Towler to give a statement without regard to its truth. Belcher, 160 Va. at 906, 168 S.E.2d at 473.
For these reasons, we conclude that the trial judge's decision was not plainly wrong.
Affirmed.
When the admissibility of a defendant's confession is at issue, the Commonwealth must prove by a preponderance of the evidence that the defendant's confession is voluntary. Rodgers v. Commonwealth, 227 Va. 605, 608, 318 S.E.2d 298, 300 (1984). Moreover, on appeal from a trial court's order suppressing the confession, the Commonwealth must show that the trial judge erred in suppressing the confession, with the evidence viewed in the light most favorable to the defendant as the prevailing party. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
Even though "subsidiary factual [determinations by the trial court] are entitled to a presumption of correctness," determining whether a defendant's confession is voluntary is "ultimately a legal rather than factual question."Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). In determining whether an accused voluntarily confessed, an appellate court must independently review the circumstances surrounding the confession. Miller v. Fenton, 474 U.S. 104 (1985).
In my view, the Commonwealth met its burden of proving that Towler confessed voluntarily and of her own free will. As a matter of law, I find no evidence of police misconduct, which is a necessary predicate in finding that state action induced the accused to give a statement against her will. The police officer's statement indicating that Towler would receive counselling or psychological assistance cannot reasonably be construed as a promise not to prosecute her. Towler did not testify that the police told her she would not be prosecuted, nor did she testify that she inferred from their statements that she would not be prosecuted. The only reasonable inference that the trial judge could have drawn from the evidence is that she had been told she would be provided counselling. The trial judge could not reasonably infer, from a promise to provide counselling, a promise not to prosecute. In fact, Towler's testimony acknowledges her understanding that she would be prosecuted even if she were provided counselling. For this reason, I dissent.
On this record, Towler's will was not "overborne and [her] capacity for self-determination critically impaired" by the police officer's actions. Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163, cert. denied, 484 U.S. 873 (1987). Officer Beacham stated to Towler that the police "were not looking to send [her] to prison for life," but, instead, were interested in obtaining psychological "help" for her. Even if the trial judge could construe the statement as an implied promise of leniency, a promise of leniency alone is not sufficient to deprive the defendant of her free will. Promises of leniency "have generally been found insufficient to overbear a defendant's free will." Rodgers, 227 Va. at 616, 318 S.E.2d at 304.
In Williams v. Commonwealth, 234 Va. 168, 174, 360 S.E.2d 361, 365 (1987), cert. denied, 484 U.S. 1020 (1988), the Virginia Supreme Court held that an offer to provide psychological help does not render a resulting confession involuntary because "[t]his falls far short of a confession induced by the hope of gaining some advantage or avoidance of some evil." Id.
The majority holds that the promise of psychological help was presented to Towler as an alternative to incarceration. But the undisputed evidence established that the possibility of jail was mentioned to Towler prior to her confession. In fact, during trial, Towler testified that she understood that she might be imprisoned, when she said the police were "not just looking at throwing [her] in jail." At no time did Towler testify that Officer Beacham promised her freedom in exchange for a confession or that she understood that such would be the case.
Coercive police activity "is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause." Colorado v. Connelly, 479 U.S. 157, 167 (1986). In Towler's case, no police coercion has been shown. Towler was not in custody when she voluntarily and of her own accord appeared at the police station to confess. Regardless of how long the "interrogation" lasted, Towler admitted that she had returned to the police station at her husband's urging and not because of any police tactics. In fact, it was only after a long discussion with her husband, who was also charged with child abuse, that Towler decided she "was willing to talk." "[A] confession is not per se invalid merely because the confessor implicates [her]self in an effort to secure the best possible disposition of a charge pending against a relative or friend."Clark v. Commonwealth, 220 Va. 201, 208, 257 S.E.2d 784, 789 (1979) (quoting Ferguson v. Boyd, 566 F.2d 873, 878 n. 7 (4th Cir. 1977), cert. denied, 444 U.S. 1049 (1980)).
In my opinion, no evidence supports a finding that the defendant's statement was the result of police coercion. The trial judge's decision that the confession was involuntary is erroneous, even when viewed in the light most favorable to Towler. Accordingly, I would reverse the trial court's decision to suppress the defendant's confession.