COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Hodges 

Argued at Alexandria, Virginia 

KEVIN MARK SABO 

 OPINION BY 

v. Record No. 0538-00-4 JUDGE WILLIAM H. HODGES 

 APRIL 9, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Joanne F. Alper, Judge 

 William R. Martin; Patrick O. Cavanaugh 

(Christopher B. Stone; Shawn M. Wright; Dyer 

Ellis & Joseph, on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 The appellant, Kevin Sabo, appeals his conviction for 

attempted malicious wounding, in violation of Code §§ 18.2-26 

and 18.2-51. Sabo contends the trial court erred in: (1) 

refusing to suppress tape-recorded statements he made to Heather 

Lawrence; (2) admitting those audiotaped statements at trial; 

and (3) refusing to allow Dr. Julian Brantley to testify. For 

the following reasons, we affirm. 

BACKGROUND 

 Appellant and Heather Lawrence began a romantic 

relationship in the summer of 1998. The relationship became 

increasingly strained and in early March 1999, Lawrence ended 

it. Following the break-up, Lawrence began receiving anonymous 
phone calls. On March 16, 1999, Lawrence agreed to have lunch 

with appellant at a local restaurant. The two had earlier 

discussed the "strange phone calls," and appellant showed 

concern, making Lawrence receptive toward maintaining a 

friendship with appellant. After lunch, Lawrence and appellant 

parted and returned to their respective offices. They did not 

see each other the remainder of that day or night. 

 Lawrence went out after work on March 16 unaccompanied by 

appellant and returned home during the early morning hours of 

March 17. She parked on a side lot near her townhouse. Around 

9:00 a.m. on March 17, 1999, Lawrence left her townhouse, 

entered her car and proceeded to drive to work. She approached 

a stop sign at an intersection and tried to stop her car; 

however, her brakes did not work. Lawrence "turned the car hard 

left, . . . hit a fence, a low brick wall and a tree." Lawrence 

recalled seeing fluid on the ground just before she entered her 

car. 

 Prior to trial, appellant moved to suppress the 

introduction of incriminating statements he made to Lawrence in 

a telephone conversation that Lawrence recorded and provided to 

police. 

1. MOTION TO SUPPRESS STATEMENTS 

Facts

 On appeal from a trial court's denial of a motion to 

suppress, we must review the evidence in the light most 

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favorable to the Commonwealth, granting to the Commonwealth all 

reasonable inferences fairly deducible from it. Commonwealth v. 

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

The findings of the trial court will not be disturbed unless 

plainly wrong or without evidence to support them. See Mier v. 

Commonwealth, 12 Va. App. 827, 828, 407 S.E.2d 342, 343 (1991). 

 When reviewing the trial court's denial of a defendant's 

motion to suppress evidence, "the burden is upon [the defendant] 

to show that the ruling, when the evidence is considered most 

favorably to the Commonwealth, constituted reversible error." 

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 

(1997) (en banc) (citations omitted). 

 Detective Coale investigated the March 17 incident 

involving Lawrence's car. He first met with Lawrence on March 

19, 1999. In addition to her brake lines being cut, Lawrence 

advised him she had received "a number of [anonymous] phone 

calls to her residence in the middle of the night and at 

different times where people hung up and had not left a 

message." Coale learned from Lawrence that her relationship 

with appellant "had gone sour over the last several months" and 

that "[t]here had been an incident involving a slashing of one 

of her tires that coincided with a spat that her [sic] and Mr. 

Sabo had had." As a result, Coale "provided her with a tape 

recorder to tape anything that might - - any phone calls that 

she might receive." He gave Lawrence the recording device about 

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a week after first meeting with her. Coale testified that he 

"told [Lawrence] not to contact the defendant. That if he 

called and she wanted to make the tapes, that would be useful to 

our investigation." 

 Lawrence testified she was extremely fearful after the 

March 17 car accident. She had no idea who placed the anonymous 

calls and sabotaged her brakes. She worried constantly about 

future acts against her, and she was afraid of being alone in 

her residence. As a result, she installed a security system, 

kept mace and a whistle on her person at all times, kept a 

baseball bat in her house and avoided being alone. Coale 

installed the tape recorder around March 24, 1999, and provided 

her with approximately six blank audiotapes, which she used to 

record several conversations with appellant. Lawrence testified 

that after Coale installed the recorder, he suggested that 

Lawrence call appellant to tape his reaction to her accident 

because Lawrence had not spoken with appellant after the 

accident.1 Lawrence shared the earliest recorded conversations 

with Coale, but he advised her not to contact appellant anymore 

 1

 Although Lawrence's recollection on cross-examination 

differed from Coale's earlier testimony that he "told" Lawrence 

not to contact appellant, appellant did not call Coale as a 

witness and inquire into this apparent conflict. Moreover, the 

fact finder was not bound by either party's testimony and could 

believe that which is more favorable to the Commonwealth. See

Eaton v. Commonwealth, 240 Va. 236, 249-50, 397 S.E.2d 385, 393 

(1990). 

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because "[t]he conversations weren't really going anywhere." 

Despite that admonition, Lawrence contacted appellant 

periodically and taped more conversations. The evidence further 

showed that appellant continued to telephone Lawrence and speak 

with her, and Lawrence also taped portions of those 

conversations. 

 Appellant telephoned Lawrence around 9:00 p.m. on April 20, 

1999. That conversation ended around 1:00 a.m. on April 21, 

1999, and was the conversation in which appellant first made 

incriminating statements, the substance of which he sought to 

suppress. Lawrence taped excerpts of that lengthy conversation. 

Lawrence explained that she only had two audiotapes left to use, 

so she paused the machine and did not record portions dealing 

with innocent or personal information unrelated to Lawrence's 

fears for her safety. Lawrence also admitted recording over 

previously recorded portions when she needed additional tape. 

During the April 20-21 conversation, appellant admitted making 

anonymous phone calls to Lawrence and doing something to her 

car. 

 On the morning of April 21, 1999, Lawrence telephoned 

appellant at his office, hoping he would elaborate on his 

earlier admissions. Lawrence also taped that conversation. 

Appellant provided details about the incident involving her car. 

He explained that he went to a bar, became intoxicated, grabbed 

tools from his house, drove to her residence and did something 

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to her car. Lawrence delivered the incriminating tapes to Coale 

at police headquarters on two successive days. Coale listened 

to one tape on April 21 and the other tape on April 22, 1999. 

He testified that "[a]fter she made this first tape, we told her 

just to leave it alone and go back home, and we will see how the 

case develops." He also told her "that she didn't have to make 

any more tapes unless [appellant] called her . . . [yet] she 

went ahead and apparently made [the second tape] anyway, and she 

brought it in" on April 22, 1999. After hearing appellant's 

audiotaped admissions that he did something to her car, Coale 

obtained a search warrant. 

 The trial court admitted into evidence the audio cassette 

tapes of the two telephone conversations. In doing so, it 

focused its analysis on whether Lawrence "when she was speaking 

to the defendant and the defendant ultimately made admissions to 

her, whether or not she was an agent of the state . . . in 

connection with this action." Although the police provided and 

installed the equipment a month before the incriminating tapes 

were recorded, the police instructed Lawrence "not to call the 

defendant." After Lawrence provided the April 20 tape, Coale 

again instructed Lawrence not to call appellant. By ignoring 

those admonitions, the trial court found that Lawrence "acted on 

her own" in contacting appellant at various times. According to 

the trial court, Lawrence "did not follow the instructions of 

the Arlington police" when she initiated calls. After listening 

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to the testimony and evidence, including the taped 

conversations, the trial court determined that Lawrence had a 

"separate and independent reason to find" out who was doing 

these things to her "wholly apart from whether or not there was 

to be any prosecution." She wanted to allay her fears and 

discover who was victimizing her. To that end, she wanted to 

either identify or eliminate appellant as a suspect. 

 Applying by analogy case law involving Fourth Amendment 

searches by private individuals, the trial court ruled that 

Lawrence's purpose was not to assist law enforcement to 

prosecute appellant but to further Lawrence's "own ends and 

goals," namely, a desire to identify and stop the person who was 

placing her in constant fear. The trial court further found 

that the Commonwealth had minimal and infrequent involvement in 

obtaining the taped statements. 

 Furthermore, the trial court ruled that, even if Lawrence 

were an agent, appellant's incriminating statements were 

voluntary and "were not the result of any coercion." 

Analysis

 Appellant puts forth two arguments regarding his 

incriminating statements. He contends (1) that Lawrence "was 

acting as an agent for the Commonwealth," and (2) his statements 

to her were involuntary "because they were the result of 

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coercion, [and] threats and, thus, were observed in violation of 

his fifth and fourteenth amendment rights."2

a. Government Agent 

 We have not previously addressed the proper method for 

determining whether an individual is acting as an agent of the 

state in the context of the Fifth Amendment. However, we agree 

with the trial court's application of concepts and procedures 

employed in prior case law involving searches and seizures by 

persons alleged to be government agents. Therefore, we hold 

that the analyses employed to determine whether an individual 

acted as a state agent for Fourth Amendment purposes applies 

equally to situations involving alleged Fifth Amendment 

violations. 

 Accordingly, appellant bore the initial burden to establish 

that Lawrence acted as a government agent in obtaining his 

incriminating statements. See Debroux v. Commonwwealth, 32 Va. 

App. 364, 371, 528 S.E.2d 151, 154 (2000) (alleging search by 

state actors); see also Mills v. Commonwealth, 14 Va. App. 459, 

464, 418 S.E.2d 718, 720 (1992) (when defendant alleges search 

was conducted by state actor, it is defendant's burden to 

 2

 We note initially that appellant does not and cannot argue 

a Miranda violation because the warnings mandated by Miranda v. 

Arizona, 384 U.S. 436, 467-73 (1966), intended to safeguard a 

defendant's Fifth Amendment rights, are required only when there 

is custodial interrogation. Because appellant was not in 

custody when he made the incriminating statements, Miranda

warnings were not required. 

 - 8 - 
establish by preponderance of the evidence that private party 

acted as government instrument or agent); Duarte v. 

Commonwealth, 12 Va. App. 1023, 1025, 407 S.E.2d 41, 42 (1991) 

(involving search of dormitory room by school official). 

 In Mills, 14 Va. App. at 461, 418 S.E.2d at 719, Mills 

raised a Fourth Amendment challenge to a search conducted by a 

private individual, Barlow, who was hired by Mills' parents to 

repair a burglar alarm system in an Illinois home in which Mills 

resided. Barlow found incriminating evidence in the house and 

contacted local authorities, who contacted Virginia law 

enforcement authorities investigating a murder of a police 

officer. Id. at 462, 418 S.E.2d at 719. After learning of 

Mills' involvement in the Virginia crime, the local sheriff 

asked Barlow "'if he was going to go back in the [Mills'] 

residence, if he would observe and see if [the items he saw 

initially] were still there.'" Id. Barlow had not completed 

the job and had to return to Mills' residence. Id. While 

there, he again saw the incriminating items and reported his 

observations to the local sheriff, who obtained a search warrant 

based, in part, on Barlow's information. Id. 

 Mills contended Barlow acted as an agent of the police in 

conducting a warrantless search of his parents' house. Id. at 

463, 418 S.E.2d at 720. We explained that "[t]he Fourth 

Amendment acts only as a constraint upon government or state 

action. . . . Consequently, a private search, no matter how 

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unreasonable, does not constitute a constitutional violation 

warranting suppression of the evidence seized." Id. 

 "Whether a person acted privately or as an agent of the 

state is a question of fact that must be decided on the 

circumstances of each case. Resolution of the agency issue 

'necessarily turns on the degree of the Government's 

participation in the private party's activities.'" Id. (quoting 

Skinner v. Railway Executives' Ass'n, 489 U.S. 602, 614 (1989)). 

See also United States v. Koenig, 856 F.2d 843, 847 n.1 (7th 

Cir. 1988) (holding that question is essentially one of fact, 

based on the particular circumstances, but the factual inquiry 

is one guided by common law agency principles). Of critical 

importance, for an agency relationship between a private citizen 

and the government to exist, both parties must have manifested 

their consent to that relationship, either expressly or by 

necessary implication from their conduct. Id. While government 

knowledge of the private person's conduct obviously is critical, 

it is not enough, standing alone, to establish the requisite 

agency. See United States v. Kinney, 953 F.2d 863, 865 (4th 

Cir. 1992). 

 Relying on United States v. Feffer, 831 F.2d 734, 739 (7th 

Cir. 1987), we adopted in Mills "a two-part test for determining 

whether an individual was acting as an agent of the state while 

conducting a search." Mills, 14 Va. App. at 463, 418 S.E.2d at 

720. Under that test, a trial court looks at "(1) whether the 

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government knew of and acquiesced in the search, and (2) whether 

the search was conducted for the purpose of furthering the 

private party's ends." Id. at 463-64, 418 S.E.2d at 720 (citing 

Feffer, 831 F.2d at 739). "These [two] criteria help focus the 

trial court's attention on the significance and impact of the 

government involvement in a search." Id. at 464, 418 S.E.2d at 

720. The United States Court of Appeals for the Ninth Circuit 

has referred to the second prong or factor relating to "the 

purpose of furthering the private party's ends" as "the intent 

of the party performing" the activity. United States v. 

Walther, 652 F.2d 788, 792 (9th Cir. 1981) (challenging search 

by alleged agent). However, these two criteria or factors 

"should not be viewed as an exclusive list of relevant factors." 

Mills, 14 Va. App. at 464, 418 S.E.2d at 720. "Other factors 

include whether the private party acted at the request of 

government and whether the government offered a reward." United 

States v. Smith, 27 F. Supp. 2d 1111, 1115 (C.D. Ill. 1998) 

(involving search); see also United States v. Garlock, 19 F.3d 

441, 443 (8th Cir. 1994) (defendant must show "the government 

exercised such coercive power or such significant encouragement 

that it is responsible" for the individual's conduct); Stone v. 

Wingo, 416 F.2d 857, 860 (6th Cir. 1969) (actions of private 

party are attributed to the state where "'parties act . . . 

together in pursuance of some design or in accordance with some 

scheme'"). The determination of a private party's status, 

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however, "can only be resolved 'in light of all the 

circumstances.'" Skinner, 489 U.S. at 614 (quoting Coolidge v. 

New Hampshire, 403 U.S. 443, 487 (1971)). 

 Lawrence received anonymous phone calls, and someone cut 

her brake lines, causing her to fear for her safety. She 

explained in detail the state of fear in which she lived and the 

steps she took to protect herself from this unknown, yet real, 

threat. Detective Coale provided Lawrence with a tape recorder 

and blank tapes, and he showed her how to use it. Although he 

suggested that she initially contact appellant for his immediate 

reaction to the incident with her car, he expressly advised her 

not to contact appellant anymore after that time. Moreover, the 

initial phone conversation yielded no incriminating information. 

 Lawrence testified that Coale directed her not to contact 

appellant after her initial call. However, she ignored that 

admonition and did so anyway. Her testimony clearly reveals her 

desire to find out who was terrorizing her and to put an end to 

it and regain a sense of peace. 

 Applying the above-described factors to the facts of this 

case, the evidence supports the trial court's determination 

that Lawrence did not act as an agent of the Commonwealth. The 

record fails to show that Coale exercised influence or authority 

over Lawrence or that they worked together to achieve some 

common goal or plan. Lawrence was motivated by her sense of 

fear and a desire to identify her unknown antagonist. She 

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wanted to end the harassment, and to that end, she ignored 

Coale's admonitions and independently telephoned appellant and 

engaged him in conversations, which she recorded. Coale never 

supervised Lawrence or directed her to do anything. In fact, 

after hearing some early taped conversations, Coale directed 

Lawrence not to contact appellant anymore because the 

conversations failed to implicate appellant or further the 

investigation. He exercised no control or authority over her 

and offered no payment or reward. Moreover, Lawrence and Coale 

did not share a common purpose or plan. 

 Viewing all of the evidence and applying the relevant 

"agency" factors, we hold that the trial court's findings were 

not plainly wrong or without evidence to support them. 

Accordingly, the trial court did not err in finding that 

Lawrence was not a government agent. 

b. Voluntariness 

 After a party has satisfied his burden of proving "by a 

preponderance of the evidence" that an individual was an agent 

for the government, "the burden shifts to the Commonwealth to 

establish that the [contested actions] were constitutionally 

permissible." Debroux, 32 Va. App. at 371, 528 S.E.2d at 154 

(citing Mills, 14 Va. App. at 464, 418 S.E.2d at 720). 

The Fifth Amendment provides that no person 

shall be deprived of life, liberty, or 

property, without due process of law. The 

admission of an involuntary confession 

violates due process. A confession will be 

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found to be voluntary only if the government 

can demonstrate that, under the totality of 

the circumstances and by a preponderance of 

the evidence, it was not secured by the 

government through psychological or physical 

intimidation, but rather was the product of 

a rational intellect and free will. 

United States v. D.F., 63 F.3d 671, 679 (7th Cir. 1995) 

(emphasis added). 

 "The test for voluntariness derives from federal 

constitutional law relating to the Fifth Amendment as applied to 

the States through the Fourteenth Amendment." Rodgers v. 

Commonwealth, 227 Va. 605, 609, 318 S.E.2d 298, 300 (1984). 

"Our courts have consistently held that the protections afforded 

under the Virginia Constitution are co-extensive with those in 

the United States Constitution." Henry v. Commonwealth, 32 Va. 

App. 547, 551, 529 S.E.2d 796, 798 (2000) (quoting Bennefield v. 

Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311 

(1996)). Therefore, our constitution provides no greater due 

process rights than those granted under the Fifth Amendment of 

the United States Constitution. 

 "Because only state action may violate a criminal 

defendant's due process rights, 'coercive police activity is a 

necessary predicate to the finding that a confession is not 

"voluntary" within the meaning of the Due Process Clause of the 

Fourteenth Amendment.'" Bottenfield v. Commonwealth, 25 Va. 

App. 316, 323, 487 S.E.2d 883, 887 (1997) (quoting Colorado v. 

Connelly, 479 U.S. 157, 167 (1986)). 

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 In Connelly, the United States Supreme Court explained that 

"the sole concern of the Fifth Amendment, on which Miranda was 

based, is governmental coercion. Indeed, the Fifth Amendment 

privilege is not concerned 'with moral or psychological 

pressures to confess emanating from sources other than offical 

coercion.'" 479 U.S. at 170 (quoting Oregon v. Elstad, 470 U.S. 

298, 305 (1985)). The Court noted that "[w]hile each confession 

case has turned on its own set of factors justifying the 

conclusion that police conduct was oppressive, all have 

contained a substantial element of coercive police conduct." 

Id. at 163-64. "Absent police conduct causally related to the 

confession, there is simply no basis for concluding that any 

state actor has deprived a criminal defendant of due process of 

law." Id. at 164. Thus, "coercive police activity is a 

necessary predicate to the finding that a confession is not 

'voluntary' within the meaning of the Due Process Clause." Id.

at 167. Moreover, "[t]he most outrageous behavior by a private 

party seeking to secure evidence against a defendant does not 

make that evidence inadmissible under the Due Process Clause." 

Id. at 166. 

 Because the evidence supports the trial court's finding 

that Lawrence was not acting as a government agent, the Due 

Process Clauses of the Fifth and Fourteenth Amendments are not 

implicated. Therefore, if police are not actively involved, a 

confession obtained by a private party is deemed voluntary under 

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the Due Process Clause of the Fifth Amendment, thereby obviating 

a voluntariness analysis. See id. at 167 (holding that coercive 

police activity is necessary predicate for finding that 

confession is not voluntary); Commonwealth v. Cooper, 899 S.W.2d 

75, 75 (Ky. 1995) (rejecting argument that state constitution or 

common law required suppression of confession improperly 

obtained by private party); Darghty v. State, 530 So. 2d 27, 31 

(Miss. 1988) (conduct by third party will not vitiate 

voluntariness confession); State v. Carroll, 645 A.2d 82, 85 

(N.H. 1994) (holding that state constitution, which offered 

greater protection than federal constitution with respect to 

voluntariness, did not apply absent state action); State v. 

McCullough, 784 P.2d 566, 568 (Wash. Ct. App. 1990) (rejecting 

argument that state constitution applied where defendant 

confessed to victim). Consequently, the trial court did not err 

by denying appellant's motion to suppress his statements to 

Lawrence. 

2. ADMISSIBILITY OF THE STATEMENTS 

a. Admission of Audiotapes/Due Process

 Appellant contends the "trial court erred in determining 

that audiotaped statements made by Mr. Sabo were admissible when 

they contained erasures, edits and intentional deletions." He 

argues that the omission of certain portions of the 

conversations "required the trial court to find the statement 

involuntary and the tapes inadmissible." Because Lawrence was 

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not a state actor, the issue of the voluntariness of appellant's 

confession is not an issue. Accordingly, we do not address this 

contention. 

b. Foundation for Admission of Tapes 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be 

disturbed on appeal in the absence of an abuse of discretion." 

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 

(1988). "A proper foundation must be laid for the introduction 

of all evidence. The burden is upon the party offering real 

evidence to show with reasonable certainty that there has been 

no alteration or substitution of it." Horsley v. Commonwealth, 

2 Va. App. 335, 338, 343 S.E.2d 389, 390 (1986); see also

Charles E. Friend, The Law of Evidence in Virginia § 13-5, at 

467 (5th ed. 1999). 

 Lawrence testified that the tapes contained a true and 

accurate rendering of the portions of the conversations taped. 

Although asserting that relevant portions of his conversations 

with Lawrence had not been taped, appellant conceded on 

cross-examination that he made the statements contained on the 

tapes. Lawrence explained that she would use a tape until it 

was full, then insert another tape. She also acknowledged 

pausing the recorder during some personal or unimportant 

conversations and taping over previous conversations when she 

needed additional tape and had no blank ones. However, there 

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was no evidence that Lawrence or the police altered or tampered 

with the tapes. The fact that Lawrence did not tape her 

conversations in toto and that she taped over other 

conversations went to the weight and not the admissibility of 

the tapes. Lawrence was subjected to cross-examination 

regarding the tapes, and appellant was able to testify regarding 

statements made by the parties that were not recorded. 

Moreover, appellant explained in his testimony that Lawrence 

failed to record threats she made to him that prompted him to 

falsely admit tampering with her car. Accordingly, the trial 

court did not err in admitting this evidence.3

3. DR. BRANTLEY'S TESTIMONY 

 Appellant contends the trial court erred in refusing to 

allow the jury to hear the testimony of Dr. Brantley, 

appellant's psychiatrist. He prefaces his argument by stating 

that "[t]he trial court's determination of admissibility does 

not preclude the defendant from proving at trial that those 

statements were involuntarily made." 

 At the suppression hearing, the trial court refused to 

allow Dr. Brantley to testify and render an opinion as to 

appellant's "mental condition" based on Dr. Brantley's 

"listening to those tapes." Appellant objected, stating, "it's 

 

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3

 Appellant also contends admitting the tapes "violated 

[his] Due Process Rights." Appellant did not make this argument 

in the trial court; therefore, we will not address it for the 

first time on appeal. Rule 5A:18. 
essential that this expert be permitted to testify at least to 

the susceptibility of the defendant's being overborne." The 

trial court explained: 

I'm not going to let him say I listened to 

the tapes, and based upon my understanding 

of them and my listening to them that his 

will was overborne. 

 That's the only thing you can be asking 

about, and I am not going to let him testify 

about that. I've already ruled on that. 

 I will be the one listening to the 

tapes and making the determination. And the 

issue, the testimony of this doctor should 

center around his visits with the defendant 

in March and April of 1999, what his 

condition was and what the treatment was and 

how that affected his daily life. 

 Appellant's attorney noted his exception to the trial 

court's ruling and proffered that Dr. Brantley listened to the 

tapes and would testify that he 

talked with the defendant about the feelings 

that the defendant had while that tape was 

being made, and that the doctor would say 

with a reasonable degree of medical 

certainty that the defendant was overborne 

and that he would admit something that was 

not true. . . . The doctor would certinly 

testify that he was more susceptible to 

being overborne and to making such an 

involuntary admission. 

 The trial court accepted the proffer but indicated "it will 

not be considered in the matter as evidence." 

 At trial, appellant testified at length about his personal 

problems and his mental and emotional condition in 1998 and 

1999. He described the up-and-down, often volatile, 

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relationship he had with Lawrence. He indicated that she 

continually threatened him when she did not get her way, warning 

him that she would contact his ex-wife and their former boss. 

Appellant explained that he suffered from depression and anxiety 

for which his doctor prescribed Prozac and Xanax. He denied 

doing anything to her car and testified that he only admitted 

doing something because of her persistent and relentless 

threats. 

 After appellant's testimony, appellant's attorney proffered 

"the direct testimony" of Dr. Brantley from the suppression 

hearing. In addition, he made the following proffer: 

The testimony would be that Dr. Julian 

Brantley saw and treated Kevin Sabo on March 

12, March 22, March 29, April 7, April 13, 

and April 30 of 1999. 

 In addition, he saw him and treated him 

on August 16, August 23, August 27. All in 

1999. 

 On the occasion of the August visits, 

Dr. Brantley will testify that he listened 

to the tapes . . . and that based upon his 

earlier treatment and meetings with Mr. Sabo 

in March and his review of the tapes in 

August, he would say with a reasonable 

degree of medical certainty that it is his 

opinion that the admissions were made by Mr. 

Sabo on the tapes that were played before 

the jury as a result of being overborne. 

 And further, he would say with a 

reasonable degree of medical certainty that 

at the time the conversation occurred and 

the tapes were made that Mr. Sabo was 

susceptible to being overborne by Miss 

Lawrence for the reasons that he articulated 

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in the testimony and for the reasons made in 

the proffer. 

 Because of the trial court's ruling that Lawrence was not a 

state actor, the issue of the voluntariness of appellant's 

confession was no longer an issue at trial. Therefore, 

Dr. Brantley's opinion testimony about appellant's will being 

overborne was not relevant. Moreover, appellant testified in 

detail about his mental state and indicated that he only 

admitted wrongdoing to appease Lawrence and because of her 

serious threats. Therefore, Dr. Brantley's testimony would also 

have constituted an improper opinion as to the veracity of a 

witness. See Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292 

S.E.2d 798, 806 (1982). 

 Furthermore, appellant chose to limit Dr. Brantley's 

testimony to rendering an expert opinion of appellant's 

susceptibility to his will being overborne based on listening to 

the tapes. He never asked Dr. Brantley to explain to the jury 

the clinical conditions from which appellant suffered, his 

general mental condition, the amount and type of prescription 

drugs appellant took and the effect those drugs and personal 

events would have on a person with such a condition. In other 

words, appellant did not attempt to attack the weight and 

reliability of the taped conversation. Cf. Pritchett v. 

Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208 (2002) 

(holding expert testimony about defendant's mental disorder 

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admissible so long as expert does not opine on the truth of the 

statement at issue). Instead, he chose to limit Dr. Brantley's 

testimony to rendering an expert opinion as to the voluntariness 

of appellant's statements based on hearing the tapes and 

speaking with appellant after the fact. 

 Finally, Dr. Brantley's opinion that appellant's will was 

overborne would have constituted both an improper comment on the 

earlier legal determination made by the trial court in the 

suppression motion and an invasion of the jury's function to 

determine whether appellant told Lawrence the truth when he made 

his admissions. 

Expert testimony concerning matters of 

common knowledge or matters as to which the 

jury are as competent to form an opinion as 

the witness is inadmissible. Where the 

facts and circumstances shown in evidence 

are such that men of ordinary intelligence 

are capable of comprehending them, forming 

an intelligent opinion about them, and 

drawing their own conclusions therefrom, the 

opinion of an expert based upon such facts 

and circumstances is inadmissible. 

Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 

803-04 (1979), cert. denied, 444 U.S. 1103 (1980). See also

Patterson v. Commonwealth, 3 Va. App. 1, 10, 348 S.E.2d 285, 290 

(1986). 

 Accordingly, the trial court did not abuse its discretion 

in refusing to allow Dr. Brantley's testimony. 

 

 - 22 - 
 For the foregoing reasons, the judgment of the trial court 

is affirmed. 

Affirmed. 

 - 23 - 
Benton, J., dissenting. 

 For the reasons that follow I would reverse the conviction 

and remand for a new trial. 

I. 

 It is now well "recognize[d] that the government can 

exercise such control over a private actor that a 'private' 

action can fairly be attributed to the government for purposes 

of the . . . Fifth Amendment." United States v. Garlock, 19 

F.3d 441, 443 (8th Cir. 1994). "Whether a private party should 

be deemed an agent or instrument of the Government for [Fifth] 

Amendment purposes necessarily turns on the degree of the 

Government's participation in the private party's activities, a 

question that can only be resolved 'in light of all the 

circumstances.'" Skinner v. Railway Labor Executives' Ass'n, 

489 U.S. 602, 614 (1989). In conducting this analysis, "the 

ultimate question whether a private person is actually a 

government agent . . . [is] a question that requires the 

application of a legal concept (agency) to facts." United 

States v. Martin, 195 F.3d 961, 963 (7th Cir. 1999). Employing 

the usual standard, this legal determination of agency is 

subject to de novo review on appeal. See Ornelas v. United 

States, 517 U.S. 690, 699 (1996). 

 The evidence in the record established very clearly that 

the police initiated the process leading to the recording of 

 - 24 - 
Sabo's conversations with Lawrence, that the police provided 

Lawrence with a tape recorder so she could record her 

conversations with Sabo, that the police did so for the purpose 

of furthering their investigation, and that the police used 

Lawrence as their surrogate in effecting the ends of their 

investigation. The trial judge's conclusion that the "minimal" 

involvement of the police was insufficient to prove Lawrence was 

an agent of the police is not supported by the evidence. 

 The evidence proved that the only information the police 

had concerning the identity of the person who tampered with 

Lawrence's vehicle was Lawrence's suspicion that Sabo was 

involved. The police, however, did not contact Sabo. Instead, 

they decided to use Lawrence as the means of investigating 

Sabo's involvement. To facilitate the police investigation, the 

detective instructed Lawrence, who had left her apartment and 

was staying with her mother, to move back into her apartment. 

There, the detective supplied Lawrence with a tape recorder, 

which he had obtained from the police department. He installed 

the recorder on her telephone and tested it by making calls to 

the police communication section. Initially, he gave Lawrence 

six tapes, instructed her in the manner of recording, and told 

her to record conversations "that would be useful to [the] 

investigation." 

 There is no conflict between Lawrence's trial testimony and 

the detective's. Lawrence testified that the detective knew 

 - 25 - 
Sabo had not contacted her after the accident and that the 

detective suggested she call Sabo to record his reaction to the 

accident. The detective testified, "I don't remember whether I 

told her specifically not to call him or not." After Lawrence 

had recorded several of her conversations with Sabo from her 

home telephone and delivered them to the police, the detective 

gave her an additional recording device for use on her telephone 

at her place of employment. Thus, the government instigated 

Lawrence's activities and directed her use of the recorder for 

the specific purposes of eliciting admissions from Sabo. 

 This investigation to record Sabo's conversations was the 

brainchild of the police. Lawrence had not contacted Sabo after 

her accident and had not been contacted by him. No evidence 

proved Lawrence was pursuing any private interest. Indeed, she 

moved back to her apartment, where she had access to her 

telephone, solely at the suggestion of the detective. In so 

doing and making the recordings, she was vindicating the 

interest of the government and functioning in the manner 

directed by the government. 

 Furthermore, the police removed any technical barriers that 

Lawrence may have encountered in locating or installing the 

equipment. The detective tacitly assured Lawrence that her 

conduct in recording the calls was lawful. By instructing 

Lawrence to initiate the first telephone call, the detective 

strategically set in motion the circumstance that generated 

 - 26 - 
return calls from Sabo to Lawrence. Cf. Corngold v. United 

States, 367 F.2d 1, 5-6 (9th Cir. 1966) (noting that the 

government requested a private person to open a package in a 

particular person's possession). Moreover, when the police 

supplied the recording equipment, installed the device, 

furnished the tapes, and instructed Lawrence to call Sabo, 

Lawrence needed only to activate the record button and talk to 

Sabo. "The fact that the Government has not compelled a private 

party to perform [the questioned act] does not, by itself, 

establish that the [act] is a private one." Skinner, 489 U.S. 

at 615. 

 The notion that Lawrence was not acting as a government 

agent because Sabo later initiated telephone calls to her is 

fanciful in view of the detective's initial direction to 

Lawrence to make the first call to Sabo. Although the detective 

told Lawrence to make the call to judge Sabo's reaction, the 

inevitable and reasonably expected consequence of her telephone 

call was to initiate a dialogue with Sabo about the event that 

was the focus of the investigation. It is of minimal relevance 

to the inquiry that the detective told Lawrence not to initiate 

calls to Sabo after she made the initial call. When Lawrence 

followed the detective's instruction to place the initial call 

to Sabo, she set in motion the desired circumstances to cause 

return calls. Lawrence already had informed the detective of 

the nature of her relationship with Sabo and of Sabo's 

 - 27 - 
depression. Under those circumstances, who initiated the 

resulting calls after Lawrence made the first call has no 

bearing on the issue whether Lawrence was a government agent. 

 Likewise, the notion that Lawrence somehow was acting on a 

private venture when she recorded the conversations with Sabo is 

not supported by the evidence. The detective installed the 

recording equipment on Lawrence's telephone. Thus, when 

Lawrence called to elicit conversation that she could record, 

she was acting well within the scope of the circumstances the 

detective set into motion. The detective made plain his 

preference for her initiation of the telephone dialogue. By 

telling Lawrence he wanted to get Sabo's reaction to the 

accident, he also undisputedly manifested that this was a means 

of obtaining incriminating admissions from Sabo. Indeed, after 

Lawrence delivered tapes of her conversations with Sabo, the 

police gave her another recording device to use on the telephone 

at her place of employment. We held in Abunaaj v. Commonwealth, 

28 Va. App. 47, 502 S.E.2d 135 (1998), that a rape complainant 

who voluntarily made a telephone call to a suspect, which was 

recorded by the police, was acting in "compliance with police 

requests[, which] effectively made her an agent of the police." 

Id. at 54, 502 S.E.2d at 139. 

 I would hold that this record contains clear and 

unequivocal evidence of the government's "encouragement, 

endorsement, and participation" in Lawrence's activity of 

 - 28 - 
eliciting admissions from Sabo and recording them. Skinner, 489 

U.S. at 615-16. This evidence was sufficient to prove she was a 

police agent and to implicate the Fifth Amendment. 

II. 

 When the evidence proves that a private party has acted as 

a government agent in procuring evidence, the burden shifts to 

the government to prove the evidence was obtained by 

constitutionally permissible means. Debroux v. Commonwealth, 32 

Va. App. 364, 371, 528 S.E.2d 151, 154 (2000). "It is without 

dispute that in Virginia the burden is upon the Commonwealth to 

prove that a confession is voluntary." McCoy v. Commonwealth, 

206 Va. 470, 474, 144 S.E.2d 303, 307 (1965). 

The Fifth Amendment provides that no person 

shall be deprived of life, liberty, or 

property, without due process of law. The 

admission of an involuntary confession 

violates due process. A confession will be 

found to be voluntary only if the government 

can demonstrate that, under the totality of 

the circumstances and by a preponderance of 

the evidence, it was not secured by the 

government through psychological or physical 

intimidation, but rather was the product of 

a rational intellect and free will. 

United States v. D.F., 63 F.3d 671, 679 (7th Cir. 1995) 

(emphasis added). The ultimate issue whether a statement is 

voluntary is a legal question. Miller v. Fenton, 474 U.S. 104, 

110 (1985). 

 The principle is well established that a promise to 

withhold prosecution in exchange for a confession is the type of 

 - 29 - 
duress that renders a statement involuntary. See Hammer v. 

Commonwealth, 207 Va. 135, 147-48, 148 S.E.2d 878, 885 (1966). 

Likewise, threats to interfere with an individual's custody of a 

child as a means to elicit an admission will cause a confession 

to "be deemed not voluntary, but coerced." Lynumn v. Illinois, 

372 U.S. 528, 534 (1963). In addition, "sympathy falsely 

aroused" is a factor in determining whether an induced 

confession is involuntary. Spano v. New York, 360 U.S. 315, 323 

(1959). 

 Lawrence testified that she "was after an admission" and 

worked hard to elicit an admission. To induce Sabo to make 

admissions, Lawrence told him she "would not bring in law 

enforcement if he gave an admission." Lawrence testified that 

she was "giving [Sabo] an opportunity" to make an admission by 

promising not to pursue any criminal action. The tapes also 

disclose that Lawrence threatened to publicize her romantic 

affair with Sabo and threatened that the publicity could cause 

him to be "disbarred" and to lose his "political appointment." 

She promised to withhold her actions if he talked to her and 

admitted tampering with her vehicle. Explaining her calls, she 

testified about her conversations with Sabo as follows: 

I said, if this were to come out that you 

have done an illegal act, this could –- like 

what we're facing right now –- this could 

affect his career. This could affect his 

political appointment. This could affect 

his visitation with his daughter. 

 - 30 - 
 Not that I wanted him to tell me that. 

But that if he told me what he had done, 

then I would go away, yes. 

 When Lawrence engaged in this activity, she knew Sabo had 

been diagnosed with depression and was taking medication to 

combat that illness. Pretending to be his confidant, she 

promised to "do whatever you need me to do to help you with 

this." She promised Sabo that if he admitted tampering with her 

vehicle she would not pursue civil or criminal charges. She 

also promised not to carry through on the threats to damage his 

personal, employment, or political life. It is self-evident 

that "[t]he government may not do, through a private individual, 

that which it is otherwise forbidden to do." United States v. 

Feffer, 831 F.2d 734, 737 (7th Cir. 1987). 

 I would hold that this evidence proved that Sabo's 

admissions were obtained by duress, threats, and sympathy 

falsely aroused and, thus, failed to prove Sabo's admissions 

were voluntary. 

III. 

 I would also hold that the trial judge improperly excluded 

the testimony of Dr. Julian Brantley. While I agree with the 

majority opinion that portions of the proffered testimony of 

Dr. Brantley would have been improper, I disagree that all of 

Dr. Brantley's testimony was inadmissible. 

 On the day of trial, the prosecutor challenged whether 

Dr. Brantley's testimony was relevant to any issue at trial. In 

 - 31 - 
response, Sabo's attorney argued that "[t]he issue for the Court 

at the suppression hearing was the admissibility of the 

statements to be made," but that the issue remaining at trial 

was "the weight that [the statements] should receive." He then 

informed the judge as follows: 

 Dr. Brantley would [testify] that . . . 

[Sabo] said what he said because he was 

depressed. He was suffering from acute 

anxiety disorder. 

 And[,] he would testify as to the 

conditions that are accompanying those 

disorders, and that [Sabo] was overborne or 

more susceptible to being overborne than a 

normal person would have been. 

 After considering the arguments, the judge made the 

following ruling: 

 I don't think Dr. Brantley can get up 

here and testify. 

 I've certainly heard his testimony from 

before, that because of [Sabo's] condition 

what [Lawrence] said overbore his free will 

and therefore the statements were not made 

voluntarily. 

 I think I've already ruled on that as a 

matter of law. And I don't think that it's 

an appropriate subject before the jury. 

 He made the statements. Certainly, 

there's enough on those tapes from what I 

heard to indicate that it was not 

necessarily a spontaneous utterance. 

During the trial, Sabo's attorney made an additional proffer. 

The trial judge simply noted the proffer for the record. 

 - 32 - 
 Citing Crane v. Kentucky, 476 U.S. 683 (1986), the Supreme 

Court of Virginia recently reaffirmed the principle that 

"[w]hile the [trial judge] has the duty to determine whether [a 

defendant's] confession was voluntary, it is the jury's duty to 

consider its reliability." Pritchett v. Commonwealth, 263 Va. 

182, 186, 557 S.E.2d 205, 208 (2002). Crane explicitly 

recognized the following principle: 

[R]egardless of whether the defendant 

marshalled the same evidence earlier in 

support of an unsuccessful motion to 

suppress, and entirely independent of any 

questions of voluntariness, a defendant's 

case may stand or fall on his ability to 

convince the jury that the manner in which 

the confession was obtained casts doubt on 

its credibility." 

475 U.S. at 689. Thus, the defendant is entitled to have the 

jury consider circumstances bearing upon the weight to be given 

to his or her confession and its reliability. Id. In 

particular, and as pertinent to this case, the Supreme Court 

noted in Crane that "the . . . psychological environment that 

yielded the confession can . . . be of substantial relevance to 

the ultimate factual issue of the defendant's guilt or 

innocence." Id.

 In Pritchett, the Supreme Court held that a defendant is 

"entitled to introduce admissible evidence to assist the jury in 

determining whether the confession was reliable." 263 Va. at 

186, 557 S.E.2d at 208. Accordingly, the trial judge erred in 

ruling that because she had ruled on the issue of voluntariness, 

 - 33 - 
Dr. Brantley's testimony was not "an appropriate subject before 

the jury." 

 Furthermore, Dr. Brantley's testimony at the suppression 

hearing and the proffer of his testimony establish that he was 

prepared to testify about Sabo's depression and the 

manifestations of his depression on his ability to function. 

"Expert testimony is admissible if the area of expertise to 

which the expert will testify is not within the range of the 

common experience of the jury." Id. at 186-87, 557 S.E.2d at 

208. Portions of Dr. Brantley's testimony were offered 

particularly to explain to the jury the symptoms of Sabo's 

illness and to explain that the illness would cause Sabo to 

exhibit poor judgment. 

 Dr. Brantley testified at the suppression hearing that he 

had treated Sabo in March and April of 1999 and that his 

diagnosis was that Sabo "has a chronic depressive illness which 

was typical of depression." Dr. Brantley testified that Sabo's 

"depressive illness was characterized by depressed mood, sad 

mood, despondent mood, feelings of worthlessness, helpless, 

hopelessness, a very pessimistic outlook for the future, 

difficulties maintaining concentration and feeling of -- 

unrealistic feelings of guilt, extreme feelings of guilt, often 

unrealistic in this case, as well as suicidal ideation." Dr. 

Brantley also said that "[a]s a symptom of his overall weakened 

state of mind, weakened by his depressive illness and anxiety, 

 - 34 - 
Mr. Sabo demonstrated to me impairments in his executive -- what 

we call ego functioning. And poor judgement." 

 In addition, Sabo's attorney proffered at the suppression 

hearing that Dr. Brantley "would certainly testify that [Sabo] 

was more susceptible to being overborne and to making such an 

involuntary admission." At the trial, he added to the proffer 

that Dr. Brantley "further, . . . would say with a reasonable 

degree of medical certainty that at the time the conversation 

occurred and the tapes were made that Mr. Sabo was susceptible 

to being overborne by Miss Lawrence for the reasons that he 

articulated in the testimony and for the reasons made in the 

proffer." 

 The testimony of Dr. Brantley concerned a matter that is 

beyond the normal province of a jury and was offered to explain 

to the jury Sabo's mental illness. His testimony would have 

also given the jury an understanding of how Sabo's illness 

affected his susceptability to the threats and intimidation. As 

the Court held in Pritchett, "an expert may testify to a 

witness's or defendant's mental disorder and the hypothetical 

effect of that disorder on a person in the witness's or 

defendant's situation." Id. at 187, 557 S.E.2d at 208. 

 The error in not permitting the expert to testify 

concerning Sabo's illness was not harmless error. Although Sabo 

attempted to describe his illness for the jury, his testimony 

did not have the same effect of an expert who could more 

 - 35 - 
accurately explain Sabo's mental state and its effect on his 

functioning. Furthermore, while Sabo's statement and 

characterization of his illness may have been viewed by the jury 

as self-serving, Dr. Brantley's testimony and description of the 

illness would not have been so perceived and could have provided 

enhanced reliability for the jury to consider. Therefore, I 

would hold the judge committed reversible error in not allowing 

portions of Dr. Brantley's testimony. 

IV. 

 For these reasons, I would hold that Lawrence was acting as 

an agent of the police when she recorded her conversations with 

Sabo and, further, that the evidence failed to prove Sabo's 

admissions were voluntary. In addition, I would hold that the 

trial judge erred in excluding Dr. Brantley's testimony. 

Accordingly, I would reverse the conviction and remand for a new 

trial. 

 - 36 -