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MAY 29, 2001

Record No. 0089-00-2

Present: Judges Humphreys, Clements and Senior
Judge Coleman

Argued at Richmond, Virginia





John F. Daffron, Jr., Judge


D. Gregory Carr (Bowen, Bryant, Champlin &
Carr, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Mark
L. Earley, Attorney General, on brief), for appellee.

Appellant Michael 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 suppress inculpatory statements he
gave to police. Finding no error, we affirm the judgment of the
trial court.

As the parties are fully conversant with the
record in this case and because this memorandum opinion carries
no precedential value, this opinion recites only those facts
necessary to a disposition of this appeal.

Specifically, Sammons asserts on appeal that
the police, over a lengthy period of time in a cramped room, made
numerous promises of leniency, applied psychological pressures,
threatened to prosecute members of his fiancee’s family, and led
him to believe that his freedom or life depended on his
cooperation with them. His inculpatory statements, he argues,
were not voluntary and it was error, therefore, on the part of
the trial court to deny his motion to suppress them.

On appeal from a trial court’s denial of a
motion to suppress, the burden is on the appellant to show that
the denial of the motion constituted 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
evidence in the light most favorable to the Commonwealth,
granting to the Commonwealth all reasonable inferences fairly
deducible from it. E.g., Commonwealth v. Grimstead,
12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

"The Commonwealth has the burden to prove,
by a preponderance of the evidence, that a defendant’s confession
was freely and voluntarily given." Bottenfield v.
, 25 Va. App. 316, 323, 487 S.E.2d 883, 886
(1997). The voluntariness issue is a question of law requiring an
independent determination on appeal. E.g., Wilson v.
, 13 Va. App. 549, 551, 413 S.E.2d 655, 656
(1992). "In assessing voluntariness, the court must
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.’" Roberts v. Commonwealth,
18 Va. App. 554, 557, 445 S.E.2d 709, 711 (1994) (quoting Stockton
v. Commonwealth
, 227 Va. 124, 140, 314 S.E.2d 371, 381 (1984)
(internal quotations omitted)). In making that independent
determination, "we are bound by the trial court’s subsidiary
factual findings unless those findings are plainly wrong." Wilson,
13 Va. App. at 551, 413 S.E.2d at 656. "Conflicts in
evidence present factual questions that are to be resolved by the
trial court," which "’must evaluate the credibility of
the witnesses, resolve the conflicts in their testimony and weigh
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

In determining voluntariness, we look to the
"’totality of all the surrounding circumstances,’ including
the defendant’s background, experience, mental and physical
condition and the conduct of the police." Commonwealth v.
, 15 Va. App. 486, 488, 424 S.E.2d 722, 723 (1992)
(citation omitted). In considering the conduct of the police, we
"must consider the interrogation techniques employed,
including evidence of trickery and deceit, psychological
pressure, threats or promises of leniency, and duration and
circumstances of the interrogation."

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 January 16, 1998, for
unrelated charges in a "church burglary." After Sammons
signed a waiver of his Miranda rights, he was interviewed
by Detectives 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. And you got a baby
coming here, be due, in what, a couple months.

After the officers questioned Sammons about the
unrelated "church burglary," the interview shifted to
the murder of James Lambrecht. Sammons first asked what was going
to happen to him, whether he would be going 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 told
Sammons it would help him a lot if he told them about the murder.
Truehart reminded Sammons again about the baby Sammons was
expecting and told Sammons he needed to think of himself.
Thereafter, Sammons gave a version of the murder that implicated
solely his codefendant, Jason Gregory.

Later during the same interview, Sammons asked
for the officers’ help, reminding them that he had a baby on the
way. Truehart responded that he was going to help Sammons and
that Sammons had to look out for himself. Truehart also told
Sammons that the more he did for the officers, the more they
would do for him. Truehart further advised Sammons, "[Y]our
life depends on you this moment and you got to tell us everything
you know."

Later in the interview, Baker and Sammons
engaged 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 out 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 happen. Right here today you’ll have to
go in front of the magistrate. And we can, we, Detective Truehart
and I, will both go to the magistrate and tell that you’ve
cooperated with us. But we can’t make any promises to you. You
know that.

Baker also implored Sammons to be totally
honest and assured him that they knew Gregory was the "bad
guy" and that they were "not looking to hammer"

During the interview, the officers twice
offered Sammons a drink and permitted him to go to the restroom
when he requested to do so. Throughout the interview, Sammons
blamed Gregory for the murder, insisting that Gregory had acted
independently and that Sammons was unaware of Gregory’s intention
to rob or kill Lambrecht.

Subsequently, Baker and Detective Steve Smith
interviewed Sammons. Smith began the interview by accusing
Sammons of having lied to the officers earlier. He told Sammons
that Gregory had accused Sammons of shooting Lambrecht. Smith
also implied that, if Sammons did not tell the truth, the police
might have to involve Sammons’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 after the fact.

When Sammons refused to change his version of
what happened, Smith, who knew from other evidence that Sammons
was involved in the killing, told Sammons:

Let me tell you something, son. You’re lying.
I’m telling you that straight up. Now do you want to face a
capital murder charge, robbery, and death in result of a robbery?
. . . Now let me tell you one more time. You better start telling
the truth. If you don’t, you’re going to be the worst guy in this
whole scenario.

Smith further told Sammons that a jury would
not believe his inconsistent story and that he had better start
"singing," because he was "digging [his] hole

When Smith and Baker suggested to Sammons that
they knew where to get the gun Sammons used to shoot Lambrecht,
Sammons confessed his part in the robbery and murder and
apologized for lying to the officers. At no time did Sammons seek
to terminate the interview or talk to an attorney.

The record in this case contains a transcript
of the initial interview with Sammons; an audiotape, videotape,
and transcript of the second interview; and brief testimony of
Detectives Smith and Baker regarding the second interview. Other
than what is revealed in the transcript of the first interview,
we have no record of the circumstances of that interview. Nor can
we ascertain from the record when the second interview occurred
or how long it continued, although the videotaped portion of that
interview lasted no more than two hours, including breaks in the
questioning. Sammons is seen smoking a cigarette during that

At the suppression hearing, the trial court
determined that, while the police "were alternately leaning
on [Sammons], challenging his statements, telling him he was
lying on matters, and . . . making other [vague and oblique
charges] as to his [fiancee’s] sister, to his potential
father-in-law and to what may happen with him vis-?-vis the
co-defendant," the police did not as a matter of law,
overbear the will of the accused. Thus, the trial court
concluded, even though it was the result of a "spirited
interrogation," Sammons’s confession was voluntary. We

From our independent review of the record, we
conclude that Sammons made no inculpatory statements to the
police during the first interview. He was advised of his Miranda
rights and chose to talk to the officers. He was given breaks and
a drink upon request. At various points during the interview, the
officers expressed their opinion that Sammons’s cooperation and
truthfulness would help him. They advised Sammons 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 outcome. In telling Sammons that he needed to
think about his unborn child and himself, the detectives, who
were unaware at the time of Sammons’s role in the killing, were,
it could reasonably be surmised, simply warning Sammons that he
needed to take the interview seriously, as his answers would have
an important effect on his and his future family’s lives.

By the time the second interview commenced, the
officers had obtained Gregory’s version of the events, which
incriminated Sammons. The officers then used that information,
along with other information from their investigation, to
encourage Sammons to reveal his true involvement in the crimes.
In asking Sammons if he wanted "to face a capital murder
charge," the police were, we believe, advising, rather than
threatening, Sammons that Gregory, the suspected triggerman, was
fingering Sammons as Lambrecht’s killer. Without the truth from
Sammons, Gregory’s version of the facts might prevail and Sammons
might be prosecuted for capital murder. The police further
advised Sammons that, in weighing his credibility, a jury might
disbelieve him because he was telling so many versions of what
occurred. Furthermore, the officers knew that one of the guns
involved in the murder belonged to Sammons’s future father-in-law
and that Sammons’s fiancee’s sister, Victoria DeMaio, was a
passenger in the car with Sammons and Gregory after the killing.
This knowledge formed the basis of the officers’ claims that
Sammons, because he was being untruthful, was "dragging [his
future father- and sister-in-law] into this."

Thus, in considering the totality of the
circumstances, we hold that the officers merely persuaded, rather
than coerced, Sammons to confess and that, as evidenced by
Sammons’s apology to the officers for his previous lies,
Sammons’s confession was voluntary. Hence, the trial court did
not err in refusing to suppress Sammons’s inculpatory statements.

Accordingly, we affirm the trial court’s ruling
denying Sammons’s motion to suppress his confession and affirm
appellant’s convictions.



[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.