COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Frank 

Argued at Chesapeake, Virginia 

BRAM PATRICK DAGGS 

 MEMORANDUM OPINION* BY 

v. Record No. 2231-99-1 JUDGE LARRY G. ELDER 

 NOVEMBER 14, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

Prentis Smiley, Jr., Judge 

 Charles E. Haden for appellant. 

 (Mark L. Earley, Attorney General; John H. 

McLees, Jr., Senior Assistant Attorney 

General, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Bram Patrick Daggs (appellant) appeals his bench trial 

convictions for armed robbery of a bank and use of a firearm in 

the commission of robbery. On appeal, he contends the trial 

court erroneously denied a motion to suppress his confession. 

He contends the confession was not knowing, voluntary and 

intelligent because it resulted from police trickery, deception 

and coercion. We hold, under the totality of the circumstances, 

that the confession was the product of an essentially free and 

unconstrained choice by its maker, and we affirm appellant's 

conviction. 
 A suspect must knowingly and intelligently waive his rights 

against self-incrimination and to the assistance of legal 

counsel in order for a confession made during a custodial 

interrogation to be admissible in evidence against him. See

Morris v. Commonwealth, 17 Va. App. 575, 579, 439 S.E.2d 867, 

870 (1994). Even when a suspect has waived his Miranda rights, 

his confession is inadmissible if it was involuntary for other 

reasons. See id. At a hearing on a defendant's motion to 

suppress a confession, the Commonwealth must prove by a 

preponderance of the evidence both that the accused waived his 

Miranda rights and that the confession was voluntary. See Mills 

v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 722-23 

(1992). 

 In reviewing these issues on appeal, we conduct an 

independent review of the ultimate legal question of whether a 

confession was voluntary. See Wilson v. Commonwealth, 13 Va. 

App. 549, 551, 413 S.E.2d 655, 656 (1992). However, "we are 

bound by the trial court's subsidiary factual findings unless 

those findings are plainly wrong." Id.

 Assessing whether a confession is voluntary requires an 

examination of the totality of the circumstances to determine 

whether the statement is the "product of an essentially free and 

unconstrained choice by its maker," or whether the maker's will 

"has been overborne and his capacity for self-determination 

critically impaired." Schneckloth v. Bustamonte, 412 U.S. 218, 

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225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). "[A] court 

must consider a myriad of factors, including the defendant's 

age, intelligence, background and experience with the criminal 

justice system, the purpose and flagrancy of any police 

misconduct, . . . the length of the interview . . . [, and any] 

moral and psychological pressures to confess emanating from 

official sources." Morris, 17 Va. App. at 579, 439 S.E.2d at 

870. A lie by a law enforcement officer "does not, in and of 

itself, require a finding that a resulting confession is 

involuntary." Rodgers v. Commonwealth, 227 Va. 605, 616, 318 

S.E.2d 298, 304 (1984). Whether police were truthful about the 

strength of the evidence against the accused while interrogating 

him is but "one factor that must be considered in determining 

whether [the defendant's] will was overcome and his capacity for 

self-determination critically impaired." Wilson, 13 Va. App. at 

554, 413 S.E.2d at 658. 

Miranda's prohibition against threats, 

trickery or cajolery was not intended to 

preclude in all circumstances trickery 

concerning merely one aspect of the factual 

strength of the case against the accused 

. . . [particularly when n]othing about the 

misrepresentation impede[s the defendant's] 

. . . "ability to understand the nature of 

his rights and the consequences of 

abandoning them." 

Foster v. Commonwealth, 8 Va. App. 167, 174-75, 380 S.E.2d 12, 

16 (1989) (quoting Moran v. Burbine, 475 U.S. 412, 424, 106 

S. Ct. 1135, 1142, 89 L. Ed. 2d 410 (1986)). 

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 Courts are much less likely "to tolerate misrepresentations 

of law." 2 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, 

Criminal Procedure § 6.2(c), at 458 (2d ed. 1999). However, for 

a legal or factual misrepresentation to impact the assessment of 

the voluntariness of a confession, the misrepresentation must 

have induced or contributed to the confession. See, e.g., Swann 

v. Commonwealth, 247 Va. 222, 232, 441 S.E.2d 195, 202 (1994). 

Where the legal misrepresentation occurs after the accused 

confesses, it cannot, as a matter of law, have induced or 

contributed to the confession. See Harrison v. Commonwealth, 

244 Va. 576, 585-86, 423 S.E.2d 160, 165 (1992). 

 At the time of the challenged questioning, appellant was a 

literate nineteen-year-old with a high school equivalency 

certificate. He had previously been convicted of a misdemeanor, 

and he faced pending felony charges for two robbery offenses 

committed three months prior to the robbery at issue here. 

Although the precise parameters of his contact with the legal 

system do not appear in the record, he was not a complete 

stranger to the system. Viewing the evidence in the light most 

favorable to the Commonwealth, we reject appellant's claim that 

he "[did not] know how to go about this" because he had "never 

been in this situation" and had "never been questioned about 

anything like this." Further, nothing indicated that appellant 

was under the influence of drugs or alcohol at the time of the 

interview. During the interview, police offered appellant a 

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soda and allowed him to smoke cigarettes, and the questioning 

lasted only two hours, from approximately 3:00 to 5:00 p.m. See

2 LaFave, Israel & King, supra, § 6.2(c), at 451 (questioning of 

only a few hours not likely to require exclusion unless evidence 

establishes defendant was "especially susceptible to coercion"). 

The trial court expressly found the interview was "very brief" 

and that appellant's "needs and . . . desires" were attended to. 

The record supports this finding. 

A. Appellant's Receipt and Waiver of Miranda Rights

 "[A] valid waiver [of Miranda rights] 

will not be presumed simply from the silence 

of the accused after warnings are given or 

simply from the fact that a confession was 

eventually obtained." [Miranda v. Arizona, 

384 U.S. 436, 475, 86 S. Ct. 1602, 1628, 16 

L. Ed. 2d 694 (1966)]. However, . . . "in 

at least some cases waiver can be clearly 

inferred from the actions and words of the 

person interrogated." North Carolina v. 

Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 

1757, 60 L. Ed. 2d 286 (1979). 

Harrison, 244 Va. at 582, 423 S.E.2d at 163-64; see Butler, 441 

U.S. at 370-76, 99 S. Ct. at 1756-59 (upholding waiver 

determination where defendant received rights orally at time of 

arrest, read "Advice of Rights" form at FBI office, and said he 

understood rights and would talk to agents but would not sign 

waiver on form); Green v. Commonwealth, 223 Va. 706, 709-10, 292 

S.E.2d 605, 607-08 (1982) (upholding waiver determination where 

juvenile executed written statement indicating he understood 

Miranda rights and explained to officers the elements of offense 

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he was suspected of committing before making confession). 

Because the trial court here expressly found appellant indicated 

verbally while in the apartment that he understood his Miranda

rights and the evidence supports this finding, we defer to the 

trial court's determination, by a preponderance of the evidence, 

that appellant validly waived his Miranda rights before being 

questioned by police and confessing to the charged crimes. See

Mickens v. Commonwealth, 247 Va. 395, 406-07, 442 S.E.2d 678, 

686-87 (1994). 

B. Alleged Misrepresentations

1. Factual Evidence and Strength of Commonwealth's Case

 Appellant challenges the statements of interviewers that 

eyewitnesses saw him at the scene of the robbery and 

subsequently saw him leave the suspected getaway car and enter 

apartment 103-C. Police had a description and partial license 

plate number for the vehicle used in the robbery. Several 

eyewitness descriptions of the person or people seen robbing the 

bank, leaving or parking the car or entering apartment 103-C 

matched the description of appellant in terms of race, height, 

weight and attire. Coupled with the fact that "Bram" borrowed 

Julia Perry's car to drive it to York County, that the police 

found a firearm inside, and that appellant, who was known to 

Investigator Donnelly as Bram Daggs, was found inside apartment 

103-C when the officers executed the search warrant, the police 

were justified in representing to appellant that he had been 

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positively linked to the car, the robbery and the apartment 

because he had been seen in all three places. 

 Appellant contends the officers' representations in this 

area were worsened by the fact that they suggested the 

eyewitness who saw appellant enter the apartment was a sheriff's 

deputy. We hold this is not a fair interpretation of the 

officers' statements. One inference from the statements was 

that the various locations of appellant and the vehicle were 

described by multiple witnesses, an inference which is supported 

by the record. The police misrepresentations, if any, were 

minor and do not support the conclusion that police tactics were 

unfairly coercive. See Wilson, 13 Va. App. at 554, 413 S.E.2d 

at 658 (upholding conviction where police told accused he had 

been positively identified by witness who, in fact, had been 

unable to identify him). 

 Appellant also complains the officers falsely told him that 

Edward Love, another occupant of apartment 103-C, had been 

linked to the robbery and that Love said he was with appellant. 

First, nothing in the record affirmatively establishes these 

statements were false. Second, even if the record established 

the officers' statements about Love were untrue, they would not 

require a finding, under the totality of the circumstances, that 

the statements were unfairly coercive. See Frazier v. Cupp, 394 

U.S. 731, 739, 89 S. Ct. 1420, 1425, 22 L. Ed. 2d 684 (1969) 

(holding false statement that one of defendant's friends 

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confessed to crime about which defendant was being questioned 

did not render confession involuntary under totality test). 

 Appellant also contends the police falsely told him that 

his fingerprints had been lifted from the suspected getaway car 

and the rifle found inside the car. Again, this is not a fair 

representation of the officers' statements, and the record does 

not establish that the statements the officers did make were 

false. 

2. Representations About Bond and Sentencing

 During the questioning preceding appellant's first 

confession, Donnelly said he would tell the magistrate appellant 

had been cooperative and truthful but that "I have nothing to do 

with the actual making of a bond." Appellant then made a full 

confession before engaging in any additional conversation with 

the officers about bond. Appellant eventually received a bond 

of $500,000. Although he now contends this figure was so high 

it was the equivalent of no bond at all, he never asked the 

officers how much the bond would be or whether it would be 

"reasonable," and the officers made no representations about the 

amount of the bond. 

 Also prior to appellant's first confession, the officers 

stated only that appellant "could" be prosecuted in federal 

court, which would "not be good for [appellant]" because the 

sentencing structure was "day-for-day" with "no parole" and that 

the crime of "using a gun" required "automatic sentencing." 

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These assertions were true. See 18 U.S.C. § 924(c) (1994 & 

Supp. IV 1998); 18 U.S.C. §§ 3551-86 (1994 & Supp. IV 1998); 

Project, Twentieth Annual Review of Criminal Procedure: United 

States Supreme Court and Courts of Appeals 1989-90, 79 Geo. L. 

J. 591, 1163 (1991). The officers also made clear that they 

could not make any promises regarding the resolution of the 

charges if appellant confessed and was prosecuted in the state 

system but that they would accurately report his cooperation in 

resolving the crime and recovering the stolen money. Appellant 

then made a full confession, indicating that he participated in 

the planning of the robbery and drove the car, and he gave the 

first names or nicknames of his accomplices. The only 

representations the officers made as appellant's confession 

evolved related to the evidence against him. They made no 

further representations about trial and sentencing in the 

federal system until after appellant had fully confessed the 

first time. We hold that the representations the officers made 

about federal sentencing before appellant confessed were true 

and that they did not override appellant's ability to make a 

voluntary confession, either standing alone or in conjunction 

with any of appellant's other claims. 

 Only after appellant's first full confession did the 

officers give appellant further information about bond and 

sentencing in the state and federal systems. Assuming without 

deciding that some of the officers' subsequent statements were 

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false or overly coercive, appellant had already given a full 

confession before these statements were made. Thus, the 

confession could not, as a matter of law, have resulted from the 

challenged statements about bond or sentencing. See Harrison, 

244 Va. at 585-86, 423 S.E.2d at 165. 

 For these reasons, we hold the trial court did not err in 

denying the motion to suppress, and we affirm the convictions 

entered on appellant's conditional guilty pleas. 

Affirmed.

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