Opinion
Record No. 1429-22-4
09-17-2024
Elwood Lewis THOMAS v. COMMONWEALTH of Virginia
Bryan Kennedy, Senior Assistant Public Defender (Jessica Newton, Senior Trial Attorney, on briefs), for appellant. Kimberly A. Hackbarth, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Grace Burke Carroll, Judge
Judge David Bernhard presided over Thomas’s suppression motion. Judge Stephen C Shannon considered Thomas’s pretrial motion to exclude the Commonwealth’s expert Judge Grace Burke Carroll presided over the trial and sentencing
Bryan Kennedy, Senior Assistant Public Defender (Jessica Newton, Senior Trial Attorney, on briefs), for appellant.
Kimberly A. Hackbarth, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Causey, Friedman, Chaney, Raphael, Lorish, Callins and Frucci Argued at Richmond, Virginia
OPINION BY JUDGE STUART A. RAPHAEL
When he was in his mid-twenties, Elwood Lewis Thomas sexually molested multiple children while living with his grandmother in a house that she operated as a daycare. As to one girl whom Thomas abused from the time she was four until she was eight years old, a jury found Thomas guilty of two counts of aggravated sexual battery, two counts of rape, and two counts of animate-object penetration. (Circuit Court Case No. FE-2021-37.) The evidence against him consisted principally of the testimony of the victim—who was age 17 when she testified—and Thomas’s videotaped confession to police. Thomas then pleaded guilty to aggravated sexual battery of two other young children. (Case Nos. FE-2020-515, FE-2021-38.) At a joint sentencing hearing, the trial court imposed a life sentence on each of the two rape and two animate-object-penetration convictions, and five-or ten-year sentences on the other four convictions.
A divided panel of this Court affirmed in part, reversed in part, and remanded. Thomas v. Commonwealth, No. 1429-22-4, 2024 WL 1055308, 2024 Va. App. LEXIS 133 (Mar. 12, 2024). In Part II of the opinion, all members agreed that the trial court did not abuse its discretion in permitting the Commonwealth’s expert to testify about delayed disclosure of sexual abuse by childhood victims. Id., slip op. at 27-31, 2024 WL 1055308, at *13–16, 2024 Va. App. LEXIS 133, at *37-44. In Part III, all members also agreed that the trial court did not abuse its discretion in sentencing Thomas on the non-jury convictions (Case Nos. FE-2020-515, FE-2021-38). Id. at 32-33, 2024 WL 1055308, at *16–17, 2024Va. App. LEXIS 133, at *44-47.
The partial dissent would likewise have found no abuse of sentencing discretion for the sentences imposed on the jury convictions (Case No. FE 2021-37) Thomas, slip op at 53 n 26, 2024 WL 1055308, at *26 n 26, 2024 Va App LEXIS 133, at *76 n 26 (Raphael, J, dissenting in part)
In Part I of its opinion, the majority ruled that Thomas’s confession should have been suppressed on the ground that his Miranda waiver was ineffective and involuntary. Id. at 16-27, 2024 WL 1055308, at *8–14, 2024 Va. App. LEXIS 133, at *21-36. Although police officers administered Miranda warnings at the beginning of the custodial interrogation, Thomas’s probation officer introduced the officers to Thomas at the start by saying, "I’m going to be here for a little bit, but just go ahead and chat with them today, okay?" Id. at 4, 2024 WL 1055308, at *2, 2024 Va. App. LEXIS 133, at *5. The majority concluded this was not a "classic penalty situation" that would make Thomas’s privilege against self-incrimination self-executing. Id. at 15, 2024 WL 1055308, at *8, 2024 Va. App. LEXIS 133, at *20. Still, the majority found that Thomas’s Miranda waiver was ineffective without additional warnings that his probation would not be revoked if he exercised his constitutional right to remain silent. Id. at 16-21, 2024 WL 1055308, at *8–11, 2024 Va. App. LEXIS 133, at *21-27. The majority reversed Thomas’s jury convictions and remanded that case for a new trial (Case No. FE-2021-37). Id. at 35, 2024 WL 1055308, at *17, 2024 Va. App. LEXIS 133, at *47. The dissent would have affirmed the trial court’s finding that "Thomas’s will was not overborne and that the waiver of his Fifth Amendment rights and his confession were voluntary." Id. at 49, 2024 WL 1055308, at *24, 2024 Va. App. LEXIS 133, at *68 (Raphael, J., dissenting in part). The dissent would also have affirmed the trial court’s decision to exclude testimony by Thomas’s mother during the guilt phase about his diminished intellectual capacity, which the defense said was relevant to show that Thomas had falsely confessed. Id. at 53-57, 2024 WL 1055308, at *26–28, 2024 Va. App. LEXIS 133, at *76-82.
Having found that Thomas’s confession should have been suppressed, the majority did not reach that question Thomas, slip op. at 26 n.19, 2024 WL 1055308, at *13 n.19, 2024 Va App. LEXIS 133, at *37 n.19.
We granted the Commonwealth’s petition for rehearing en banc and stayed the mandate as to all issues decided by the panel pending the decision of this Court sitting en banc. See Rule 5A:35(b). As it was not part of our en banc review, Part II of the panel opinion affirming the trial court’s ruling allowing the Commonwealth’s expert to testify "remains undisturbed," Rule 5A:35(b)(1), and we thus reinstate it. See Camann v. Commonwealth, 79 Va. App. 427, 431, 896 S.E.2d 370 (2024) (en banc). We now reject Thomas’s remaining challenges, affirm the judgment in full, and uphold Thomas’s convictions. Background
Although parts of the record are sealed, this appeal requires unsealing certain portions to resolve the issues raised by Thomas. To the extent that specific facts mentioned here are found in the sealed portions of the record, we unseal those portions only as to those specific facts. The rest remains sealed. See, e g, Khine v. Commonwealth, 75 Va. App. 435, 442 n.1, 877 S.E.2d 514 (2022).
[1, 2] We recite the facts on appeal in the light most favorable to the Commonwealth. Camann, 79 Va. App. at 431, 896 S.E.2d 370. In doing so, "we ‘discard’ the defendant’s evidence when it conflicts with the Commonwealth’s evidence, ‘regard as true all the credible evidence favorable to the Commonwealth,’ and read ‘all fair inferences’ in the Commonwealth’s favor." Id. (quoting Hammer v. Commonwealth, 74 Va. App. 225, 231, 867 S.E.2d 505 (2022)).
A. The crimes against A.R.
In 2008, when Thomas was 24 years old, he was living in his grandmother’s house that she operated as a private daycare in Fairfax County. A.R., the victim in Case No. FE-2021-37, was born in May 2004. She was a 17-year-old high-school senior by the time of trial in 2022. She testified that Thomas "raped [her] multiple times" at the daycare between January 1, 2008 and December 31, 2012. The "most memorable time" was in Thomas’s bedroom, "downstairs in the basement." Thomas took off his pants, took off her pants, and "put his penis in [her] vagina." A.R. testified that Thomas raped her in the "bathroom" and "sometimes [in] the nursery."
A.R. also recalled that Thomas put his fingers in her vagina more than once during that five-year period. She recalled one instance in 2011 when Thomas stuck his finger in her vagina and "mov[ed] it around" as she sat on his lap at the computer. Thomas told her, "Don’t tell anybody"; A.R. "just went upstairs and continued with [her] day." Another such incident occurred when she was sitting with Thomas as they watched her sister play a videogame on an "Xbox." Thomas repeatedly told A.R. not to tell anyone about the rapes and the sexual touching. She kept it a secret for another seven years.
B. Thomas's conviction, sentence, and probation for an unrelated sex offense
Thomas was arrested in 2012 and convicted in 2013 on his guilty plea to aggravated sexual battery of a different child under 13 years of age. The trial court sentenced him to 8 years in prison with 7 years suspended and 20 years’ supervised probation. During the investigation of that offense, Thomas had "at least a dozen" contacts with police. One time, he made a voluntary statement to police after he received Miranda warnings.
According to the conviction order, Thomas committed that crime in September 2002
Thomas told officers at the time about a different "[k]id I [t]ouched," a girl with the same first name and relationship to him as A.R. A.R. was then eight years old. When her mother asked if Thomas had touched her, A.R. said "no." Investigators spoke with A.R. at the time. A.R. did not reveal the abuse but said it was "not okay to touch her private parts or butt."
Fairfax County Probation Officer Joseph Samluk prepared the presentence-investigation report for Thomas’s 2013 conviction, and Samluk later became Thomas’s probation officer upon Thomas’s release from custody in 2014. Thomas’s supervised probation included sex-offender treatment, which Thomas completed. Samluk testified that he had "a very good rapport" with Thomas and that Thomas was "honest with [him] about everything."
C. Thomas confesses to multiple crimes against other children
In July 2019, at age 15, A.R. finally told her mother about the sexual abuse at the daycare. Her mother testified that A.R. was "very frightened" when revealing that Thomas had "put his privates inside her private[s]." After A.R.’s mother called the police, Fairfax County Police Detectives Steven Carter and Thomas J. Gadell, Jr. were assigned to investigate. On July 26, 2019, Detective Carter observed a video in which Anissa Tanksley, a forensic interviewer, questioned A.R. about the abuse.
Obtaining a warrant for Thomas’s arrest, the detectives arranged with Probation Officer Samluk to arrest Thomas when he reported to Samluk’s office for a probation meeting. The detectives said they chose that location because Thomas lived nearby, they did not know how he would react, and they wanted a location that could be controlled and secured for safety. Samluk testified that "it’s a normal procedure for the probation office to coordinate arrests with the Fairfax County Police Department." He said that "it happens all the time."
After his arrest, Thomas was transported by patrol car to police headquarters. Samluk drove there separately, having been asked by Detective Carter to come. Thomas was placed in an interrogation room and handcuffed to the table. A videorecording introduced at the suppression hearing captured what happened. Thomas was there for about five hours; the interview by the detectives lasted about three hours.
As Thomas had not yet eaten, the detectives got him two McDonald’s breakfast sandwiches. One of the detectives uncuffed Thomas’s dominant hand so he could eat breakfast and drink from a water bottle. As the detectives did not know Thomas, they asked Samluk to introduce them. Neither detective told Samluk how to introduce them or what to say. Detective Carter testified, "We wanted to treat Mr. Thomas respectfully and professionally, and we thought it would be important to have Mr. Samluk just introduce us as fellow professionals, as just who we were, and then leave."
Samluk told Thomas:
This is Detective Carter, Detective Gadell. They need to talk to you about some things. I’m going to be here for a little bit, but just go ahead and chat with them today. Okay?
Thomas responded, "yeah," after which Samluk said he needed to "check on some things" and stepped out. Detective Carter then reintroduced himself and Detective Gadell, and the detectives took down Thomas’s name, birthday, address, cellphone number, and social-security number. The detectives spent nearly four minutes with Thomas going over his Miranda rights, using a preprinted form that they handed to Thomas so he could follow along. Thomas said he understood his rights and signed the form, acknowledging that he agreed to speak with police without a lawyer present.
After letting Thomas use the bathroom, the detectives removed the handcuffs and began asking about his background, proceeding to question him about his sexual contacts with children. About the 2012 investigation, Thomas said he had accidentally touched a young girl’s breasts. About his background, Thomas described having been sexually abused himself. He went on to describe many times when he had sexual contact with children.
Thomas said that, when he was in his mid-20s, he had sexual contact with C.R., who was then four or five years old. Next came A.R., whose name Thomas also volunteered.
Thomas admitted fondling A.R.’s vagina six or seven times and putting his mouth on her vagina three or four times, but he denied that it went further than that. He stopped licking her vagina when she cried out that "it hurt," saying he hadn’t mean to hurt her. He said the incidents with A.R. occurred at his grandmother’s house, when A.R. was about seven or eight years old.
Thomas named about nine other children with whom he had sexual contact. He admitted to the detectives, "I have an addiction to sex. It started out [earlier] and it’s never stopped and never gone away." The detectives suggested that Thomas write handwritten notes to the children he regretted having touched; Thomas wrote apologies to A.R. and C.R.
D. Proceedings below
In January 2021, a grand jury returned a ten-count indictment against Thomas for crimes against A.R. (FE-2021-37); a nine-count indictment for crimes against C.R. (FE-2020-515); and a three-count indictment for crimes against T.W. (FE-2021-38).
Thomas moved to suppress the videotaped confession on the ground that his "waiver of his Fifth Amendment Rights was not voluntary due to his probation officer’s statements prior to the interview." At the suppression hearing, the trial court admitted the videotaped interview and took testimony from both detectives and the probation officer. The court also admitted Thomas’s signed Miranda waiver form. The court denied the motion to suppress. It found that Thomas voluntarily waived his Miranda rights without any threat by the probation officer or the detectives to revoke his probation if he invoked his right to remain silent or right to counsel.
The trial court conducted a four-day jury trial on the charges involving A.R. (Case No. FE-2021-37). The jury heard A.R. testify as recounted above. The jury also heard from A.R.’s mother, Detective Carter, two other officers, and forensic interviewer Tanksley. The court received into evidence an eight-minute excerpt of Thomas’s video interrogation in which he discussed his sexual contact with A.R, and his handwritten apology to her. The court overruled Thomas’s objections to Tanksley’s testimony and found her qualified to testify as an expert in child-forensic interviewing.
At the close of the Commonwealth’s case, the court granted Thomas’s motion to strike Count V, which had charged Thomas for "the last time" he raped A.R., because A.R. testified that she could not remember the last time it happened. The court overruled the motion to strike the remaining counts.
The defense sought to call as its only witness Thomas’s mother, Jacqueline Thomas Black. The defense proffered that she would testify about Thomas’s intellectual impairment, not to negate mens rea, but to show that Thomas was susceptible to suggestion and thus falsely confessed to crimes against A.R. To support the proffer, the trial court permitted the defense to question Black outside the jury’s presence. The trial court excluded Black’s testimony as "too speculative" to show that Thomas had falsely confessed. After the defense rested, the court granted Thomas’s motion to strike Count I. The court denied the motion to strike the remaining counts, finding that A.R. was not inherently incredible and that sufficient evidence corroborated Thomas’s confession.
Count I charged Thomas with performing cunnilingus on a child. The court agreed with the defense that, although Thomas admitted in his interview to having put his mouth on A.R’s vagina, there was no testimony from A R on that point and no evidence of penetration.
The jury found Thomas guilty of two counts of aggravated sexual battery (Counts II-III), two counts of rape (Counts IV, VI), and two counts of animate-object penetration (Counts IX-X). The jury acquitted Thomas of two counts of raping A.R. in the nursery (Counts VII-VIII). The trial court denied Thomas’s motion to set aside the verdict.
Thomas later pleaded guilty to one count of aggravated sexual battery of T.W. (Case No. FE-2021-38) and one count of sexual battery of C.R. (Case No. FE-2020-515). The Commonwealth nolle prossed the remaining charges as to those victims, and Thomas agreed to be sentenced on his guilty pleas at the same time as sentencing for the crimes against A.R.
The Commonwealth proffered the facts supporting the charges to which Thomas pleaded guilty. When T.W. was five years old at the daycare in 2009 or 2010, Thomas repeatedly rubbed his fingers on her bare vagina, something Thomas admitted during the police interview. Thomas explained that he had failed to get enough satisfaction from masturbating to porn on his computer, so he got it with T.W. When C.R. was four or five years old, Thomas repeatedly put his mouth on C.R.’s penis and put his penis in C.R.’s mouth. Thomas regretted having once ejaculated into C.R.’s mouth. Afterward, Thomas told C.R. to "spit it out" and felt ashamed, limiting his sexual contact with C.R. afterward to touching him between the legs. E. Thomas's sentencing hearing
At the sentencing hearing, the trial court considered the presentence investigation, memoranda from the parties, and victim-impact statements. Thomas presented testimony from his stepfather and from Probation Officer Samluk. The Commonwealth presented testimony from A.R. and C.R.’s aunt, who described the effects of the abuse on her niece and nephew. The Commonwealth also introduced portions of Thomas’s videotaped confession. The sentencing guidelines called for a total sentence ranging from incarceration for 13 years and 8 months to 29 years and 4 months, with a midpoint of 24 years and 5 months.
The trial court sentenced Thomas to life in prison on four of the felony convictions as to A.R. and to five-or ten-year sentences on the remaining convictions:
| Crimes against AR (Case No FE-2021-37) | Aggravated Sexual Battery (Count II) (Code § 18 2-67 3) | 5 years |
|---|---|---|
| Aggravated Sexual Battery (Count III) (Code § 18 2-67 3) | 5 years | |
| Rape (Count IV) (Code § 18 2-61) | Life in prison | |
| Rape (Count VI) (Code § 18 2-61) | Life in prison | |
| Animate-object penetration (Count IX) (Code § 18 2-67 2) | Life in prison | |
| Animate-object penetration (Count X) (Code § 18 2-67 2) | Life in prison | |
| Crime against T W (Case No FE-2021-38) | Aggravated Sexual Battery (Code § 18 2-67 3) | 10 years |
| Crime against C R (Case No FE-2020-515) | Aggravated Sexual Battery (Code § 18 2-67 3) | 10 years |
The court determined that an upward departure from the sentencing guidelines was warranted because of the severe and "indiscriminate" nature of the crimes. The court found that Thomas "ch[o]se children because they were so easy to be abused. He is a serial pedophile. The Court has no way of protecting the community from this man other than to impose a life sentence."
Thomas noted a timely appeal, arguing that the trial court erred in
• excluding Black’s testimony;
• failing to exclude forensic interviewer Tanksley’s testimony; • denying Thomas’s motion to suppress his videotaped confession; and
• failing to consider mitigating evidence at sentencing and abusing its sentencing discretion.
F. The panel opinion
A divided panel of this Court held that Thomas’s confession should have been suppressed on account of the probation officer’s involvement introducing the detectives at the start of the interview. Thomas, slip op. at 16-27, 2024 WL 1055308, at *8–14, 2024 Va. App. LEXIS 133, at *21-35. All members of the panel agreed there was no error in permitting Tanksley’s testimony. Id. at 27-31, 2024 WL 1055308, at *13–16, 2024 Va. App. LEXIS 133, at *37-44. The majority did not reach whether Black’s testimony should have been excluded, id. at 26 n.19, 2024 WL 1055308, at *13 n.19, 2024 Va. App. LEXIS 133, at *37 n.19, while the dissent would have found no abuse of discretion in that ruling, id. at 53-57, 2024 WL 1055308, at *26–28, 2024 Va. App. LEXIS 133, at *76-82. All members agreed that the trial court did not abuse its discretion when sentencing Thomas on the non-jury convictions (Case Nos. FE-2020-515, FE-2021-38). Id. at 32-33, 2024 WL 1055308, at *16-17, 2024 Va. App. LEXIS 133, at *44-47.
We granted the Commonwealth’s petition for rehearing en banc on all questions except whether Tanksley’s testimony was properly excluded.
Analysis
I. The trial court properly denied the motion to suppress.
[3] The Fifth Amendment to the United States Constitution provides that "[n]o person shall … be compelled in any criminal case to be a witness against himself." The Due Process Clause of the Fourteenth Amendment also protects the privilege against self-incrimination from "abridgment by the States." Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653 (1964). [4–6] In the seminal case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held "that when an individual is taken into custody .. and is subjected to questioning, the privilege against self-incrimination is jeopardized." Id. at 478, 86 S.Ct. at 1630. To protect the privilege, the Court announced the now-familiar prophylactic warnings that must be provided "to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored." Id. at 479, 86 S.Ct. at 1630.
[The suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires …. After such warnings have been given, … the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
Id.
[7] A defendant who makes incriminating statements after being warned under Miranda may move to suppress those statements on the ground that his Miranda waiver was not voluntary, knowing, and intelligent, as well as on the ground that his confession itself was coerced and not voluntary. See, e.g., Rodriguez v. Commonwealth, 40 Va. App. 144, 155, 578 S.E.2d 78 (2003). Thomas raises only the former challenge here. He argues that the probation officer’s participation in the interview, introducing the detectives and asking Thomas to "chat with them," prevented him from making a voluntary, knowing, and intelligent waiver of his Miranda rights.
A. Standard of Review
The parties disagree about the standard of review that applies on appeal when considering whether a defendant has validly waived Miranda rights. Relying on Harrison v. Commonwealth, 244 Va. 576, 423 S.E.2d 160 (1982), the Commonwealth says that the trial court’s finding of a Miranda waiver is a finding of fact subject to deferential review on appeal. Commonwealth Br. 22. Relying on Tirado v. Commonwealth, 296 Va. 15, 817 S.E.2d 309 (2018), Thomas argues that we should give de novo review to whether his Miranda waiver was voluntary. Reply Br. 1.
[8] Although that difference in the standard of review does not affect the outcome here, see infra at 109, 905 S.E.2d at 509, the Commonwealth is correct that Harrison requires deferential review of the trial court’s finding of a Miranda waiver. As Harrison explained, 244 Va. at 580-81, 423 S.E.2d 160, the United States Supreme Court held in Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 448, 88 L.Ed.2d 405 (1985), that when determining the admissibility of a confession, "the ultimate issue of ‘voluntariness’ is a legal question." But Miller did not reach whether the same standard applies to "the ‘voluntariness’ of a waiver of Miranda rights." Id. at 108 n.3, 106 S.Ct. at 448 n.3. Harrison held that the two standards are different and that a Miranda waiver is a finding "of fact" that carries a "presumption of correctness":
Unlike the voluntariness inquiry relevant to the admissibility of a confession where the question is one of law subject to an independent review by an appellate court, Miller, 474 U.S. at 115[, 106 S.Ct. at 452], the inquiry whether a waiver of Miranda rights was made knowingly and intelligently is a question of fact, and the trial court’s resolution of that question is entitled on appeal to a presumption of correctness.
Harrison, 244 Va. at 581, 423 S.E.2d 160.
Our Supreme Court has generally applied that deferential standard to Miranda waivers ever since. So have we. Thus, in Rodriguez, we declined to entertain the appellant’s argument that the "standard of review is ‘wrong’ and that Virginia courts ‘ought to undertake an independent review of the voluntariness of one’s waiver of Miranda rights, just as they do in reviewing the voluntariness of a confession." 40 Va. App. at 156 n.2, 578 S.E.2d 78.
See Angel v Commonwealth, 281 Va. 248, 258, 704 S E 2d 386 (2011) ("The determination of whether the waiver was made knowingly and intelligently is a question of fact that will not be set aside on appeal unless plainly wrong"), Jackson v Commonwealth, 266 Va 423, 432, 587 S E 2d 532 (2003) (same) But see Burket v Commonwealth, 248 Va 596, 612, 450 S E 2d 124 (1994) ("Based on the trial court’s findings and our independent review of the record, we hold, as a matter of law, that Burket's waiver of his Miranda rights was made knowingly, voluntarily, and intelligently " (emphasis added))
See Keepers v Commonwealth, 72 Va App 17, 37, 840 S E 2d 575 (2020) ("This decision is a question of fact, and ‘the circuit court’s determination on this issue "will not be set aside on appeal unless plainly wrong " ’ " (quoting Tirado, 296 Va at 29, 817 S E.2d 309)), Overbey v Commonwealth, 65 Va App. 636, 649, 779 S E.2d 849 (2015) (following Harrison), Knox v Commonwealth, 52 Va. App 366, 373, 663 S.E.2d 525 (2008) (same); Goodwin v Commonwealth, 3 Va App 249, 253, 349 S.E.2d 161 (1986) ("The Commonwealth submits that this issue is one of fact and we agree."). But see Medley v. Commonwealth, 44 Va App 19, 34, 602 S.E 2d 411 (2004) (en banc) ("[W]hether Medley waived his rights under Miranda is a mixed question of law and fact, and while we are bound by the facts and reasonable inferences that flow from those facts as they relate to Medley's words and conduct, we are not bound by the legal conclusion of the trial court that Medley ‘didn’t waive his rights.' " (citing Burket, 248 Va. at 611, 450 S E.2d 124)).
We disagree with Thomas that Tirado silently overruled Harrison and its progeny. Thomas misreads this passage from Tirado:
"[W]hether the [Miranda] waiver was made knowingly and intelligently is a question of fact," and the circuit court’s determination on this issue "will not be set aside on appeal unless plainly wrong." On the other hand, whether a statement was voluntary is a "legal rather than factual question."
296 Va. at 27-28, 817 S.E.2d 309 (emphasis added) (citations omitted) (first quoting Angel v. Commonwealth, 281 Va. 248, 257-58, 704 S.E.2d 386 (2011); and then quoting Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157 (1987)). In referencing "whether a statement was voluntary" in the sec- ond sentence, the Court referred to whether the defendant’s inculpatory "statement" was voluntary, not whether the Miranda "waiver" was voluntary. The citation to Gray supports that reading because Gray relied on Miller's holding about the voluntariness of the confession. See Gray, 233 Va. at 324, 356 S.E.2d 157 (citing Miller, 474 U.S. at 110, 106 S.Ct. at 448).
Clearer language in Tirado would be needed before we could conclude that Tirado silently overruled Harrison and its progeny. Indeed, our Supreme Court has "direct[ed] that ‘ "if a precedent of [the Virginia Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, lower courts should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." ’ " Commonwealth v. Watson, 297 Va. 355, 360 n.*, 827 S.E.2d 778 (2019) (quoting Clark v. Va. Dep’t of State Police, 292 Va. 725, 736, 793 S.E.2d 1 (2016)); cf. Mallory v. Norfolk S. Ry., 600 U.S. 122, 136, 143 S.Ct. 2028, 2038, 216 L.Ed.2d 815 (2023) (holding that the Pennsylvania Supreme Court "clearly erred" by interpreting "intervening decisions" from the U.S. Supreme Court to have "implicitly overruled" clear precedent). Until our Supreme Court or the Supreme Court of the United States directs otherwise, we must continue to follow the Harrison line of cases.
We acknowledge that a recent panel decision of this Court improperly added a second layer of review to the Miranda waiver question. See Ayala v. Commonwealth, 79 Va. App. 41, 50, 893 S.E.2d 417 (2023) (correctly recognizing that whether a Miranda waiver was "knowing and intelligent" is a "question of fact" but incorrectly stating that whether the "waiver was voluntary .. is a legal question" (citing Tirado, 296 Va. App. at 28, 817 S.E.2d 309)). Ayala conflicts with Keepers, which read Tirado to support the more deferential standard for reviewing Miranda waivers, treating it purely as "a question of fact." Keepers, 72 Va. App. at 37, 840 S.E.2d 575 (citing Tirado, 296 Va. App. at 29, 817 S.E.2d 309). To avoid any confusion going forward, we limit that language in Ayala as inconsistent with the Harrison line of cases, including Keepers. This does not affect the outcome in Ayala, in which the panel concluded that the waiver was voluntary. See Ayala, 79 Va. App. at 51-55, 893 S.E.2d 417. It merely provided an additional, albeit unnecessary, layer of review for the trial court’s well-supported finding that the Miranda waiver there was voluntary.
For the sake of completeness, we acknowledge that the federal precedent on which Harrison relied was brought into question by later precedent. Harrison followed the Seventh Circuit’s holding in Bryan v Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), that "whether a waiver of Miranda is voluntary is a factual determination" See Harrison, 244 Va. at 581, 423 S.E.2d 160 (citing Bryan, 820 F.2d at 220). But the Seventh Circuit changed the standard of review a decade later in United States v Mills, 122 F.3d 346 (7th Cir 1997), holding that "the ultimate issue of the voluntariness of a waiver of Miranda rights ought to be reviewed de novo by an appellate court." Id at 350. Mills explained that every federal circuit to have considered the question had so held, and it was time for the Seventh Circuit "to join the rest of the Country." Id at 349-50 & n.3 (collecting cases); see also State v. Mattox, 280 Kan. 473, 124 P.3d 6, 13 (2005) ("[A]ll the federal circuit courts of appeal regard the voluntariness of a waiver of Miranda rights as an issue of law."). But whether these considerations warrant overruling Harrison is a matter for our Supreme Court to decide, not this Court.
B. The Miranda waiver was voluntary, knowing, and intelligent.
[9–12] "Even absent the accused’s invocation of the right to remain silent, the accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [Miranda] rights’ when making the statement." Berghuis v. Thompkins, 560 U.S. 370, 382, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (alteration in original) (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979)).
The waiver inquiry "has two distinct dimensions": waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception," and "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."
Id. at 382-83, 130 S.Ct. at 2260 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986)). A waiver may be express or implied. Id. at 383, 130 S.Ct. at 2260–2261. "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent." Id. at 384, 130 S.Ct. at 2262.
[13, 14] "Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Tirado, 296 Va. at 28, 817 S.E.2d 309 (quoting Moran, 475 U.S. at 421, 106 S.Ct. at 1141). The "totality of all the surrounding circumstances" includes "the conduct of the police," id. (quoting Gray, 233 Va. at 324, 356 S.E.2d 157), as well as "the defendant’s age, education, language, alienage, experience with police, and whether the defendant stated that he understood his rights as read to him," id. at 29, 817 S.E.2d 309.
[15] At the suppression hearing below, the trial court "thought the most important" evidence on this question was the video of Thomas’s interview. As shown in the video, Probation Officer Samluk introduced Detectives Carter and Gadell by saying, "they need to talk to you about some things. I’m going to be here for a little bit, but just go ahead and chat with them today. Okay?" After Samluk left the room, Detective Carter introduced himself and his colleague again and said the detectives needed to "go over some administrative stuff first." Carter took down Thomas’s name, address, and identifying information.
Carter then said he needed to go over Thomas’s Miranda rights and wanted to answer any questions he had about the Miranda waiver form. Carter gave Thomas a copy of the form to follow along. Detective Carter said he was investigating Thomas for sexual assault. Thomas showed that he knew what that meant: he tilted his head left and right before tilting forward and resting his head in the palm of his hand for several seconds, appearing dejected.
Detective Carter then carefully reviewed with Thomas each Miranda warning. Carter read the first one aloud: "I have the right to remain silent. I am not required to say anything to anyone at any time or to answer any questions." Carter paused and asked Thomas, "Does that one make sense?" Thomas nodded his head in the affirmative. Next, Carter read aloud, "Anything I do or say can and will be used against me in a court of law." Carter asked Thomas, "Understand?" Thomas again nodded in the affirmative. Carter then added, "if you have questions, please let me know, okay?" And Thomas again nodded his head that he understood.
Detective Carter next read, "I have the right to talk to a lawyer before being questioned, and I also have the right to have the lawyer with me while being questioned." Carter asked, "Pretty straightforward?" Thomas again nodded his head in the affirmative and said, "Yeah."
Thomas did not nod or react after Carter read the fourth and fifth warnings aloud, elaborating on Thomas’s right to counsel. But after reading all five warnings, Carter asked if "all five" of them "make sense? They’re all pretty straightforward but I always want to doublecheck to make sure." Thomas responded, "Yeah—I can’t believe this is happening again."
Those warnings were
4 If I cannot afford a lawyer, and want one, one will be provided to me
5 If I want to answer questions now without a lawyer present, I will still have the right to stop answering questions at any time. I also have the right to stop answering questions at any time if I want to talk to a lawyer
Carter then read Thomas the "Consent to Speak" text on the waiver form, where the suspect’s signature was requested. It said, "I know what my rights are. I am willing to make a statement without a lawyer present. I understand and I know what I am doing. No promises or threats have been made to me by anyone." Carter told Thomas, "You don’t have to sign it. It does help if you do. But you can still agree to talk to us if you don’t want to sign it. So it’s up to you. Do you mind signing right here for me?" Thomas responded, "Yeah," and he signed the waiver form.
The officers then took a bathroom break, telling Thomas that he could use the bathroom whenever he needed. When the group returned from the first bathroom break, the detec- tives removed the handcuff securing Thomas’s left arm and conducted the rest of the interview without restraints. Thomas proceeded to make the incriminating statements described above, eventually volunteering that A.R. was one of the children he had sexually touched.
At the suppression hearing, the detectives and the probation officer all testified that they did not intend to trick Thomas into speaking with them. The detectives’ tones were "[c]onversational," "friendly, professional and respectful." They never threatened Thomas. The trial court found that the detectives were "very professional, they were kind to [Thomas], they got him food, they got him at ease." The trial court also found that Probation Officer Samluk introduced Thomas to the detectives because "he was just being helpful and courteous." As subsidiary findings of fact, -those conclusions are well-supported by the record and, therefore, cannot be second-guessed on appeal. See Secret v. Commonwealth, 296 Va. 204, 225-26, 819 S.E.2d 234 (2018); see also Commonwealth v. Barney, 302 Va. 84, 97, 884 S.E.2d 81 (2023) ("[W]e, on appellate review, view video evidence not to determine what we think happened, but for the limited purpose of determining whether any rational factfinder could have viewed it as the [factfinder] did." (second alteration in original) (quoting Meade v. Commonwealth, 74 Va. App. 796, 806, 872 S.E.2d 240 (2022))).
On the ultimate question of voluntariness, the trial court also found that when Samluk asked Thomas to "chat with them a little bit," it did not mean " ‘Answer their questions truthfully … or else,’ in so many words, … using the power of probation." Instead, it was, "like the police said, an introduction," "trying to make the accused feel at ease, and he appeared at ease." Continuing, the court concluded that Thomas voluntarily waived his privilege against self-incrimination after being informed of his right to remain silent:
[I]t appeared that based on his—partially based on his prior experiences, on his demeanor, that he knew full well what was going on and that he made [a] voluntary choice to waive his right against self-incrimination after he was advised that
he didn’t need to speak to the police and that it wouldn’t be held against him ….
And maybe there was an element there that the officers were very professional, they were kind to him, they got him food, they got him at ease, and he took the occasion to kind of pour his heart out and maybe take responsibility for things that he indicated he had done ….
But under the totality of the circumstances, I find that his Miranda waiver was voluntary, knowing and intelligent ….
We hold that the evidence amply supports the trial court’s factual finding that Thomas waived his Miranda rights. Thomas was aware of "both the nature of the right being abandoned and the consequences of the decision to abandon it." Tirado, 296 Va. at 28, 817 S.E.2d 309. He acknowledged both orally and in writing that, "Anything I do or say can and will be used against me in a court of law." The video, in particular, supports the trial court’s finding that Thomas "knew full well what was going on" and that he made a knowing, voluntary, and intelligent choice to waive his right against self-incrimination after being advised of the consequences. And even assuming for argument’s sake that the independent-appellate-review standard applied, see Part LA supra, we would conclude on de novo review that Thomas’s Miranda waiver was voluntary, knowing, and intelligent.
C. Thomas's counterarguments are unpersuasive.
Thomas resists that conclusion, arguing that his Miranda waiver was coerced and involuntary on several grounds. We are not persuaded.
[16] First, we disagree with Thomas that the Miranda waiver was rendered ineffective because "the police interrogated [him] knowing that he was intellectually disabled or ‘mentally retarded.’ " Thomas Br. 40. It is true that both detectives testified that they reviewed investigative reports containing those descriptions of his mental capabilities. But as Thomas told the detectives at the beginning of the interview, he had graduated from the 12th grade at a special-education school. And as shown by his review of the Miranda waiver form and his notes of apology, Thomas could read and write.
At sentencing, defense counsel represented that Thomas was "diagnosed with numerous disabilities in his early developmental years that required frequent medical support and intensive supervision, including severe ADHD and Tourette’s syndrome." The Tourette’s syndrome was diagnosed "after [Thomas] developed motor tics including intense facial grimacing and head snapping."
[17, 18] An otherwise valid confession or Miranda waiver is not rendered invalid because the defendant has a diminished mental capacity. For one thing, we have repeatedly held that persons with diminished mental capacities may still be capable of voluntarily confessing or waiving their Miranda rights, including persons who attended special-education schools and had fewer years of schooling than Thomas. A defendant’s prior experience receiving Miranda warnings may also bolster the conclusion that a later Miranda waiver was made voluntarily. [19, 20] For another thing, " ‘while mental condition is surely relevant to an individual’s susceptibility to police coercion,’ [a defendant’s] ‘mental condition, by itself and apart from its relation to official coercion’ can never ‘dispose of the inquiry into constitutional "voluntariness." ’ " Secret, 296 Va. at 227 n.10, 819 S.E.2d 234 (quoting Colorado v. Connelly, 479 U.S. 157, 164-65, 107 S.Ct. 515, 520–521, 93 L.Ed.2d 473 (1986)) (considering mental condition in the context of a voluntary confession). "That is because 'Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.’ " Id. (emphasis added) (quoting Connelly, 479 U.S. at 170-71, 107 S.Ct. at 523–524). So we have rejected challenges to the voluntariness of a confession or of a Miranda waiver by people with low IQs when the police did not use coercive tactics to exploit such vulnerabilities. In Bottenfield v. Commonwealth, 25 Va. App. 316, 487 S.E.2d 883 (1997), for instance, we found the confession voluntary even though the appellant had an IQ of 61. Id. at 322, 487 S.E.2d 883. We explained that the officer "did not use complex questions or other tactics aimed at exploiting appellant’s disability in order to compel an unintentional confession. On the contrary, [the officer] testified that he framed his questions simply and repeated them several times when it appeared that appellant did not understand." Id. at 326-27, 487 S.E.2d 883.
See, e g, Yeatts v Commonwealth, 242 Va. 121, 131-32, 410 S E 2d 254 (1991) (holding Miranda waiver voluntary in spite of defendant’s "low intelligence" and "stress" he suffered from "drugs, alcohol, and loss of sleep"); Simpson v Commonwealth, 227 Va. 557, 563-64, 318 S.E.2d 386 (1984) (holding Miranda waiver voluntary despite that defendant had an IQ of 78 and "functioned at the second-grade level"); Terrell v. Commonwealth, 12 Va. App. 285, 292, 403 S E.2d 387 (1991) (holding that the "confession was voluntary" even though defendant had "an IQ between 71 and 75"), Goodwin v Commonwealth, 3 Va App 249, 254-57, 349 S.E.2d 161 (1986) (holding Miranda waiver voluntary even though defendant read at a first-grade level and had an IQ of 56, "placing him m the educable mentally retarded range").
See, eg, Washington v Commonwealth, 228 Va. 535, 545, 547-48, 323 S.E.2d 577 (1984) (holding Miranda waiver voluntary despite that defendant’s "I.Q. was 69, a score at the upper limits of mild mental retardation,’ " and defendant had only "a ninth grade education but had attended ‘special education’ classes"); Robinson v Commonwealth, 63 Va. App 302, 309, 313-14, 756 S.E.2d 924 (2014) (finding confession voluntary despite that defendant "had been in an alternative school since third grade" and "read at a seventh grade level").
See, e.g, Correll v Commonwealth, 232 Va 454, 464, 352 S.E.2d 352 (1987) ("Despite his low IQ of 68, Correll had on a number of prior occasions dealt with the police and received Miranda warnings. He was capable of effecting a valid waiver."); Overbey, 65 Va App at 651 n.7, 779 S E.2d 849 ("This prior exposure to criminal proceedings [and receiving Miranda warnings] also undermines appellant’s claim that his waiver was not knowingly and intelligently given because of his low IQ of 78").
Thomas’s involuntariness argument here fails for all those reasons. The video interview and signed waiver form show that Thomas’s Miranda waiver was voluntary despite any reduced intellectual capacity. As the trial court noted, Thomas was familiar with Miranda warnings, "partially based on his prior experiences"—his multiple encounters with police that led to the 2013 conviction. And the video interview fails to show that the detectives used coercive tactics to exploit any intellectual shortcomings.
[21, 22] Second, we disagree with Thomas that the Miranda warnings were rendered ineffective on the ground that Detective Carter downplayed their importance as a "mere formality" or "procedural matter." Thomas Br. 35. We have rejected a similar claim that police "diluted" Miranda warnings by downplaying their significance as "just procedural stuff." Keepers v. Commonwealth, 72 Va. App. 17, 29, 37, 840 S.E.2d 575 (2020). What is important is that Thomas was apprised of his Miranda rights for nearly four minutes. Cf. id. at 29, 840 S.E.2d 575 (warnings lasted "approximately two minutes"). Thomas was told he "was free to refuse to answer any questions and could stop talking any time." Id. at 37, 840 S.E.2d 575. And he "signed a pre-printed form listing [his] Miranda warnings" without "express[ing] any confusion or hesitation." Id. Whether a defendant fails to fully appreciate that it may harm his legal interest to speak with law-enforcement officers, rather than remain silent, "does not affect the validity of his waiver." Tirado, 296 Va. at 29, 817 S.E.2d 309 (quoting United States v. Yunis, 859 F.2d 953, 965 (D.C. Cir. 1988)). Thomas’s "express written and verbal statements of waiver of his rights are strong proof of the validity of his waiver." Angel, 281 Va. at 259, 704 S.E.2d 386.
[23] Third, we disagree with Thomas that his Miranda waiver was invalid because of the probation officer’s involvement introducing the detectives at the beginning of the interrogation. Thomas claims that Samluk’s introducing the detectives and asking Thomas to "chat" with them was coercive because a condition of his probation required Thomas to be "truthful" with his probation officer and "follow" the probation officer’s instructions. He argues that the detectives chose "a trusted face" to introduce them. And he claims that his decision to speak with the detectives was "not a free and unconstrained choice" because "it was a conditioned response from years of following his probation officer’s instructions." Thomas Br. 30. But as the trial court found, Probation Officer Samluk introduced Thomas to the detectives because "he was just being helpful and courteous." When Samluk asked Thomas to "chat with them a little bit," it did not mean, " ‘Answer their questions truthfully … or else,’ in so many words, using the power of probation." Instead, it was, "like the police said, an introduction," "trying to make the accused feel at ease, and he appeared at ease."
That finding is supported by the record. Detective Carter testified that the detectives asked Samluk to introduce them to Thomas because they "wanted to treat Mr. Thomas respectfully and professionally, and we thought it would be important to have Mr. Samluk just introduce us as fellow professionals, as just who we were, and then leave." For his part, Samluk testified that "these are routine things that we do to help the police."
The panel majority overlooked Samluk’s testimony when emphasizing that the two detectives here "had never enlisted a suspect’s probation officer in this way during a custodial interrogation despite Carter having conducted ‘hundreds’ of interviews." Thomas, slip op at 16, 2024 WL 1055308, at *8, 2024 Va. App. LEXIS 133, at *22. Thomas has not argued that point on brief, and for good reason. Detective Carter testified that none of the custodial interrogations that he could recall involved a suspect on probation. And Detective Gadell was less experienced than Carter, having conducted "[m]aybe over a dozen" interrogations at that point.
Thomas also conflates the pressure that a probationer would naturally feel to speak with his probation officer and the police in this situation with whether Thomas was coerced into waiving his privilege against self-incrimination. The defendant in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), was a probationer whose conditions of probation likewise required that he "be truthful with the probation officer ‘in all matters.’ Failure to comply… could result in his return to the sentencing court for a probation revocation hearing." Id. at 422, 104 S.Ct. at 1139. When the probation officer confronted Murphy in a noncustodial setting about an unsolved rape and murder, Murphy confessed to the crimes. Id. at 423-24, 104 S.Ct. at 1140-1141. The Court rejected Murphy’s claim that his probationary status coerced him into confessing, holding that "since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations." Id. at 440, 104 S.Ct. at 1149.
The Court explained "that the general obligation to appear and answer questions truthfully did not in itself convert Murphy’s otherwise voluntary statements into compelled ones." Id. at 427, 104 S.Ct. at 1142. "In that respect, Murphy was in no better position than the ordinary witness at a trial or before a grand jury who is subpoenaed, sworn to tell the truth, and obligated to answer on the pain of contempt, unless he invokes the privilege …" Id. "The answers of such a witness to questions put to him are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege." Id. (emphasis added).
[24] At least since Murphy, "It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection " ‘must claim it.’ " Salinas v. Texas, 570 U.S. 178, 181, 133 S.Ct. 2174, 2178, 186 L.Ed.2d 376 (2013) (plurality opinion) (quoting Murphy, 465 U.S. at 425, 427, 104 S.Ct. at 1142). This is sometimes called the "invocation requirement." Id. at 183, 186-90, 133 S.Ct. at 2179, 2180–2183. "Thus it is that a witness confronted with questions must assert the privilege rather than answer if he desires not to incriminate himself." Murphy, 465 U.S. at 429, 104 S.Ct. at 1143.
[25] On the other hand, if the government were to expressly or implicitly "assert[ ] that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution." Id. at 435, 104 S.Ct. at 1146. For instance, the Ninth Circuit held in United States v. Saechao, 418 F.3d 1073 (9th Cir. 2005), on which Thomas relies, that Oregon law created that "classic penalty situation" by treating a probationer’s failure to "answer[ ]" all questions as grounds to revoke probation. Id. at 1079. See United States v. Linville, 60 F.4th 890, 898 (4th Cir. 2023) (explaining that, "under Oregon law [in Saechao], ‘an invocation of the privilege does not constitute compliance with Oregon’s probation conditions’ requiring probationers to ‘promptly and truthfully answer all reasonable inquiries’ " (quoting Saechao, 418 F.3d at 1079)).
Not so here. While Thomas’s probation conditions required that he be "truthful" with his probation officer and "follow" his instructions, those instructions, as in Murphy, "said nothing about his freedom to decline to answer particular questions and certainly contained no suggestion that his probation was conditional on waiving his Fifth Amendment privilege with respect to further criminal prosecution." 465 U.S. at 437, 104 S.Ct. at 1147. The record also lacks evidence that anyone expressly or implicitly threatened Thomas with probation revocation if he invoked his privilege against self-incrimination. "There is no direct evidence that [Thomas] confessed because he feared that his probation would be revoked if he remained silent." Id. And even if Thomas had subjectively believed "that his probation might be revoked for exercising the Fifth Amendment privilege, that belief would not have been reasonable" because the Supreme Court has "made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege." Id. at 438, 104 S.Ct. at 1148.
To be sure, Murphy did not involve a probationer who was questioned while in custody. The Court said that "[a] different question would be presented if he had been interviewed by his probation officer while being held in police custody or by the police themselves in a custodial setting." Id. at 429 n.5, 104 S.Ct. at 1143 n.5.
[26–28] But Murphy's principles apply equally in a custodial setting as long as Miranda warnings have been properly administered and the government does not expressly or implicitly threaten to revoke probation to deter the defendant from asserting his privilege against self-incrimination. "[T]he primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. ‘[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.’ " Davis v. United States, 512 U.S. 452, 460, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994) (quoting Moran, 475 U.S. at 427,. 106 S.Ct. at 1144). Thus, once proper Miranda warnings are given, it resets the defendant’s obligation to invoke his right to remain silent if he wants further questioning to stop. See Berghuis, 560 U.S. at 381, 130 S.Ct. at 2260 ("[A]n accused who wants to invoke his or her right to remain silent [must] do so unambiguously."); Thomas v. Commonwealth, 72 Va. App. 560, 574, 850 S.E.2d 400 (2020) ("Both the right to remain silent and the right to counsel require the suspect to unambiguously invoke them.").
The detectives here thoroughly explained the Miranda warnings to Thomas. Doing so dispelled the inherent compulsion of the custodial setting and reset Thomas’s obligation to invoke his privilege against self-incrimination. Thomas was told—as he had been after his 2012 arrest—that he had "the right to remain silent" and was "not required to say anything to anyone at any time or to answer any questions." He was told he had the right to have a lawyer, paid for by the State, both "before being questioned" and "while being questioned." He was told he could "stop answering questions at any time." Thomas acknowledged both orally and in writing that he understood those rights. So although Murphy did not involve a probationer in a custodial setting, its principles extend to a case where the probationer, as here, has been fully advised of his rights. Having received proper Miranda warnings and having not been threatened with probation revocation, Thomas was not coerced or compelled to surrender his privilege against self-incrimination.
[29] As a fallback position, Thomas maintained at oral argument that, if we find his Miranda waiver voluntary under the traditional totality-of-circumstances test, we should recog- nize a new exception to the invocation requirement when a probation officer participates with police in a custodial interrogation. Thomas is correct that footnote five in Murphy reserves this question. Thomas would have us answer it by requiring the government to provide not only traditional Miranda warnings but supplemental warnings that the defendant’s probation will not be revoked if he asserts his privilege against self-incrimination. See also Thomas Br. 35 ("The Miranda warnings … were insufficient to combat the coercive use of the probation officer" because "the detectives took no steps to clarify the probation officer’s instruction that Mr. Thomas speak with them. The detectives did not cure that taint by informing Mr. Thomas that he would not be violated on probation if he asserted his right to remain silent.").
We decline Thomas’s invitation to fashion a new exception to the invocation requirement. Thomas has cited no case in the country that has done so when a probationer in custody has been properly Mirandized and the government has not coerced a waiver by threatening to revoke probation. The Supreme Court has also been reluctant to carve out new "exception[s] to the invocation requirement." Salinas, 570 U.S. at 186, 133 S.Ct. at 2180 (plurality opinion). That caution is particularly warranted when, as here, requiring another level of prophylaxis "would needlessly burden the Government’s interests in obtaining testimony and prosecuting criminal activity." Id.
[30] "Miranda’s clarity is one of its strengths …. " Missouri v. Seibert, 542 U.S. 600, 622, 124 S.Ct. 2601, 2616, 159 L.Ed.2d 643 (2004) (Kennedy, J., concurring in the judgment). "Miranda’s holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible." Fare v. Michael C., 442 U.S. 707, 718, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979). It is unwise to require additional warnings beyond those set out in Miranda when doing so is not needed to avoid or cure a classic-penalty situation. "We share the U.S. Supreme Court’s preference for ‘bright-line’ rules for the guidance of those who must conduct and evaluate custodial interrogations." Eaton v. Commonwealth, 240 Va. 236, 253, 397 S.E.2d 385 (1990). So we decline to tack on a codicil to the standard Miranda warning when, as here, the government has not expressly or implicitly threatened probation revocation to deter the defendant from invoking his privilege against self-incrimination.
II. The trial court properly excluded Black's testimony.
[31] Thomas also argues that the trial court erred in excluding the testimony of his mother, Jacqueline Thomas Black, whom the defense proffered would testify that Thomas was vulnerable to suggestion, showing that Thomas had falsely confessed to the crimes against A.R. Thomas claims that excluding Black’s testimony denied him his right to present a witness and evidence in his own defense, in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Section 8 of the Virginia Constitution.
[32–35] Appellate courts "review a trial court’s decision to admit or exclude testimony using an abuse of discretion standard." Jefferson v. Commonwealth, 298 Va. 1, 10, 833 S.E.2d 462 (2019) (quoting Commonwealth v. Proffitt, 292 Va. 626, 634, 792 S.E.2d 3 (2016)). "The exercise of judicial discretion presupposes ‘that, for some decisions, conscientious jurists could reach different conclusions based on exactly the same facts—yet still remain entirely reasonable.’ " Barney, 302 Va. at 94, 884 S.E.2d 81 (quoting Minh Duy Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493 (2016)). "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Id. (quoting Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664 (2015)). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Id. (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634 (2009)). After defense counsel referred to Thomas as "developmentally delayed" during opening statements, the Commonwealth moved to exclude such evidence for lack of notice under Code § 19.2-271.6. See generally Shaw v. Commonwealth, 79 Va. App. 485, 512-20, 896 S.E.2d 399 (2024) (discussing the scope of mental-health evidence admissible under Code § 19.2-271.6 when offered to negate mens rea). The defense responded that it was not offering that evidence to negate mens rea but to explain Thomas’s susceptibility to falsely confessing. Based on the proffer, the trial court initially ruled that the evidence was "too speculative."
To consider the issue, however, the court permitted Black to be questioned by defense counsel outside the jury’s presence. Black described Thomas’s slow development from about the "age of one" to the difficulties he had remembering things into adulthood. Thomas’s mother had to lay out his clothes for him. She used "little cards" and a "chart" to remind him to do such things as brush his teeth, put on deodorant, put on socks, and use soap when showering. He would forget to get the mail or take out the trash, and when she sarcastically thanked him for completing those chores, he would say, "you’re welcome," thinking he had done them. When Thomas left home to live by himself, his friends would sleep in his house, borrow his things, and eat his food. Having heard the proffered testimony, the trial court again concluded that it was "too speculative" to undermine the validity of the confession, ruling Black’s testimony inadmissible.
[36–39] A criminal defendant generally "is entitled to present relevant and favorable evidence on an element of the offense charged against him." Clark v. Arizona, 548 U.S. 735, 765, 126 S.Ct. 2709, 2729, 165 L.Ed.2d 842 (2006) (emphasis added). "The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988). And "the Constitution leaves to the judges who must make these decisions ‘wide latitude’ to exclude evidence that is ‘repetitive …, only marginally relevant’ or [that] poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’ " Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986) (second and fourth alterations in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)). In addition, "[r]elevant evidence may … be excluded on account of a defendant’s failure to comply with procedural requirements," or based on "any number of familiar and unquestionably constitutional evidentiary rules [that] also authorize the exclusion of relevant evidence." Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 2017, 135 L.Ed.2d 361 (1996) (plurality opinion).
[40, 41] " ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence." Va. R. Evid. 2:401. "Evidence that is not relevant is not admissible." Va. R. Evid. 2:402(a). "Evidence of collateral facts or those incapable of affording any reasonable presumption or inference on matters in issue, because too remote or irrelevant, cannot be accepted in evidence." McMillan v. Commonwealth, 277 Va. 11, 22, 671 S.E.2d 396 (2009) (quoting Smith v. Commonwealth, 223 Va. 721, 723, 292 S.E.2d 362 (1982)). In other words, "evidence that produces only speculative inferences is irrelevant … and should be excluded." 29 Am. Jur. 2d Evidence § 295 (2019).
For example, in Hubbard v. Commonwealth, 243 Va. 1, 413 S.E.2d 875 (1992), the Supreme Court found no abuse of discretion by the trial court in excluding evidence that the driver who died in a collision with the defendant’s speeding car had a blood-alcohol level of 0.18. Id. at 12, 413 S.E.2d 875. The defendant, who was charged with involuntary manslaughter, offered that evidence to support the possibility that the victim may have crossed into the wrong lane at the time of the fatal collision. Id. But because that possibility was only "speculative," the Court found no abuse of discretion in excluding evidence of the victim’s "alcohol impairment." Id. at 13-14, 413 S.E.2d 875.
We likewise found no abuse of discretion in excluding the defendant’s evidence as speculative in Barnes v. Commonwealth, 33 Va. App. 619, 535 S.E.2d 706 (2000). The trial court there barred a defense witness from testifying that Barnes "worked five days a week doing manual labor for minimum wage." 33 Va. App. at 624, 535 S.E.2d 706. Barnes argued that the evidence showed that he "was not a drug dealer," since "a drug dealer who was making $600 per day would not engage in minimum wage work." Id. We found no abuse of discretion in excluding that testimony because Barnes "neither proffered nor presented evidence of the relationship between minimum wage employment and drug dealing," thus requiring the fact-finder "to speculate as to that relationship." Id. at 626, 535 S.E.2d 706. Moreover, the time frame when Barnes worked the minimum-wage job ended before the period when he allegedly used an underling to sell drugs. Id. So the "proffered testimony" also "concerned facts remote in time." Id. at 626-27, 535 S.E.2d 706.
The trial court here likewise did not abuse its discretion in excluding Black’s testimony as too speculative to show that Thomas falsely confessed to the crimes against A.R. Black did not describe any instance in which Thomas was encouraged by others to admit to something he did not do. And the defense presented no connection—no "evidence of the relationship," id. at 626, 535 S.E.2d 706—between Thomas’s slow development and forgetfulness, on the one hand, and his being prone to falsely confess to police, on the other. The examples offered by Black about Thomas’s behavior in his younger years were also "remote in time," id. at 627, 535 S.E.2d 706, to his confession in 2019, when Thomas was 35 years old.
At oral argument, defense counsel said the best argument for relevance was Black’s description of how Thomas, as an adult, could mistakenly think that he had brought in the mail or taken out the trash after she had sarcastically thanked him for doing so when he hadn’t. We disagree with Thomas, however, that "reasonable jurists could not differ," Grattan, 278 Va. at 620, 685 S.E.2d 634, in finding that those anecdotes made it more probable than not that Thomas falsely confessed to crimes against A.R.
To the contrary, a reasonable jurist could find that connection too attenuated and remote considering Thomas’s videotaped confession. It was Thomas who volunteered A.R.’s name as one of the children he had sexually touched. Thomas also volunteered what he did. He said, "that was more of me touching her," but "that’s as far as it went." When asked how many times he touched her, Thomas answered "six, seven" times. When asked how he touched her, Thomas showed the detectives by rubbing his right-index finger around a circle formed by his left thumb and left-index finger, denying that he stuck his finger inside. When told that A.R. had said that Thomas’s "private part" had touched "her private part," Thomas said he "believe[d] she’s right," but he insisted, "I never penetrated her, I’m telling you that now, I never penetrated her." A reasonable jurist could find—based on Thomas’s detailed description of what he remembered and his resistance to any implication that he had "penetrated" A.R.— that it would be entirely speculative to infer from Black’s anecdotes about Thomas’s chores that Thomas had falsely confessed to the detectives.
We reject Thomas’s argument that excluding Black’s testimony was reversible error under Crane. Crane entitled Thomas to "introduce testimony about the physical and psychological environment in which the confession was obtained" to show that his incriminating statements were "unworthy of belief." 476 U.S. at 684, 106 S.Ct. at 2143. But Black’s testimony did not address the custodial setting or Thomas’s confession.
Nor did the trial court’s ruling violate Pritchett v. Commonwealth, 263 Va. 182, 557 S.E.2d 205 (2002), where the trial court erred by disallowing the testimony of two "experts in the field of psychology." Id. at 185, 557 S.E.2d 205. Their testimony directly addressed the risk of false confessions and was admissible under Crane "to assist the jury in determining whether the confession was reliable." Id. at 186, 557 S.E.2d 205. One expert, a clinical neuropsychologist, testified that her testing showed that Pritchett had an IQ of 69 and was intellectually disabled. Id. at 185, 557 S.E.2d 205. The other, a forensic psychologist, testified that such low IQs correlate with a tendency to "go along with [authority] figures" and with "leading questions." Id. (alteration in original). That expert had also tested Pritchett to confirm his willingness to agree with the questioner. Id. at 185-86, 557 S.E.2d 205. Black, by contrast, was not a mental-health expert and provided only anecdotal evidence that required rank speculation to connect it to the possibility of a false confession.
In short, the trial court did not abuse its discretion in excluding Black’s testimony.
III. The trial court did not abuse its sentencing discretion.
[42–46] Lastly, we reject Thomas’s claim that the trial court abused its sentencing discretion and erred in its decision to impose life sentences for the two rape and two animate- object-penetration convictions. "Such decisions—if within the lawful boundaries of applicable sentencing statutes and constitutional limitations—are vested in the sound discretion of trial judges, not appellate judges." Minh Duy Du, 292 Va. at 563, 790 S.E.2d 493. So "when a statute prescribes a maximum imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion." Id. at 564, 790 S.E.2d 493 (quoting Alston v. Commonwealth, 274 Va. 759, 771-72, 652 S.E.2d 456 (2007)); Cellucci v. Commonwealth, 77 Va. App. 36, 48, 884 S.E.2d 242 (2023) (en banc) (same). There is no dispute here that the sentence imposed fell within the range set by the legislature, including the life sentences for the rape and animate-objectpenetration convictions. See Code §§ 18.2-61(A)(iii), (B), 18.2- 67.2(A)(1), (B). "[O]nce it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end." Minh Duy Du, 292 Va. at 565, 790 S.E.2d 493 (quoting Dorszynski v. United States, 418 U.S. 424, 431, 94 S.Ct. 3042, 3047, 41 L.Ed.2d 855 (1974)); see, e.g., Taylor v. Commonwealth, 77 Va. App. 149, 176-77, 884 S.E.2d 822 (2023) (finding no abuse of discretion in imposing statutory maximum). Thus, a claim that a "life sentence" is "excessive" when the statute allows a life sentence will "necessarily fail," Minh Duy Du, 292 Va. at 565, 790 S.E.2d 493, barring some other statutory or constitutional basis for the challenge.
Noting that his life sentence here is "substantially above the high end of the sentencing guidelines," Thomas argues that the trial court abused its sentencing discretion because it "did not consider the mitigating evidence," including his intellectual disability and his being the victim of sexual assault himself. Thomas Br. 41, 45. Thomas infers that the court ignored mitigating evidence because it mentioned only the depravity of Thomas’s crimes and "did not mention any mitigation evidence, including the sentencing memorandum, letters, and argument of counsel." Thomas Br. 42-44. Thomas argues that since he had been "successful on probation," with "no evidence … [of] any new offenses while in the community," no-"reasonable person" could have found "that a life sentence was merited." Thomas Br. 45.
[47–50] Not one of those claims has merit. The trial court’s failure to follow the sentencing guidelines is "not … reviewable on appeal." Code § 19.2-298.01(F). The guidelines themselves "are discretionary and are not binding on the circuit court’s determination of the appropriate sentence." Woodard v. Commonwealth, 287 Va. 276, 282, 754 S.E.2d 309 (2014). We presume that the trial court considered mitigating circumstances, "absent clear evidence to the contrary," and "[n]oth- ing in the record here indicates that the trial court failed to consider the … mitigating circumstances." Cellucci, 77 Va. App. at 49-50, 884 S.E.2d 242. To the contrary, Thomas overlooks the trial court’s explicit statement that it "has considered all of the things that are presented by both sides." Appellate courts also reject arguments that "the mitigating evidence was of such weight that the court could not have considered it and still sentenced" the defendant as it did. Reid v. Commonwealth, 256 Va. 561, 569, 506 S.E.2d 787 (1998). As Reid explained, although "the fact-fínder has a duty to consider mitigating evidence along with other evidence in determining the appropriate sentence[,] … the fact-fínder is ‘not required to give controlling effect to the mitigating evidence.’ " Id. (quoting Correll v. Commonwealth, 232 Va. 454, 468-69, 352 S.E.2d 352 (1987)).
[51] "Criminal sentencing decisions are among the most difficult judgment calls trial judges face." Minh Duy Du, 292 Va. at 563, 790 S.E.2d 493. "Because this task is so difficult, [appellate courts] must rest heavily on judges closest to the facts of the case—those hearing and seeing the witnesses, taking into account their verbal and nonverbal communication, and placing all of it in the context of the entire case." Id. Our Supreme Court has also emphasized the " ‘elevated public safety concerns with "the crime of child molestation," which all too often goes unreported.’ " Id. at 565, 790 S.E.2d 493 n.6 (quoting Murry v. Commonwealth, 288 Va. 117, 127, 762 S.E.2d 573 (2014)). Given all these considerations, we cannot second-guess the trial court’s considered judgment that Thomas is "a serial pedophile" and that the court had "no way of protecting the community from [Thomas] other than to impose a life sentence."
Conclusion
We find no basis to disturb Thomas’s convictions for his crimes against A.R. (FE-2021-37), C.R. (FE-2020-515), or T.W. (FE-2021-38). Accordingly, the judgment below is affirmed.
Affirmed.
Causey, J., with whom Chaney, J. joins, dissenting.
Because we find that the circuit court erred in admitting Thomas’s confession, we do not reach the question of the admissibility of Thomas’s mother’s statement, nor the question of Thomas’s sentence.
In their thorough analysis of the limitations of an individual’s Fifth Amendment rights, the majority concludes that the circuit court properly declined to suppress Thomas’s statements to the police because Thomas voluntarily waived his Miranda rights. But the majority opinion misses the forest for the trees. Assessing the voluntariness of a defendant’s waiver of his Miranda rights requires a broad view of all the circumstances, not an evaluation of each factor in isolation. When viewed through the lens of a totality of the circumstances analysis—prescribed by precedent—Thomas did not make a voluntary waiver of Miranda. Thus, the circuit court erred by not suppressing his incriminating statements. We respectfully dissent and would reverse and remand the case for further proceedings.
Elwood Lewis Thomas is a resident of Fairfax County with a history of mental health disorders and intellectual disabilities. Thomas was placed on probation following his 2012 arrest and subsequent conviction for aggravated sexual battery. Thomas was compliant with all aspects of his probation. Thomas understood, acknowledged, agreed to, and signed the rules and conditions of his probation, including "Condition 6," that he "report to his probation officer, be truthful, cooperative," and that he follow his probation officer’s instructions. While on probation, Thomas was under the supervision of Joseph Sam- luk of the Fairfax Adult Probation office for roughly six or seven years. Thomas’s probation required him to disclose essentially all aspects of his life to Samluk. Samluk had what would be fair to describe as a good relationship with Thomas; Samluk said that they had a "good rapport" and that Thomas was "honest with [him] about everything."
Thomas’s probation terms also required him to follow his probation officer’s instructions. Under the law applicable at the time, failing to follow his probation officer’s instructions would have risked reinstating his sentence. Thomas understood that he was duty bound to be completely forthcoming, honest, and follow every instruction Samluk gave. Observing this trust, positive relationship, and understanding of obligation demonstrated in the record, it is all the more troubling that Thomas’s trust and vulnerability were used against him on the day police questioned him regarding the case at bar.
The interrogation predated the enactment of Code § 19.2-306.1. Accordingly, the circuit court could have revoked the entirety of Thomas’s suspended sentence for any probation violation. See Code § 19.2-306(A) (2019); 2021 Va. Acts Spec. Sess. I ch. 538.
In September 2019, Fairfax County police officers coordinated with Samluk to arrest Thomas at Samluk’s office. Samluk called Thomas down to his office, and when Thomas arrived, four officers arrested him, searched him, and transported him to police headquarters. The officers requested that Samluk join them at the police station, so Samluk made the thirty-to-forty-five-minute drive separately and met them at the station. Samluk then entered the interrogation room, where two police officers sat across from Thomas, who had one hand handcuffed. The officers then asked Samluk to introduce them to Thomas. Samluk introduced the police officers to Thomas by name. Samluk then said, "They need to talk to you about some things." Then, Samluk—with knowledge of Thomas’s disability and the nature of their relationship requiring full compliance with all his instructions—instructed Thomas to "go ahead and chat with them today," to which Thomas responded, "Yeah." The circuit court found that this was an instruction from Thomas’s probation officer. The instruction was to "chat" with the police who had just arrested Thomas and now sought to interrogate him regarding the charges for which he had been arrested. To that point, Thomas had always followed Samluk’s instructions and would have had no reason to believe that his duty as a probationer to "follow his probation officer’s instructions" did not apply to the instruction to speak with the police, which was made in the context of additional authority and pressure to comply with requests inherent to a custodial interrogation. Armed with full knowledge of Thomas’s probation conditions and intellectual disabilities, the police officers made no effort to counteract the enhanced coerciveness of the circumstances. The officers never informed Thomas that Samluk’s instruction did not affect his constitutional rights. The circuit court found that Samluk had placed himself "in an unusual situation" by going to the police station, which was "not the best idea." But the circuit court found that Thomas’s waiver of his rights was voluntary.
The majority focuses on the circuit court’s finding that the instruction was not " ‘or else’ in so many words, or using the power of probation." Ante at 108, 905 S.E 2d at 508. If understood as a finding about the probation officer’s subjective intent, this finding should receive little consideration in the totality-of-the-circumstances analysis. On the other hand, if understood as a finding that it would not have been natural for Thomas to understand the instruction as mandatory, it is plainly wrong because it cannot be reconciled with the plain language of Samluk’s statement, the court’s finding that these words were an "instruction," the unrebutted testimony on Thomas’s terms of probation requiring that instructions be followed, and the increased coerciveness inherent to a custodial interrogation.
I. Background Law on Involuntary Waiver
In the "inherently coercive" circumstances of a custodial interrogation, the Fifth-Amendment privilege becomes "selfexecuting." Minnesota v. Murphy, 465 U.S. 420, 429-30, 104 S.Ct. 1136, 1143–1144, 79 L.Ed.2d 409 (1984). In a custodial interrogation, there are "inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). Such pressures include the "substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion." Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986). These pressures are so significant that even without an affirmative invocation of the privilege, incriminating statements made during custodial interrogation are "presumed" to have been compelled unless sufficient safeguards are employed to overcome the presumption. Gamer v. United States, 424 U.S. 648, 657, 96 S.Ct. 1178, 1184, 47 L.Ed.2d 370 (1976) ("It is presumed that without proper safeguards the circumstances of custodial interrogation deny an individual the ability freely to choose to remain silent.").
Because of these inherent risks, the Supreme Court of the United States has established a procedural hurdle that the police must surmount in every custodial interrogation: the reading of Miranda rights. Thomas v. Commonwealth, 72 Va. App. 560, 574, 850 S.E.2d 400 (2020) (citing Miranda, 384 U.S. at 479, 86 S.Ct. at 1630). The relevant constitutional inquiry, however, is not simply whether Miranda warnings have been communicated, but whether, under the totality of the circumstances, the subject of the custodial interrogation "voluntarily, knowingly, and intelligently" waived those rights. Tirado v. Commonwealth, 296 Va. 15, 28, 817 S.E.2d 309 (2018) (citing Moran, 475 U.S. at 421, 106 S.Ct. at 1141); Medley v. Commonwealth, 44 Va. App. 19, 24, 602 S.E.2d 411 (2004); Rodriguez v. Commonwealth, 40 Va. App. 144, 155, 578 S.E.2d 78 (2003); J. D. B. v. North Carolina, 564 U.S. 261, 269-70, 131 S.Ct. 2394, 2401-2402, 180 L.Ed.2d 310 (2011) (explaining that even if Miranda warnings have been provided, the government bears the burden of showing that the suspect "voluntarily, knowingly and intelligently waived those rights" (quoting Miranda, 384 U.S. at 475-76, 86 S.Ct. at 1628-1629)); United States v. Giddins, 858 F.3d 870, 879 (4th Cir. 2017). Here, Thomas was undoubtedly subject to a custodial interrogation. The question presented by this case is whether his waiver, under all the circumstances, was voluntary.
Under settled precedent, we assess the voluntariness of a suspect’s waiver of his Miranda rights—in the context of custodial interrogations—by examining "the totality of the circumstances," including "the defendant’s age, intelligence, mental and physical condition, background and experience with the criminal justice system, the conduct of the police, and the circumstances of the interview." Tirado, 296 Va. at 28, 817 S.E.2d 309 ("[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. … Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived (emphasis added) (quoting Moran, 475 U.S. at 421, 106 S.Ct. at 1140- 1141)); Thomas, 72 Va. App. at 582, 850 S.E.2d 400 (listing factors to consider per totality of the circumstances) (quoting Keepers v. Commonwealth, 72 Va. App. 17, 37, 840 S.E.2d 575 (2020)); Jackson v. Commonwealth, 267 Va. 178, 190, 590 S.E.2d 520 (2004) ("When determining whether a defendant’s statement was voluntarily given, we examine the totality of the circumstances, which include the defendant’s background and experience as well as the conduct of the police in obtaining the waiver of Miranda rights and confession."); Midkiff v. Commonwealth, 250 Va. 262, 268, 462 S.E.2d 112 (1995) (same); Rodriguez, 40 Va. App. at 157, 578 S.E.2d 78; see also Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973) (collecting cases and explaining that determining voluntariness requires "a careful scrutiny of all the surrounding circumstances"). Across the country, appellate courts have reversed convictions pursuant to totality- of-the-circumstances voluntariness analyses when the circumstances surrounding an interrogation were marred by combinations of factors including intellectual disability and coercive police tactics. See United States v. Preston, 751 F.3d 1008, 1023 (9th Cir. 2014) (considering intellectual disability and coercive police tactics among the "totality of the circumstances" to reverse a trial court’s finding that a confession given in a noncustodial context was voluntary); Giddins, 858 F.3d at 876-78, 885 (reversing trial court after finding police deception so coercive that despite defendant’s familiarity with the criminal justice system, under the "totality of the circumstances," defendant’s "waiver and statements were involuntary"); United States v. Lall, 607 F.3d 1277, 1284 (11th Cir. 2010) (reversing conviction due to involuntary waiver because of officer’s suggestion that he would not pursue charges, combined with "totality of the circumstances" including isolation of suspect during interrogation and other misleading statements); In re S.W., 124 A.3d 89, 102-05 (D.C. 2015) (reversing trial court where, under the "totality of the circumstances," police’s coercive statements and suspect’s juvenile status rendered Miranda waiver involuntary).
II. Under the totality of the circumstances, Thomas did not voluntarily waive his Fifth Amendment rights.
When conducting our independent appellate review, we apply a well-established test for voluntariness by asking whether Thomas’s Miranda waiver, under the totality of the circumstances, was "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." Tirado, 296 Va. at 28, 817 S.E.2d 309 (citing Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157 (1987)); see also Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2047 ("The ultimate test remains …. Is the [waiver] the product of an essentially free and unconstrained choice by its maker?" (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961))); Jackson, 267 Va. at 190, 590 S.E.2d 520 (same); Swann v. Commonwealth, 247 Va. 222, 231, 441 S.E.2d 195 (1994) (same); Jenkins v. Commonwealth, 244 Va. 445, 453, 423 S.E.2d 360 (1992) (same). "If the suspect’s will has been overborne and his capacity for self-determination critically impaired, the confession is considered involuntary and its use is unconstitutional." Avent v. Commonwealth, 279 Va. 175, 195, 688 S.E.2d 244 (2010) (quoting Midkiff, 250 Va. at 268, 462 S.E.2d 112).
A. Standard of Review
The voluntariness of Thomas’s waiver should be reviewed de novo. Ayala v. Commonwealth, 79 Va. App. 41, 50, 893 S.E.2d 417 (2023); Tirado, 296 Va. at 27-28, 817 S.E.2d 309. The majority suggests that a deferential standard of review should apply. We disagree, holding to our binding precedent. In our recent Ayala decision, we stated that whether a waiver of Miranda was voluntary is a legal question. Ayala, 79 Va. App. at 50, 893 S.E.2d 417. The question of whether the waiver was knowing and intelligent, on the other hand, is a question of fact. Id. We reached this conclusion in Ayala by relying on Tirado, which laid the rule out in its entirety: " ‘[W]hether the waiver was made knowingly and intelligently is a question of fact,’ and the circuit court’s determination on this issue ‘will not be set aside on appeal unless plainly wrong.’ On the other hand, whether a statement was voluntary is a ‘legal rather than factual question.’ " Tirado, 296 Va. at 27-28, 817 S.E.2d 309 (first quoting Angel v. Commonwealth, 281 Va. 248, 258, 704 S.E.2d 386 (2011); and then quoting Gray, 233 Va. at 324, 356 S.E.2d 157).
The majority states that Ayala’s statement of the rule regarding voluntary waiver should be overruled because (1) Tirado’s use of the word "statement" indicates that it should be confined to the line of cases applicable to coerced statements as distinct from waivers, and because (2) Ayala’s interpretation of Tirado conflicts with the 1992 Harrison v. Commonwealth, 244 Va. 576, 423 S.E.2d 160 (1992), case and a 2020 decision by this Court in Keepers. We disagree with both arguments.
1. Tirado
The standard of review provided in Tirado governs the Miranda waiver voluntariness analysis. A review of the rest of the paragraph in which the rule is stated makes this clear. After it states the standards of review for knowing and intelligent "waiver" and for voluntary "statements," (as quoted above) the Court immediately turns to a unified discussion of the concepts of voluntary, knowing, and intelligent waiver that spans two paragraphs. Tirado, 296 Va. at 27-28, 817 S.E.2d 309 ("Thus, whether a waiver of Miranda was ‘made voluntarily, knowingly, and intelligently’ has two components."). In this context, the discussion of the standard of review applicable to the question of "voluntary statement" should not be understood as a brief, random sidebar on an irrelevant topic, but instead can be understood as providing the standard of review for one of the central focuses of the ensuing paragraphs: voluntary waiver.
Furthermore, Tirado posed no voluntary statement question separate from the issue of voluntary waiver. Id. (citing the defendant’s argument that, "the Court of Appeals erred in upholding the circuit court’s finding that his Miranda waiver was knowing and voluntary" and resolving the voluntariness argument by finding that, "[r]egarding voluntariness, in the present case there is no evidence or assertion that Tirado’s waiver of Miranda was the product of ‘intimidation, coercion, or deception’ " (emphases added)). Thus, for a second reason, Tirado’s provision of the standard of review for the voluntariness of a "statement" only makes sense if understood to refer to the voluntariness of a Miranda waiver.
Finally, it is unnecessary for our purposes to establish the exact meaning of the standard of review stated in Gray, which Tirado cites. But because the majority does discuss Gray, citing to Tirado’s reliance on Gray as partial support for its conclusion about the meaning of Tirado, we note that the import of Gray’s use of the term "statement" was itself ambiguous—in fact, much of the Gray Court’s discussion centered on a defendant’s choice to sign a Miranda form; its analysis of the coercion allegedly brought to bear against the defendant is hard to distinguish from the question of voluntary waiver. Gray, 233 Va. at 324-25, 356 S.E.2d 157. In Tirado, the Court clearly intended to state a rule applicable to the voluntary waiver question and did in fact apply it in such a context, so it was not error for us to recognize this rule as such in Ayala.
2. Harrison and Keepers
The majority is also incorrect that Ayala’s interpretation of Tirado conflicts with our 2020 holding in Keepers and the 1992 Virginia Supreme Court case, Harrison. Neither Harrison nor Keepers discuss the standard applicable to voluntary waiver; each addressed only knowing and intelligent waiver. See Keepers, 72 Va. App. at 37, 840 S.E.2d 575; Harrison, 244 Va. at 581, 423 S.E.2d 160. In Harrison, on which the majority places particular emphasis, the Court applied a deferential standard to the questions of knowing and intelligent waiver but treated the defendant’s apparent voluntary-waiver argument as a voluntary-confession argument, assessing it de novo. Harrison, 244 Va. at 581, 583, 423 S.E.2d 160 (stating that "[u]nlike the voluntariness inquiry relevant to the admissibility of a confession where the question is one of law … the inquiry whether a waiver of Miranda rights was made knowingly and intelligently is a question of fact" and finding that the defendant made a "knowing and intelligent waiver" and that "the confes- sion was voluntary and properly admitted" (emphases added)). Thus, Tirado did not need to "silently overrule" Harrison; the cases are consistent. And Ayala’s interpretation of Tirado did not conflict with Keepers. See Keepers, 72 Va. App. at 37, 840 S.E.2d 575 ("A person may waive his rights under Miranda ‘if the waiver is made knowingly, and intelligently.’ … This decision is a question of fact." (emphasis added)).
Under binding precedent, our review is de novo. However, even under the majority’s deferential standard, the circuit court clearly erred by failing to find that Thomas’s waiver was involuntary, under the totality of the circumstances.
B. The Probation Officer’s Instruction
Thomas was arrested at the office of his probation officer, who coordinated his arrest with the police. He was handcuffed, transported to the police station, and taken into the interrogation room. Thomas’s probation officer then entered the interrogation room, having driven to police headquarters at the police’s request. The police asked the probation officer to introduce them; Thomas’s probation officer then instructed Thomas to "chat with" the police "today," and left the room. Subjectively, Thomas knew he was required to follow the direction of his probation officer as part of his probation. A natural understanding for Thomas, based on the literal meaning of Samluk’s words, would have been that he was required to talk to the detectives "today." Additionally, Thomas, who had been described as "mentally retarded" or "intellectually disabled" in police reports, possessed intellectual limitations that placed him in a poor position to resist the coercion applied here. Samluk’s instruction, in the context of Thomas’s understanding of his obligations, his relationship with Samluk, his intellectual limitations, and the coerciveness inherent in any custodial interrogation, presented an extremely high risk that any subsequent waiver that Thomas made would not be "an essentially free and unconstrained choice," but rather resulted from a situation in which Thomas’s will was "overborne and his capacity for self-determination critically impaired." Tirado, 296 Va. at 28, 817 S.E.2d 309 (citing Gray, 233 Va. at 324, 356 S.E.2d 157). These circumstances are manifestly relevant to the totality-of-the-circumstances assessment of the waiver’s voluntariness. See id.; Thomas, 72 Va. App. at 582, 850 S.E.2d 400; Preston, 751 F.3d at 1023.
The majority states that if Thomas believed that his probation officer’s instruction affected his ability to exercise his Fifth Amendment privilege, this belief "would not have been reasonable because the Supreme Court has ‘made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.’ " Ante at 115, 905 S.E.2d at 512 (citing Murphy, 465 U.S. at 438, 104 S.Ct. at 1148). There is no reason to believe that Thomas was familiar with Supreme Court precedent on custodial interrogation and its intersection with probationers’ rights. There is, however, reason to believe that he was intimately familiar with the terms of his probation, which he had adhered to by obeying his officer’s instructions and answering his questions regarding extremely private matters for more than five years.
A person’s choice to waive their Miranda rights is not free and unconstrained if it is the product of intimidation, coercion, or deception by the police. Tirado, 296 Va. at 28, 817 S.E.2d 309. "Evidence of coercive police activity is a necessary predicate to the finding that a [Miranda waiver] is not "voluntary." ’ " Washington v. Commonwealth, 43 Va. App. 291, 303, 597 S.E.2d 256 (2004) (quoting Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722 (1992)). Coercive activity may include "the interrogation techniques employed, including evidence of trickery and deceit, psychological pressure, threats or promises of leniency, and duration and circumstances of the interrogation." Id. (quoting Terrell v. Commonwealth, 12 Va. App. 285, 291, 403 S.E.2d 387 (1991)). "[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." Miranda, 384 U.S. at 476, 86 S.Ct. at 1629. The psychological pressure need not be overt or explicit to affect a defendant’s will. United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981) ("Subtle psychological coercion suffices … and at times [may be] more effective[ ], to overbear ‘a rational intellect and a free will.’ "). Here, the police officers’ request that Samluk introduce them, made while Thomas was in custody, combined with the subsequent instruction by the probation officer to "chat" with them clearly would have had a coercive effect on Thomas—especially considering his intellectual disability—whether or not categorized as "subtle." Id. The effect of this coercion is another aspect of the totality of the circumstances indicating that Thomas’s waiver was not voluntary. See Tirado, 296 Va. at 28, 817 S.E.2d 309; Thomas, 12 Va. App. at 582, 850 S.E.2d 400.
The majority emphasizes that the detectives did not overtly threaten Thomas. Ante at 108-09, 905 S.E.2d at 508–09. But subtle psychological coercion—not only explicit threats—can impose significant pressure on a defendant. See Tingle, 658 F 2d at 1335. And unlike in some "classic penalty" cases, which can be noncustodial, custodial interrogations come with a presumption of coerciveness. Gamer, 424 U.S. at 657, 96 S.Ct. at 1184. Thus, the lack of a stated threat does not excuse us from performing a totality of the circumstances analysis that interrogates the cumulative effects of the various pressures placed on Thomas. See Tirado, 296 Va. at 28, 817 S E.2d 309, Thomas, 72 Va App. at 582, 850 S.E.2d 400.
The circuit court pointed out that the effect of a probation officer’s instruction to answer in a custodial interrogation was a matter of first impression. The appropriate way to analyze the coerciveness of the instruction is as a part of the totality- of-the-circumstances analysis required to assess a waiver’s voluntariness—not in terms of whether it would render the waiver automatically involuntary, divorced from context. See Tirado, 296 Va. at 28, 817 S.E.2d 309; Thomas, 72 Va. App. at 582, 850 S.E.2d 400. Other courts have found terms of probation requiring the choice between compliance with instructions or assertion of Fifth Amendment rights to be unduly coercive. See United States v. Saechao, 418 F.3d 1073, 1079 (9th Cir. 2005) ("The Fifth Amendment proscribes the use in a separate criminal proceeding of a statement obtained pursuant to a probation condition that requires a probationer to ‘choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent.’ " (quoting Murphy, 465 U.S. at 436, 104 S.Ct. at 1147)); People v. Garcia, 2 Cal.5th 792, 216 Cal.Rptr.3d 75, 391 P.3d 1153, 1156 (2017) (holding that, because a probation condition compelled the defendant’s statements, those statements could not "lawfully be used against him in a criminal proceeding"); State v. Eccles, 179 Ariz. 226, 877 P.2d 799, 801 (1994) (en banc) (holding that a probation condition that requires a defendant to waive his Fifth Amendment rights is unconstitutional). These cases provide additional support for the finding that Samluk’s instruction to Thomas, which Thomas could have naturally understood to mean that he was required to choose between compliance and his Fifth Amendment rights, created an inappropriate level of coercion to be considered among the totality of the circumstances.
Thomas’s intellectual disability only increased the potential for Samluk’s instruction and the surrounding circumstances to overbear Thomas’s will. Again, Thomas was described as "intellectually disabled" and "mentally retarded" in police reports, as the police officers who interrogated Thomas knew. As we have said, "the degree of pressure necessary to crush one’s will varies with the individual." Robinson v. Commonwealth, 63 Va. App. 302, 311, 756 S.E.2d 924 (2014) (quoting Hill v. Commonwealth, 52 Va. App. 313, 319, 663 S.E.2d 133 (2008)). A person "of normal intelligence … is more resistant to interrogation than a person who is very young, uneducated or weak-minded." Miller v. Fenton, 796 F.2d 598, 606 (3d Cir. 1986). "It simply ‘takes less’ in terms of sophisticated police interrogation techniques ‘to interfere with the deliberative processes of one whose capacity for rational choice is limited than it takes to affect the deliberative processes of one whose capacity is not so limited.’ " Preston, 751 F.3d at 1023 (quoting Smith v. Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990)). Compare id. (considering defendant’s "rêduced mental capacity" as among the circumstances rendering his confession involuntary); Thomas v. North Carolina, 447 F.2d 1320, 1322 (4th Cir. 1971) (finding a confession involuntary in part because of the defendant’s "low mentality" and "limited education"), with Avent, 279 Va. at 196, 688 S.E.2d 244 (finding the defendant’s Miranda waiver voluntary in part because the defendant was "a man of at least average intelligence"); Jackson, 267 Va. at 190, 590 S.E.2d 520 ("The court also noted that the defendant had a reported IQ score of 100 and an edu- cational level sufficient to read and write."); Roach v. Commonwealth, 251 Va. 324, 341, 468 S.E.2d 98 (1996) ("The record shows that Roach was of average intelligence, and that he telephoned Sheriff Morris to initiate the questioning."); Swann, 247 Va. at 231, 441 S.E.2d 195 ("Swann, a high school graduate who had attended one semester of college, was no stranger to the judicial system."). Moreover, a suspect who "suffers from mental disabilities and deficiencies" is "less likely to clearly invoke his right to counsel or to remain silent," is "more likely to ‘parrot’ back the details the officers suggested, whether or not they [are] true," and is "more likely to place stock in any promises or threats that the officers made, however ambiguous they might be." State v. Rettenberger, 984 P.2d 1009, 1017 (Utah 1999). That Thomas had an intellectual disability is another factor showing the coerciveness of the situation he faced, to be considered along with the effects of the probation officer’s instruction, among the totality of the circumstances. See Tirado, 296 Va. at 28, 817 S.E.2d 309; Thomas, 12 Va. App. at 582, 850 S.E.2d 400; Preston, 751 F.3d at 1023.
C. The Recitation of the Miranda Warnings
The recitation of Miranda warnings does not in itself suffice to show that, under the totality of the circumstances, a defendant’s subsequent waiver of his rights was voluntary. Cf. Missouri v. Seibert, 542 U.S. 600, 611, 124 S.Ct. 2601, 2610, 159 L.Ed.2d 643 (2004) ("[I]t would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance."). If the surrounding circumstances show that the Miranda warnings were ineffective to safeguard the privilege, the resulting Miranda waiver is not voluntary. Id. "[U]nless the warnings could place a suspect" in a position to make a genuinely informed choice, "there is no practical justification for accepting the formal warnings as compliance with Miranda." Id. at 612, 124 S.Ct. at 2610. Indeed, a "confession, even if obtained in full compliance with Miranda, may be inadmissible if it was not voluntary." Kauff mann v. Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279 (1989); see Rodriguez, 40 Va. App. at 155, 578 S.E.2d 78; S.W., 124 A.3d at 105.
The majority suggests that as long as officers have recited Miranda warnings to a suspect in a custodial interrogation and the police issue no threats, this is sufficient to overcome the presumption of coerciveness present in any custodial interrogation. Ante at 116–17, 905 S.E.2d at 512–13. The majority therefore analyzes Thomas’s arguments regarding the effects of his probation officer’s instruction as an argument to "fashion a new exception to the invocation requirement." Ante at 117, 905 S.E.2d at 513. This position ignores the necessity of performing a totality-of-the-circumstances assessment of voluntariness. The effects of the probation officer’s instruction on Thomas’s will are to be assessed in terms of their effects on Thomas’s capacity for free choice, in the context of and in combination with the other relevant circumstances, including deficiencies in the reading of Miranda rights Tirado, 296 Va. at 28, 817 S.E.2d 309, Bustamonte, 412 U S at 225, 93 S.Ct at 2047 Contrary to the majority’s argument, this assessment requires following settled precedent, not fashioning a new exception Additionally, at oral argument, defense counsel repeatedly stated that he was not arguing for a new exception
In this case, for Thomas’s waiver to have been voluntary, the police were required to employ adequate safeguards to overcome circumstances in which an enormous level of coerciveness had been brought to bear—because they were performing a custodial interrogation of a person with an intellectual disability, whose probation officer had just specifically instructed him to speak with them. See Gamer, 424 U.S. at 657, 96 S.Ct. at 1184 ("It is presumed that without proper safeguards the circumstances of custodial interrogation deny an individual the ability freely to choose to remain silent."); Robinson, 63 Va. App. at 311, 756 S.E.2d 924 ("[T]he degree of pressure necessary to crush one’s will varies with the individual."); Garcia, 216 Cal.Rptr.3d 75, 391 P.3d at 1156 (holding that, because a probation condition compelled the defendant’s statements, those statements could not "lawfully be used against him in a criminal proceeding"). Faced with this burden, the police not only failed to take additional safeguards by telling Thomas that the instruction was non-binding, but conducted themselves in a manner that made the Miranda warn- ings less effective at conveying rights than they ordinarily would be.
A police officer handed Thomas his Miranda consent form but then explained it away by stating, "we’re the government, and the government loves our forms." The officer also told Thomas, "I know you’re going to have questions about everything, and I’m happy to talk about that stuff with you, but we just have to do this first." See People v. Smiley, 530 P.3d 639, 649 (Colo. 2023) (Miranda warnings may be ineffective when the officers "downplay[ ] the importance of the advisement and the rights contained therein," and "impl[y] that the advisement [is] a mere formality"); People v. Honeycutt, 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050, 1054-55 (1977) (when an officer has a lengthy prewarning conversation with a suspect that "soften[s]-up" that suspect to waive his rights before the officer formally advises him of those rights, the formal advisement is ineffective). The forms were read to Thomas, and while the officers paused intermittently while reading the Miranda warnings and the bulk of the form, they read the form’s final lines (about agreeing to speak to investigators without a lawyer present, knowing his rights, and not having been made promises or threatened) quickly and without pauses to give Thomas an opportunity to ask questions or confirm he understood the information, despite knowing of Thomas’s intellectual limitations. See Preston, 751 F.3d at 1023 ("It simply ‘takes less’ in terms of sophisticated police interroga- tion techniques ‘to interfere with the deliberative processes of one whose capacity for rational choice is limited than it takes to affect the deliberative processes of one whose capacity is not so limited.’ " (quoting Duckworth, 910 F.2d at 1497)). Perhaps most crucially, the officers took no steps to counteract the coercive effect of the prewarning instruction to "chat" with the officers—the clear implication of which would have been that when asked whether he wanted to speak with the officers, Thomas should agree. They never stated that Thomas did not have to follow his probation officer’s instruction. Instead, the investigators finished up by telling Thomas that while he did not have to sign the forms, it would help the investigators if he did—and so he did.
The majority appears to emphasize that an officer’s downplaying the importance of a Miranda warning is not, in itself, enough to render a Miranda warning insufficient. This is not the pertinent legal issue. Rather, the question is whether the downplaying of the warning, in combination with the totality of the circumstances surrounding Thomas’s waiver (including the probation officer’s instruction, Thomas’s legal obligations, the relationship between Thomas and Samluk, and Thomas’s intellectual disability) on the whole show that Thomas’s waiver of his rights was not voluntary See Tirado, 296 Va at 28, 817 S.E.2d 309; Thomas, 72 Va. App. at 582, 850 S.E.2d 400. If the downplaying that occurred made it less likely that Thomas’s waiver was genuinely informed and voluntary, then it is a relevant circumstance to consider. See Seibert, 542 U.S at 611, 124 S Ct 2601. Clearly the majority agrees that the officer downplayed the Miranda warning
D. The law and evidence in their totality demonstrate that Thomas’s waiver was involuntary.
The totality of the circumstances compels the conclusion that Thomas’s waiver of his rights was involuntary. It would have been entirely natural for Thomas to believe that when his probation officer instructed him, during a custodial interrogation, to "chat" with the police officers who had arrested him "today," he was not permitted to ignore that instruction. Thomas was legally required to comply with all of his probation officer’s instructions and had dutifully followed them for over five years. The fact that he was intellectually disabled further diminished the amount of pressure necessary to overbear his will. And when the police officers failed to intervene in any way, making no statement about the legal inefficacy of the preceding instruction and downplaying the Miranda warnings’ importance as they gave them, they failed to resuscitate a situation that had already spiraled beyond constitutional limits. Upon "careful scrutiny of all the surrounding circumstances," Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2047, it is clear that Thomas’s waiver was not "the product of an essentially free and unconstrained choice by its maker," Tirado, 296 Va. at 28, 817 S.E.2d 309 (quoting Gray, 233 Va. at 324, 356 S.E.2d 157). Additionally, the error in admitting Thomas’s incriminating statements was not harmless. When analyzing constitutional harmless error, we ask whether it is "clear beyond a reasonable doubt that a rational [factfinder] would have found the defendant guilty absent the error." Commonwealth v. White, 293 Va. 411, 422, 799 S.E.2d 494 (2017) (alteration in original) (quoting Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 1838, 144 L.Ed.2d 35 (1999)). "A confession is like no other evidence." Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 1257,. 113 L.Ed.2d 302 (1991). Incriminating statements, "deliberately made, precisely identified and clearly proved afford[] evidence of a most satisfactory nature and may furnish the strongest and most convincing evidence of truth." Prince v. Commonwealth, 228 Va. 610, 613, 324 S.E.2d 660 (1985). Here, Thomas’s incriminating statements were powerful evidence, without which the Commonwealth’s case rested primarily on A.R.’s testimony. A fact finder should assess A.R.’s credibility without the improperly admitted statements.
III. The Majority Decision
In our view, the majority’s decision errs in three important ways: by failing to consider the totality of the circumstances when assessing voluntariness; by according undue weight to a finding about the probation officer and police’s subjective intent; and by mistakenly relying on precedent governing the noncustodial interrogation context.
In assessing the voluntariness of a defendant’s waiver of his Miranda rights, a court is required to consider the "totality of the circumstances," including "the defendant’s age, intelligence, mental and physical condition, background and experience with the criminal justice system, the conduct of the police, and the circumstances of the interview." Thomas, 72 Va. App. at 582, 850 S.E.2d 400 (quoting Keepers, 72 Va. App. at 37, 840 S.E.2d 575); Jackson, 267 Va. at 190, 590 S.E.2d 520. Instead, the majority in this case conducts an impermissible "divide-and-conquer analysis," assessing the relevance of each circumstance affecting Thomas’s freedom of choice in isolation from the other factors. See Shifflett v. Commonwealth, 58 Va. App. 732, 740, 716 S.E.2d 132 (2011) (quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (2002)). Thus, the circumstances’ cumulative effect on Thomas’s will goes unconsidered.
For example, when the majority assesses the effects of Thomas’s intellectual disabilities, it cites precedent that a defendant’s mental condition "by itself and apart from its relation to official coercion’ can never ‘dispose of the inquiry into constitutional voluntariness.’ " Ante at 111, 905 S.E.2d at 510 (emphases added). When the majority turns to the effect of the probation officer’s instruction on Thomas’s will, intellectual disability is completely ignored. Likewise, the precedent that the majority cites as if it were dispositive (and quotes, at length) is about the insufficiency of the pressures of probation to transform a noncustodial questioning into a custodial interrogation. Ante at 113–15, 905 S.E.2d at 511–12. And when the majority analyzes the officers’ choice to downplay the significance of the Miranda warnings, the facts and law are, again, presented as if there were no reason to believe that in this case, the events leading up to the Miranda warning made it especially important for these officers to ensure that Thomas was genuinely informed of his rights. Ante at 111-13, 905 S.E.2d at 510–11. In neglecting to assess the totality of the circumstances, the majority misses the forest for the trees in a way that contravenes precedent. Jackson, 267 Va. at 190, 590 S.E.2d 520; Tirado, 296 Va. at 28, 817 S.E.2d 309; Thomas, 72 Va. App. at 582, 850 S.E.2d 400; Keepers, 72 Va. App. at 37, 840 S.E.2d 575; Medley, 44 Va. App. at 24, 602 S.E.2d 411; Preston, 751 F.3d at 1023; Giddins, 858 F.3d at 885; Lall, 607 F.3d at 1284; S.W., 124 A.3d at 102-05. See also State v. Baker, 147 Hawai’i 413, 465 P.3d 860, 870 (2020) ("Crucially, a court must not analyze the individual circumstances in isolation, but must weigh those circumstances in their totality."); State v. Fernandez-Torres, 50 Kan.App.2d 1069, 337 P.3d 691, 696 (2014) ("Voluntariness ultimately must be determined holistically."); S.W., 124 A.3d at 93 ("We reinforce the necessity of looking holistically at every custodial interrogation in reaching a conclusion specific to the facts presented.").
Second, the majority’s outsized emphasis of the circuit court’s findings that Samluk subjectively intended to be "courteous" and that the police officers intended to "make [Thomas] feel at ease" is unjustified. Ante at 112-13, 905 S.E.2d at 510- 11. What Samluk or the officers intended in the moment when Samluk gave his instruction is not determinative of the instruction’s effects on Thomas’s capacity for free choice— because even if Samluk or the officers did subjectively intend courtesy in that moment, Thomas may have experienced the coercion of a legally binding instruction. Such an interpretation would have been natural because of the literal words that Samluk spoke to Thomas in the police station, not because of how anyone intended to make Thomas feel. At the most, intended courtesy could be considered among the totality of the circumstances—but the majority’s heavy emphasis of these findings is unjustified and, to the extent that it substitutes for consideration of what Thomas could have naturally believed—a relevant part of the totality of the circumstances analysis in this case—erroneous. See Thomas, 72 Va. App. at 582, 850 S.E.2d 400.
Third, the majority errs by relying on the precedent applicable only to the noncustodial context, rather than our fifty years of precedent governing custodial interrogation. After discussing subjective intent, the majority adds, "Thomas also conflates the pressure that a probationer would naturally feel to speak with his probation officer and the police in this situation with whether Thomas was coerced into waiving his privilege against self-incrimination." Ante at 113, 905 S.E.2d at 511. The majority uses this statement as a transition to begin quoting at length from Minnesota v. Murphy, in which the Supreme Court found, in a noncustodial context, "that the general obligation to appear and answer [a probation officer’s] questions did not in itself convert [a probationer’s] otherwise voluntary statements into compelled ones." Ante at 114, 905 S.E.2d at 511 (quoting Murphy, 465 U.S. at 427, 104 S.Ct. at 1142). In one place, the majority quotes from Murphy and adds its own emphasis: "The answers of such a witness to questions put to him are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of privilege." Id. at 114, 905 S.E.2d at 511 (emphasis added in majority opinion).
The majority’s invocation of Murphy is deeply misleading. Murphy was a noncustodial case in which the Supreme Court explicitly acknowledged that its analysis did not govern custodial interrogations. Murphy, 465 U.S. at 429, 104 S.Ct. at 1143. The central holding of Murphy was that a probation officer’s questioning of a probationer is not legally equivalent to a custodial interrogation and that therefore, unlike in a custodial interrogation (like the one at issue here), Miranda warnings do not have to be provided and the privilege is not self-executing. Id. at 427-34, 104 S.Ct. at 1141–1146. Murphy states nothing about the weight to afford a probation officer’s participation in a custodial interrogation in a totality-of-the-circumstances voluntariness assessment—the legal question posed by this case. And the majority does not cite Murphy for this purpose. Rather, while the majority ultimately acknowledges that Murphy was noncustodial, it appears first to apply the case as an incorrect categorical rule that the pressures to obey one’s probation officer are irrelevant to voluntariness. Thus, for the majority, Murphy demonstrates that Thomas "conflates" the pressures he faced to obey his probation officer’s instructions in custody with coercion. Ante at 113–14, 905 S.E.2d at 511. This misapplication of Murphy appears to permit the majority to sidestep the required weighing of the pressure Samluk’s instruction placed on Thomas in the context of all the surrounding circumstances, including Thomas’s legal obligations to obey Samluk, close relationship with Samluk, and intellectual disability.
The majority also appears to use Murphy for a second, somewhat perplexing reason. After belatedly acknowledging that it was a noncustodial case, the majority says that Murphy’s, "principles" nonetheless apply here because the provision of Miranda warnings "reset" Thomas’s invocation obligations. Ante at 116–17, 905 S.E.2d at 512–13. This view both dismisses and presumes the answer to this case’s central question: whether the Miranda warnings sufficed to overcome the coerciveness of the surrounding circumstances. The majority’s use of Murphy for the first purpose would be legal error. Its use of Murphy for the second purpose, because it presumes the answer to the voluntary-waiver inquiry, can have no bearing on the case’s outcome.
* * *
The majority offers a thorough, textbook analysis of the limitations of Miranda, but fundamentally errs by applying the incorrect standard of review, failing to perform a totality of the circumstances analysis, giving undue weight to the subjective intent of the probation officer and police at the time of the instruction, and by misinterpreting and failing to follow settled precedent. When using the correct totality of the circumstances analysis, we find that Thomas did not and could not voluntarily waive his Fifth Amendment rights guaranteed to him by the Constitution and safeguarded by Miranda. We would uphold the panel decision, reverse, and remand the case to the circuit court for further proceedings consistent with the panel opinion.