COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements an d Senior Judge Coleman Argued at Rich mond, Virginia

MICHAEL LEE SAMMONS MEMORANDUM OPINION * BY v. Record No. 0089-00-2 JU DGE JEAN HARR ISON CLEMENTS MAY 29, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY John F. Daffron, Jr., Judge D. Gregory Carr (Bow en, Bryant, Champlin & Carr, on brief), for appellant. Eugene Murphy, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Appellant Mich ael Lee Sammons was convicted in a bench trial of first degree murder , use of a firearm in the commission of murder, robbery, and use of a firearm in the commission of robbery. On appeal, he contends the trial court erred in denying his motion to supp ress inculpatory statements he ga ve to police. Finding no error, we affirm th e judgment of the trial court. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedential value, this opinion recites only those fa cts necess ary to a disposition of this appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.Specifically, Sa mmons asserts on appeal that th e police, over a lengthy period of time in a cr amped room, ma de numerous promises of leniency, ap plied psychologi cal pressures, threatened to prosecute memb ers of his fiance e's family, and le d him to believe that his freedom or li fe depended on his co operation with them. His inculpatory st atements, he argues, were not volunt ary and it was error, therefore, on the part of the tr ial court to deny his motion to su ppress them. On appeal from a trial court's denial of a motion to suppress, the burd en is on the ap pellant to show that the denial of the motion constitute d reversible error. See Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied , 449 U.S. 1017 (1980) . We review the ev idence in the light most favorable to the Commonwealth, gr anting to the Commonwealth all reasonable infe rences fairly dedu cible from it. E.g. , Commonwealth v. Grimstead , 12 Va. App. 1066, 1067, 407 S. E.2d 47, 48 (1991). "The Commonwealth ha s the burden to prove, by a preponderance of the evidence, that a defendant's confession was freely and voluntarily given." Bottenfield v. Commonwealth , 25 Va. App. 316, 323, 487 S.E.2d 883, 886 (1997). The volu ntariness is sue is a question of law requiring an independent determination on appeal. E.g. , Wilson v. Commonwealth , 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992). "I n assessing volu ntariness, the court must determine whet her 'the statement is the product of an essentially

- 2 -free and unconstrained choice by its maker, or . . . whether the maker's will has be en overborne and his capacity for self-determinati on critically impaired.'" Roberts v. Commonwealth , 18 Va. App. 554, 557, 445 S.E.2d 709, 711 (1994) (quoting Stockton v. Commonwealth , 227 Va. 124, 14 0, 314 S.E.2d 371, 381 (1984) (inter nal quotations omitted) ). In making that independent dete rmination, "we are boun d by the tr ial court's subsidiary factual fi ndings unless those findings are plainly wrong." Wilson , 13 Va. App. at 551, 413 S.E.2d at 656. "Conflicts in ev idence present factual qu estions that are to be resolved by the tr ial court," wh ich "'must evaluate the credibility of the witnesses, resolve the conf licts in their testimony and weig h the evidence as a whole.'" Mills v. Commonwealth , 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992) (quoting Albert v. Commonwealth , 2 Va. App. 734, 738, 347 S.E.2d 534, 536 (1986)). In determining voluntariness, we look to the "'totality of all the surround ing circumstance s,' including th e defendant's background, expe rience, mental and phys ical condition and the conduct of the police." Commonwealth v. Peterson , 15 Va. App. 486, 488, 424 S.E.2d 722, 723 (1 992) (citation omitted). In considering the conduct of the police, we "must consider the interrogation techniques employed, includ ing evidence of trickery and deceit, psyc hological pressu re, threats or promises of leniency, and dura tion and circumstances of the inte rrogation." - 3 -Terrell v. Commonwealth , 12 Va. App. 285, 291, 403 S.E.2d 387, 390 (1991). Here, Sammons was arrested and taken into custody by Chesterfield County police on Janu ary 16, 1998, for unrelated charges in a "church bu rglary." Afte r Sammons signeda waiver of his Miranda rights, he was in terviewed by Detect ives Truehart and Baker. Truehart told Sammons, I expect you to tell me the truth. I told you I'd be square with you and I'd help you to the fullest, didn't I? If I catch you in a lie, I'm gonna hammer you. An d you got a baby coming here, be du e, in what , a couple months. After the offi cers questioned Sammon s about the unrelated "church burgla ry," the intervie w shifted to the murder of James Lambrecht. Samm ons first asked wh at was going to happen to him, whether he would be go ing to jail or would "get off." Truehart told Sammons he had no control over whether Sammons went to jail, but he would put in a "very good word" for him with the Commonwealth's attorney . Truehart implored Sammons to tell him the truth, and Baker to ld Sammons it would he lp him a lot if he told them about the mu rder. Truehart remind ed Sammons again about the baby Sammons was ex pecting and toldSammons he needed to think of himself. Ther eafter, Sammons ga ve a version of the murder that implicated solely his codefendant, Jason Gregory. Later during the same interview, Sa mmons aske d for the officers' help, re minding them that he had a baby on the way.

- 4 -Truehart responded that he was going to he lp Sammons and that Sammons had to look ou t for himself. Truehart also told Sammons that the more he did for the officers , the more they would do for him. Truehart furthe r advised Sammon s, "[Y]our life depends on you this moment and you got to tell us everything you know." Later in the interview, Bake r and Sammons en gaged in the following exchange: Baker: Mike, we will help you out the best we can. We'll go to the Commonwealth's attorney and help you ou t the best we can. But we're going to need your help on this, too. Sammons: I will go to court and testify for you all, but I cannot go to jail. I will not be able to handle that mentally. Not again. Baker: Well, we can't tell you that you're not going to go to jail. Okay. That's not up to us. That's not our shot. You know what will happ en. Right here today you'll have to go in fr ont of the magistrate. And we can, we, Detect ive Truehart and I, will both go to the ma gistrate and tell that you've cooperated with us. But we can't make any promises to you. Yo u know that. Baker also implored Sa mmons to be to tally honest and assured him that they knew Gregory was the "bad guy" and that they were "not looking to hamm er" Sammons. During the interview, the of ficers twice of fered Sammons a drink and permit ted him to go to the restro om when he requested to do so. Throughout th e interview, Sammons bl amed Gregory for the murder, insist ing that Gregory had acte d independentl y and that

- 5 -Sammons was unaw are of Gregory's intent ion to rob or kill Lambrecht. Subsequently, Baker and Detect ive Steve Smit h interviewed Sammons. Smith began the intervie w by accusing Sa mmons of having lied to the offi cers earlier. He told Sammons that Gregory had accused Sammons of shooting Lambrecht. Smith also implied that, if Sammons did not te ll the truth, the po lice might have to involve Sammon s's future father-in-law in the murder investigation and charge Sammons's fiancee's sister , who was in the car after the murder, as an accessory af ter the fact. When Sammons refused to change his version of what happened, Smith, who knew from other evidence that Sammons wa s involved in the killing, told Sammons: Let me tell you someth ing, son. You're lying. I'm te lling you that straight up. Now do you want to fa ce a capital murder charge, robbery, and death in result of a robbery? . . . Now let me tell you one more time. You better star t telling th e truth. If you don't, you're going to be the worst guy in this wh ole scenario. Smith further to ld Sammons that a jurywould not believe his inconsistent story and that he ha d better start "s inging," because he was "digging [h is] hole deeper." When Smith and Bake r suggested to Sammon s that they knew where to get the gun Sammons used to shoot Lambre cht, Sammons confessed his part in the robbery and murder and apologized for

- 6 -lying to the officers. At no time did Samm ons seek to terminate the interview or talk to an attorney. The record in this case contains a tr anscript of the initial interview with Sammons; an audiotape, videotap e, and transcript of the second interview; and brief testim ony of Detectives Smith and Baker regarding the second interview. Othe r than what is revealed in the transcript of the first interv iew, we have no record of the circumstances of that interview. Nor can we as certain from the record when the seco nd interview occurred or how long it continued, although the videotaped portio n of that interview lasted no more than two hours, includ ing breaks in the questioning. Sa mmons is seen sm oking a cigarett e during that interview. At the suppression hearing, the trial co urt determined that, while the police "were alternat ely leaning on [Sammons], challenging his st atements, tell ing him he was ly ing on matters, and . . . making other [vague an d oblique charge s] as to his [fiancee's] si ster, to his potent ial father-i n-law and to what may happen with him vis-à-vis the co-d efendant," the po lice did not as a matter of law, over bear the will of the accused. Thus, the trial court conc luded, even though it was the result of a "spirited interrogation," Sammons's confes sion was volu ntary. We agree. From our independent review of the record, we conclude that Sammons made no inculpatory st atements to the po lice during the

- 7 -first interview. He was ad vised of his Miranda rights and chose to talk to the office rs. He was gi ven breaks and a drink upon request. At various points during the inte rview, the officers expressed thei r opinion that Sammon s's cooperation and truthfulness would help him. They advised Sa mmons that they would speak to those in authority on his behalf if he cooperated and told the truth. But they further indicated they had no authority themselves to make any promises regarding the nature of the charges or their outcom e. In telling Sammon s that he needed to think about his un born child and hi mself, the detect ives, who were unaware at the time of Sammons's role in the killing, were, it could reasonab ly be surmised, simply warning Sa mmons that he needed to take the in terview seriousl y, as his answ ers would have an important effect on his and his future family's lives. By the time the second interv iew commenced, th e officers had obtained Gregory's ve rsion of the events, which incr iminated Sammons. The of ficers then used that information, along with other informat ion from their in vestigation, to encourage Sammons to reveal his true in volvement in the crimes . In asking Sammons if he wanted "to face a capital murder char ge," the police were, we believe, advising , rather than threat ening, Sammons that Gregory, the suspecte d triggerman, was fingering Sammons as Lambrecht's ki ller. Without th e truth from Samm ons, Gregory's version of the facts mi ght prevail and Sammons might be prosecuted for capital murder . The police further ad vised Sammon s that, in - 8 -weighing his credibilit y, a jury might disbel ieve him because he was telling so many ve rsions of what occurr ed. Furthermore, the officers knew that one of the guns involved in the murder belonged to Sammons's future father-in-law an d that Sammon s's fiancee's sister, Victoria DeMaio, was a pa ssenger in the ca r with Sammons and Gregory after the killing. Th is knowledge form ed the basis of the officers' cl aims that Sammons, because he was being untruthful, was "d ragging [his futu re father- and sister-in-law] into this." Thus, in considerin g the totality of th e circumstan ces, we hold that the of ficers merely pe rsuaded, rather than coerced, Sammons to confess and that, as evidenced by Sammons's ap ology to the officers for his previous lies, Sammon s's confession was voluntary. Henc e, the trial cour t did not err inrefusing to suppress Sammons's in culpatory statements. Accordingly, we af firm the trial cour t's ruling denying Sammons's motion to suppress his confessi on and affirm appellant's convictions. Affirmed.

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