Com. v. Peterson, 1428-92-4

• Decision Date: 21 December 1992
• Docket Number: No. 1428-92-4,1428-92-4
• Parties: COMMONWEALTH of Virginia v. Gregory Anthony PETERSON. Record
• Court: Virginia Court of Appeals

Page 722

424 S.E.2d 722

15 Va.App. 486

COMMONWEALTH of Virginia v. Gregory Anthony PETERSON.

Record No. 1428-92-4.

Court of Appeals of Virginia.

Dec. 21, 1992.

Janet F. Rosser, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellant.

Andrew Meltz, Asst. Public Defender (Kevin T. Gaynor, Asst. Public Defender, on brief), for appellee.

Present: BARROW, BENTON and COLEMAN, JJ.

BARROW, Judge.

The Commonwealth argues in this appeal that the trial judge erred in suppressing statements made by the defendant while in an ambulance en route to the hospital. For the reasons stated below, we hold that the defendant's statements were not made voluntarily and affirm the decision of the trial court.

The Commonwealth has the burden of proving by a preponderance of the evidence that a defendant's statements are voluntary. Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381 (1984). Whether a statement is voluntary is ultimately a legal rather than a factual question, Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985), but subsidiary factual decisions are entitled to a presumption of correctness. Id. at 112, 106 S.Ct. at 450. In an appeal by the Commonwealth of an order of the trial court suppressing evidence, the evidence must be viewed in the light most favorable to the defendant and findings of fact are entitled to a presumption of correctness unless they are plainly wrong or without evidence to support them. Code § 8.01-680; see Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

The test to determine whether a statement or confession is voluntary 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.' " Yeatts v. Commonwealth, 242 Va. 121, 130, 410 S.E.2d 254, 260 (1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1500, 117 L.Ed.2d 639 (1992) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973)). "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. Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987).

The mental condition of the defendant is "surely relevant to [his] susceptibility to police coercion"; however, evidence of coercive police activity "is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). 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. See United States v. Haddon, 927 F.2d 942, 945 (7th Cir.1991); McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989).

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