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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Bumgardner

Argued at Salem, Virginia

LIVINGSTON PRITCHETT, III, S/K/A

LIVINGSTON BUD PRITCHETT, III

MEMORANDUM OPINION* BY

v. Record No. 1430-99-3 JUDGE RUDOLPH BUMGARDNER, III

DECEMBER 12, 2000

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY

Ray W. Grubbs, Judge

Cliff Harrison (James C. Turk, Jr.;

Frederick M. Kellerman, Jr.; Stone,

Harrison & Turk, P.C.; Long, Long &

Kellerman, P.C., on briefs), for appellant.

Stephen R. McCullough, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.

Livingston Pritchett, III was indicted for capital murder,

use of a firearm in the commission of a murder, robbery, and use

of a firearm in the commission of robbery. A jury convicted him

of first degree murder and of each of the related charges. The

defendant contends that his rights under Miranda v. Arizona, 384

U.S. 436 (1966), were not read to him, his request for an

attorney was not honored, and his confession was coerced. He

also contends the trial court erred in excluding expert

testimony on his mental retardation. Finding no error, we

affirm.

Viewed in the light most favorable to the Commonwealth,

Estel Singleton, Sr. was murdered the night of April 29, 1997

and his body was found early the next morning at an interstate

rest stop. His wallet laid three to four feet from his body and

contained no credit or ATM cards. A single gunshot from a

pistol pressed tightly against the victim's temple caused death.

A witness saw the defendant at the rest area and a car

similar to the one the defendant owned. He was videotaped using

the victim's ATM card shortly after the murder. Later in the

morning, the defendant made two purchases using the victim's

J.C. Penney charge card and signing the victim's name to the

charge slip. In the defendant's motel room, the police found

numerous items belonging to the victim, the items purchased at

J.C. Penney, and the murder weapon.

Police believed the defendant was the person shown using

the victim's ATM card. Under the pretense of reviewing an

earlier trial in which the defendant testified for the

Commonwealth, the police got the defendant to go to the state

police district office in Salem.

The defendant drove himself to a meeting with First

Sergeant Jerry Humphreys. They discussed the earlier case for

about thirty minutes. Then Humphreys asked the defendant if he

had heard about the Singleton murder. Humphreys told the

defendant he resembled a composite of the suspect who used

Singleton's ATM card. The defendant admitted using the ATM

card. Humphreys suggested the defendant take a polygraph

examination to eliminate himself as a suspect. The defendant

agreed to that and went out in the hall where he remained alone

for 30-40 minutes awaiting the test.

The polygraph examiner, Agent John McDowell, had the

defendant sign a written consent to the test and a written form

waiving his Miranda rights before beginning the examination.

Upon its completion, McDowell told the defendant he had failed.

McDowell suggested the courts would probably look better upon

him if he admitted it because he would be showing some remorse.

The defendant remarked, "I think I might need an attorney" to

McDowell. McDowell concluded the examination and left the room.

First Sergeant Humphreys and Investigator Norman Croy

entered the room and showed the defendant the video taken at the

ATM machine. The defendant admitted being the person shown

using the ATM card, but maintained he found it in front of a

Kroger store. After the officers asked what had gone wrong at

the rest stop, the defendant stated angrily that Singleton was a

"faggot." The defendant continued that he was in the restroom

when Singleton entered, made a racial slur, and pulled a gun.

The defendant ran, but during a struggle, Singleton fell, and

his gun discharged. The defendant then added that he picked

Singleton's ATM card off the ground and later threw the gun in

the dumpster at Kroger.

The defendant contends he was in custody and should have

been given his Miranda rights. The defendant only made one

incriminating statement before he executed the written Miranda

waiver form. He admitted that he used the victim's ATM card.

When the defendant made that statement, he was not in custody.

Though the police used a ruse to get him to the state police

headquarters, the defendant went there voluntarily. He was

never restrained or subjected to a strong police presence. The

defendant had regularly associated with police officers in

Roanoke and was comfortable around officers.

Police are not required to give Miranda warnings every time

they question a suspect, even when the interrogation takes place

at the police station, Bailey v. Commonwealth, 259 Va. 723,

745-46, 529 S.E.2d 570, 583 (2000), petition for cert. filed, __

U.S.L.W. __, (Sept. 6, 2000) (No. 00-6045), or "the

investigation has focused on the defendant." Bosworth v.

Commonwealth, 7 Va. App. 567, 573, 375 S.E.2d 756, 759 (1989)

(citation omitted). "'By custodial interrogation, we mean

questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his freedom

of action in any significant way.'" Coleman v. Commonwealth,

226 Va. 31, 46, 307 S.E.2d 864, 872 (1983) (quoting Miranda, 384

U.S. at 444). In this case, the defendant was not in custody

when he made his first statement about the ATM card.

After the defendant stated he used the ATM card, he agreed

to take the polygraph examination. The defendant sat alone in

the hallway for approximately 40 minutes and never asked to

leave. Humphreys still did not think he had sufficient evidence

to hold the defendant for the murder, and the defendant was free

to leave.

Before administering the polygraph examination, Agent

McDowell advised the defendant of his Miranda rights. The

defendant consented in writing to the test and also executed a

written waiver of his Miranda rights. The trial court found the

waiver was voluntarily and intelligently made, and the evidence

supports the finding. When Humphreys and Croy interrogated him

after the polygraph test, the defendant was acting pursuant to

that waiver.

This case is similar to Oregon v. Mathiason, 429 U.S. 492,

495 (1977). The defendant voluntarily went to the police

station at their request. When he arrived, he was told he was

not under arrest. The officer told the defendant he wanted to

talk about a burglary, which the police believed he had

committed, and falsely told the defendant his fingerprints had

been found at the scene. The defendant admitted he took the

property. Then the defendant received Miranda warnings, gave a

taped confession, and left the station without incident. The

United States Supreme Court ruled the defendant was not in

custody or deprived of his freedom.

Next, the defendant contends he invoked his right to

counsel, but the police did not honor his requests. The

defendant made two references to getting an attorney: "I think

I might need an attorney," and later, "if I'm going to be

arrested, I need an attorney." The defendant made the first

statement after the polygraph examiner told him he had failed

the test. The phrase joined the auxiliary verb "might" to the

verb "need" to express possibility. When introduced by "I

think," the meaning indicated a thought in process, but not yet

concluded. The speaker was still considering or weighing the

decision, was still testing alternatives. The statement was not

a clear, unambiguous request for counsel.

The second reference to an attorney was also inconclusive.

The statement, "if I'm going to be arrested, I need an

attorney," is a conditional sentence. The subordinate clause

"if I'm going to be arrested," established a condition upon the

main clause. The statement told the police that if they were

going to arrest the defendant, he wanted an attorney. Such a

conditional statement was not a clear, unambiguous request.

Law enforcement officers must immediately cease questioning

a suspect who has clearly asserted his right to have counsel

present during custodial interrogation. Edwards v. Arizona, 451

U.S. 477, 484-85 (1981). However, the defendant must make an

unequivocal request. Davis v. United States, 512 U.S. 452,

458-60 (1994). We hold that the defendant never made an

unequivocal request for counsel.

The defendant also contends the trial court erred in

finding he confessed voluntarily. He argues the techniques used

by the police were coercive when considered with the defendant's

low level of intelligence. "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.

Commonwealth, 25 Va. App. 316, 323, 487 S.E.2d 883, 887 (1997).

When we review the voluntariness of a confession, we must

conduct "an independent examination of the totality of the

circumstances to determine whether the statement is the product

of an essentially free and unconstrained choice by [this

particular defendant], or whether [his] will has been overborne

and his capacity for self-determination critically impaired."

Bailey v. Commonwealth, 20 Va. App. 236, 239, 456 S.E.2d 144,

145 (1995) (internal quotations and citations omitted). There

are two categories of factors to consider: the defendant's

characteristics and the police interrogation tactics. Midkiff

v. Commonwealth, 250 Va. 262, 268, 462 S.E.2d 112, 116 (1995).

"The existence of any of the . . . factors does not necessitate

a finding that the confession was involuntary." Ronald J.

Bacigal, Virginia Criminal Procedure 7-2, 157 (4th ed. 1999)

(footnote omitted). They are merely factors for the trial court

to consider. Id.

The defendant proffered that his IQ was 69 and he dropped

out of school in the eleventh grade. His intelligence and

education are among several factors to be considered when

determining whether a statement was voluntary. Simpson v.

Commonwealth, 227 Va. 557, 564, 318 S.E.2d 386, 390 (1984)

(twenty-year-old defendant's IQ of 78, alone, did not render his

confession involuntary). "'[A] defendant's mental condition, by

itself and apart from its relation to official coercion, should

[never] dispose of the inquiry into constitutional

"voluntariness."'" Bottenfield, 25 Va. App. at 324, 487 S.E.2d

at 888 (quoting Colorado v. Connelly, 479 U.S. 157, 164 (1986)).

While there was evidence of the defendant's intellectual

deficit, the record does not suggest that he failed to

understand the circumstances that attended the statement.

Bottenfield, 25 Va. App. at 328, 487 S.E.2d at 889.

The defendant emphasizes the police ruse to get him to the

police station. While police misrepresentations are a factor to

consider in determining whether the defendant exercised his own

free will, those misrepresentations alone do not render his

confession involuntary. Swann v. Commonwealth, 247 Va. 222,

232, 441 S.E.2d 195, 202, cert. denied, 513 U.S. 889 (1994) ("a

police officer's misrepresentation during interrogation will not

invalidate a confession unless it causes a suspect to make a

confession he otherwise would have withheld"). Even an

officer's lie to a defendant during interrogation, or the

officer's fabrication of evidence, is not, in and of itself,

sufficient. Rodgers v. Commonwealth, 227 Va. 605, 616, 318

S.E.2d 298, 304 (1984); Smith v. Commonwealth, 219 Va. 455, 470,

248 S.E.2d 135, 144-45 (1978), cert. denied, 441 U.S. 967

(1979). "Voluntariness is not to be equated with 'the absolute

absence of intimidation.'" Bacigal, supra, 7-2 n.17 at 160

(quoting United States v. Wertz, 625 F.2d 1128, 1134 (4th Cir.

1980)).

Considering the totality of all the circumstances, the

record indicates that the defendant's will was not overborne and

his capacity for self-determination was not impaired. "Coercive

police activity is a necessary predicate to a finding that a

confession is not 'voluntary' . . . ." Connelly, 479 U.S. at

167. The evidence supports the finding that the confession was

voluntarily made.

Next, the defendant contends the trial court erred in

excluding expert testimony about his mental retardation. The

defendant proffered the testimony of two mental health expert

witnesses. He argued the testimony would explain the factors to

be taken into consideration when determining the reliability of

a confession by someone with the defendant's level of mental

retardation. After hearing the testimony, the trial court

excluded the evidence ruling it would invade the province of the

jury.

Dr. Bernice Marcopulos, a clinical psychologist, testified

the defendant had an IQ of 69, which indicated he was mildly

mentally retarded. The defendant functioned mentally in the

bottom two percent of the population. He would have difficulty

comprehending instructions and written or oral communications.

Next, Dr. Stephen Herrick, a forensic psychologist,

testified. He felt the defendant was highly susceptible to

negative feedback, functioned at an elementary school level, and

concluded, "I think he just went along with what they said."

The expert testimony was an opinion that the defendant did

not make the statements attributed to him by the police. During

his own testimony, the defendant maintained that he never

uttered the statements in his confession. He testified that he

only uttered "okay whatever" in response to a narrative that the

police fabricated and recited to him. The expert opinion went

directly to whether the defendant's denial of making a

confession was true. The opinion that the defendant just went

along with the police narration was a comment on the defendant's

credibility. It did not go to whether the confession, the

incriminating words which the police said he spoke, was

reliable.

An expert may not "express an opinion as to the veracity of

any witness." Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292

S.E.2d 798, 806 (1982), cert. denied, 459 U.S. 1228 (1983);

Coppola v. Commonwealth, 220 Va. 243, 252-53, 257 S.E.2d 797,

804 (1979), cert. denied, 444 U.S. 1103 (1980). Such evidence

is a comment on an ultimate fact within the province of the jury

and must be excluded by the trial court. Davison v.

Commonwealth, 18 Va. App. 496, 504, 445 S.E.2d 683, 688 (1994).

Whether the defendant made the statements attributed to him

was a fact the jury was able to assess without the need for

expert opinion. "[W]here the facts and circumstances shown in

evidence are such that men of ordinary intelligence are capable

of comprehending them, forming an intelligent opinion about

them, and drawing their own conclusions," expert opinion

"founded upon such facts is inadmissible." Schooler v.

Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992)

(quoting Venable v. Stockner, 200 Va. 900, 904, 108 S.E.2d 380,

383 (1959)).

Admission of expert testimony is committed to the sound

discretion of the trial judge. Utz v. Commonwealth, 28 Va. App.

411, 423-24, 505 S.E.2d 380, 386 (1998). A careful reading of

the proffered evidence supports the trial court's determination

that the testimony would invade the province of the jury. We

cannot say the trial court abused its discretion in excluding

testimony that elicited an opinion of veracity.

The defendant argues that if the opinion was not admissible

during his case-in-chief, it became admissible after the

Commonwealth presented rebuttal evidence that the defendant

checked books out of the jail library. The defendant claims

that evidence opened the door to the expert testimony about his

mental state when making the confession.

The Commonwealth presented the evidence to rebut the

defendant's conflicting testimony about his ability to read and

write. It did not directly address the defendant's mental

retardation or the reliability of his confession. We conclude

that the trial court did not err in ruling that the Commonwealth

did not open the door to the expert testimony.

For the foregoing reasons, we affirm the decisions of the

trial court.

Affirmed.

Benton, J., dissenting.

I.

The evidence proved that the police lied to Pritchett in

order to lure him to the police station for interrogation.

First Sergeant Humphreys testified that even though the police

had identified Pritchett as the person on the videotape using

Singleton's ATM card, they did not confront him with that fact

before he came to the police station. Instead, they told

Pritchett that a defendant, whom Pritchett had helped the

Commonwealth convict for murder, was appealing her conviction.

The officer who handled the earlier case told Pritchett that

they needed to "reinterview him" for that appeal and asked

Pritchett to come to the police station to give them additional

assistance. When Pritchett arrived, the police continued the

ruse by discussing the case Pritchett earlier had assisted them

in prosecuting.

First Sergeant Humphreys testified that the following then

occurred:

After [he and I] talked about [the ruse]

case, I told him that a composite had been

done that was disseminated . . . to all the

police agencies and someone had said that he

looked similar to the composite and also a

white vehicle had been seen at the rest area

and we needed to eliminate him because some

people said, talked about the white vehicle

and . . . said he looked like the composite

and the best way to do that was through a

polygraph . . . .

As Pritchett waited in a hallway for the polygraph examination,

Agent McDowell read Miranda rights to him. Pritchett signed a

waiver form and took the polygraph examination. At the

conclusion of the examination, Agent McDowell told Pritchett he

had failed the test. As Agent McDowell questioned Pritchett, he

heard Pritchett say "need an attorney." He ceased questioning

Pritchett and left the room.

First Sergeant Humphreys and Investigator Croy were

watching behind a "two-way mirror." First Sergeant Humphreys

testified that Pritchett said "I think I might need an

attorney." Investigator Croy testified that someone told him

Pritchett had made that statement. Nevertheless, First Sergeant

Humphreys and Investigator Croy entered the room to confront

Pritchett. First Sergeant Humphreys testified as follows:

When he said I think I might need an

attorney, Agent McDowell left the polygraph

room. Norman Croy and myself entered the

polygraph room pushing a, a TV with a VCR

recorder. We pushed it into the polygraph

room, inserted the ATM transaction video.

Didn't say anything, just played the tape

for Mr. Pritchett.

* * * * * * *

Once the video started playing, and, and a

face came on the screen, he said, what's

that, and I told him that was his, the side

of his face.

First Sergeant Humphreys and Investigator Croy further

interrogated Pritchett about the murder of Singleton. They did

not first tell Pritchett he was not under arrest and that he was

entitled to an attorney before responding. This evidence proved

Pritchett was interrogated in an atmosphere which was "police

dominated" and "inquisitorial."

II.

The failure of the police to give Miranda warnings prior to

custodial interrogations and to honor the exercise of those

rights requires suppression of evidence obtained as a result of

the interrogation. Miranda v. Arizona, 384 U.S. 436, 478-79

(1966). The United States Supreme Court has recently

underscored the constitutional nature of the Miranda warnings as

a component of the general prohibition against the admission of

involuntary confessions under the Fifth and Fourteenth

Amendments. Dickerson v. United States, 120 S. Ct. 2326, 2333

(2000). The police must provide a suspect with the four Miranda

warnings during any custodial interrogation for the confession

to be admissible evidence. Id. at 2331. In this case, the

police did not meet this requirement.

We determine whether a person is "in custody" for purposes

of Miranda by examining the circumstances of each case. "[T]he

ultimate inquiry is simply whether there is a 'formal arrest or

restraint on freedom of movement' of the degree associated with

formal arrest." Ford v. Commonwealth, 28 Va. App. 249, 256, 503

S.E.2d 803, 806 (1998) (quoting California v. Beheler, 463 U.S.

1121, 1125 (1983) (citation omitted)). In making this inquiry,

we examine the circumstances from the perspective of "how a

reasonable [person] in the suspect's position would have

understood his situation." Berkemer v. McCarty, 468 U.S. 420,

442 (1984). "Thus, a suspect is 'in custody' when the objective

circumstances would lead a reasonable person to believe he was

under arrest, thereby subjecting him or her to pressure

impairing the free exercise of the privilege against

self-incrimination." Cherry v. Commonwealth, 14 Va. App. 135,

140, 415 S.E.2d 242, 245 (1992). "[T]he initial determination

of custody depends on the objective circumstances of the

interrogation, not on the subjective views harbored by either

the interrogating officers or the person being questioned."

Stansbury v. California, 511 U.S. 318, 323 (1994).

Among the factors that must be considered

are whether a suspect is questioned in

familiar or neutral surroundings, the number

of police officers present, the degree of

physical restraint, and the duration and

character of the interrogation. Whether or

when probable cause to arrest exists and

when the suspect becomes the focus of the

investigation are relevant facts to

consider. "[T]he language used by the

officer to summon the individual, the extent

to which he or she is confronted with

evidence of guilt, the physical surroundings

of the interrogation, the duration of the

detention and the degree of pressure applied

to detain the individual" may be significant

factors as well.

Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 839

(1987) (citations omitted).

The totality of the objective circumstances in this case

would lead a reasonable person in Pritchett's position to

believe he was under arrest. See Cherry, 14 Va. App. at 140,

415 S.E.2d at 245. Pritchett was "subjected to restraints

comparable to those associated with a formal arrest." Berkemer,

468 U.S. at 441. Three police officers interrogated Pritchett.

Moreover, the interrogation was not of a short duration but

lasted approximately three and one-half hours. See id. at 441

n.34 (citing Commonwealth v. Meyer, 412 A.2d 517, 518-19, 522

(Pa. 1980) (holding that a driver who was detained for over

one-half hour was in custody for the purposes of Miranda by the

time the driver was questioned concerning the circumstances of

an accident)). A reasonable person in Pritchett's position

would clearly feel that he was unable to leave and that he was,

in fact, "in custody." I would hold, therefore, that

Pritchett's interrogation was the "functional equivalent of

formal arrest," Berkemer, 468 U.S. at 442, and created a

custodial situation requiring appropriate Miranda warnings.

Once Pritchett "expressed his desire to deal with the

police only through counsel, [he was] not subject to further

interrogation by the authorities until counsel [was] made

available to him." Edwards v. Arizona, 451 U.S. 477, 484-85

(1981). As the Court noted in Edwards, "it is inconsistent with

Miranda and its progeny for the authorities, at their instance,

to reinterrogate an accused in custody if he has clearly

asserted his right to counsel." Edwards, 451 U.S. at 485.

Edwards set forth a "bright-line rule" that

all questioning must cease after an accused

requests counsel. In the absence of such a

bright-line prohibition, the authorities

through "badger[ing]" or "overreaching" --

explicit or subtle, deliberate or

unintentional -- might otherwise wear down

the accused and persuade him to incriminate

himself notwithstanding his earlier request

for counsel's assistance.

Smith v. Illinois, 469 U.S. 91, 98 (1984) (citation omitted).

The fact that Pritchett responded to the "further

police-initiated custodial interrogation" is insufficient to

establish that he waived his Miranda rights. See Edwards, 451

U.S. at 484. Pritchett's response after the detective informed

him of the polygraph results was to express his "need [for] an

attorney."

Pritchett's statements constitute unequivocal, unambiguous

requests for counsel. In McDaniel v. Commonwealth, 30 Va. App.

602, 518 S.E.2d 851 (1999) (en banc), we considered whether a

defendant had invoked his right to counsel by stating, "I think

I would rather have an attorney here to speak for me." Id. at

604, 518 S.E.2d at 852. We held that this unambiguous statement

was understandable to a reasonable police officer and that all

interrogation should have ceased. No substantive difference

exists between McDaniel's "I think I would rather have an

attorney here to speak for me," and Pritchett's "I think I might

need an attorney." Neither statement is a question. See, e.g.,

Mueller v. Commonwealth, 244 Va. 386, 396-97, 422 S.E.2d 380,

387 (1992) (holding that, "Do you think I need an attorney

here?" is not a request for counsel). The substitution of the

word "might" for "would" confers no greater uncertainty on the

request.

Edwards assumes a case in which a request for counsel is

made and is initially honored by the police. "Edwards

established a bright-line rule to safeguard pre-existing rights

. . . ." Solem v. Stumes, 465 U.S. 638, 646 (1984). When the

police cease interrogation following invocation of the right to

counsel, they send an unmistakable signal to an accused that the

rights contained in the Miranda warnings are real and will be

honored. If that is done, an interrogation initiated by the

accused takes place against the background of rights that are

real and respected by the police.

In this case, the two officers flagrantly disregarded

Pritchett's request for counsel despite Agent McDowell's

previous advice to Pritchett that he had a right to have counsel

present. By their conduct, these officers conveyed the

unmistakable message that the Miranda rights are illusory and

that Pritchett's invocation of those rights was meaningless.

Thus, the present case involves not an omission on the part of

officers to provide Miranda warnings, but an affirmative

disregard of Pritchett's invocation of the right to counsel and

a continuation of interrogation in contravention of his rights.

The continued interrogation following Pritchett's expressed

desire to consult with an attorney unmistakably conveyed a

message which could not be erased by another similar warning.

The United States Supreme Court recognized this fact in Arizona

v. Roberson, 486 U.S. 675 (1988), and ruled as follows:

[T]o a suspect who has indicated his

inability to cope with the pressures of

custodial interrogation by requesting

counsel, any further interrogation without

counsel having been provided will surely

exacerbate whatever compulsion to speak the

suspect may be feeling. Thus, we also

disagree with petitioner's contention that

fresh sets of Miranda warnings will

"reassure" a suspect who has been denied the

counsel he has clearly requested that his

rights have remained untrammeled.

Id. at 686.

I would hold that Pritchett unambiguously responded with

sufficient clarity that a reasonable police officer would have

understood that he wanted an attorney. Thus, the interrogation

should have ceased. See McDaniel, 30 Va. App. at 607, 518

S.E.2d at 854; Edwards, 451 U.S. at 484-85. Because I believe

that the detectives gained Pritchett's confession by continuing

the interrogation after he had invoked his Fifth Amendment right

to counsel, I would reverse the trial judge's denial of the

suppression motion.

III.

Not only did the trial judge fail to require that the

prosecution follow the dictates of Miranda, he failed to ensure

that Pritchett's confession was voluntary as required by general

notions of due process. See Dickerson, 120 S. Ct. at 2330. It

is fundamental "that a jury is not to hear a confession unless

and until the trial judge [or some other independent

decisionmaker] has determined that it was freely and voluntarily

given." Sims v. Georgia, 385 U.S. 538, 543-44 (1967). See

generally Jackson v. Denno, 378 U.S. 368 (1964). In determining

voluntariness, the Court must ask the following:

Is the confession the product of an

essentially free and unconstrained choice by

its maker? If it is, if he has willed to

confess, it may be used against him. If it

is not, if his will has been overborne and

his capacity for self-determination

critically impaired, the use of his

confession offends due process.

In determining whether a defendant's will

was overborne in a particular case, the

Court [must assess] the totality of all the

surrounding circumstances -- both the

characteristics of the accused and the

details of the interrogation.

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (internal

quotations and citation omitted).

The "totality of all the surrounding circumstances"

includes the defendant's background and experience, the conduct

of the police, and the details of the interrogation. See

Midkiff v. Commonwealth, 250 Va. 262, 269, 462 S.E.2d 112, 116

(1995). "If a suspect's statements had been obtained by

'techniques and methods offensive to due process,' or under

circumstances in which the suspect clearly had no opportunity to

exercise 'a free and unconstrained will,' the statements would

not be admitted." Oregon v. Elstad, 470 U.S. 298, 304 (1985).

Whether a statement is voluntary is a legal rather than a

factual question. See Midkiff, 250 Va. at 268-69, 462 S.E.2d at

116. Thus, we review de novo the trial judge's determination

that Pritchett's statement was voluntary. See Harris v.

Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257, 260 (1998).

"The mental condition of the defendant is 'surely relevant

to [his] susceptibility to police coercion.'" Commonwealth v.

Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722, 723 (1992)

(quoting Colorado v. Connelly, 479 U.S. 157, 165 (1986)).

Although evidence in the record of coercive police activity "is

a necessary predicate to the finding that a confession is not

'voluntary,'" id., the coercion does not have to be physical to

invalidate a confession.

"[The Supreme] Court has recognized that

coercion can be mental as well as physical,

and that the blood of the accused is not the

only hallmark of an unconstitutional

inquisition. A number of cases have

demonstrated, if demonstration were needed,

that the efficiency of the rack and the

thumbscrew can be matched, given the proper

subject, by more sophisticated modes of

'persuasion.'"

Jackson, 378 U.S. at 389-90 (citation omitted).

The evidence proved that Pritchett is mentally retarded

with an IQ of 69. As a ruse to get Pritchett into the police

station for interrogation, the police lied about their need to

have Pritchett assist them on a case in which he had previously

assisted the police. After Pritchett went to the police station

in response to the ruse, the police then accused him of

committing the murder. During the interrogation, the police did

not tell Pritchett he was free to leave. Given Pritchett's

level of cognitive functioning, no evidence established he acted

voluntarily.

Agent McDowell gave Miranda warnings to Pritchett before

administering the polygraph. "Proof that some kind of warnings

were given or that none were given [is] relevant evidence . . .

of whether the questioning was in fact coercive." Beckwith v.

United States, 425 U.S. 341, 348 (1976). However, when

Pritchett completed the polygraph and said he needed a lawyer,

the officers ignored his request and continued the

interrogation.

The officers who deflected his request had been watching

the polygraph examination and knew that Pritchett had made the

request. They entered the room and distracted him by showing

the videotape to restart the interrogation. When Pritchett's

request for counsel was ignored, further interrogation

reinforced the coerciveness of the police conduct. With regard

to determining whether police tactics were coercive, the Supreme

Court has ruled as follows:

[T]he Court's analysis has consistently been

animated by the view that "ours is an

accusatorial and not an inquisitorial

system," Rogers v. Richmond, 365 U.S. 534,

541 (1961), and that, accordingly, tactics

for eliciting inculpatory statements must

fall within the broad constitutional

boundaries imposed by the Fourteenth

Amendment's guarantee of fundamental

fairness. Indeed, even after holding that

the Fifth Amendment privilege against

compulsory self-incrimination applies in the

context of custodial interrogations, Miranda

v. Arizona, 384 U.S. 436, 478 (1966), and is

binding on the States, Malloy v. Hogan, 378

U.S. 1, 6 (1964), the Court has continued to

measure confessions against the requirements

of due process. See, e.g., Mincey v.

Arizona, [437 U.S. 385, 402 (1978)]; Beecher

v. Alabama, 389 U.S. 35, 38 (1967) (per

curiam).

Miller v. Fenton, 474 U.S. 104, 109-10 (1985).

The totality of these circumstances, including Pritchett's

IQ, the police tactics, and the failure to acknowledge

Pritchett's request for counsel, establish that Pritchett's

statement was not voluntarily given.

IV.

The Commonwealth argued at trial that the testimony of

Pritchett's experts was irrelevant because Pritchett did not

plead not guilty by reason of insanity. I disagree. The

Commonwealth's argument fails to recognize the significant

differences between mental illness and mental retardation.

Pritchett's counsel informed the trial judge as follows:

[T]he intent of the experts . . . is to

Number one, first of all, introduce for the

jury's benefit the defendant's I.Q. and how

that particular I.Q. was established, and

. . . in addition to that, introduce for the

jury's consideration evidence with respect

to the reliability of a confession that is

given by someone that is mentally retarded.

I do not intend for this, for our experts to

testify to the ultimate issue, as to whether

or not . . . Pritchett in fact confessed to

this particular crime, and whether or not it

was a valid confession.

The record contains as a proffer extensive testimony by Dr.

Bernice Marcopulos, a clinical neuropsychologist, and Dr.

Stephen Herrick, a forensic psychologist, both of whom examined

Pritchett. They testified that Pritchett is mentally retarded

and explained the cognitive limitations that accompany mental

retardation. In particular, Dr. Herrick testified that "there's

a lot of misunderstandings about mental retardation, [it's] not

just being slow." He further testified that Pritchett's

cognitive deficiencies limited his language and communication

skills and rendered him vulnerable to interrogative

suggestibility. Both expert witnesses established a sufficient

basis to render their testimony admissible to provide the jury

an explanation of Pritchett's intellectual limitations. The

trial judge's ruling, which barred the evidence, was based on

the erroneous conclusion that the experts' testimony went to the

ultimate issue of intent, rather than to the reliability of the

confession, the purpose for which it was offered.

In barring Pritchett's expert testimony, the trial judge

and the Commonwealth relied on Zelenak v. Commonwealth, 25 Va.

App. 295, 487 S.E.2d 873 (1997) (en banc), and Stamper v.

Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985). Both cases

are inapposite. In Zelenak, we held that the proffered

testimony expressed an opinion on the ultimate issue of intent

because Zelenak's psychologist would have testified that at the

time of the crime Zelenak was suffering under a disorder which

made her "susceptible to duress." See 25 Va. App. at 300, 487

S.E.2d at 875. In Stamper, the defendant sought to "introduce

psychiatric testimony to prove that he was manic-depressive, in

a manic state on the date of the offense, and consequently

incapable of forming the intent to distribute, which is a

requisite element of the crime [with which he was charged]."

228 Va. at 715-16, 324 S.E.2d at 687. The Supreme Court held

that in the absence of an insanity defense, the trial court

properly excluded the evidence of Stamper's mental state at the

time of the offense because it was irrelevant to the issue of

guilt. See id. at 717, 324 S.E.2d at 688.

Unlike Zelenak and Stamper, Pritchett did not seek to

introduce expert testimony on the ultimate issue in the case or

on his mental state at the time of the crime. He sought to

introduce the evidence to influence the jury's view of his

confession. In ruling that Pritchett's expert testimony was

inadmissible, the trial judge said that Pritchett was "correct

in maintaining that the issue of mental retardation is not

within the range of common experience of most juries." Thus,

even the trial judge agreed that the expert "testimony related

to a matter of inquiry that was beyond the ordinary knowledge,

intelligence, and experience of a jury." Breeden v. Roberts,

258 Va. 411, 415, 518 S.E.2d 834, 837 (1999). "It is well

settled in Virginia that the opinion of an expert witness is

admissible where the jury, or the court trying a case without a

jury, is confronted with issues that cannot be determined

intelligently merely from the deductions made and inferences

drawn on the basis of ordinary knowledge, common sense, and

practical experience gained in the ordinary affairs of life and

thus require scientific or specialized knowledge." Schooler v.

Commonwealth, 14 Va. App. 418, 420, 417 S.E.2d 110, 111 (1992)

(internal quotations deleted).

"The manner in which a statement was extracted is, of

course, relevant to the purely legal question of its

voluntariness . . . ." Crane v. Kentucky, 476 U.S. 683, 688-89

(1986). Its relevance, however, is not limited to that

question. Pritchett's entire defense was that there was no

physical evidence to link him to the murder and that, because of

his mental retardation, his earlier admission of guilt was not

reliable. To support that defense, he sought to introduce

evidence concerning the involuntariness of his confession.

Confessions, even those that have been found

to be voluntary, are not conclusive of

guilt. And, as with any other part of the

prosecutor's case, a confession may be shown

to be "insufficiently corroborated or

otherwise . . . unworthy of belief."

Indeed, stripped of the power to describe to

the jury the circumstances that prompted his

confession, the defendant is effectively

disabled from answering the one question

every rational juror needs answered: If the

defendant is innocent, why did he previously

admit his guilt? Accordingly, regardless of

whether the defendant marshaled the same

evidence earlier in support of an

unsuccessful motion to suppress, and

entirely independent of any question of

voluntariness, a defendant's case may stand

or fall on his ability to convince the jury

that the manner in which the confession was

obtained casts doubt on its credibility.

Id. at 689 (citation omitted).

Evidence of the circumstances that yielded the confession

was all but indispensable to Pritchett's defense. "[E]vidence

about the manner in which a confession was secured will often be

germane to its probative weight . . . ." Id. at 688; see also

Connelly, 479 U.S. at 165 (stating that "mental condition is

surely relevant to an individual's susceptibility to police

coercion"). The trial judge's evidentiary ruling deprived

Pritchett of his fundamental constitutional right to a fair

opportunity to present a defense. See California v. Trombetta,

467 U.S. 479, 485 (1984).

Pritchett did not deny that he was in possession of some of

Singleton's property and that he attempted to use Singleton's

ATM and Montgomery Ward cards. He testified that he found in a

grocery store parking lot those items and the other property

belonging to Singleton. He denies, however, that he killed

Singleton. Given the circumstantial nature of the

Commonwealth's case against Pritchett and the fact that the

police did not audio or videotape his confession, Pritchett's

expert evidence concerning his mental retardation was crucial to

the jury's determination of the voluntariness and reliability of

his confession as related by the police. "Expert testimony is

appropriate to assist triers of fact in those areas where a

person of normal intelligence and experience cannot make a

competent decision." Swiney v. Overby, 237 Va. 231, 233, 377

S.E.2d 372, 374 (1989).

Without expert testimony explaining Pritchett's particular

susceptibility to the investigative tactics because of his

mental retardation, Pritchett was deprived of the opportunity to

familiarize the jury with the circumstances concerning the

taking of his confession, including "'facts bearing upon its

weight and voluntariness.'" Crane, 476 U.S. at 688 (quoting

Lego v. Twomey, 404 U.S. 477, 486 (1972)). He was entitled to

prove that "certain interrogation techniques, either in

isolation or as applied to the unique characteristics of a

particular suspect, are so offensive to a civilized system of

justice that they must be condemned under the Due Process Clause

of the Fourteenth Amendment." Miller, 474 U.S. at 109.

Moreover, the Commonwealth later opened the door to the

expert testimony when it called a witness to testify concerning

the materials Pritchett checked out from the jail library.

Unrebutted, this testimony implied that Pritchett was not

retarded and was more intelligent than he claimed. For the

reasons explained above, I would rule that by barring the expert

testimony, the trial judge denied Pritchett the opportunity to

present an adequate defense.

I dissent.

* Pursuant to Code 17.1-413, this opinion is not

designated for publication.

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