Harrison v. Com.

• Decision Date: 06 November 1992
• Docket Number: No. 920264,920264
• Citation: 423 S.E.2d 160,244 Va. 576
• Parties: Darrell Deon HARRISON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 160

423 S.E.2d 160

244 Va. 576

Darrell Deon HARRISON v. COMMONWEALTH of Virginia.

Record No. 920264.

Supreme Court of Virginia.

Nov. 6, 1992.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY and HASSELL, JJ., and POFF, Senior Justice.

POFF, Senior Justice.

In this appeal from a judgment entered by the Court of Appeals affirming a conviction of conspiracy to distribute cocaine, the dispositive question is whether the defendant, Darrell Deon Harrison, made a knowing and intelligent waiver of his Miranda rights. We conclude that the Circuit Court of Henrico County correctly denied the defendant's pre-trial motion to suppress his inculpatory statements to the police, and we will affirm its judgment and that of the Court of Appeals.

The relevant evidence is detailed in the transcript of the suppression hearing, and, under familiar principles, we will consider the testimony in the light most favorable to the Commonwealth. In company with Thomas Freeman, also known as "Slick", and his brother Ricky Freeman, Harrison was arrested September 9, 1988 and charged with conspiracy to distribute 14 ounces of cocaine. Investigator Robert T. Dickenson placed Harrison in his car, and reading from a printed card, advised him as follows:

MIRANDA WARNING

1. You have the right to remain silent.

2. Anything you say can and will be used against you in court.

3. You have the right to talk to a lawyer and have him present while you are being questioned.

4. If you cannot afford to hire a lawyer, one will be appointed to represent you, without cost, before any questioning, if you desire one.

Reading from another card, Dickenson then asked the defendant if he understood those rights, and Harrison answered, "Yes." When asked if he wished "to waive them and talk to us now", Harrison "hung his head down and started to cry openly." During the trip to the Public Service Building, there was no conversation between the defendant and the police. Harrison rode with "his eyes closed and his head back" as if he were asleep.

Detective Brian P. Gaudiose testified that when Harrison arrived at the interview room, he "was wondering what was going to happen to him". In reply to Harrison's question, Gaudiose told him that he "couldn't make him any promises, but if he cooperated with the Commonwealth, that would be brought to their attention" and that "his cooperation would help him". Gaudiose explained that the police "wanted his cooperation against Mr. Freeman". In response, Harrison "went over the whole scenario" of the day's events. He told the detective that "he was doing a 'coke' with ... Mike"; that "the Cocaine deal was supposed to go at Edward Meyers' house"; that "he didn't have enough Cocaine to do the deal, so he contacted 'Slick' Freeman, and 'Slick' Freeman put the package together".

In the course of the 45 minute interview, Harrison repeated this story "at least three times". After the first account, Gaudiose and Harrison "talked about other people that he might be 'able to do'." Harrison indicated his willingness to make a telephone call to his New Jersey drug "connection" and to cooperate concerning "somebody who had a connection with California." However, Harrison said that "he was afraid that Thomas Freeman would have him killed if he cooperated."

Following Harrison's account of the day's events, Gaudiose sought to "calm him down" by arranging an interview with an Assistant Commonwealth's Attorney. Gaudiose introduced him as "the man who would be prosecuting the case". Harrison "never indicated that he wanted to see an attorney." Gaudiose testified that "the Commonwealth sat down and explained his rights to him, explained to him that if he did give us a statement concerning 'Slick' Freeman, or if he testified against 'Slick' Freeman ... that that couldn't be used against him at a later date" because by giving "that testimony in that situation he became immune from that being used against him."

During that session, which lasted "10 or 15 minutes", "no promises were made by the Commonwealth." After the Assistant Commonwealth's Attorney left, the detectives attempted to make a tape recording of the conspiracy story Harrison had told Gaudiose in order "to get a statement memorialized ... in case, in fact, something did happen to him." The transcript of that recording shows that Detective Sipple read the contents of the Miranda card again, that Harrison said that he understood his rights, and that, in answer to the detective's question, he acknowledged that he was "going to make this statement ... because this is what [he] wish[ed] to do". However, when Sipple began the interview, Harrison asked, "Is this going to be used against me in a court of law?" Sipple replied, "Possibly." Sipple reminded the defendant that the Commonwealth's Attorney had "explained to you ... that if you did what you told us you were going to do, that this couldn't be used against you. However, if that situation changes by your choice, then this could be evidence against you."

At that point, Harrison told Sipple to stop the tape recorder. Sipple complied and stated, "I'll stop it because you want to stop it." Harrison then resumed his conversation with the detectives. Gaudiose testified that Harrison "reiterated the story ... about what happened ... he was afraid of the tape, he was afraid of testifying against 'Slick' " but he agreed again to cooperate in exposing his New Jersey "connection". Two days later, Harrison "decided that he didn't want to cooperate" and at trial the Commonwealth introduced the officers' testimony repeating the inculpatory statements Harrison had made.

A jury convicted Harrison of conspiring to distribute cocaine and, confirming the verdict, the trial court sentenced him to the penitentiary for 15 years and to a fine of $1,000. The Court of Appeals affirmed the judgment, and we awarded Harrison an appeal.

In support of his pre-trial motion to suppress his statements to the police, Harrison argued that his statements were inadmissible because the Commonwealth failed to prove "a knowing, intelligent, voluntary waiver of his Miranda rights." The trial court denied the motion. An essential predicate to that ruling was a finding that Harrison had made a valid waiver. On brief in this Court, the defendant says that "[b]ecause of the failure of the Commonwealth to prove the Miranda predicate, the defendant's statement should not have been admitted. It is the admission of the statement over the failure to prove a waiver that is the subject of this appeal." Pursuing that position in oral argument, Harrison urged us to reverse his conviction on the ground that "the confession should not have been admitted because the waiver had not been properly proven."

Absent a knowing and intelligent waiver of the Fifth Amendment right against self-incrimination and the Sixth Amendment right to the assistance of legal counsel, a confession made by a suspect during in-custody interrogation is inadmissible in evidence against him. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Even when the suspect has made a valid waiver, a confession made later is inadmissible if it appears that it was made involuntarily. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Whether such a confession was voluntary or the result of coercive police activity is a legal question to be determined from a review of the totality of the circumstances. Id. at 112, 106 S.Ct. at 450.

While the Miller Court reserved judgment on the question whether a waiver of Miranda rights was a factual issue, id. at 108 n. 3, 106 S.Ct. at 448 n. 3, the Court noted that a lower court's determination of a factual issue is entitled to a presumption of correctness, id. at 112, 106 S.Ct. at 450, and that "an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question", id. at 113, 106 S.Ct. at 451, (citation omitted). In an opinion rendered two years later, the Seventh Circuit Court of Appeals decided the question reserved by the Supreme Court in Miller:

As a reviewing court, our inquiry as to whether a defendant has been forced to confess is best gleaned from the totality of the circumstances. However, this differs from the discrete inquiry of whether the waiver was voluntary. The former requires a determination of whether the procedure was fundamentally fair ... while the latter requires only a factual inquiry.

Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217, 220 (7th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); accord Smith v. Duckworth, 856 F.2d 909, 911 (7th Cir.1988).

Unlike the voluntariness inquiry relevant to the admissibility of a confession where the question is one of law subject to an independent review by an appellate court, Miller, 474 U.S. at 115, 106 S.Ct. at 452, the inquiry whether a waiver of Miranda rights was made knowingly and intelligently is a question of fact, and the trial court's resolution of that question is entitled on appeal to a presumption of correctness. ¹

[The trial court] evaluates the credibility of the witnesses, resolves any conflicts in the testimony, and weighs the evidence as a whole. The court must decide whether the defendant knowingly and intelligently relinquished and abandoned his rights. The court's determination is a question of fact based upon the totality of the circumstances. This factual finding will not be disturbed on appeal unless plainly wrong.

Watkins v. Commonwealth, 229 Va. 469, 477, 331 S.E.2d 422, 429-30 (1985) (citations omitted), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986); accord Mu'Min v. Commonwealth, 239 Va. 433, 440, 389 S.E.2d 886, 891 (1990), aff'd on other grounds, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991); see also Goodwin v....