COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Coleman 

Argued at Chesapeake, Virginia 

TREMAINE KEVIN WHITE 

 MEMORANDUM OPINION* BY 

v. Record No. 0104-02-1 JUDGE LARRY G. ELDER 

 DECEMBER 31, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 William P. Robinson, Jr. (Robinson, Neeley & 

Anderson, on brief), for appellant. 

 Robert H. Anderson, III, Senior Assistant 

Attorney General (Jerry W. Kilgore, Attorney 

General, on brief), for appellee. 

 Tremaine Kevin White (appellant) appeals from his 

convictions for four counts each of robbery, conspiracy and use 

of a firearm in the commission of a felony, entered upon his 

conditional guilty pleas. On appeal, he contends the trial 

court erroneously denied his motion to suppress his confession 

because his waiver of his Fifth Amendment rights to counsel and 

silence was not voluntary, knowing and intelligent. We hold the 

evidence, viewed in the light most favorable to the 

Commonwealth, supported the trial court's ruling that 

appellant's waiver was, in fact, voluntary, and we affirm. 

 

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

designated for publication.
 On appeal of a ruling on a motion to suppress, we view the 

evidence in the light most favorable to the prevailing party, 

here the Commonwealth. Mills v. Commonwealth, 14 Va. App. 459, 

468, 418 S.E.2d 718, 722-23 (1992). "[W]e are bound by the 

trial court's findings of historical fact unless 'plainly wrong' 

or without evidence to support them[,] and we give due weight to 

the inferences drawn from those facts by resident judges and 

local law enforcement officers." McGee v. Commonwealth, 25 

Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). 

However, we review de novo the trial court's application of 

defined legal standards, such as whether a confession was 

voluntary, to the particular facts of the case. See Ornelas v. 

United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 

L. Ed. 2d 911 (1996); Mills, 14 Va. App. at 468, 418 S.E.2d at 

723. 

 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. 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.

Assessing whether a confession is voluntary requires an 

examination of the totality of the circumstances to determine 

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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, 

225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). In 

assessing the totality of the circumstances, the court must 

consider both "the details of the interrogation" and "the 

characteristics of the accused." Kauffmann v. Commonwealth, 8 

Va. App. 400, 405, 382 S.E.2d 279, 281 (1989). 

"'Where a juvenile is involved, "[t]his includes evaluation 

of the juvenile's age, experience, education, background, and 

intelligence [in order to determine] whether he has the capacity 

to understand the warnings given him, the nature of his Fifth 

Amendment rights, and the consequences of waiving those 

rights."'" Potts v. Commonwealth, 35 Va. App. 485, 495-96, 546 

S.E.2d 229, 234 (quoting Roberts v. Commonwealth, 18 Va. App. 

554, 557-58, 445 S.E.2d 709, 711 (1994) (quoting Fare v. Michael 

C., 442 U.S. 707, 717, 99 S. Ct. 2560, 2567, 61 L. Ed. 2d 197 

(1979))), aff'd on reh'g en banc, 37 Va. App. 64, 553 S.E.2d 560 

(2001). 

Although "it is desirable to have a parent, 

counsel or some other interested adult or 

guardian present when . . . a juvenile 

waives fundamental constitutional rights and 

confesses to a serious crime . . . , the 

mere absence of a parent or counsel does not 

render the waiver invalid." The absence of 

a parent is but one factor to be considered 

in the totality of the circumstances and is 

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insufficient by itself to render [a 

juvenile's] confession involuntary. 

Id. at 496, 546 S.E.2d at 234-35 (quoting Grogg v. Commonwealth, 

6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1988)). Other factors 

for consideration include "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. 

 Here, as appellant conceded on brief, the trial court was 

free to reject as not credible some or all of the testimony of 

appellant and his mother.1 Viewing the record in the light most 

favorable to the Commonwealth, no evidence indicated that 

Detective J.E. Nolan made any misrepresentations to appellant 

about whether he would be permitted to leave the station when 

the interrogation was over or whether appellant's mother 

approved of appellant's talking to the detectives without her 

being present. The remaining evidence supported the trial 

court's finding that appellant's confession was voluntary. 

Although appellant was seventeen years old when the 

challenged interview took place and his mother was not present, 

his eighteenth birthday was less than three weeks after the 

 1

 Appellant asserted on brief that "[t]he instant case 

presents a clear factual issue" and that Detective Nolan's 

actions, "if true, are reprehensible." (Emphasis added). 

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interview. Although the evidence left open to question whether 

appellant had previously been questioned by the police, it 

established that appellant was literate, "a bright kid" and "a B 

student" in his eleventh grade classes. Appellant denied having 

consumed any alcohol or drugs prior to the interview, was 

reasonably articulate when he answered the questions of 

Detectives Nolan and Grazia Moyers during the interview, and 

confirmed both verbally and in writing prior to the interview 

that he understood his Miranda rights. 

When Detective Nolan asked appellant whether, keeping his 

rights in mind, he wished to talk to the detectives, appellant 

inquired whether his mother was "supposed to be [present for the 

interview] because [appellant was] a minor." Detective Nolan 

responded that he decided to have appellant's mother wait in the 

lobby because he wanted appellant "to have an opportunity to 

make open statements without being embarrassed in front of his 

mother." Detective Nolan then asked appellant, "[h]aving what 

has been read in mind," whether appellant wished to talk to him. 

Appellant responded, "Yes sir," endorsed the advisement of 

rights form, and answered Detective Nolan's questions. 

Detective Nolan's tone and manner were even and 

non-threatening, and the entire interview lasted less than one 

hour. Detective Nolan offered appellant something to drink 

before beginning the interview. Although appellant confessed to 

committing the instant offenses, he unequivocally denied 

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participating in the robbery of a man in a suit in the vicinity 

of a particular gas station and in any robberies near Lynnhaven 

Mall or in any other jurisdictions, demonstrating his confession 

was "an essentially free and unconstrained choice." 

Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2046; see also Arthur 

v. Commonwealth, 24 Va. App. 102, 107-08, 480 S.E.2d 749, 752 

(1997) (in determining effect of false incriminating documents 

on voluntariness of confession, noting defendant's ability "to 

make choices" by declining, during several prior interviews with 

police, to incriminate himself). "He never broke down and 

became 'putty in the hands' of the interrogator or a 'parrot' 

for words put into his mouth." Rodgers v. Commonwealth, 227 Va. 

605, 617, 318 S.E.2d 298, 305 (1984). 

 Finally, we would reach the same conclusion even if we were 

to construe the trial court's statements on the record as 

factual findings that Nolan did, in fact, tell appellant that 

"[he could] go home" after the interview was over and that 

"[appellant's] mother said it was okay" for appellant to speak 

to the police without her being present. If the trial court 

believed Detective Nolan made these statements, the totality of 

the circumstances nevertheless supports the trial court's 

conclusion that appellant's confession was voluntary. A lie by 

a law enforcement officer "does not, in and of itself, require a 

finding that a resulting confession is involuntary." Id. at 

616, 318 S.E.2d at 304. 

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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)). 

 Here, although Nolan's alleged misstatements were not about 

"the factual strength of the case," they nevertheless were 

factual rather than legal in nature and did nothing to "impede 

[appellant's] . . . 'ability to understand the nature of his 

rights and the consequences of abandoning them'" under the facts 

of this case. Id. Assuming these misstatements occurred, we 

hold the totality of the circumstances supports the conclusion 

that appellant's confession was voluntary. 

For these reasons, we hold the trial court's denial of 

appellant's motion to suppress was not erroneous, and we affirm 

appellant's convictions. 

Affirmed.

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Benton, J., dissenting. 

 "[T]he rule against admitting coerced confessions [is 

based] primarily, if not exclusively, on notions of due 

process." Dickerson v. United States, 530 U.S. 428, 433 (2000). 

The ultimate test remains that which has 

been the only clearly established test in 

Anglo-American courts for two hundred years: 

the test of voluntariness. Is the 

confession the product of an essentially 

free and unconstrained choice by its maker? 

If it is, if he has willed to confess, it 

may be used against him. If it is not, if 

his will has been overborne and his capacity 

for self-determination critically impaired, 

the use of his confession offends due 

process. 

Culombe v. Connecticut, 367 U.S. 568, 602 (1961). 

 The Supreme Court has "never abandoned this . . . 

jurisprudence, and . . . , continue[s] to exclude confessions 

that were obtained involuntarily." Dickerson, 530 U.S. at 434. 

Thus, the Court recently reaffirmed the following principle: 

[T]he test . . . [is] an inquiry that 

examines "whether a defendant's will was 

overborne" by the circumstances surrounding 

the giving of a confession. The due process 

test takes into consideration "the totality 

of all the surrounding circumstances -- both 

the characteristics of the accused and the 

details of the interrogation." The 

determination "depends upon a weighing of 

the circumstances of pressure against the 

power of resistance of the person 

confessing." 

Id. (citations omitted). See also Malinski v. New York, 324 

U.S. 401, 404 (1945) (holding that "if all the attendant 

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circumstances indicate that the confession was coerced or 

compelled, it may not be used to convict a defendant"). 

 Prior to the videotaping of the confession, Detective 

Noland talked to White and separately to White's mother. 

Detective Noland did not testify at trial. I believe the record 

reflects that the trial judge accepted White's testimony 

concerning the circumstances that occurred prior to the 

videotaping of the interrogation. White testified that shortly 

after his mother told him not to speak to Detective Noland, 

Detective Noland spoke to White's mother. When Detective Noland 

returned, he lied to White and told him his mother said he 

should answer Noland's questions. He also falsely promised 

White that after he answered Noland's questions his mother would 

take him home. The trial judge said that he had "to hand it to 

[White] for his honesty," that "he was very honest," and that 

his testimony was "refreshing -- candid." He ruled, however, as 

follows: 

[R]egardless of whether we approve or 

disapprove of tactics that the police 

sometimes use in promising that if they 

speak to the judge or promising to speak to 

the Commonwealth or promising you can go 

home or saying that your mother said it was 

okay, I don't know of any case law that says 

that's enough to set it aside. 

 I'm going to determine that he was 

properly advised and that it was a voluntary 

waiver that he -- what he said thereafter 

was admissible into evidence. 

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 I believe the detective's misrepresentations were 

sufficient to overbear White's will. White had never before 

been interrogated by the police and relied upon the detective's 

statement that his mother told him to answer the detective's 

questions. His lack of "[p]revious exposure to the criminal 

justice system" is a factor that weighs against a finding of 

voluntariness. Green v. Commonwealth, 223 Va. 706, 710, 292 

S.E.2d 605, 608 (1982). The detective's lie that White would go 

home after cooperating further undermined the voluntariness of 

his statement. These factors make abundantly clear the 

conclusion that "the confession [was not] the product of an 

essentially free and unconstrained choice by [White]." 

Dickerson, 530 U.S. at 433. 

 The Supreme Court has addressed the question of 

voluntariness of a juvenile's confession in circumstances 

applicable to this case. 

 [The period] -- during which time the 

boy's mother unsuccessfully tried to see him 

and he was cut off from contact with any 

lawyer or adult advisor -- gives the case an 

ominous cast. . . . But a [juvenile], no 

matter how sophisticated, is unlikely to 

have any conception of what will confront 

him when he is made accessible only to the 

police. That is to say, we deal with a 

person who is not equal to the police in 

knowledge and understanding of the 

consequences of the questions and answers 

being recorded and who is unable to know how 

to protect his own interests or how to get 

the benefits of his constitutional rights 

. . . . He cannot be compared with an adult 

in full possession of his senses and 

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knowledgeable of the consequences of his 

admissions. He would have no way of knowing 

what the consequences of his confession were 

without advice as to his rights -- from 

someone concerned with securing him those 

rights -- and without the aid of more mature 

judgment as to the steps he should take in 

the predicament in which he found himself. 

A lawyer or an adult relative or friend 

could have given the petitioner the 

protection which his own immaturity could 

not. Adult advice would have put him on a 

less unequal footing with his interrogators. 

Without some adult protection against this 

inequality, a [juvenile] would not be able 

to know, let alone assert, such 

constitutional rights as he had. To allow 

this conviction to stand would, in effect, 

be to treat him as if he had no 

constitutional rights. 

Gallegos v. Colorado, 370 U.S. 49, 54-55 (1962). 

 I would hold that the circumstance proved White's statement 

was not voluntary. The officer's trickery and lies exerted 

sufficient pressure to overcome White's "power of resistance," 

Dickerson, 530 U.S. at 434, and the considered advice White 

received from his mother. For these reasons, I would reverse 

the convictions and remand for a retrial. 

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