564 S.E.2d 624 (2002)
STATE of North Carolina
v.
Kim Louise SUMMEY.
No. COA01-1033.
Court of Appeals of North Carolina.
June 18, 2002.
*626 Attorney General Roy Cooper, by Special Deputy Attorney General Douglas A. Johnston, for the State.
Carter & Kropelnicki, P.A., by Steven Kropelnicki, Jr., Asheville, for defendant-appellant.
WALKER, Judge.
Defendant appeals her conviction for felony possession of cocaine. The State's evidence tended to show the following: On 3 October 1999, officers of the Hendersonville Police Department were conducting a drug surveillance operation in the Green Meadows neighborhood of Henderson County. At the time, Green Meadows was considered a "known drug area" due to the large number of drug arrests made in the neighborhood. As part of the surveillance, Lieutenant Tim Griffin (Lt.Griffin) positioned himself in view of a residence which had been the subject of a nuisance abatement proceeding for drugrelated activities. A group of men were standing in the front yard of the residence.
At approximately 5:30 p.m., Lt. Griffin observed a white Nissan pickup truck with the rear window missing drive towards the residence and stop alongside the road. One of the men standing in the yard approached the truck and appeared to engage in a brief conversation with the driver. A few moments later, the man returned to the yard and the truck drove away.
Lt. Griffin believed he had just observed a drug transaction so he dispatched, via his police radio, a detailed description of the truck and the direction in which it was traveling. About seven blocks away, Officers Richard Olsen (Officer Olsen) and Mike Vesely (Officer Vesely) were involved in an unrelated traffic stop and heard Lt. Griffin's dispatch. Shortly thereafter, a truck matching the description provided by Lt. Griffin neared the officers and stopped because another vehicle was blocking the roadway. Officer Olsen approached the driver, Allen Rogers (Rogers), and asked him to step out of the truck. At that time, he observed defendant seated in the passenger seat with her left hand hidden underneath "some type of fabric material."
Meanwhile, Officer Vesely approached the truck's passenger side door and recognized defendant from previous investigative stops. He also observed defendant hiding her left hand under a piece of fabric. Out of concern that defendant might be hiding a small weapon, Officer Vesely asked defendant to show him what was in her hands. Defendant lifted her hands but kept her left hand closed in a fist. The officer then noticed a rock-like substance, which he believed to be crack cocaine, wedged in a gap between defendant's fingers. He again asked defendant to open her hand. She again refused and Officer Vesely took hold of defendant's wrist forcing her left arm out the truck's window. Defendant continued to resist opening her hand and began to pull her arm back into the truck. Officer Olsen then handcuffed Rogers and proceeded to assist Officer Vesely. Using his knuckle, Officer Olsen applied pressure to the back of defendant's hand and forced it open. The officers next observed a "waxy, rock-like substance" fall to the ground, while another "rock-like substance" remained stuck to defendant's palm. Each officer, based on his experience with drug investigations, concluded the substances were crack cocaine. As a result, defendant and Rogers were placed under arrest.
Defendant's evidence tended to show that she and Rogers routinely traveled to Green Meadows in connection with Rogers' scrap metal and auto repair business. On 3 October 1999, as they were leaving the neighborhood, they drove past the residence which was under Lt. Griffin's surveillance. A man *627 standing in the front yard recognized Rogers and motioned for him to stop. The man then asked Rogers if he could find a bumper for a Cadillac. Rogers responded that he would do his best and drove away.
Shortly thereafter, they stopped at the location where Officers Olsen and Vesely were involved with the unrelated traffic stop. Defendant testified that, prior to stopping, she was holding in her left hand $1.98 in change which she intended to use to purchase cigarettes. She also testified that when Officer Vesely asked her to show him her hands, she readily complied but was unable to open her left hand because he was "holding it shut," "twisting" it and "pulling me out the window." Officer Olsen then applied pressure to the back of her hand forcing it to open.
Defendant further testified that, shortly following her arrest, she received medical treatment on her left arm and wrist. She continues to have "little feeling" in her left hand and asserts that she is unable to hold employment due to an inability to use her left hand.
On 28 January 2000, Rogers entered a negotiated guilty plea for misdemeanor possession of drug paraphernalia. On that date, the State also voluntarily dismissed a possession of cocaine charge against defendant arising out of the 3 October 1999 incident. The prosecutor, who dismissed the charge, testified that he was unable to locate a lab report confirming that the two rock-like substances seized by Officers Olsen and Vesely were cocaine. He, therefore, dismissed the charge against defendant for insufficient evidence.
In April 2000, defendant filed a civil rights action against Officer Olsen, Officer Vesely and the City of Hendersonville, alleging the officers had used excessive force in opening her hand. Approximately two months later, the prosecutor located the lab report and indicted defendant for possession of cocaine. Prior to her trial, defendant moved the trial court to suppress the crack cocaine and for a dismissal of the charge. The trial court denied both of these motions.

I.
Defendant first contends the trial court erred in denying her motion to suppress. Appellate review of a motion to suppress is confined to the determination of whether competent evidence supports the trial court's findings and, in turn, whether the findings support the trial court's conclusions. See State v. Willis, 125 N.C.App. 537, 540, 481 S.E.2d 407, 410 (1997). Although the defendant must provide a supporting affidavit with a motion to suppress, the burden of demonstrating the evidence was lawfully obtained continues to rest with the State. See State v. Smith, 118 N.C.App. 106, 111, 454 S.E.2d 680, 683, rev. on other grounds, 342 N.C. 407, 464 S.E.2d 45 (1995), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996)(citations omitted).
Here, defendant concedes the trial court's findings are supported by competent evidence. Nonetheless, she asserts two alternative reasons as to why the seizure of the crack cocaine was unlawful: (1) the officers lacked sufficient cause to stop and search defendant and (2) the forced seizure by the officers was excessive thereby rendering the search unreasonably intrusive.

Sufficient Cause
A search and seizure "`conducted outside the judicial process, without prior approval by judge or magistrate, [is] per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well delineated exceptions.'" Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334, 343-44 (1993) (citations omitted). One such exception, recognized in Terry v. Ohio, holds that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot," he may momentarily stop a suspected individual or individuals in order to obtain additional information. Terry, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1967); see also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972). An investigatory stop is constitutionally permissible provided the law enforcement officer is able to provide "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [an] intrusion." *628 Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Further, if during the course of an investigation the officer has a "reasonable fear for his own or others' safety, he is entitled ... to conduct a carefully limited search ... in an attempt to discover weapons...." Id. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911.
Thus, pursuant to Terry, Officers Olsen and Vesely's decision to stop defendant is justifiable if "specific and articulable facts, taken together with the rational inferences from those facts, created a reasonable suspicion of criminal activity." State v. Harrell, 67 N.C.App. 57, 61, 312 S.E.2d 230, 234 (1984). Additionally, their decision to search defendant is also justifiable if, during the course of their investigation, they reasonably believed defendant might be in possession of a weapon and posed a danger to their safety. See State v. Smith, ___ N.C.App. ___, 562 S.E.2d 899 (2002).
The record shows that, prior to the stop of the truck, the circumstances known to the officers, as relayed to them by Lt. Griffin, included: (1) a truck matching its description had just left a residence which had been in an area of prior drug activity, and (2) in front of the residence the driver of the truck had engaged in a course of conduct which was characteristic of a drug transaction. We hold that these circumstances created a reasonable suspicion of criminal activity such that Officers Olsen and Vesely were justified in conducting an investigatory stop of the truck. See e.g. Harrell, 67 N.C.App. at 61, 312 S.E.2d at 234; State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979); State v. Watkins, 337 N.C. 437, 446 S.E.2d 67 (1994).
With respect to the officers' search of defendant, the circumstances known to them prior to the search included: (1) the truck which defendant occupied was reported to have just been involved in a suspected drug transaction, (2) when the officers approached the truck, defendant's hand was hidden in a suspicious manner underneath a piece of fabric, and (3) when asked, defendant refused to open her hand. Additionally, the officers testified that, as law enforcement officers, they learned in training that a small knife or razor blade capable of inflicting injury could be concealed in a clenched fist. Consequently, until they see an open palm they have reason to believe a suspect could be armed with a weapon. Officer Vesely also testified that when defendant first raised her hand, he immediately recognized what he considered to be crack cocaine wedged in a gap between defendant's fingers. From these circumstances, we conclude the officers were justified in conducting a limited search of defendant, including forcing defendant to open her hand. See State v. Streeter, 17 N.C.App. 48, 50, 193 S.E.2d 347, 348 (1972), aff'd, 283 N.C. 203, 195 S.E.2d 502 (1973)("If, in the conduct of the limited weapons search, contraband or evidence of a crime is of necessity exposed, the officer is not required by the Fourth Amendment to disregard such contraband or evidence of crime"). Accordingly, the trial court properly concluded that the officers had sufficient cause to stop and search defendant.

Reasonable Force
Defendant next maintains the crack cocaine should have been suppressed by reason that the officers used excessive force in opening her hand, thereby rendering their search unconstitutionally intrusive. We disagree.
"The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908, 917 (1966). In Schmerber, the police arrested the defendant for driving while intoxicated while he was receiving treatment at a hospital following an automobile accident. At the direction of one of the police officers, a physician withdrew a blood sample from the defendant. A chemical analysis of the sample indicated the defendant had been intoxicated. The defendant sought to exclude the chemical analysis on grounds that the blood sample was the product of an unconstitutional search and seizure. The Supreme Court disagreed holding that the withdrawal of the defendant's blood was not unjustifiably intrusive as to render its seizure unreasonable. *629 Id. at 771-72, 86 S.Ct. at 1836, 16 L.Ed.2d at 920. However, the Court cautioned that its holding "in no way indicates that it permits more substantial intrusions, or intrusions under other conditions." Id.; see also Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985)(holding that surgical intrusion into attempted robbery suspect's left chest area to recover bullet fired by victim was unreasonable under the Fourth Amendment). Indeed, the Court put forth certain criteria for determining whether a search is unreasonably intrusive: (1) whether the police have a "clear indication" that the desired evidence will be found, (2) the presence of exigent circumstances such as the imminent destruction of evidence or a risk to individual safety, and (3) whether the methods used to obtain the evidence was performed in a reasonable manner. Id.; see also Burnett v. Municipality of Anchorage, 806 F.2d 1447 (9th Cir.1986).
Applying the framework set forth in Schmerber to the conduct of Officers Olsen and Vesely, we note that prior to forcing open defendant's hand, the officers had been informed that the driver of the truck, in which defendant was a passenger, had been involved in a suspected drug transaction moments earlier. Upon approaching the truck, both officers observed defendant hide her hand in such a manner which was clearly indicative of her having either a small weapon or drugs closed in her palm. Additionally, after being repeatedly asked to open her hand, defendant continued to resist the officers' efforts to alleviate their concern that she might be concealing a weapon. Under such circumstances, we conclude Officer Olsen's use of pressure to open defendant's hand was justifiable in view of the officers' need to ensure that defendant was not in possession of a weapon capable of inflicting injury or that she would not destroy evidence. Moreover, we find no evidence which would indicate Officer Olsen's use of pressure was overly intrusive as to render the seizure of the crack cocaine unreasonable. See Smith, 342 N.C. at 407, 464 S.E.2d at 45 (holding that requiring defendant to pull his pants down in the middle of an intersection so that police might search for cocaine was not intolerable in intensity and scope such that the search was unreasonably intrusive); and State v. Watson, 119 N.C.App. 395, 458 S.E.2d 519 (1995)(holding police officer's application of pressure to defendant's throat causing him to spit out three plastic baggies containing crack cocaine was not unreasonably intrusive in light of the risk of losing the evidence and the potential health risk to the defendant). Therefore, we overrule defendant's assignment of error.

II.
Defendant next contends the trial court erred in denying her motion to dismiss. She maintains the State had "waived" the right to prosecute her for any crime arising out of the incident when it allowed Rogers on 28 January 2000 to plead guilty for possession of drug paraphernalia and voluntarily dismissed the charge of possession of cocaine against her. However, defendant fails to cite any authority which holds that the doctrine of waiver applies to situations such as the one present in this case.
Nonetheless, defendant asserts the dismissal of the charges against her was a material part of the negotiated guilty plea which Rogers entered. She contends that "due process" and "basic contract principles" require that the charges against her be dismissed.
The essential characteristic of a negotiated guilty plea is "the defendant's surrender of fundamental constitutional rights... in reliance upon the prosecutor's promise." Motor Co. v. Board of Alcoholic Control, 35 N.C.App. 536, 538, 241 S.E.2d 727, 729 (1978)(citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). Here, the record is devoid of any indication that defendant relinquished her constitutional rights in reliance on a promise made by the prosecutor. Indeed, the prosecutor, who dismissed the charges against defendant, testified that he made no promises to defendant and that he dismissed the charges against her because he could not locate the lab report confirming that the substances seized by Officers Olsen and *630 Vesely were crack cocaine. Accordingly, we overrule defendant's assignment of error.
No error.
Judges McCULLOUGH and BRYANT concur.


People v Whaley (2017 NY Slip Op 03976)

People v Whaley

2017 NY Slip Op 03976

Decided on May 17, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 17, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RANDALL T. ENG, P.J.
L. PRISCILLA HALL
HECTOR D. LASALLE
FRANCESCA E. CONNOLLY
VALERIE BRATHWAITE NELSON, JJ.

2015-03113
 (Ind. No. 4769/13)

[*1]The People of the State of New York, respondent,
vCrystal Whaley, appellant.

Lynn W. L. Fahey, New York, NY (Erin R. Tomlinson of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Kings County (W. Miller, J.), imposed June 5, 2014, upon her plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's waiver of her right to appeal was valid, and precludes review of her contention that the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257, 267; People v Lopez, 6 NY3d 248, 255).
ENG, P.J., HALL, LASALLE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


58 Cal.App.2d 37 (1943)
THE PEOPLE, Respondent,
v.
HARRY S. FLEMING, Appellant.
Crim. No. 3664.
California Court of Appeals. Second Dist., Div. One.
Apr. 8, 1943.
 Maurice A. Gleason for Appellant.
 Robert W. Kenny, Attorney General, and Bayard Rhone, Deputy Attorney General, for Respondent.
 WHITE, J.
 In an information filed by the District Attorney of Los Angeles County defendant was accused in three counts of the crime of forcible rape while two counts charged him with kidnapping. A prior conviction of rape and robbery, for which the defendant served a term of imprisonment in the state prison, was also charged and admitted. Following not guilty pleas on all counts, trial was had before a jury resulting in the conviction of defendant upon each count of the information. From the judgments of conviction, the order denying his motion for a new trial and from the verdicts of the jury defendant prosecutes this appeal.
 With reference to counts one and five wherein the defendant is charged with rape and kidnapping of the complaining witness, we find in the record evidence that between nine and ten o'clock on the night of June 28, 1942, the prosecutrix, returning *39 home alone, was just stepping upon the porch of her residence when the defendant threw his hand around her neck and placed one hand or fist against her right side and admonished her to keep walking. Turning around and looking at the defendant, the complainant asked him what was wrong to which he replied "Don't say anything, but just keep walking." In obedience to defendant's command, the prosecutrix turned and went south on Wadsworth Street while the defendant had his one hand around her neck and the other against her side. She did not see anything in his hand but felt him punching her continuously in her side. They walked to an old shack or garage about three houses from the complainant's residence where defendant opened the door and forced the complaining witness in. When they were inside defendant told her to get on a table. At that time she looked at him and inquired what was wrong with him and whether he was crazy. At about that time defendant removed his hat and threw it over her face at which time she removed it therefrom and shoved it back. Prosecutrix then observed that defendant had a knife and that he was moving it back and forth about her neck, saying to her "Just be quiet and do as I tell you." Defendant then removed a portion of her clothing and accomplished an act of sexual intercourse upon her. Following the consummation of this act, defendant related to the prosecutrix that on the night before he "Was out to Gene Searles and had taken some woman home with him and that she kept his wallet." The importance of this statement will be apparent later when we discuss the question of corroboration. About ten minutes later defendant again pushed the complainant on the table and forcibly accomplished a second act of intercourse. He then asked the complainant what she was going to do about it and when she replied to the effect that she was not going to do anything he opened the door and told her to walk out in front of him. After emerging from the shack, he instructed her to keep walking ahead of him, which she did to a point at the next street intersection where they both stood under the street light while he again interrogated her as to what she was going to do and as to whether she was going to call the police. During this interval, the prosecutrix testified, "Then I got a good look at him." After assuring the defendant that she was not going to take any action about what had occurred, he told her to walk ahead toward her house during *40 which course he followed her for a short space and then disappeared. She made complaint to a neighbor of what had occurred and the following afternoon reported it personally to the police department. This neighbor testified that at the time the prosecutrix came to her house, the latter seemed to be very much frightened.
 On July 19, 1942, about three weeks after the alleged assault, Officer Broady, of the Los Angeles Police Department who was acquainted with the appellant, was driving west on Jefferson Boulevard when he asked the defendant if he wanted a ride, which invitation was accepted. During the course of this ride the officer inquired of defendant as to how he had been getting along and as to whether he was working, to which defendant replied that he had a job in Beverly Hills, and he then related the story to the officer of an occasion when defendant had been down to a place called Gene Searles and that while he was there he "made up" with a woman who, while he was asleep, took his wallet. This should be noted as identical with the story related by the prosecutrix as having been told to her by the defendant. Also during the ride the officer noticed that defendant had a cut about an inch and one-half or two inches long on his left hand which at that time was not bandaged with any adhesive tape.
 In count two appellant was charged with forcible rape on or about July 16, 1942, and in connection therewith the prosecutrix testified that she had spent the preceding night at the home of her mother, leaving there shortly before four o'clock on the morning of the assault. As she was walking along the sidewalk and had passed a parked truck, defendant stepped out and struck her a very heavy and painful blow on the side of her head. At the time she was struck, the complainant cried out for help and the defendant uttered a vile epithet to her while he shoved her back of a truck on an adjoining parking lot and placed a handkerchief in her mouth. After pushing her approximately twenty or twenty-five feet back from the sidewalk he knocked her down and as the handkerchief came out of her mouth she "started to holler," whereupon he struck her a vicious blow and accomplished an act of sexual intercourse with her. Feigning unconsciousness, the prosecutrix lay very still after consummation of the act and defendant walked away saying "I don't know why I did this. I am sorry." After determining that the defendant was out of sight, the complainant ran to a stranger's house near *41 by where she was admitted and told the occupants what had occurred. They took her to the Georgia Receiving Hospital where some eight or ten stitches were required in the wound on the right side of her head. From the Receiving Hospital she was transferred to the General Hospital where she stayed from the 16th to the 29th of July by reason of the injuries received in her altercation with the defendant. The occupants of the house at which complainant sought refuge testified that at the time she awakened them she was bleeding from the head and told them she had been attacked by a man. The prosecutrix positively identified the defendant and described the color of the clothes he was wearing. She further testified that she was able to identify the defendant by reason of lights in the buildings across the street from the place of the attack.
 The victim named in counts three and four, charging forcible rape and kidnapping, testified that just before midnight on July 20, 1942, she drove home in her automobile, parking it on the street near the front door. She then went to the back yard of her residence and was proceeding toward the back door at which time she heard footsteps in back of her and turning around observed a man. She positively identified defendant as this man. He addressed her saying "Pardon me, lady, this is a stick-up." He then began hitting her on the head and admonished her not to cry out, but nevertheless she did. He struck her with the butt end of a pocket-knife and also choked her with his right hand thereby causing her to stop screaming. He continued to choke her as he dragged her out to the front sidewalk and started down the street, during which time he kept telling her to keep quiet under threat of being killed. After the prosecutrix and defendant had walked some three doors from where she lived, they encountered another man. The two men turned into a garage and then blindfolded her with a handkerchief. From there, with defendant and the other man on each side of her, they walked west on 48th Street to McKinley Avenue. During this time the men held her arms down and continued choking and cursing her. She offered them her purse, which they refused, and finally arrived at a school grounds where they compelled her to mount a box and with their assistance she climbed over the fence and walked up two flights of stairs in the school building. The prosecutrix continued to plead with her assailants not to harm her and their only answers were constant *42 threats to kill her and continued pummeling of her with the blunt end of the knife. Over strenuous objections and resistance on the part of the prosecutrix and with the aid of his companion, the defendant removed a portion of the complainant's clothing and accomplished an act of intercourse. During the time the prosecutrix was with the defendant she remonstrated continuously against his advances and in answer to her plea that he do not molest her and thereby infect her with a venereal disease, he stated that he was a cook in Beverly Hills and in connection with that occupation was required to have a doctor's certificate as to his freedom from communicable venereal disease. This statement is important because as will appear, the defendant was subsequently apprehended in an establishment at Beverly Hills where he was employed as a cook. The prosecutrix was held prisoner for some two hours during which time the defendant ravished her three or four times. While during this time the blindfold was over the eyes of the prosecutrix, it did not entirely deprive her of her vision, and in response to inquiries made from time to time by defendant as to whether she could see, she answered in the negative and complained that the blindfold was drawn too tightly over her eyes and nose and that she couldn't breathe, as a result of which pleas defendant several times raised the blindfold and prosecutrix testified that as a matter of fact she could see under the blindfold. During the two-hour period of her captivity both of her captors smoked continuously and lighted their cigarettes with matches. The prosecutrix observed that the defendant had a piece of tape across the back of his left hand and a piece of tape on the ring finger of that hand These are mentioned because of the testimony given by the police officer that on the day before this alleged assault when he drove the defendant in an automobile, there was a cut or injury on defendant's left hand. The complainant further testified that defendant was wearing a white shirt with blue stripes. The importance of this testimony lies in the fact that when the defendant was apprehended the next day while working at a lunch counter in Beverly Hills, he still had the tape across the back of his left hand and the tape on the ring finger of the same hand. At the time the complainant was identifying him, defendant attempted to put his left hand or both hands back of him and expressed a desire to talk to her alone. On that occasion the prosecutrix described the type of shoes the defendant had on at the time he assaulted her and *43 when asked if he possessed such a pair of shoes, he replied in the affirmative and produced the shoes which were identified by the victim. In answer to the officers' inquiry about his having a brown coat, the defendant denied that he had such a garment. However, upon looking through a locker the brown coat was discovered. Defendant denied that it was his so the officers reached into the pockets and found an address book. As they started to look through the book the defendant said "Oh yes, that is my coat" and jerked the address book out of the officer's hand. When questioned about a blue striped shirt which the victim testified the defendant was wearing when he assaulted her, he denied possession of any such garment. However, again the officers searched the locker and were rewarded by finding such a blue striped shirt. The defendant admitted it was his but denied that he had worn it for some time. After perpetrating the aforesaid outrages upon the prosecutrix, her captors took her out on the school grounds, assisted her over the fence and started to walk with her in front of them, admonishing her, as she was blindfolded, that they would kill her if she made a sound or tried to get away. In the middle of the block between 47th and 48 Streets on McKinley Avenue, they turned her around and took the blindfold off. She immediately rushed to her home, arriving there about 2:45 a.m., called the police who took her to the Receiving Hospital for treatment. At the trial a police department chemist testified he had received slides taken from the prosecutrix for examination at the Receiving Hospital; that he had made microscopic examination of the two slides and found each was impregnated with spermatozoa.
 A neighbor of the prosecutrix testified that on the night of the assault around midnight she heard a loud scream which sounded like a woman's voice. Getting out of bed and going to the front porch, she saw a man and a woman. The man was holding the woman around the neck and she was stumbling along. Several hours later she saw the prosecutrix and the latter was crying hysterically.
 A police officer testified that at about ten o'clock on the morning of July 21st he went to the aforesaid school grounds; that they were surrounded by an iron fence four feet eleven inches high. Next to the fence he found a milk box on the McKinley Avenue side, the dimensions of which box were about two feet eight inches high and approximately three *44 feet wide. Upon the stairs of the school building the officer found nine matches and observed a few stains that to him appeared to be semen stains.
 The defendant took the witness stand in his own defense and denied having attacked any of the complaining witnesses. He testified that on the three nights in question he was at his home, 1315 West 36th Street, with his mother, his sister, niece and a Mr. Wilson. He admitted having the automobile conversation with the police officer on July 19th but denied any conversation with reference to his being at Gene Searles' place or relative to a woman stealing his wallet. The witness, Mr. Wilson, corroborated defendant's testimony as to his being home, as did defendant's sister and niece, and another acquaintance, William Morehead, who testified he was a frequent visitor to the home of defendant. However, with reference to the alibi testimony offered in behalf of defendant, we think it appropriate to quote from the remarks of the trial judge in connection therewith at the time the motion for a new trial was denied, wherein after reviewing some of the evidence, the court said "An effort was made by the defendant to establish an alibi. However, one of the witnesses fixed an alleged time by relationship to something else, by a question put by the court--I do not even want to name the witness' name--which showed that the witness, putting it in the most favorable way, was very much mistaken. Another witness had the defendant living at his home at the time when he was still in San Quentin. So the testimony was not very reliable." Whatever may be said of the testimony in support of defendant's alibi, it is at once apparent that it served only to create a conflict in the evidence and therefore was a question for the jury to determine. They resolved this conflict against the defendant and we are not authorized to disturb their conclusion when there is, as here, substantial evidence, both direct and circumstantial, to support the conclusion arrived at by the triers of fact.
 [1] As his first ground of appeal it is contended by appellant that the evidence is insufficient to support the judgments of conviction. It is not denied--indeed it admits of no denial, that the evidence conclusively shows that on three occasions within as many weeks, in approximately the same vicinity in the city of Los Angeles, three women were brutally and fiendishly assaulted and raped. In each case the technique of the perpetrator was almost identical. In two cases he forced the *45 victim from her home to a nearby place by threatening to kill her with a knife, and in the third case he did use the knife in severely injuring the complainant. Conceding that an appellate tribunal is without power to disturb the findings of the jury on the ground of claimed insufficiency of the evidence unless it be made to appear clearly that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court, appellant nevertheless earnestly urges that the complaining witnesses did not have reasonable or adequate opportunity to observe, and therefore identify, their assailant and that their testimony in this regard challenges credulity. In this claim appellant can not be upheld. What was said by this court in People v. Hightower, 40 Cal.App.2d 102, 106 [104 P.2d 378], is particularly pertinent here. "While the claimed inconsistencies in the testimony of the foregoing witnesses, such as the positions they were in at the time when they claimed ability to see and identify appellant, as well as other claimed weaknesses in their testimony, undoubtedly afforded grounds for a forceful argument to the jury, nevertheless they cannot avail appellant as grounds for a reversal, because the evidence identifying a defendant as the perpetrator of the crime charged need not be positive and uncontradicted. As stated in People v. Farrington, 213 Cal. 459 [2 P.2d 814]: 'The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, and the uncertainties of witnesses in giving their testimony, were matters solely for the observation and consideration of the jurors in the first instance, and for the consideration of the trial court on motion for a new trial. It has approved the finding of the jury, and on appeal this court may not disturb such finding and the action of the trial court unless we can say, as a matter of law, that there was no evidence to support the conviction'."
 [2] It is also urged that the testimony of the complainants is incredible because they failed to make an outcry, but in the case of one of such witnesses she testified she was gagged with a handkerchief while the others were menaced with a knife and threatened with death if they cried out for help. This and other claims of inherent improbability in the testimony of the prosecutrices is answered by the rule of law which declares that where there is evidence, circumstantial or otherwise, that *46 a crime has been committed and that the defendant was the perpetrator thereof, the court on appeal will not attempt to determine the weight of the evidence, but will determine only whether from a consideration of the evidence it can be held that sufficient facts could not have been found existent therein by the jury to warrant the inference of guilt. It is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence; and before the verdict of the jury can bet set aside on appeal on the grounds of insufficiency of the evidence, it must be made clearly to appear that upon no reasonable consideration whatever is there evidence of sufficient substantiality to support the trial court's conclusion. When the circumstances reasonably support or justify the jury's verdict, the belief or opinion of the reviewing court that those circumstances might also be reasonably reconciled with the innocence of the defendant, will not authorize or sanction interference with the determination arrived at by the jury (People v. Newland, 15 Cal.2d 678 [104 P.2d 778], and cases therein cited). In the recent case of People v. Roberts, 50 Cal.App.2d 558, 564 [123 P.2d 628], this court enunciated the rule with reference to claimed improbability of the testimony and alibi evidence, when we declared "The ground advanced by appellant in support of the claimed inherent improbability in the testimony of his accusers is not the true test. Before testimony can be strictured as inherently improbable or unbelievable per se, it must appear therefrom that something has been done that it would not seem possible could be done under the circumstances described. Neither the direct nor the circumstantial evidence which we shall later discuss, nor the inferences deducible therefrom, can be thus indicted. While the arguments here advanced as to the improbability of the testimony identifying the defendant as the perpetrator of the assaults charged afforded opportunity for a persuasive argument to the jury, we find in them nothing that would justify a reviewing court in concluding that such testimony is per se unbelievable and that it was therefore the duty of the jury not only wholly to disregard it, but to accept the alibi evidence offered by the defendant, or at least find that the defendant's guilt had not been proved by the evidence to a moral certainty and beyond a reasonable doubt. As this court has often heretofore stated, reviewing judges are obviously in no position to determine the credit which should be accorded witnesses or to weigh their testimony. *47 With undoubted recognition of this fact, and in accord with the constitutional provision, the Legislature has declared that the jurors are the exclusive and final arbiters of the credibility of witnesses (Code Civ. Proc., sec. 1847), and are the judges of the effect and value of evidence addressed to them, except in those cases where it is ordained by the law that it shall be conclusive proof of the fact to which it relates. (Code Civ. Proc., sec. 2061.)" Furthermore, in the instant case the testimony of the victims of defendant's lust was amply corroborated by facts and circumstances which we have hereinbefore narrated in our epitome of the evidence offered by the prosecution. Under the facts here present and the decisions quoted herein, appellant's claim of inherent improbability in the testimony of the prosecuting witnesses must be held to be devoid of merit.
 [3] Finally, appellant urges that the court erred in its failure to give a cautionary instruction to the effect that charges such as the ones herein alleged are "easily made and difficult to disprove" and that the testimony of the prosecutrices "should be considered and examined with caution." In People v. Roberts, supra, at page 568, this court gave expression to its entire accord with the rule that in cases like the present one, where by the very nature of the offense corroboration is ordinarily precluded and therefore not required, it is not only proper but wholesome in the interests of justice that a cautionary instruction be given to the jury. However, the rule just enunciated is predicated upon another rule of law and that is the rule made necessary for the protection of the public, and which permits a conviction in this type of cases on the uncorroborated testimony of the prosecuting witness. It further follows that in a case where the reason for the rule, viz., a conviction on the uncorroborated testimony of the prosecutrix is not present, the rule does not apply. As was said in People v. Putnam, 20 Cal.2d 885, 892 [129 P.2d 367], relied upon by appellant "The circumstances of the case must determine whether the failure to instruct the jury constitutes prejudicial error." For instance, in the case of People v. Lucas, 16 Cal.2d 178 [105 P.2d 102, 130 A.L.R. 1485], a failure to give a cautionary instruction did not constitute reversible error where an examination of the record disclosed that the evidence clearly pointed to the appellant's guilt. That a judgment may be reversed because of error only when it appears from the record that it was prejudicial, caused *48 substantial injury and that a different result would have been probable if the error had not occurred, is firmly established in our law by a legion of authority (People v. Lucas, supra). Because the testimony of the prosecuting witnesses in all counts of the information now before us was credibly and impressively corroborated by both direct and circumstantial evidence, the action of the trial court in not giving a cautionary instruction, when none was requested, can not be held to constitute prejudicial error, nor would we be warranted or authorized to direct a reversal of the judgment. Furthermore, the jury in the instant case was instructed that the defendant was presumed to be innocent and that his guilt must be established by competent evidence and beyond a reasonable doubt, and the meaning of such a doubt was defined by the court. In addition, the jury was admonished that they were to be governed solely by the evidence introduced at the trial and the law as expounded by the court. They were cautioned against being influenced against the defendant by passion, prejudice, public opinion or public feeling. The verdicts are amply supported by the evidence which points to the appellant's guilt.
 [4] The attempted appeal from the verdicts is dismissed because no appeal lies therefrom, and for the reasons herein stated the judgments and the order denying defendant's motion for a new trial are, and each is, affirmed.
 York, P. J., and Doran, J., concurred.


                                       NUMBER
13-11-00142-CR

                                 COURT
OF APPEALS

                     THIRTEENTH
DISTRICT OF TEXAS

                         CORPUS
CHRISTI - EDINBURG

PABLO MONREAL LIVAS,                                                           Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                 Appellee.

                           On
appeal from the 197th District Court
of Cameron County,
Texas.

                               MEMORANDUM
OPINION

 Before Chief
Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion
Per Curiam

Appellant,
Pablo Monreal Livas, attempts to appeal his conviction for aggravated robbery.
The trial court has certified that this Ais a plea-bargain case, and the
defendant has NO right of appeal.@  See Tex. R. App. P. 25.2(a)(2).

On
April 14, 2011, this Court notified appellant=s
counsel of the trial court=s certification and ordered counsel
to: (1) review the record; (2) determine whether appellant has a right to
appeal; and (3) forward to this Court, by letter, counsel=s findings as to whether appellant has a right to appeal,
or, alternatively, advise this Court as to the existence of any amended
certification.
On
May 23, 2011, counsel filed a letter brief with this Court.  Counsel=s response does not establish that the certification
currently on file with this Court is incorrect or that appellant otherwise has
a right to appeal.
The
Texas Rules of Appellate Procedure provide that an appeal must be dismissed if
the trial court=s certification does not show that the
defendant has the right of appeal.  Tex.
R. App. P. 25.2(d); see Tex.
R. App. P. 37.1, 44.3, 44.4.  Accordingly, this appeal is DISMISSED.

PER CURIAM
Do not publish.  See Tex. R. App. P. 47.2(b).

Delivered and filed the
2nd day of June, 2011.


912 F.2d 241
CPC-REXCELL, INC., Appellant,v.LA CORONA FOODS, INC., Appellee.
No. 90-1131EM.
United States Court of Appeals,Eighth Circuit.
Submitted June 11, 1990.Decided Aug. 21, 1990.

1
Paula M. Young, St. Louis, Mo., for appellant.

2
William J. Travis, St. Louis, Mo., for appellee.

3
Before ARNOLD and WOLLMAN, Circuit Judges, and HANSON,* Senior District Judge.

4
HANSON, Senior District Judge.

5
CPC-Rexcell, Inc. appeals from a final order entered in the District Court1 for the Eastern District of Missouri dismissing the action for lack of personal jurisdiction.  For the reasons discussed below, we affirm the judgment of the district court.

I. BACKGROUND

6
CPC-Rexcell, a plastic products manufacturing company, is incorporated in Delaware and has its principal place of business in Missouri.  La Corona Foods, a yogurt products processor and distributor, is an Arizona corporation.  CPC-Rexcell served La Corona with process pursuant to the Missouri long-arm statute, Mo.Rev.Stat. Sec. 506.500(1) (1986), asserting that appellee was transacting business or forming contracts within the meaning of the statute.  La Corona Foods responds that it committed no acts which satisfy this statute, nor does it have any contacts, ties, or other relations that would render personal jurisdiction constitutionally permissible in this action.  The district court granted the defendant's motion to dismiss, 726 F.Supp. 754, and this appeal followed.

II. DISCUSSION

7
CPC-Rexcell made yogurt containers for La Corona.  The initial contacts for the agreement were made in Arizona and California.  The defendant's contacts with the State of Missouri consisted of numerous telephone and telefax orders to plaintiff's St. Louis office to purchase $1.7 million worth of goods, and defendant's payment by mail to a St. Louis lock box.  There was also some evidence that a sample of rejected goods were sent to St. Louis, but all other nonconforming goods were shipped either to Arizona or California.  La Corona had no authority to do business in Missouri, no office, agent, or real property in the state, and there were no personal visits there.  All paper work was processed in St. Louis, but the products were actually shipped from North Carolina to Arizona and California warehouses.  Any problems in the shipment or manufacture of the goods were managed by CPC-Rexcell personnel in Arizona or California.

8
Whether personal jurisdiction is proper requires a two-part inquiry.  First, this court must examine whether personal jurisdiction under Missouri's long-arm statute exists.  Second, it must be established that the exercise of personal jurisdiction is consistent with due process.  See Precision Construction Co. v. J.A. Slattery Co., 765 F.2d 114, 115 (8th Cir.1985).

The relevant statute states in part that:

9
any * * * corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such * * * corporation * * * to the jurisdiction of the courts of this state as to a cause of action arising from the doing of any such acts:

10
(1) The transaction of any business within this state;  * * *

11
(2) The making of any contract within this state;  * * *.

12
Mo.Rev.Stat. Sec. 506.500 (1986).

13
This statute was considered by the Eighth Circuit Court of Appeals in Scullin Steel v. National Railway Utilization Corp., 676 F.2d 309 (8th Cir.1982).  In that case the court found no jurisdiction when the only contacts with the forum state were payments sent to St. Louis and an exchange of letters and telephone calls.  The court held that these contacts were not "transactions" within the meaning of the statute nor did they satisfy traditional notions of fair play and substantial justice.  See id. at 312-13.

14
At the time of Scullin Steel, no Missouri case directly addressed this issue.  In 1984, however, the Missouri Supreme Court decided State ex rel. Metal Service Center of Georgia, Inc. v. Gaertner, 677 S.W.2d 325 (Mo.1984) (en banc).  Without contradicting Scullin Steel the Gaertner court found that the statute should be broadly construed but within the bounds of the due process clause of the Fourteenth Amendment.  Id. at 327.

15
Jurisdiction is proper where there is a substantial and continuing relationship purposefully made with a party in the forum state, see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985), so long as "maintenance of the suit does not offend traditional notions of fair play and substantial justice."    International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

16
Appellant argues that Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), with its expansive view of personal jurisdiction, overrules Scullin Steel, and that the contacts made by La Corona to Missouri created a substantial and continuing relationship sufficient to establish proper jurisdiction.  Burger King requires that the minimum contacts of defendant be substantially connected with the forum.  Burger King, 471 U.S. at 487, 105 S.Ct. at 2190.    Scullin Steel is not at odds with that holding;  it also looked to the relationship of the defendant and its proximity to the state.  Scullin Steel, 676 F.2d at 313.    The Eighth Circuit simply found that the number and nature of the contacts in Missouri did not constitute a substantial connection with the forum state in that case, and thus held that personal jurisdiction was not appropriate.

17
In the present case, the parties share a continuous and substantial relationship.  However, the significant part of that relationship is not in Missouri.  As the district court noted, the contract negotiations took place in Arizona and California, goods were manufactured and shipped from North Carolina, and any request regarding the product, other than the actual ordering, was handled by personnel in Arizona or California.  After considering the nature and extent of the contacts that did transpire in Missouri, this court agrees that defendant did not purposefully establish minimum contacts in Missouri such that it would expect to defend a suit there.

III. CONCLUSION

18
For the reasons stated herein, we hold that to let the long-arm statute of the forum state extend jurisdiction over defendants in this case would violate due process.  Accordingly, we affirm.

*
 The HONORABLE WILLIAM C. HANSON, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation

1
 The Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri


Case: 13-7131    Document: 7     Page: 1   Filed: 12/12/2013

          NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                __________________________

                 LOURDES A. AYTONA,
                   Claimant-Appellant,
                            v.
  ERIC K. SHINSEKI, SECRETARY OF VETERANS
                   AFFAIRS,
               Respondent-Appellee.
                __________________________

                        2013-7131
                __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3233, Judge William P.
Greene, Jr.
             __________________________

                       ORDER
                __________________________
 Before RADER, Chief Judge, LOURIE and TARANTO, Circuit
                        Judges.
PER CURIAM.
     Lourdes A. Aytona (“Aytona”) has appealed from a de-
cision of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) denying entitlement to De-
pendents’ Educational Assistance for her adopted chil-
Case: 13-7131      Document: 7   Page: 2      Filed: 12/12/2013

AYTONA v. SHINSEKI                                          2

dren. We consider whether Aytona’s appeal must be
dismissed for lack of jurisdiction.
    On May 7, 2013, the Veterans Court entered judg-
ment in Aytona’s case. Her notice of appeal was received
on August 2, 2013; 87 days after the date of judgment.
    To be timely, a notice of appeal must be received by
the Veterans Court within 60 days of the entry of judg-
ment. 38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed. R.
App. P. 4(a)(1). Like appeals from district courts, the
statutorily prescribed time for filing appeals from the
Veterans Court to this court is mandatory and jurisdic-
tional. See Wagner v. Shinseki, 733 F.3d 1343, 1348 (Fed.
Cir. 2013); see also Henderson v. Shinseki, 131 S. Ct.
1197, 1204-05 (2011) (indicating jurisdictional restrictions
on the time for taking an appeal under section 7292(a)).
Accordingly, even in circumstances in which it would be
equitable to do so, this court is without authority to waive
the deadline for filing an appeal to this court from the
Veterans Court. See Bowles v. Russell, 551 U.S. 205, 214
(2007).
    Because Aytona’s appeal as to the underlying judg-
ment was filed outside of the statutory deadline for taking
an appeal to this court, we must dismiss the appeal.
    Accordingly,
    IT IS ORDERED THAT:
    (1) The appeal is dismissed.
    (2) Each side shall bear its own costs.

                                   FOR THE COURT

                                    /s/ Daniel E. O’Toole
                                        Daniel E. O’Toole
                                        Clerk of Court
Case: 13-7131   Document: 7   Page: 3     Filed: 12/12/2013

3                                       AYTONA   v. SHINSEKI

s26


29 F.3d 132
George Larkin ROBERSON, Plaintiff-Appellee,v.Edgar MULLINS, individually and as a member of the WiseCounty Board of Supervisors;  Sam Church, individually andas a member of the Wise County Board of Supervisors;  ClaudeCollins, individually and as a member of the Wise CountyBoard of Supervisors;  Jack Kiser, individually and as amember of the Wise County Board of Supervisors;  Julius FredTate, individually and as a member of the Wise County Boardof Supervisors;  Donnie Dowell, individually and as a memberof the Wise County Board of Supervisors;  Wise County Boardof Supervisors, Defendants-Appellants.
No. 93-1618.
United States Court of Appeals,Fourth Circuit.
Argued Oct. 27, 1993.Decided July 8, 1994.

ARGUED:  James Parker Jones, Penn, Stuart, Eskridge & Jones, Bristol, VA;  Susan Debra Oglebay, Legal Dept., United Mine Workers of America, Castlewood, VA, for appellants.  William Henry Hurd, Richmond, VA, for appellee.  ON BRIEF:  John Mack Farmer, Wolfe & Farmer, Norton, VA, for appellee.
Before RUSSELL and WILLIAMS, Circuit Judges, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed in part and dismissed in part by published opinion.  Judge DONALD RUSSELL wrote the opinion, in which Judge WILLIAMS and Senior District Judge CLARKE joined.
OPINION
DONALD RUSSELL, Circuit Judge:

1
Defendants, the Board of Supervisors for Wise County, Virginia (the County Board) and some of its members, appeal the district court's denial of their motions to dismiss plaintiff George Roberson's section 1983 action against them on the grounds that it is barred by absolute legislative immunity and, even if not barred, cannot succeed on the merits.  We find that the district court correctly denied defendants' absolute immunity motion and, further, that we are without jurisdiction to review its denial of defendants' motion to dismiss on the merits.  We therefore affirm in part and dismiss in part.

I.

2
The eight-member County Board is the governing body of Wise County.  At a meeting of the Board in July, 1992, it was moved and seconded that plaintiff George Roberson be removed from his position as the Public Works Superintendent for Wise County.  The Board then went into executive session and voted, with six members in favor and two opposed, to remove Roberson from his position.

3
Roberson, a Republican, brought this section 1983 action against the Board and the six County Board members who voted to terminate him, all Democrats, alleging that their votes were motivated by his political party affiliation in violation of the First and Fourteenth Amendments.  See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976);  Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

4
All defendants, the Board members as well as the Board itself, moved to dismiss Roberson's claim as barred by absolute legislative immunity.  They also filed a second dismissal motion asserting that even if they were not entitled to legislative immunity, they were permitted to terminate Roberson for his political party affiliation because party affiliation was an appropriate requirement for effective performance of the duties of his office.  See Branti, 445 U.S. at 518, 100 S.Ct. at 1294.

5
The district court rejected both arguments and denied defendants' motions to dismiss;  they took this immediate appeal.

II.

6
We must first address whether the district court correctly determined that the six members of the County Board who voted in favor of Roberson's termination were not entitled to absolute legislative immunity from his section 1983 claim.1  We conclude that the district court was correct in this determination.

7
Members of local governmental bodies are entitled to absolute legislative immunity from claims against them arising out of their actions in a "legislative capacity."  Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir.1989);  Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980).2  Their actions are in a "legislative capacity" if they are an "integral part," Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972);  Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975), of legislative actions undertaken by the local governmental body.  Scott v. Greenville County, 716 F.2d 1409, 1423 (4th Cir.1983) (indicating that county council members acted in their legislative capacity if the action taken by the council in which they participated was legislative).3

8
Not all actions undertaken by local governmental bodies that have legislative responsibilities are necessarily "legislative."   E.g., Scott, 716 F.2d at 1423 (holding that county council's action in delaying consideration of zoning permit was not legislative);  Trevino v. Gates, 17 F.3d 1189, 1191 (9th Cir.1994) ("[N]ot all governmental acts by ... a local legislature ... are necessarily legislative in nature.")  (quotation omitted);  Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir.1992) (using same quotation);  see also Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988) (stating that the characterization of an action undertaken by an official or a governmental body is not determined by the title of the official or body);  Harlow v. Fitzgerald, 457 U.S. 800, 810-11, 102 S.Ct. 2727, 2734-35, 73 L.Ed.2d 396 (1982) (same);  Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978) (same).  Rather, a local governmental body only acts in a legislative capacity when it engages in the process of "adopt[ing] prospective, legislative-type rules."  Front Royal, 865 F.2d at 79 (quotation omitted);  Scott, 716 F.2d at 1423.4

9
Every other court of appeals that has attempted to define when a local governmental body acts in a legislative capacity has set forth the same, or a very similar, standard.  Brown, 970 F.2d at 437 (8th Circuit);  Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 23 (1st Cir.1992);  Hughes v. Tarrant County, 948 F.2d 918, 921 (5th Cir.1991);  Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th Cir.1991);  Ryan v. Burlington County, 889 F.2d 1286, 1290-91 (3d Cir.1989);  Haskell v. Washington Township, 864 F.2d 1266, 1278 (6th Cir.1988);  Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985);  see also Developments in the Law--Zoning, 91 Harv.  L.Rev. 1427, 1510-12 (1978) (discussing the standard that was subsequently adopted by the First and Fifth Circuits).

10
Here, the County Board terminated Roberson as the Public Works Superintendent for Wise County.  Terminating a county employee is plainly unrelated to the process of "adopt[ing] prospective, legislative-type rules."  Front Royal, 865 F.2d at 79;  Scott, 716 F.2d at 1423.   We conclude, therefore, that the Board's termination of Roberson was not a legislative action;  as a result, the County Board members did not act in their legislative capacity when they participated in it.  Thus, we hold that the district court did not err in determining that the Board members are not absolutely immune from Roberson's section 1983 claim arising out of the termination.

III.

11
Still before us is the contention that the County Board itself is entitled to absolute legislative immunity from Roberson's claim.  This contention will not long detain us.  If a local governmental body itself, or, equivalently, the municipality for which it is the governing body, is ever entitled to absolute legislative immunity,5 it is only when the body engages in "legislative" actions.  Baker, 894 F.2d at 682.   As we established in Part II supra, the County Board's termination of Roberson was not a legislative action;  the Board, therefore, is not absolutely immune from Roberson's section 1983 claim arising out of this termination.IV.

12
Defendants also ask that we review the district court's denial of their second motion to dismiss, which sought dismissal on the ground that they were permitted to terminate Roberson for his political party affiliation because party affiliation was an appropriate requirement for performance of the duties of his office.  See Branti, 445 U.S. at 518, 100 S.Ct. at 1294.   The district court's ruling denying this motion to dismiss is obviously not a final decision that concludes the litigation.  See 28 U.S.C. Sec. 1291.  And, unlike the district court's ruling denying defendant's motion to dismiss on the ground of absolute immunity, this ruling, denying a motion that seeks dismissal on the ground that Roberson's claim cannot succeed on the merits, is not a collateral order reviewable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).  Spiess v. C. Itoh & Co.  (America), Inc., 725 F.2d 970, 974 (5th Cir.), cert. denied, 469 U.S. 829, 105 S.Ct. 115, 83 L.Ed.2d 58 (1984).  We are without jurisdiction to review this ruling unless it falls within our pendent appellate jurisdiction.

13
When we properly have jurisdiction over an interlocutory ruling by the district court, pendent appellate jurisdiction permits us to consider another district court ruling in the same case that is not independently appealable if the issues involved in the two rulings "substantially overlap and review will advance the litigation or avoid further appeals."  Akers v. Caperton, 998 F.2d 220, 223 (4th Cir.1993) (quotation omitted);  O'Bar v. Pinion, 953 F.2d 74, 80 (4th Cir.1991).6

14
The interlocutory ruling which we have jurisdiction to review, the district court's denial of defendants' absolute legislative immunity motion, required us to address whether termination of a county employee was a legislative action.  Reviewing defendants' motion to dismiss on the merits, in contrast, would require us to consider whether the duties of Roberson's position were such that political party affiliation was an appropriate requirement for the position.  The issues involved in these two rulings do not at all overlap;  under Akers and O'Bar, therefore, we are without pendent appellate jurisdiction to review the district court's denial of defendants' motion to dismiss on the merits.

V.

15
For the reasons stated, we affirm the district court's ruling denying defendants' motion for absolute legislative immunity, and we dismiss defendants' appeal of the district court's ruling denying defendants' motion to dismiss on the merits because we are without jurisdiction to consider it.

16
AFFIRMED IN PART AND DISMISSED IN PART.

1
 We have jurisdiction to review immediately the district court's rejection of the individual Board members' absolute immunity defense, as well as its rejection of the Board's absolute immunity defense, see Part III infra, under the collateral order doctrine articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).  Nixon v. Fitzgerald, 457 U.S. 731, 742, 102 S.Ct. 2690, 2696, 73 L.Ed.2d 349 (1982)

2
 Local officials who are not members of local governmental bodies may also be entitled to legislative immunity in certain circumstances, see Hernandez v. City of Lafayette, 643 F.2d 1188, 1193-94 (5th Cir.1981) (finding that mayor performed legislative action by vetoing ordinance), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982);  the case at bar, however, involves only members of local governmental bodies

3
 A member of a local governmental body does not necessarily act in a legislative capacity when his participation in the action of the body takes the form of a vote;  the action of the body must itself be legislative to make the member's act of voting legislative.  In Scott v. Greenville County, 716 F.2d 1409 (4th Cir.1983), for example, we held that members of a committee of a city council had not acted in their legislative capacity when the committee, presumably after a vote, issued an order directing the county planning commission to delay consideration of a building permit because the committee's delay of the permit was an executive, not a legislative, act.  Id. at 1423.   See also Trevino v. Gates, 17 F.3d 1189, 1192 (9th Cir.1994) ("[A]lthough a local legislator may vote on an issue, that alone does not necessarily determine that he or she was acting in a legislative capacity.")  (quotation omitted);  Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir.1992) (using same quotation)
Of the courts of appeals, only the Eleventh Circuit has ever suggested that the vote of a member of a local governmental body is necessarily a legislative act, regardless of the matter on which the vote was taken.  Hudgins v. City of Ashburn, 890 F.2d 396, 406 n. 20 (11th Cir.1989);  Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829-30 (11th Cir.1982).  That court, however, appears to have overruled this suggestion in Crymes v. DeKalb County, 923 F.2d 1482 (11th Cir.1991), where it stated:  "[A]lthough a local legislator may vote on an issue, that alone does not necessarily determine that he or she was acting in a legislative capacity."  Id. at 1485 (quotation omitted).  But see Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1062 (11th Cir.1992) ("Acts such as voting ... are generally deemed legislative.").  In any event, even if the suggestion is still good law in the Eleventh Circuit, we must reject it because it conflicts directly with our holding in Scott.

4
 Several decisions addressing absolute legislative immunity in the context of Congress and state legislatures suggest that a legislature may act in a legislative capacity not only when it engages in the process of adopting prospective, legislative-type rules but also when it undertakes certain other activities that lie within the traditional legislative province.  In Schlitz v. Virginia, 854 F.2d 43 (4th Cir.1988), this Court found that a state legislature had acted in its legislative capacity in declining to reelect a state judge because election of judges "involves a core legislative function."  Id. at 46.   See also Gravel, 408 U.S. at 625, 92 S.Ct. at 2627 (stating that a member of Congress acts in his legislative capacity if his action is "an integral part of the ... processes by which Members participate in ... the consideration and passage or rejection of proposed legislation or ... other matters which the Constitution places within the jurisdiction of either House ") (emphasis added)
We find that the termination of a government employee in the case at bar was not an action that lies within the traditional legislative province.  This finding is consistent with the Supreme Court's decision in Forrester, where the Court rejected a claim by a judge of absolute immunity from a suit arising out of his demotion and discharge of a probation officer, stating:  "[W]e think it clear that [the judge] was acting in an administrative capacity when he demoted and discharged [the officer]."  Forrester, 484 U.S. at 229, 108 S.Ct. at 545 (emphasis added).  See also Harlow, 457 U.S. at 810-811, 102 S.Ct. at 2734 (recognizing that "legislative functions require absolute immunity" and refusing to allow such immunity from a suit that arose out of the discharge of an air force management analyst).  Because the case at bar does not involve an action that lies within the traditional legislative province, we need not decide whether a local governmental body acts in a legislative capacity when it undertakes an action that is not prospective, legislative-type rulemaking but is within the traditional legislative province.

5
 We need not, and do not, decide here whether a local governmental body, or the municipality for which it is the governing body, is ever entitled to absolute legislative immunity.   See Baker v. Mayor of Baltimore, 894 F.2d 679, 682 (4th Cir. 1990) (holding that city council is entitled to absolute legislative immunity from claim under the Age Discrimination in Employment Act), cert. denied, 498 U.S. 815, 111 S.Ct. 56, 112 L.Ed.2d 31 (1990);   Hollyday v. Rainey, 964 F.2d 1441, 1443 (4th Cir.)  (Hall, J., concurring) (finding that municipality is entitled to absolute legislative immunity from section 1983 claim), cert. denied, --- U.S. ----, 113 S.Ct. 636, 121 L.Ed.2d 567 (1992);  but see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, --- U.S. ----, ----, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993) ("[ Monell v. New York Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and  Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980),] make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit--either absolute or qualified--under Sec. 1983.");   Hollyday, 964 F.2d at 1444-45 (Luttig, J., concurring) (stating that giving municipality absolute legislative immunity from section 1983 claim would be, "at the very least, in substantial tension with, if not foreclosed by," Owen );   Hollyday, 964 F.2d at 1448 (Butzner, J. dissenting) (indicating that Owen  and other opinions of the Supreme Court make "clear" that municipality is not entitled to absolute immunity from section 1983 claim)

6
 It should be noted that the Supreme Court has held, in two criminal cases, that courts of appeals do not have pendent appellate jurisdiction.   United States v. MacDonald, 435 U.S. 850, 857 n. 6, 98 S.Ct. 1547, 1551 n. 6, 56 L.Ed.2d 18 (1978);   Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977).  As stated in MacDonald:  "[A] federal court of appeals is without pendent jurisdiction over otherwise nonappealable claims even though they are joined with a ... claim over which the appellate court does have interlocutory appellate jurisdiction."   MacDonald, 435 U.S. at 857 n. 6, 98 S.Ct. at 1551 n. 6.  While MacDonald and Abney could possibly be reconciled with Akers and O'Bar by confining the former to the criminal context, the Supreme Court did not explicitly so confine them and, in one instance, this Court has applied their rule in a civil case,  MacKethan v. Peat, Marwick, Mitchell & Co., 557 F.2d 395, 396 (4th Cir.1977) (citing Abney and stating that when a court of appeals reviews an appealable interlocutory order, it "should not ... consider[ ] other non-appealable assignments of error under the doctrine of pendent jurisdiction");  see also San Filippo v. United States Trust Co. of New York, 470 U.S. 1035, 1036, 105 S.Ct. 1408, 1409, 84 L.Ed.2d 797 (1985) (White, J.)  (dissent from denial of certiorari ) (asserting that court of appeals' exercise in a civil case of pendant appellate jurisdiction was "clearly in tension with our rationale in Abney ");   Gross v. Winter, 876 F.2d 165, 168 n. 3 (D.C.Cir.1989) (noting, in refusing to exercise pendent appellate jurisdiction in a civil case, that Abney refused to allow such jurisdiction).  We need not attempt such a reconciliation here, however, because even under the standard set forth in Akers and O'Bar, we are without pendent appellate jurisdiction, see infra


318 S.E.2d 298 (1984)
Carroll K. RODGERS, Jr.
v.
COMMONWEALTH of Virginia.
Record No. 830612.
Supreme Court of Virginia.
June 15, 1984.
*299 Murray J. Janus, Robert J. Rice, Richmond (Bremner, Baber & Janus, Richmond, on brief), for appellant.
Todd E. LePage, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.
Present: All the Justices.
THOMAS, Justice.
Carroll K. Rodgers, Jr. was convicted, in a non-jury trial, of second-degree murder in the death, by stabbing and strangulation, of his fiancee, Gloria Kyle. His conviction was based almost entirely upon an inculpatory statement given by him to Chesterfield authorities after he had been advised of his Miranda rights and after he had signed a form in which he waived those rights.
Prior to trial, Rodgers filed a motion to suppress his statement on the ground that it was not voluntary. The trial court held a full evidentiary hearing and denied the motion. On appeal, Rodgers reasserts his contention that his statement was not voluntary. We disagree with Rodgers. Therefore, we will affirm the judgment of the trial court.
*300 This matter comes to us on appeal following a trial court finding of voluntariness, thus, the scope of our review is limited to the question whether the evidence supports the finding. At trial, the Commonwealth has the burden to prove, by a preponderance of the evidence, that the defendant's statement was voluntary. Stockton v. Commonwealth, 227 Va. ___, ___, 314 S.E.2d 371, 381 (1984); Griggs v. Commonwealth, 220 Va. 46, 49, 255 S.E.2d 475, 477 (1979); McCoy v. Commonwealth, 206 Va. 470, 474, 144 S.E.2d 303, 307 (1965). However, once the trial court makes a finding that the statement was voluntary, on appeal that finding is entitled to the same weight as a fact found by a jury and that finding will not be disturbed unless plainly wrong. Stockton v. Commonwealth, 227 Va. at ___, 314 S.E.2d at 381. See Townes v. Commonwealth, 214 Va. 683, 204 S.E.2d 269 (1974).
The test for voluntariness derives from federal constitutional law relating to the Fifth Amendment as applied to the States through the Fourteenth Amendment. In Stockton, we relied upon Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973), and concluded that in order to determine whether a statement is voluntary, we must decide, in light of the totality of the circumstances, 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. 227 Va. at ___, 314 S.E.2d at 381.
When the scope of review and the test for voluntariness are considered together, the question that confronts us on this appeal becomes apparent. We must here determine whether, in light of the totality of the circumstances, the trial court was plainly wrong in concluding that Rodgers' statement to the Chesterfield police was essentially a free and unconstrained choice on his part or, put another way, that his will was not overborne.
At the conclusion of the hearing on Rodgers' motion to suppress, the trial court made the following ruling:
It is true that this is an experienced interrogator and the accused has not had any experience of a criminal nature. But that alone is not enough to determine that he was coerced. There is no indication at the time of the interview this defendant was under the influence of alcohol or drugs. I think the statement is voluntarily made....
At the end of the trial, the court again made reference to the question whether the statement was voluntary. This time the court made the following comments to Rodgers' counsel:
[A]s you pointed out, your client was the subject of skillful tactics, almost mesmerizing interrogation by an experienced investigator. I'm familiar with the Spano case [Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959).] as you represented it, that if in fact the interrogator in conversation controls the mind and overbears the will of the person he was questioning, that admission will not be used. I listened closely during the suppression hearing. I had thought about the case since that time. I listened to direct testimony today. I reviewed in detail very carefully the tape and recall the matters which you urged me to consider and the context in which the statement was taken and the inducements that were offered. With all these matters considered, I felt that the confession or statement should not be suppressed, but I should consider it and weigh it as a trier of the fact.
If there is credible evidence to support the trial court's finding, we are bound to uphold it. See Stockton v. Commonwealth, 227 Va. at ___, 314 S.E.2d at 381.
The facts leading up to Rodgers' statement are as follows: At approximately 11:00 p.m. on Friday, May 7, 1982, Gloria, driving Rodgers' car, picked him up from work. She had used the car earlier in the day to move certain of her belongings to his apartment in anticipation of their marriage. *301 They stopped to buy a six-pack of beer on their way to a local nightspot. Rodgers drank five of the beers in the short time it took them to drive to the nightclub. Earlier, at work, he had taken a "hit" of LSD. At the nightclub, Rodgers drank four more beers.
While at the nightclub, one of Rodgers' former girlfriends came up to speak to him. He greeted her with an embrace. When she sat down at Rodgers' table he put his arm around her and a strap on her dress fell from her shoulder. Gloria became angry and accused Rodgers of trying to pull the other woman's clothes off. Gloria ran from the table into the restroom. Shortly thereafter, she ran from the restroom, past Rodgers, and out the door. Rodgers got up to chase her. He bumped into several people and the club's "bouncer" told him to leave.
When Rodgers got outside he said he was detained momentarily by two other people. According to Rodgers, by the time he got to the car, Gloria was nowhere in sight but her pocketbook and his keys were inside the car. He said he drove around the block several times looking for her but could not find her. He explained that he did not go back into the club to search for her because the bouncer had thrown him out. He said he finally gave up looking for Gloria and drove to his apartment where he went to sleep.
Rodgers claimed that he last saw Gloria running out of the club at approximately 1:00 a.m. on Saturday, May 8, 1982. Later that day, after he had gone home and slept, he explained to his parents that Gloria had run away and asked whether they had seen her. On Saturday and Sunday Rodgers said he, his parents, and his sister made several efforts to locate Gloria but she could not be found.
On Monday, May 10, 1982, Mrs. Rodgers, defendant's mother, read, in the newspaper, a description of an unidentified body that sounded like Gloria. Mrs. Rodgers notified her husband who in turn called the police. A Chesterfield police investigator came to the Rodgers' home to talk with defendant and his father. In the course of the discussion, defendant and his father said they wanted to do everything possible to cooperate with the police.
At the request of the police, Rodgers and his father went to police headquarters for questioning. They were shown a picture of Gloria in the battered form in which her body had been found. Rodgers recognized her and broke down and cried. Both Rodgers and his father were advised of their Miranda rights and both signed a "Waiver of Right to Remain Silent And of Right to Advice of Counsel." Rodgers signed his waiver at 5:45 p.m. on May 10, 1982. After questioning, during which Rodgers told the police that the last time he saw Gloria was when she ran out of the club, Rodgers and his father were released.
As part of the questioning on May 10, 1982, the police asked for Rodgers' permission to search his apartment and his car. He agreed and signed a "Form for Consent to Search." The search of the car, which was conducted in the presence of Rodgers and his father, revealed minute stains of what appeared to be blood which were collected for laboratory analysis. The search of Rodgers' apartment revealed Gloria's pocketbook, which was found in a drawer.
On May 12, 1982, a Wednesday, the police called the home of Rodgers' parents to ask whether Rodgers would agree to come to police headquarters for further questioning. Rodgers agreed. Again, he was accompanied by his father. Again, he was advised of his Miranda rights. Again, he signed a waiver. This second waiver was signed at 1:46 p.m. on May 12, 1982. After the waiver was signed, the police asked Rodgers whether he would submit to a polygraph examination. He said yes.
Rodgers' father was allowed to accompany his son to State Police headquarters where the polygraph test was to be administered but was told that he could not be with his son during the examination. Before administering the test, the State Trooper who was to do the testing secured from Rodgers a signed "Agreement to Submit to Polygraph Examination." In that *302 agreement, Rodgers stated that he was submitting to the test voluntarily. In addition, the State Trooper advised Rodgers of his Miranda rights. For the third time Rodgers signed a waiver of those rights. This third waiver was signed at 2:55 p.m., shortly before the polygraph test was administered.
Before beginning the test, the State Trooper checked Rodgers to see if he was suitable for testing. He asked Rodgers whether he was under the influence of alcohol or drugs at that time. Based on Rodgers' negative reply and the Trooper's observations, he concluded that Rodgers was suitable for testing. At the conclusion of the test, which indicated that Rodgers was lying, both Rodgers and the Chesterfield investigator who accompanied him were advised of the results.
Because of the polygraph results, the Chesterfield investigator sought to interrogate Rodgers further. The interrogation lasted no more than 90 minutes. It was conducted at the State Police facility during daytime working hours. Only one officer did the questioning. In that interrogation, Rodgers was neither beaten nor threatened; he was neither harassed nor yelled at; he was neither held incommunicado nor refused counsel; he was neither deprived of any physical needs nor questioned to the point of fatigue. Nevertheless, he now says his will was overborne.
Rodgers argues that the circumstances, which caused his statement to be involuntary, included the following: At the time of the interrogation he was only twenty years old, had only finished high school, was of low intelligence, and had no experience with police interrogation.
He says further that he was religious and susceptible to religious entreaties and that the police were aware of this because they knew he and Gloria had met in a church group. He says that the interrogating officer made improper religious appeals urging him to "cast the devil out of his life" and "get right with God."
He says that on May 10, 1982, the police unnecessarily showed him a picture of Gloria's battered body and thereby caused him nightmares because he loved her and the police knew he loved her because the police were aware of the couple's planned marriage. He says further that on the day of the interrogation he had planned to visit the funeral home and to place mementos in Gloria's coffin but was prevented from doing so because of the interrogation.
He contends, too, that he was lied to by the interrogator, that he was promised leniency, that he was obviously distraught during the interview because he cried and sobbed at several points, that he did not have an attorney present, and that he simply parroted what the interrogator told him as evidenced by the many times he said "I don't know," and "I don't remember."
Rodgers admitted during oral argument that no single factor cited by him is sufficient in and of itself to warrant the conclusion that his will was overborne and his statement involuntary. However, he says that when all the factors are taken together, it is clear that his will was overborne. We could not disagree more. We think the totality of the circumstances confirms the correctness of the trial court's ruling.
In our opinion, the record reveals a completely different picture than the one painted by Rodgers. This was no helpless, feeble-minded youth. This was a young man, twenty years old, who lived in his own apartment, drove his own car, held down a steady job, and was planning to get married. He was a mature, independent individual in control of his life. Even though this may have been his first encounter with the police, there is no evidence that he was in any way disadvantaged or intimidated by this fact.
Rodgers' claim that he was particularly susceptible to religious entreaties is not supported by the evidence. He stopped attending church on a regular basis when he turned 16 and his parents gave him the choice of attending or not attending. The only evidence that relates to religious vulnerability is Rodgers' suggestionin answer to a question from his counselthat *303 he was "a religious man within" himself. Further, the religious appeals which were made to him were nothing more than one part of the totality of the circumstances and, as is discussed below, such appeals do not usually void an otherwise voluntary statement.
With regard to the police's showing Rodgers a picture of the decedent, there is no evidence that this was done to harass him or weaken his will. The simple explanation is that, whether Gloria had previously been identified or not, the police needed to show Rodgers the picture to be sure that all concerned were talking about the same individual. Moreover, with regard to Rodgers' claim that the interrogation prevented him from going to the funeral home to pay his last respects to Gloria, the record nowhere reveals that he made his desire known to the interrogator.
Though Rodgers claims he was lied to, the record reveals a conflict in the evidence on that point, and, in light of the trial court's ruling, that conflict must be said to have been resolved in favor of the Commonwealth. But even if we assume that the interrogator lied, the cases discussed below establish that even a complete falsehood is but another circumstance to be considered.
On this record we find no promise of leniency. But even if we assume that one was made, again, according to the cases it is merely a circumstance to be considered.
The fact that Rodgers did not have an attorney present has a two-fold response. First, he waived his right to counsel in a signed waiver form. Second, at no time during the interrogation did he ask to consult an attorney.
A review of the tape recording of the interview does not support Rodgers' contention that he was distraught throughout his interrogation. Certainly, he cried at points. But during long intervals, he displayed remarkable calm in talking with the interrogator and describing various events. The intermittent tears of a person implicating himself in a violent crime against a loved one should not be unexpected and, in this case, do not support the argument that defendant's will was overborne.
Rodgers said "I don't know" and "I don't remember" several times, but even as he protested he revealed bit by bit his involvement in this crime. He told the interrogator things that the interrogator could not know and did not suggest. When a person says "I don't know," his statement does not necessarily indicate a lack of knowledge; it sometimes indicates, as it does here, a reluctance to put the truth squarely on the table.
Rodgers concedes that the voluntariness of his statement must be viewed in light of the totality of the circumstances; nevertheless, he places special emphasis upon three factors: the religious comments, the alleged promise of leniency, and the alleged falsehood on the part of the interrogator. Because of Rodgers' emphasis upon these items, we will consider them in more detail than the others.
Rodgers suggests that it was impermissible for his interrogator to tell him to "cast aside the devil" and to get "straight with God" by telling the truth. In oral argument, though he was careful to concede that the religious remarks, by themselves, were not enough to require reversal, he submitted that they came "pretty close." In short, Rodgers intimates that religious remarks should be treated in a manner different from other circumstances surrounding a confession.
The only case cited by Rodgers on this point was Davis v. North Carolina, 339 F.2d 770 (4th Cir.1964). However, Davis was reversed on appeal. 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). There, the Supreme Court held that a confession obtained after 16 days of detention in a holding cell was involuntary. In Davis, one of the many circumstances was that a prayer was said in defendant's presence just prior to his confession. Though the prayer was mentioned by the Supreme Court, the confession was not found involuntary on that basis. The prayer was simply set forth in describing the totality of *304 the circumstances surrounding the confession. Davis does not elevate a religious comment, made by the interrogator, to some special status that compels a finding of involuntariness where a confession follows the religious remark. Therefore, we reject Rodgers' suggestion that a religious remark is anything more than another circumstance to be considered.
In Shifflet v. Commonwealth, 55 Va. (14 Gratt.) 652 (1858), the interrogator asked a prisoner, "What do you mean by what you say? In the name of God and all that is holy, have you let this charge rest on your mother, and she innocent of it?" Id. at 662-63. This Court found the ensuing confession voluntary. In so doing, we did not find it necessary to make specific mention of the religious remark. We merely concluded that the words used by the interrogator "do not naturally import any promise or threat, and were not so construed by the judge who saw and heard the witnesses." Id. at 664.
In three recent cases from other jurisdictions, religious remarks were viewed as only one part of the totality of the circumstances and were held not to be coercive. See State v. Haridmon, 310 N.W.2d 564 (Minn.1981) (religious remarks "were not improper or coercive"); Barrera v. State, 99 Wis.2d 269, 298 N.W.2d 820 (1980) cert. denied, 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352 (1981) (statement that defendant would have to face up to it when he met his maker was not "so overbearing as to render his confession involuntary"); People v. Bowen, 87 Ill.App.3d 221, 42 Ill. Dec. 284, 408 N.E.2d 993 (1980) (entreaty to defendant "to make peace with yourself, your God, and your children" said not to amount to psychological coercion).
Even a lie on the part of an interrogating police officer does not, in and of itself, require a finding that a resulting confession was involuntary. In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the Supreme Court made clear that even an outright falsehood by a police interrogator is but another factor to be considered in evaluating the totality of the circumstances. In Frazier the officer told the defendant that one of the defendant's friends had confessed. This was false. The defendant, after some further hesitation, confessed. He argued that the falsehood rendered his confession involuntary. Justice Marshall, writing for the Court, rejected that argument:
The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the "totality of the circumstances," see, e.g., Clewis v. Texas, 386 U.S. 707, 708 [87 S.Ct. 1338, 1339, 18 L.Ed.2d 423] (1967), and on the facts of this case we can find no error in the admission of petitioner's confession.
394 U.S. at 739. See also Sovalik v. State, 612 P.2d 1003 (Alaska 1980); State v. Winters, 27 Ariz.App. 508, 556 P.2d 809 (1976). In light of Frazier, even if the interrogator in this case had lied, which is disputed, all the circumstances would still have to be examined to determine voluntariness. Here, even if we assume a falsehood, we do not think Rodgers' statement was rendered involuntary.
In oral argument, Rodgers submitted that the following statement was a promise of leniency: "We're gonna [sic] submit this to the Commonwealth Attorney and then he makes the decision." We do not perceive this statement to be a promise of leniency. But even if it were a promise, such promises have generally been found insufficient to overbear a defendant's free will. See, e.g., United States v. Robinson, 698 F.2d 448 (D.C.Cir.1983); United States v. Ballard, 586 F.2d 1060 (5th Cir.1978); United States v. Curtis, 562 F.2d 1153 (9th Cir.1977), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978).
We hold that the totality of the circumstances supports the trial court's ruling *305 that Rodgers gave his statement voluntarily and that it was properly admitted into evidence. He had been advised repeatedly of his rights and had waived those rights. He engaged in a cautious give-and-take with the interrogator. He answered those questions he wanted to answer and skirted those he did not want to answer. He never broke down and became "putty in the hands" of the interrogator or a "parrot" for words put into his mouth. Rodgers knew what he was doing and what he was saying. Finding no evidence that he was compelled to be a witness against himself, we will affirm the judgment.
Affirmed.