CLARENCE R. McCRAY
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON. Christopher W. Hutton, Judge.
Brian D. Lytle for appellant.
John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Baker, Bray and
MEMORANDUM OPINION [*]
RICHARD S. BRAY
Clarence R. McCray (defendant) was convicted for seven felonies and two misdemeanors arising from seven separate incidents of " purse-snatching." On appeal, defendant challenges the trial court's failure to suppress his confession to police and the sufficiency of the evidence to support several of the convictions. Finding no error, we affirm the trial court.
The parties are conversant with the record, and this memorandum opinion recites only those facts necessary to disposition of the appeal.
I. The Confession
On October 18, 1996, defendant voluntarily accompanied Hampton police to the offices of detectives investigating the subject offenses. Although not then under arrest, defendant was advised of his Miranda rights and willingly submitted to three hours of intermittent questioning relative to a rash of local " purse-snatchings." Unaware that a victim had already identified him as the perpetrator of one offense, defendant repeatedly denied involvement in the crimes. However, when Detective Jimmy L. Forbes escorted defendant to a nearby magistrate's office to secure a warrant charging robbery, he requested to talk with Forbes " right now" and confessed to the instant crimes. He further agreed to an additional interview and, on October 20th, affirmed to Forbes his earlier statements, with added details of the offenses.
Defendant later moved the trial court to suppress his confessions, arguing that they had not been " freely and voluntarily given." At the related hearing, Forbes acknowledged that defendant's health was " poor" on October 18th, but noted that he " displayed no difficulty" " comprehending simple questions" and " did not appear to be under the influence of any substance." However, Detective Nisley, also involved in the questioning, recalled that defendant was a " physical wreck" and suspected he was " on . . . cocaine." Defendant testified that he had smoked " crack" and consumed gin prior to the interrogation, and confessed in hope of release and upon Forbes' promise of " some help."
In denying the motion, the trial court determined, from " the totality of the evidence, " that defendant, " acting of his own free will with knowledge and intelligence, " decided " to tell Detective Forbes . . . about [his involvement in] the crimes." The court specifically noted that Forbes " spent much greater time" with defendant than Nisley.
" Although the issue of voluntariness is a question of law subject to the court's independent review of the entire record, 'the trial court's subsidiary factual findings, upon which voluntariness is determined, . . . will not be disturbed on appeal unless plainly wrong.'" Green v. Commonwealth, 27 Va.App. 646, , 500 S.E.2d 835,
(1998) (citations omitted). " The burden is upon the defendant to show the trial
judge's ruling, when the evidence is viewed in the light most favorable to the
Commonwealth, constituted reversible error." __ Va.App. at __,
__ S.E.2d at __ (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1989)).
" The test for voluntariness is 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.'" Jenkins v. Commonwealth, 244 Va. 445, 453-54, 423 S.E.2d 360, 366 (1992) (citations omitted). " 'In determining whether the defendant's will has been overborne, courts 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. Peterson, 15 Va.App. 486, 488, 424 S.E.2d 722, 723 (1992) (citations omitted). We recognize that " the amount of coercion necessary to trigger the due process clause may be lower if the defendant's ability to withstand the coercion is reduced by intoxication, drugs, or pain, but some level of coercive police activity must occur before a statement or confession can be said to be involuntary." Id. (statement ruled involuntary when defendant on cocaine, " 'having problems' breathing, having chest pains, and connected to a heart monitor in an ambulance en route to the hospital"). However, " mere emotionalism, confusion, or depression do not dictate a finding" that a confession was involuntarily given. See Harrison v. Commonwealth, 244 Va. 576, 583, 423 S.E.2d 160, 164 (1992) (citation omitted).
The instant record discloses that defendant consistently denied involvement in the crimes during the several hours of initial questioning, later confessing in a further interview undertaken at his request and affirmed by him several days thereafter. The trial court determined from the related evidence that defendant was " responsive . . . alert, [and reasonably] articulate, " throughout and " made the intellectual decision of his own ...