COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Hodges Argued at Salem, Virginia
BRYAN KEITH JOHNSON MEMORANDUM OPINION * v. Record No. 1819-94-3 BY JUDGE WILLIAM H. HODGES SEPTEMBER 3, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY G. O. Clemens, Judge
Mark D. Kidd (Osterhoudt, Ferguson, Natt, Aheron and Agee, P.C., on briefs), for appellant. H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Tried by a jury upon an indictment charging him with the
murder of Ralph Day, Bryan Keith Johnson (appellant) was found
guilty of voluntary manslaughter. On appeal, appellant contends
that the trial court erred in (1) refusing to suppress both his
statement and the results of the examination of his shoes by the
police; (2) excluding the trial testimony of Dr. Conrad H. Daum,
appellant's psychiatric expert; (3) excluding the testimony of
toxicologist Richard McGarry; (4) refusing to grant a mistrial
because one of the jurors failed to reveal during voir dire her employment as a dispatcher with a local police department; and
(5) refusing to set aside the verdict because the evidence was
insufficient to sustain the conviction. Finding no reversible
error, we affirm the conviction.
"On appeal, we review the evidence in the light most * Pursuant to Code § 17-116.010, this opinion is not designated for publication. favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the
evidence proved that on the afternoon of September 18, 1993,
Michael Walker noticed two men wandering in the street in the
vicinity of his Vinton apartment. Walker did not recognize the
men, but later identified appellant as the younger of the two.
Walker watched as the two men approached the door of a basement
apartment nearby. It took several minutes for them to gain entry
to the apartment. Suspecting foul play, Walker called the
police. Corporal R. A. Thompson and Officer R. E. Meador
responded to the call, spoke with Walker, and proceeded to the
basement apartment to investigate at about 5:00 p.m. Appellant answered the police officers' knock on the door of
the apartment. Thompson asked if everything was "all right," and
appellant said that there was a dead man inside. Thompson looked
inside and saw a man, later identified as Day, in a reclining
chair. Thompson entered the apartment, checked Day for a pulse,
but found none. The apartment was in disarray. Bloodstains
appeared on the floor and wall, and broken glass was on the
floor. Other than appellant, the only person present was Isaac
Turner, who was seated at the kitchen table. Turner appeared to
have been beaten and his arm was bloody.
Meador took appellant outside. Appellant told Meador his
name and admitted that the apartment was his. Appellant
volunteered that Day was homeless and had been his best friend.
Appellant asked if he was going to jail, and twice stated that he
-2- did not "kill his buddy." Appellant said Day had fallen down
numerous times that day and the preceding day. Initially,
appellant told the police that Day had been in the chair since
7:00 that morning. Later, however, he said Day had been there
for only twenty minutes before the police arrived.
Appellant appeared intoxicated, but was cooperative and
"clear." At about 5:30 p.m., appellant's blood alcohol content
(BAC) measured 0.40 percent in a preliminary breath test
administered at the scene. The police arrested appellant for
being drunk in public and transported him to the police station. At 11:30 p.m., after appellant had been under arrest for
about six hours, he was interviewed by Investigator Michael
Stovall. Stovall advised appellant of his Miranda rights.
Appellant said he understood his rights, signed a waiver form,
and agreed to talk to the police.
Stovall then talked with appellant for about an hour.
Stovall did not readminister the breath test because he thought
that the alcohol already would have passed through appellant's
system. Stovall felt that appellant was responsive to his
questions and understood what was going on about him.
After discussing matters with Stovall, appellant gave a
taped statement. In the statement, appellant admitted that he
hit Day with his hands and feet. Appellant further stated that
he was sober, that he knew what day of the week it was, and that
he had consumed no alcohol since the police arrived at his
apartment.
At the conclusion of the statement, appellant agreed to give
-3- the police the shoes he was wearing. Testing revealed traces of
human blood on the soles and tops of the shoes.
The autopsy upon Day's body revealed extensive bruising of
the head and chest. Day had suffered two broken ribs, which
punctured his left lung and caused the lung to collapse. This
injury caused Day's death. The ribs had been broken by blunt
force, consistent with Day having been stomped upon or kicked.
Unless Day had fallen against something, it was unlikely that the
injury was caused by falling down stairs. Turner testified that he, Day, and Jesse "Chief" Lewis were
homeless and that appellant was their "drinking buddy." On the
morning of September 18, 1993, the four men were together at
appellant's apartment drinking alcohol appellant had supplied.
They had been drinking together for about three days. Although
his memory was "patchy" and he passed out for a period of time,
Turner remembered that, at some point that day, appellant had
warned Day not to eat some food in the apartment. Appellant left
the apartment. When he returned, the food was gone. Appellant
slapped Day, kicked him, and stomped on his chest as Day lay on
the floor. Turner told appellant to stop, but was afraid to
intervene further because appellant had beaten him earlier.
Turner testified that someone picked up Day and placed him
in the reclining chair. Appellant resumed drinking. When they
later discovered that Day was dead, appellant said that he had
not meant to kill Day, and asked what he was going to do. Turner
did not observe anyone but appellant kick or stomp upon Day.
Leonard Trout, appellant's cellmate after his arrest for
-4- Day's murder, testified that appellant said he and Day had gotten
into a fight over some food. Appellant admitted that he had
kicked Day and stomped upon him, and said that "Chief" was
involved in the fight. Afterwards, they put Day in the recliner
and left the apartment to get some wine. When they returned they
discovered Day was dead.
Appellant testified in his own behalf. He said that on
September 18, 1993 he been on a two week drinking binge with Day,
Turner, and Lewis. Finding themselves out of alcohol on the
morning of September 18, they walked to a grocery store for more
alcohol, and consumed it later at appellant's apartment.
Appellant, Turner, and Lewis then went to a bar, leaving Day in
the apartment. When they returned from the bar, they found Day
on the floor. Appellant thought Day had simply passed out.
Appellant and Lewis placed Day in the recliner. The group
continued to drink for about thirty minutes until Lewis
discovered that Day was dead. Appellant testified that he did not remember fighting with
Day and did not know who had hurt him. Appellant said he
sometimes experiences blackouts when on a drinking binge.
Appellant further stated that he did not recall talking to the
police when they arrived at the apartment, and that he was drunk
when he gave his statement to Stovall.
I.
At a hearing on the motion to suppress, Dr. Daum, a
psychiatrist, testified that appellant was influenced by "some
residual intoxication" when he made his taped statement to the
-5- police. Dr. Daum also testified that appellant's BAC could have
been as low as 0.05 or 0.06 percent at the time of his interview
with Stovall.
The standards to be applied in determining whether a
statement was voluntary are well established. "Whether a statement is voluntary is ultimately a legal rather than factual question. Subsidiary factual questions, however, are entitled to a presumption of correctness. The test to be applied in determining voluntariness is whether the statement is the 'product of an essentially free and unconstrained choice by its maker,' or whether the maker's will 'has been overborne and his capacity for self- determination critically impaired.' In determining whether a defendant's will has been overborne, courts look to 'the totality of all the surrounding circumstances,' including the defendant's background and experience and the conduct of the police . . . ."
Midkiff v. Commonwealth, 250 Va. 262, 268, 462 S.E.2d 112, 116
(1995) (citations omitted).
"'Statements made during a custodial interrogation and while
intoxicated are not per se involuntary or inadmissible.'" Boggs
v. Commonwealth, 229 Va. 501, 512, 331 S.E.2d 407, 415 (1985),
cert. denied, 475 U.S. 1031 (1986) (citation omitted).
"[C]oercive police activity is a necessary predicate to the
finding that a confession is not 'voluntary' within the meaning
of the Due Process Clause of the Fourteenth Amendment." Colorado
v. Connelly, 479 U.S. 157, 165 (1986). However, in situations
where the accused has ingested intoxicants prior to his
statement, the degree of police coercion necessary to render the
statement involuntary may be lessened.
-6- The mental condition of the defendant is "surely relevant to [his] susceptibility to police coercion"; however, evidence of coercive police activity "is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." The amount of coercion necessary to trigger the due process clause may be lower if the defendant's ability to withstand the coercion is reduced by intoxication, drugs, or pain, but some level of coercive police activity must occur before a statement or confession can be said to be involuntary.
Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722,
723 (1992) (citations omitted). Appellant argues that this Court's decision in Peterson
compelled the suppression of his statement and the results of the
examination of his shoes. At the time the defendant in Peterson
was questioned by the police, he was being transported to the
hospital in an ambulance after having ingested cocaine. He was
experiencing chest pains, blurred vision, and could not
understand what was going on around him because of injuries he
suffered when the police apprehended him. We found the evidence
"supported the trial court's finding that the police authority,
asserted when the defendant was especially susceptible, overbore
his will and, thus, was coercive police activity rendering his
statements involuntary and inadmissible." Id. at 488, 424 S.E.2d
at 724. Cf. Goodwin v. Commonwealth, 3 Va. App. 249, 349 S.E.2d
161 (1986) (mentally retarded suspect's statement not involuntary
despite evidence that he was intoxicated three hours before his
interview with the police).
Here, the evidence supports the trial court's finding of an
-7- absence of coercive police activity during the questioning of
appellant. Although appellant's BAC had registered 0.40 six
hours earlier, appellant's own evidence was that his BAC may have
been as low as 0.05 or 0.06 when he gave his statement. During
the interview, appellant told the police that he was sober. He
appeared to understand what was going on about him, and he was
responsive to Stovall's questions. Therefore, the evidence
supports the trial court's determination that appellant
voluntarily gave his statement and his consent to examine the
shoes. The trial court did not err in denying the motion to
suppress. II.
Before trial, appellant filed notice of his intention to
present evidence that he was insane at the time of the offense.
At trial, the defense sought to introduce the psychiatric
testimony of Dr. Daum who had evaluated appellant. In a proffer
of his testimony, Dr. Daum stated that appellant suffered from
symptoms of alcohol dependence. At the time of the offense,
appellant was alcohol dependant, which is classified in medical
terms as a "disease of the mind." However, Dr. Daum could not
say that at the time of the offense appellant did not know the
difference between right and wrong or understand the consequences
of his actions. He also could not testify that appellant was
legally insane at the time of the offense, or that appellant was
brain damaged from alcohol use. The trial court found Dr. Daum's
testimony to be evidence of diminished capacity and excluded it.
"It is well settled that a defendant is presumed to be
-8- legally sane until he proves to the satisfaction of the trier of
fact that he was insane at the time of the offenses for which he
is on trial." Boblett v. Commonwealth, 10 Va. App. 640, 651, 396
S.E.2d 131, 137 (1990). To establish an insanity defense, the
accused must show that "he did not know the difference between
right and wrong or that he did not understand the nature and
consequences of his acts." Price v. Commonwealth, 228 Va. 452,
456, 323 S.E.2d 106, 108 (1984). For purposes of determining criminal responsibility a perpetrator is either legally insane or sane; there is no sliding scale of insanity. The shifting and subtle gradations of mental illness known to psychiatry are useful only in determining whether the borderline of insanity has been crossed. Unless an accused contends that he was beyond that borderline when he acted, his mental state is immaterial to the issue of specific intent.
Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d 682, 688
(1985). Evidence which falls short of establishing an accused's
insanity and is merely probative of his diminished capacity is
not admissible. See Smith v. Commonwealth, 239 Va. 243, 259-60,
389 S.E.2d 871, 879-80, cert. denied, 498 U.S. 881 (1990);
Bowling v. Commonwealth, 12 Va. App. 166, 174, 403 S.E.2d 375,
378-79 (1991).
Dr. Daum's proffered testimony, either alone or in
conjunction with other evidence, did not establish that appellant
was insane at the time of the offense. Although Dr. Daum stated
that alcohol dependence was classified medically as a mental
disease, he could not say that at the time of the offense
appellant did not know the difference between right and wrong or
-9- understand the consequences of his actions. In the absence of
such conclusions, Dr. Daum's testimony amounted to nothing more
than evidence of appellant's diminished capacity at the time of
the offense. Accordingly, the trial court did not err in
excluding it.
III.
At the conclusion of the Commonwealth's case-in-chief, the
trial court granted appellant's motion to strike the evidence as
to first degree murder, and the case proceeded upon a charge of
second degree murder. Subsequently, appellant sought to admit
the testimony of Richard McGarry, a toxicologist. In a proffer
of his testimony, McGarry stated that increasing levels of
alcohol in the bloodstream affect a person's judgment,
coordination, and memory. McGarry was able to testify about how
much alcohol a person of appellant's size would have had to
consume to reach a BAC of 0.40. According to McGarry, six hours
after that reading, that same person would have a BAC of 0.28 if
he had consumed no more alcohol. Appellant argued that McGarry's testimony was relevant to
the jury's determination of the weight to give appellant's
statement to Stovall, made six hours after his arrest. While
noting that portions of McGarry's testimony might be admissible,
the trial court excluded McGarry's testimony entirely because the
admissible and inadmissible portions of the testimony could not
be separated.
Voluntary intoxication is a defense to first degree murder,
but not to any lesser form of homicide. Essex v. Commonwealth,
-10- 228 Va. 273, 281-82, 322 S.E.2d 216, 220 (1984). After the trial
court granted in part appellant's motion to strike, evidence that
he was intoxicated at the time of the offense was not relevant to
negate any element of a lesser included offense of first degree
murder.
However, the testimony of McGarry may have been relevant for
other purposes. "Evidence is relevant . . . if it has any
tendency to establish a fact which is properly at issue. When
the probative value of evidence sought to be admitted outweighs
any prejudicial effect, and no other objection is pertinent, the
evidence is admissible." Wise v. Commonwealth, 6 Va. App. 178,
188, 367 S.E.2d 197, 202-03 (1988). "Any fact, however remote,
that tends to establish the probability or improbability of a
fact in issue is admissible." Wynn v. Commonwealth, 5 Va. App.
283, 291, 362 S.E.2d 193, 198 (1987).
When appellant sought to admit McGarry's testimony, the
Commonwealth already had introduced appellant's statement to
Stovall. In addition, appellant had testified that, contrary to
portions of his statement to Stovall, he did not injure Day, did
not know how Day had gotten hurt, and that he was drunk when he
told Stovall otherwise. McGarry's testimony about the effects of
alcohol on the human body could have strengthened appellant's
contentions that he did not remember how Day was injured, did not
remember talking with Stovall, and was intoxicated when he made
his statement to the police. Thus, McGarry's testimony was
probative evidence the jury could have considered in determining
the weight to give appellant's statement to the police and his
-11- testimony at trial.
Even if the exclusion of McGarry's testimony was erroneous,
"error committed in the trial of a criminal case does not
automatically require reversal of an ensuing conviction."
Galbraith v. Commonwealth, 18 Va. App. 734, 742, 446 S.E.2d 633,
638 (1994). [N]on-constitutional error is harmless "when it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached." "[A] fair trial on the merits and substantial justice" are not achieved if an error at trial has affected the verdict. Consequently, under Code § 8.01-678, a criminal conviction must be reversed unless "it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc) (citations omitted).
As mentioned earlier, McGarry's proffered testimony would
have corroborated appellant's own testimony and could have
affected the jury's assessment of the reliability of appellant's
statement. Had the jury rejected appellant's statement and
believed his testimony that he did not know how Day was injured,
there remained Turner's affirmative testimony that appellant, and
no one else, beat Day. Moreover, while appellant was
incarcerated and was not intoxicated, appellant confessed to
Trout that he and Day had gotten into a fight over food and that
-12- he had kicked and stomped upon Day during the fight.
The credibility of neither Turner's nor Trout's testimony
would have been affected by that of McGarry. Thus, in light of
this evidence, any error in excluding McGarry's testimony did not
affect the verdict and was harmless.
IV.
During voir dire, the trial court asked the jurors as a
group if "any of you all have any present family members who are
working and occupied in law enforcement in any way?" The court
also asked if the jurors had any relatives that had worked in law
enforcement and if "anyone else [has] any law enforcement
connections, any extended families or anything like that?"
During this questioning, Juror Annette Hoge did not reveal that
she was a dispatcher for the Salem Police Department. The jury
list reported Hoge's occupation as "Salem Dispatcher." During the presentation of appellant's evidence, appellant's
attorney notified the court of Juror Hoge's occupation and moved
for a mistrial. When questioned by the court, Hoge said she
understood the voir dire questions as requesting information about family members and relatives, not the jurors themselves.
Hoge said that she was not a sworn police officer, had no
knowledge of the case other than what she had learned in the
courtroom, and that her occupation would not affect her ability
to decide the case fairly.
The only argument raised at trial in support of appellant's
subsequent motion for a mistrial was that if appellant had
possessed information about Hoge's occupation at the time of jury
-13- selection, he might have exercised his peremptory strikes
differently. The Court of Appeals will not consider arguments on
appeal which were not presented to the trial court. Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)
(citing Rule 5A:18). Therefore, because the trial court was
never given the opportunity to rule upon them, we will not
consider appellant's arguments on appeal that he was denied his
constitutional and statutory rights to an impartial jury and that
Hoge should have been stricken for cause. 1 When a motion for mistrial is made, based upon an allegedly prejudicial event, the trial court must make an initial factual determination, in the light of all the circumstances of the case, whether the defendant's rights are so "indelibly prejudiced" as to necessitate a new trial. Unless an appellate court can say that determination was wrong as a matter of law, it will not be disturbed on appeal.
Spencer v. Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619,
cert. denied, 498 U.S. 908 (1990) (citation omitted). Upon
examination of Juror Hoge, the trial court determined that,
despite her occupation as a police dispatcher, she was impartial
and qualified to serve as a member of the jury. Her explanation
for her failure to reveal this information earlier — that she
understood the voir dire questions as requesting information about the association of family members with the police — appears 1 The Commonwealth contends that the motion for a mistrial was untimely because the jury list put appellant on notice of Hoge's occupation at the commencement of the trial. The jury list reports Hoge's employment only as "Salem Dispatcher." From viewing the videotape, it appears that appellant's attorney moved for a mistrial when he first learned of Hoge's association with the police. Therefore, we reject the Commonwealth's contention.
-14- reasonable upon review of the questions posed. Furthermore,
because appellant did not contend at trial that he would have
struck Hoge if he had known of her occupation, he did not
demonstrate to the trial court that a mistrial was warranted
under the circumstances. Cf. Clozza v. Commonwealth, 228 Va.
124, 135-36, 321 S.E.2d 273, 280 (1984), cert. denied, 469 U.S.
1230 (1985) (no mistrial warranted where juror revealed during
the trial that she had a prior association with the police
department of another state, was acquainted with a potential
witness, and was familiar with the location of a prior crime the
defendant had committed). Thus, the trial court did not err in
denying appellant's motion for a mistrial. V.
Appellant challenges the sufficiency of the evidence that he
was the cause of Day's fatal injury. Turner's testimony,
however, was direct evidence that only appellant kicked and
stomped upon Day. The injuries Day suffered were consistent with
him being beaten in such a fashion. Turner stated that after the
beating, Day was lifted into the chair, where he remained when
the police arrived. Upon finding Day dead, appellant declared
that he had not intended to kill him, and wondered what he would
do.
Of course, the jury also saw and heard Turner admit that his
memory of the day was incomplete and that he had passed out at
some point. However, "[t]he weight which should be given to
evidence and whether the testimony of a witness is credible are
questions which the fact finder must decide." Bridgeman v.
-15- Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Turner's testimony about appellant's beating of Day was
corroborated by the evidence that the apartment was in disarray
when the police arrived. Human blood was present on appellant's
shoes and the walls and floor of the apartment. Appellant told
Stovall he had hit Day with his hands and feet. Finally,
appellant admitted to Trout that he had been involved in the
beating of Day. Considered as a whole, this was sufficient to
establish beyond a reasonable doubt that appellant beat Day and
caused his fatal injury. Appellant contends that Day could have been injured by
falling down the stairs outside appellant's apartment. There was
no evidence, however, that Day ever did so. "The Commonwealth is
only required to exclude hypotheses of innocence that flow from
the evidence, and not from the imagination of the accused's
counsel." Fordham v. Commonwealth, 13 Va. App. 235, 239, 409
S.E.2d 829, 831 (1991).
The evidence was sufficient to support the jury's verdict of
voluntary manslaughter. Accordingly, for the foregoing reasons,
we affirm appellant's conviction.
Affirmed.
-16-