COURT OF APPEALS OF VIRGINIA PUBLISHED
Present: Judges Ortiz, Raphael and Senior Judge Annunziata Argued at Fairfax, Virginia
JAMES KELVIN JOHNSON OPINION BY v. Record No. 0425-24-4 JUDGE STUART A. RAPHAEL JULY 8, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Michael F. Devine, Judge
Amy M. Jordan, Senior Assistant Public Defender, for appellant.
Elizabeth K. Fitzgerald, Assistant Attorney General (Jason S. Miyares, Attorney General; Lauren C. Campbell, Assistant Attorney General, on brief), for appellee.
Appealing his firearm and second-degree-murder convictions, James Kelvin Johnson
argues that the trial court erred by failing to suppress the statements he made to detectives while
recovering from a self-inflicted-gunshot wound in a hospital’s intensive-care unit. He also
argues that the trial court erred by limiting the testimony of his expert witness. Finding that the
trial court properly denied his suppression motion and that any error in the evidentiary ruling was
harmless, we affirm.
BACKGROUND
We recite the facts in the light most favorable to the Commonwealth, the prevailing party
below. Camann v. Commonwealth, 79 Va. App. 427, 431 (2024) (en banc). “Doing so requires
that we ‘discard’ the defendant’s evidence when it conflicts with the Commonwealth’s evidence,
‘regard as true all the credible evidence favorable to the Commonwealth,’ and read ‘all fair inferences’ in the Commonwealth’s favor.” Id. (quoting Commonwealth v. Cady, 300 Va. 325,
329 (2021)).
The September 2022 shooting
Johnson shot his wife, D.S.,1 in the couple’s third-floor bedroom just after 3:00 a.m. on
September 4, 2022. He called 911 at 3:19 a.m., reporting that he had accidentally shot his wife
in the head and that she needed an ambulance. Johnson said that his wife was still breathing.
Several officers from the Fairfax County Police Department responded to the townhome.
Unsure of the situation inside, the officers secured the home’s perimeter and demanded that
Johnson surrender himself. Johnson did not respond. When an officer heard a gunshot, the
officers entered the home.
When they reached the third floor, the officers discovered D.S. in the master bedroom,
slumped over and suffering from a gunshot wound to her left temple. They rendered aid until
paramedics arrived. D.S. was transported by ambulance to the hospital, where she was
pronounced dead.
Officers found Johnson in a different bedroom on the third floor, suffering from a
self-inflicted-gunshot wound to his upper torso. A firearm lay on the floor. Johnson was
groaning in pain. Officers provided aid to Johnson, who asked if his wife was okay. Johnson
was transported by ambulance to Inova Fairfax Hospital, where he was admitted at 4:19 a.m.
Johnson was first treated in the emergency room and later transferred to the intensive-care unit.
The hospital interview
Detective Kyle Bryant was the lead homicide detective assigned to the case. He arrived
at the hospital around 6:00 a.m. but left without engaging Johnson in any substantive
conversation. Officer Glenn Esser also arrived around 6:00 a.m., dressed in his standard police
1 We omit the victim’s name to protect her family’s privacy. -2- uniform. He stood to the side of the door of Johnson’s hospital room to provide security. Doing
so was “standard procedure” in shooting cases, regardless of whether the patient who had been
shot was a victim or a suspect. Esser did not prevent anyone from entering or leaving Johnson’s
room.
Esser testified that he did not personally speak with Johnson. But from his vantage point,
Esser could observe Johnson’s condition and overhear his conversations with others. Johnson
was not physically restrained. Johnson was awake and alert at 6:00 a.m. but slow to
communicate. He became more responsive around 10:00 a.m., answering questions from his
nurses and doctors about “medical issues.” By 11:30 a.m., Johnson was engaging his nurses and
doctors in “normal” dialogue. He was also signing medical evaluations, waivers, and forms.
Many nurses and doctors walked in and out of Johnson’s room. Esser observed Johnson
speaking freely with them.
Esser testified that it was not his job to restrain Johnson, only to observe. Esser never
told Johnson that he was not allowed to leave. Esser understood that Johnson was not under
arrest and that Esser had no obligation to detain him.
Johnson and Esser could see each other. At one point, Johnson said he wanted to speak
to someone about the events of that morning. Esser called Bryant and told him that Johnson
“was alert and communicating and was asking questions and wanted to speak to somebody about
what had happened.”
Bryant returned to the hospital around 11:30 a.m., and Detective David Vesser met him
there. Both were dressed in civilian clothes but wore badges of authority and carried sidearms
on their hips. Bryant testified that Johnson was “conscious, alert; he was talking.” Johnson lay
in his bed without physical restraints, but he was wearing an oxygen mask and had EKG pads, a
chest tube, and an IV that would have made it difficult for him to get out of bed.
-3- Bryant asked Johnson if he was comfortable speaking, and Johnson said he was. Bryant
and Vesser interviewed Johnson for about 41 minutes, and an audio recording of their
conversation was introduced into evidence. Bryant read Miranda2 warnings to Johnson but told
him that he was not under arrest and that no charges had been filed against him. Johnson
indicated that he understood his rights. When Johnson asked if he needed a lawyer, Bryant
replied, “that’s totally up to you.”
Johnson proceeded to describe the shooting incident to Bryant and Vesser. He recalled
talking with his wife about her desire to move in a few years. But Johnson did not want to move.
Johnson said that his health had seriously declined, causing problems in the couple’s marriage.
His wife liked to stay busy and go out with friends, but Johnson often was not healthy enough to
join in her outings. Johnson said that when the two disagreed, his wife would say he was wrong
or “out of line.”
Johnson told Bryant that he slept with the gun under his pillow for protection. Johnson
said he was messing around with the gun as he surfed channels on the television, pulling it in and
out of his pocket and absentmindedly dropping it on the floor. His wife told him to stop playing
with it. But Johnson waved the gun in her direction. When D.S. asked, “So you going to shoot
me now?,” the gun went “pop.”
Johnson took responsibility for shooting his wife but said it never should have happened.
He told the officers that he never kept a round of ammunition in the gun’s chamber; the
magazine was the only thing that he kept loaded. He said he had no reason to shoot his wife
because she was his “everything.”
2 Miranda v. Arizona, 384 U.S. 436 (1966). -4- Bryant left the hospital and, around 1:00 p.m., swore out an arrest warrant. Bryant
returned to the hospital and placed Johnson under arrest by handcuffing him to the hospital bed.
A grand jury later indicted Johnson for murder and for using a firearm to commit murder.
Johnson’s suppression motion
Johnson moved to suppress his hospital statements, arguing that he made them during a
custodial interrogation and had not knowingly, intelligently, or voluntarily waived his Miranda
rights. He also argued that his statements were involuntary.
Officer Esser and Detective Bryant testified at the suppression hearing to the facts set
forth above. Johnson called Dr. Paula Ferrada, the Chief of Trauma and Acute Care Surgery at
Inova Fairfax Hospital. The trial court recognized Ferrada as an expert in trauma and acute care.
She testified that she cared for Johnson when he arrived at the hospital in “extremely critical”
condition. Ferrada described the treatment and the medications she administered to Johnson,
including pain medications, sedatives, muscle relaxants, and “local narcotics.” He received
Dilaudid—a pain medication that was “four times stronger than morphine and way stronger than
fentanyl.” Dilaudid is the “strongest” of the opiates; its side effects include dizziness, slower
reaction time, confusion, and impaired memory and decision-making. Johnson had an oxygen
mask over his nose and mouth and a blood pressure cuff on his arm. He was connected to an IV
tube and an EKG monitor. Ferrada said it would have been difficult for Johnson to leave his
room under those conditions. Her shift ended hours before Johnson spoke with Detectives
Bryant and Vesser. During her interactions with Johnson, he was responsive and did not appear
to be confused.
-5- Johnson testified briefly. He claimed not to remember speaking to any officers at the
hospital.3
The trial court denied the suppression motion. Based on the totality of the circumstances,
the court was not persuaded that Johnson was in custody under Miranda, so the court did not
reach whether Johnson waived his Miranda rights. The court further determined that Johnson’s
statements were voluntary.
Johnson’s jury trial
The Commonwealth called 14 witnesses at trial. Johnson’s hospital interview with
Bryant and Vesser was also played in the Commonwealth’s case-in-chief.
The Commonwealth’s evidence showed that a Glock 19 semi-automatic firearm was
recovered from the bedroom where Johnson shot himself. A crime-scene detective testified that
the magazine for the gun could hold 15 rounds of ammunition. There were 13 cartridges in the
magazine and 1 spent cartridge casing still in the gun’s firing chamber. Another cartridge casing
matching the others was recovered from the master bedroom where Johnson shot his wife.
The court received pre-recorded testimony from the medical examiner, Dr. Meghan
Kessler, that D.S. died from a gunshot wound to her left temple. She had “stippling”4 around the
wound, which suggested that she was shot at close range—“[l]ess than inches . . . to up to one to
two feet” away. The Commonwealth’s firearms expert testified that Johnson’s gun “was in
mechanical operating condition” with functioning safety features. She explained the gun’s
3 At trial, by contrast, Johnson testified that he recalled speaking with Detective Bryant at the hospital and had tried to remember as many details as possible. Johnson said that he “was trying to give [Bryant] everything he asked for,” and whatever Bryant asked, Johnson “had it fresh.”
The medical examiner explained that “stippling can result from burning or unburned 4
gun powder particles” being “released from the muzzle of the gun.” -6- mechanics, including the necessary steps to load and fire it. She confirmed on cross-examination
that to fire the weapon, a cartridge had to be loaded into the chamber.
D.S.’s longtime friend and D.S.’s son also testified. Both said that D.S. had told them
that she was unhappy in the marriage and planned to leave Johnson.
The defense presented Emmanuel Kapelsohn as a firearms expert. Like the
Commonwealth’s firearms expert, Kapelsohn explained that firing the Glock 19 required that a
round of ammunition be loaded into the chamber; loading the magazine is not enough.
Johnson asked the court to recognize Kapelsohn “as an expert on the subject of firearms
and ballistics, firearm training, and unintentional discharges of firearms.” The Commonwealth
objected to Kapelsohn’s “testifying as an expert in unintentional shootings” because doing so
would “go to the ultimate issue” or address cases that were unrelated and irrelevant. The court
requested clarification on whether Kapelsohn would be talking about the “operation of
Mr. Johnson’s mind” or the “operation of the weapon.” Johnson replied that Kapelsohn would
“talk about the operation of the weapon” and, based on his experience, “the common causes of
unintentional discharge of firearms.”
The court recognized Kapelsohn as an expert but limited his testimony to “the mechanics
of the weapon.” The trial judge observed that Kapelsohn “seems to be quite knowledgeable
about the operation [of the weapon]. As a psychologist, not so much.” Johnson did not object to
the limited scope of Kapelsohn’s expert designation.
During Kapelsohn’s direct examination, when the defense tried to elicit testimony beyond
the designation, the trial court sustained the Commonwealth’s objection. The court permitted
Johnson to make the following proffer of what Kapelsohn would have said if permitted to testify:
So if allowed, I would have asked the question, what is the most common reason for an unintentional discharge of this firearm, and Mr. Kapelsohn’s response would have been that someone
-7- intentionally pulled the trigger thinking that the firearm, that there was no round in the chamber.
I would have also asked, what are some of the other reasons for unintentional discharges of this firearm, and he would have replied that it was involuntary muscular contraction and described what that was.5
On cross-examination, Kapelsohn testified that Johnson’s firearm had a tactile “loaded
chamber indicator,” which tells the user “when the chamber is loaded.” On redirect, Kapelsohn
clarified that the loaded chamber indicator on Johnson’s gun was so “subtle” that the user would
have to be “trained” to feel it.
Johnson also testified, and his testimony mostly aligned with his recorded statements to
Bryant and Vesser at the hospital. He explained that on the night of the shooting, he and D.S.
were in the master bedroom; he was looking for a football game on television. D.S. sat in a chair
next to the bed and the two were talking about her wanting to move to a different state. Johnson
maintained that after the gun fell to the floor, he tried to put it in his pocket; it fell again when
Johnson missed his pocket. D.S. warned Johnson to stop playing with the gun. Her last words
before he shot her were, “So you going to shoot me now?”
Johnson said he responded “[i]t’s not even loaded. Shut up,” before he waved the gun in
his wife’s direction and it went off. Johnson admitted that he had visited the shooting range
about twice a month since buying the gun in 2019. He always kept it close for protection,
sleeping with it under his pillow at night. Still, Johnson insisted that he never kept a round in the
chamber.
The jury found Johnson guilty of second-degree murder and using a firearm to commit
murder. The court sentenced him to 16 years’ incarceration. Johnson noted a timely appeal.
5 Johnson supplemented his proffer after conclusion of the trial. -8- ANALYSIS
I. Motion to Suppress
Johnson claims that the trial court violated his Fifth Amendment right against
self-incrimination by not suppressing his statements at the hospital. He argues that he was in
custody when Detectives Bryant and Vesser questioned him. Although Johnson received
Miranda warnings, he says that his medical condition prevented him from knowingly,
voluntarily, and intelligently waiving his Miranda rights. He also argues that his hospital
statements should have been excluded as coerced and involuntary.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. That right is also protected
“against abridgment by the States” by the Due Process Clause of the Fourteenth Amendment,
Malloy v. Hogan, 378 U.S. 1, 6 (1964), which provides that no State may “deprive any person of
life, liberty, or property, without due process of law,” U.S. Const. amend. XIV, § 1, cl. 3;
see Malloy, 378 U.S. at 8 (“The Fourteenth Amendment secures against state invasion the same
privilege that the Fifth Amendment guarantees against federal infringement—the right of a
person to remain silent unless he chooses to speak in the unfettered exercise of his own
will . . . .”).
But the constitutional privilege against self-incrimination “generally is not self-
executing.” Minnesota v. Murphy, 465 U.S. 420, 425 (1984). A person must affirmatively
invoke the privilege if he wishes to remain silent in response to questions from the government
that elicit incriminating information. Id. at 427, 429. “This is sometimes called the ‘invocation
requirement.’” Thomas v. Commonwealth, 82 Va. App. 80, 114 (2024) (en banc) (quoting
Salinas v. Texas, 570 U.S. 178, 183 (2013) (plurality opinion)).
-9- For instance, a witness who wishes to rely on the privilege when subpoenaed to testify at
trial or before a grand jury must “invoke[] the privilege and show[] that he faces a realistic threat
of self-incrimination.” Murphy, 465 U.S. at 427. If the witness chooses instead “to answer, his
choice is considered to be voluntary since he was free to claim the privilege and would suffer no
penalty as the result of his decision to do so.” Id. at 429. Indeed, even a probationer who is
required to meet regularly with his probation officer and truthfully answer the questions put to
him is generally required to affirmatively invoke the privilege if he wants to remain silent in
response to questions that would elicit incriminating answers. Id. at 440.
The Supreme Court has identified “two exceptions” to the invocation requirement.
Salinas, 570 U.S. at 184. “First, . . . a criminal defendant need not take the stand and assert the
privilege at his own trial.” Id. (citing Griffin v. California, 380 U.S. 609, 613-15 (1965)).
“Second, . . . a witness’[s] failure to invoke the privilege must be excused where governmental
coercion makes his forfeiture of the privilege involuntary.” Id. The Supreme Court has been
reluctant to create additional exceptions “to the ‘general rule’ that a witness must assert the
privilege to subsequently benefit from it.” Id. at 186 (declining to create “a third exception to the
invocation requirement for cases in which a witness [not in custody] stands mute and thereby
declines to give an answer that officials suspect would be incriminating”).
Johnson relies on the second exception to the invocation requirement: when
governmental coercion renders the defendant’s “forfeiture of the privilege involuntary.” Id. at
184. The Court held in Miranda “that a suspect who is subjected to the ‘inherently compelling
pressures’ of an unwarned custodial interrogation need not invoke the privilege.” Id. (quoting
Miranda v. Arizona, 384 U.S. 436, 467-68, 468 n.37 (1966)). “Due to the uniquely coercive
nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone
- 10 - the privilege ‘unless [he] fails to claim [it] after being suitably warned.’” Id. at 184-85
(alterations in original) (quoting Murphy, 465 U.S. at 429-30).
Miranda set forth the warnings that must be given to a suspect who is subjected to a
custodial interrogation, including that the suspect has the right to remain silent and the right to
request an attorney before or during questioning. 384 U.S. at 479. “[F]ull comprehension of the
rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is
inherent in the interrogation process.” Davis v. United States, 512 U.S. 452, 460 (1994)
(alterations in original) (quoting Moran v. Burbine, 475 U.S. 412, 427 (1986)). In other words,
“once proper Miranda warnings are given, it resets the defendant’s obligation to invoke his right
to remain silent if he wants further questioning to stop.” Thomas, 82 Va. App. at 116.
“A defendant who makes incriminating statements after being warned under Miranda
may move to suppress those statements on the ground that his Miranda waiver was not
voluntary, knowing, and intelligent, as well as on the ground that his confession itself was
coerced and not voluntary.” Id. at 101. Johnson makes both claims here, and we analyze them
in turn.
A. Because Johnson was not in police custody, there was no Miranda violation.
Miranda warnings “are required only when a suspect is both in custody and subjected to
interrogation.” Watts v. Commonwealth, 38 Va. App. 206, 214 (2002); Stansbury v. California,
511 U.S. 318, 322 (1994) (per curiam) (“only where there has been such a restriction on a
person’s freedom as to render him ‘in custody’” (quoting Oregon v. Mathiason, 429 U.S. 492,
495 (1977) (per curiam))). “In determining whether an individual was in custody, a court must
examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is
simply whether there [was] a “formal arrest or restraint on freedom of movement” of the degree
associated with a formal arrest.’” Stansbury, 511 U.S. at 322 (alteration in original) (quoting
- 11 - California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). “[T]he initial determination of
custody depends on the objective circumstances of the interrogation, not on the subjective views
harbored by either the interrogating officers or the person being questioned.” Id. at 323.
“Whether the circumstances of [a police interview] were such as to require Miranda
warnings is a mixed question of law and fact.” Spinner v. Commonwealth, 297 Va. 384, 392
(2019). “On appeal, we review such questions de novo but defer to the fact-finder’s findings of
historical fact unless they are plainly wrong or without evidence to support them.” Id. In doing
so, we “view the evidence in the light most favorable to the prevailing party, here the
Commonwealth, together with all inferences that may reasonably be drawn from it.” Id.
Johnson asserts that the trial court erred by finding that he was not in custody when
questioned at the hospital. Johnson reasons that Bryant administered Miranda warnings,
Johnson was the lone suspect, a uniformed officer was standing at the door of his hospital room,
and his medical condition rendered him unable to leave.
The United States Supreme Court has consistently treated “custody” as “a term of art that
specifies circumstances that are thought generally to present a serious danger of coercion.”
Howes v. Fields, 565 U.S. 499, 508-09 (2012). To determine “whether a person is in custody in
this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the
interrogation,’ a ‘reasonable person [would] have felt he or she was not at liberty to terminate the
interrogation and leave.’” Id. at 509 (alteration in original) (first quoting Stansbury, 511 U.S. at
322-23; and then quoting Thompson v. Koehane, 516 U.S. 99, 112 (1995)). “Not all restraints on
freedom of movement amount to custody for purposes of Miranda.” Id.
- 12 - The location of the interrogation is relevant but not dispositive. For instance, a suspect is
not necessarily in custody despite being questioned at a police station.6 Nor is an inmate
necessarily in custody when held in prison and questioned about a crime that occurred outside
the prison.7 Conversely, a suspect who is questioned in his own home could be in custody for
Miranda purposes if the conditions are sufficiently coercive.8
When police have questioned a suspect who is hospitalized, courts have sometimes found
the suspect to be in custody for Miranda purposes and sometimes not. See Kimberly F.
Winbush, What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule
of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional
Rights Before Custodial Interrogation—Suspect Hospital Patient, 30 A.L.R.6th 103 (2008 &
2024 Supp.) (collecting cases). As in other contexts, courts must consider “all of the
circumstances surrounding the interrogation.” Stansbury, 511 U.S. at 322. “[N]o single factor
alone may necessarily establish custody for Miranda purposes, and not all factors may be
relevant in a given case.” Wass v. Commonwealth, 5 Va. App. 27, 33 (1987).
6 See, e.g., Mathiason, 429 U.S. at 495 (“[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.”); Aldridge v. Commonwealth, 44 Va. App. 618, 643 (2004) (“[T]he fact that the detectives asked Aldridge to speak with them at a police facility, rather than her dormitory room, does not automatically convert the meeting into a custodial situation.”); Bottenfield v. Commonwealth, 25 Va. App. 316, 320, 329 (1997) (holding that defendant was not in custody when questioned during an “informal interview” at the sheriff’s office). 7 See, e.g., Howes, 565 U.S. at 516 (holding that an inmate was not in custody where, among other considerations, he was “told at the outset of the interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted”). 8 See, e.g., Wass v. Commonwealth, 5 Va. App. 27, 33 (1987) (“[E]ven in the home, police domination of the scene may produce a coercive environment and an abridgment of freedom, and Miranda warnings may be required before questioning.”). - 13 - In the context of a suspect who is questioned at the police station, we identified the
relevant circumstances to
include: “(1) the manner in which the individual is summoned by the police, (2) the familiarity or neutrality of the surroundings, (3) the number of officers present, (4) the degree of physical restraint, (5) the duration and character of the interrogation, and (6) the extent to which the officers’ beliefs concerning the potential culpability of the individual being questioned were manifested to the individual.”
Aldridge v. Commonwealth, 44 Va. App. 618, 642 (2004) (quoting Harris v. Commonwealth, 27
Va. App. 554, 565 (1998)).
The circumstances relevant to the “in custody” determination are broader when police
question a suspect who is being treated at a hospital. The 2008 A.L.R. annotation and our
unpublished cases9 involving police questioning at a hospital suggest the following
non-exhaustive list of potentially relevant considerations:
• Whether others were present during questioning, “such as medical staff and visitors and family of the patient.”10
• The “time of day” of questioning, “with questioning that occurs during the middle of the day, as opposed to late at night, suggesting that police have not created a custodial situation.”11
• Whether law-enforcement officers accompanied the suspect to the hospital.12
9 We may consider such unpublished decisions as “informative” though not “binding.” Rule 5A:1(f). 10 30 A.L.R.6th at 120; see Stevenson v. Commonwealth, No. 1614-19-1, slip op. at 7-8, 2020 Va. App. LEXIS 288, at *10 (Nov. 24, 2020) (“Hospital staff interrupted when they needed to conduct business or treat appellant. Appellant’s family member was also allowed to be in the hospital room with him.”); Nixon v. Commonwealth, No. 1768-06-3, slip op. at 3, 2008 Va. App. LEXIS 148, at *2 (Mar. 25, 2008) (“Appellant’s daughter and nurses were present during the interview.”). 11 30 A.L.R.6th at 120. 12 30 A.L.R.6th at 120; see Stevenson, slip op. at 7-8, 2020 Va. App. LEXIS 288, at *10 (defendant “voluntarily transported himself” to the hospital). - 14 - • Whether the police maintained a constant presence at the patient’s hospital room.13
• Whether the suspect was prevented from leaving the hospital by police or, instead, by the patient’s medical condition.14
• The number of officers involved in the questioning.15
• Whether the suspect agreed to speak or cooperate with police.16
• Whether “the tone of a police interview with a hospital patient [was] . . . accusatorial,” or “friendly and neutral.”17
• The length of the interview.18
13 30 A.L.R.6th at 120; see Stevenson, slip op. at 8, 2020 Va. App. LEXIS 288, at *11 (“[W]hile Officer Ramirez was standing near the door, he was ‘not guarding the door or stopping the door.’”). 14 30 A.L.R.6th at 121; see Kincaid v. Commonwealth, No. 1381-22-2, slip op. at 11, 2023 Va. App. LEXIS 837, at *17 (Dec. 19, 2023) (“Kincaid was neither handcuffed nor restrained in any way. Neither his, nor anyone else’s, movements into or out of his exam or hospital room were restricted by law enforcement.”); Rhodes v. Commonwealth, No. 0697-22-2, slip op. at 11, 2023 Va. App. LEXIS 665, at *15 (Oct. 3, 2023) (“Although we are mindful of Rhodes’s vulnerable physical position, there is no indication that Detective Horn sought to exploit that condition.”); Stevenson, slip op. at 8, 2020 Va. App. LEXIS 288, at *11 (suspect was “not handcuffed, locked in the room, or otherwise restrained”); Nixon, slip op. at 9, 2008 Va. App. LEXIS 148, at *15 (Appellant’s “confinement was caused by [her] own physical incapacity—not police compulsion. At no time did the police attempt to physically restrain [appellant]: [she] was not handcuffed, nor did the police guard [her] hospital room to prevent [her] escape.” (alterations in original) (quoting DeJesus v. State, 655 A.2d 1180, 1191 (Del. 1995))). 15 30 A.L.R.6th at 121; see Kincaid, slip op. at 11, 2023 Va. App. LEXIS 837, at *17 (questioning officer was the “only” officer present); Stevenson, slip op. at 8, 2020 Va. App. LEXIS 288, at *10-11 (“[W]hile five officers were present at the hospital, there were only three who stayed in appellant’s room, and only one was in uniform. . . . While more than one officer was present in appellant’s hospital room during questioning, we conclude that the number of officers in the present case does not suggest coercion.”). 16 30 A.L.R.6th at 122; see Nixon, slip op. at 2, 2008 Va. App. LEXIS 148, at *2 (defendant was “talkative, cooperative, and willing to answer questions”). 17 30 A.L.R.6th at 122. 18 30 A.L.R.6th at 122; see Kincaid, slip op. at 11, 2023 Va. App. LEXIS 837, at *17 (“very brief and consisted of very few questions”); Stevenson, slip op. at 9, 2020 Va. App. - 15 - • The timing of the suspect’s arrest in relation to the interview.19
As in other interrogation contexts, “the ultimate inquiry into whether an individual is subject to
custodial interrogation is simply whether there is a formal arrest or restraint on freedom of
movement of the degree associated with formal arrest.” Keepers v. Commonwealth, 72 Va. App.
17, 34 (2020) (quoting Spinner, 297 Va. at 392).
Considering the totality of circumstances, we agree with the trial court that Johnson was
not in custody when Detectives Bryant and Vesser questioned him at the hospital. Bryant did not
question Johnson when he first saw him around 6:00 a.m. Bryant returned to the hospital to
speak with Johnson at 11:30 a.m., only after Officer Esser told him that Johnson had asked to
speak with someone about what happened. Although Esser was dressed in his police uniform
and stood at the hospital door for security, he did not speak with Johnson. As doctors and nurses
walked in and out of the room, Johnson was alert, spoke freely with them, and asked questions.
The medical equipment connected to Johnson would have made it difficult for him to get out of
bed, but his immobility was not caused by the police; Johnson was receiving essential medical
care because he had shot himself in the chest.
Moreover, Bryant did not force the conversation. Although Bryant took the precaution to
read Johnson his Miranda rights, Bryant told Johnson that he was not under arrest and that no
charges had been filed. He asked if Johnson wanted to speak with him and Johnson said he did.
Bryant and Vesser conversed with Johnson in a mild tone, asking open-ended questions, not
LEXIS 288, at *12 (“The questioning lasted no more than twenty to thirty minutes, and it did not prolong or interfere with his medical treatment.” (footnote omitted)); King v. Commonwealth, No. 2619-97-1, slip op. at 3, 1998 Va. App. LEXIS 618, at *4 (Dec. 8, 1998) (“single question, posed by one police officer to an unrestrained defendant, in a neutral hospital setting, incidental to the routine investigation of a traffic accident”). 19 30 A.L.R.6th at 122; see Kincaid, slip op. at 11, 2023 Va. App. LEXIS 837, at *17 (“Kincaid was not taken into custody at the conclusion of either interview.”). - 16 - accusatory ones. See 30 A.L.R.6th at 122 (“[W]here the tone is friendly and neutral, courts
usually find no custody.”).
Given those facts, the invocation rule applied: if Johnson wished to assert his right to
remain silent in response to police questioning, he had to affirmatively invoke it. The situation
here was no more coercive than a myriad other situations in which law-enforcement officers
question suspects who are not in custody. See notes 6-7 supra.
Johnson relies on our unpublished decision in Commonwealth v. Corrales,
No. 2360-00-2, 2001 Va. App. LEXIS 109 (Mar. 6, 2001), but we find it distinguishable.
Corrales, who was later indicted for murdering her newborn infant, had been questioned by
police three times in her hospital room as she recovered from the delivery. Slip op. at 1-2, 2001
Va. App. LEXIS 109, at *1-2. Her visitors were asked to leave when the police arrived, and her
boyfriend and her medical providers were not allowed to be present when the police questioned
her. Id. at 4-5, 2001 Va. App. LEXIS 109, at *6. Police provided Miranda warnings in the third
interview, but they continued to question her after she “unambiguously requested an attorney
three times.” Id. at 4-6, 9-10, 2001 Va. App. LEXIS 109, at *6-7, 11. Taking the facts in the
light most favorable to Corrales—who had won her suppression motion—the panel found that
she was in custody for Miranda purposes and that the police violated Miranda by not stopping
their interrogation. Id. at 9-10, 2001 Va. App. LEXIS 109, at *11-12. In this case, by contrast,
we take the facts in the light most favorable to the Commonwealth. And Johnson has failed to
identify any improper conduct or coercion by police.
We reject Johnson’s argument that by providing Miranda warnings, the detectives
effectively conceded that Johnson was “in custody” for Miranda purposes. We agree with
Professor LaFave and his colleagues that “it would be bizarre if such solicitude for a suspect not
actually in custody were deemed to make the suspect’s statement subject to suppression under
- 17 - Miranda.” Wayne R. LaFave et al., Criminal Procedure § 6.6(f) at 836 (4th ed. 2015). Or as
Judge Wilkinson put it, to find that “the reading of Miranda warnings to a suspect should by
itself create custody . . . would convert admirable precautionary measures on the part of officers
into an investigatory obstruction.” Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir. 1985).
Our caselaw is more nuanced than that. We said in Barkley v. Commonwealth, 39
Va. App. 682 (2003), that providing Miranda “warnings does not necessarily place the individual
‘in custody’ at the level of restraint associated with a formal arrest.” Id. at 694. So reading a
defendant his Miranda rights “does not transform an otherwise consensual encounter into an
investigatory seizure.” Id. For instance, officers might give Miranda warnings “out of ‘an
abundance of caution.’” Id. at 695. “On the other hand, coupled with other indicia of coercion,
it might corroborate the objective reasonableness of the individual’s belief that he was not free to
leave.” Id. at 694-95 (emphasis added). Such other indicia of coercion were present in Corrales.
We find none here.
In short, Johnson was not in custody for Miranda purposes when he was questioned at the
hospital. We therefore reject his claim that his Miranda waiver was invalid. The fact that
Johnson was not in custody means that no waiver was required in the first place.20
B. Johnson’s statements at the hospital were not coerced.
Johnson also argues that, even if his Miranda rights were not violated, his statements to
the detectives at the hospital were made involuntarily and should have been excluded under the
Due Process Clause. He says that he “was in extremely critical condition after undergoing life-
20 We thus do not reach the Commonwealth’s argument that Johnson waived his Miranda rights by choosing to testify at trial. See Paxton v. Commonwealth, 80 Va. App. 449, 466-69 & n.7 (2024) (explaining that a defendant whose Miranda objection has been overruled does not waive the objection by choosing to testify in his own defense in response to the erroneous admission of his confession), aff’d on other grounds, ___ Va. ___ (May 29, 2025).
- 18 - saving medical interventions.” He “was suffering from a self-inflicted gunshot wound, wearing
an oxygen mask, and had a chest tube inserted into his torso.” He was taking medicine that can
“impair a person’s ability to process information and make decisions.” He previously had only
minimal experience with the criminal-justice system.
We “must make an independent evaluation of the evidence to determine whether the
confession[] w[as] voluntary. In doing so, we may rely upon the observations of the trial judge
and his findings of fact, except as to the ultimate issue of voluntariness.” Morris v.
Commonwealth, 17 Va. App. 575, 579 (1994); see also Thomas, 82 Va. App. at 102 (“[W]hen
determining the admissibility of a confession, ‘the ultimate issue of “voluntariness” is a legal
question.’” (quoting Miller v. Fenton, 474 U.S. 104, 110 (1985))).
To evaluate whether a statement is voluntary, we examine “the totality of the
circumstances to determine 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.’” Rodriguez v. Commonwealth, 40 Va. App.
144, 157 (2003) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). We consider
“both ‘the details of the interrogation’ and ‘the characteristics of the accused.’” Id. (quoting
Kauffmann v. Commonwealth, 8 Va. App. 400, 405 (1989)). Regarding the interrogation, we
consider the “techniques employed, including evidence of trickery and deceit, psychological
pressure, threats or promises of leniency, and duration and circumstances of the interrogation.”
Keepers, 72 Va. App. at 41 (quoting Terrell v. Commonwealth, 12 Va. App. 285, 291 (1991)).
Relevant characteristics of the accused include his “age, intelligence, mental and physical
condition, background and experience with the criminal justice system.” Id. (quoting
Washington v. Commonwealth, 43 Va. App. 291, 302 (2004)).
- 19 - Johnson’s argument here focuses only on his weakened state at the hospital, neglecting
the question of whether the police acted coercively to induce his statements. But the privilege
against self-incrimination protected by the Fifth and Fourteenth Amendments has a state-action
requirement. The Fifth Amendment provides that no person “shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V, cl. 3 (emphasis added). The Due
Process Clause of the Fourteenth Amendment provides that no State “shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1,
cl. 3 (emphasis added). “Because only state action may violate a criminal defendant’s due
process rights, ‘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.’”
Bottenfield v. Commonwealth, 25 Va. App. 316, 323 (1997) (quoting Colorado v. Connelly, 479
U.S. 157, 167 (1986)); accord Gaskins v. Clarke, ___ Va. ___, ___ (July 25, 2024) (per curiam)
(“[A] deprivation of liberty or property is not, under the Due Process Clause, ‘attributable to a
State unless it is traceable to the State’s power or authority.’” (quoting Lindke v. Freed, 601 U.S.
187, 198 (2024))); French v. Va. Marine Res. Comm’n, 64 Va. App. 226, 234 (2015) (“With a
few notable exceptions, the Constitution restrains only state action—not the actions of private
individuals.”).
Connelly aptly shows why police coercion is required to render a confession involuntary.
While in a psychotic state induced by chronic schizophrenia, Connelly approached an off-duty
police officer and confessed to murdering a young girl. 479 U.S. at 160-61. After the officer
provided Miranda warnings, Connelly said he understood his rights but still wanted to talk about
the murder. Id. at 160. He described how he killed the child and showed the officers where he
did it. Id. Despite finding that “the police had done nothing wrong or coercive,” the trial court
determined the confession was involuntary because “Connelly’s illness destroyed his volition
- 20 - and compelled him to confess.” Id. at 162. The Colorado Supreme Court affirmed, concluding
that the confession was not “the product of a rational intellect and a free will.” Id. at 162
(citation omitted). The Supreme Court reversed. “Absent police conduct causally related to the
confession,” the Court said, “there is simply no basis for concluding that any state actor has
deprived a criminal defendant of due process of law.” Id. at 164. In other words, “some sort of
‘state action’” is essential to show a violation of the Due Process Clause. Id. at 165.
We followed Connelly in Commonwealth v. Peterson, 15 Va. App. 486 (1992). We said
that the level of police coercion sufficient to render a confession involuntary “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.” Id. at 488.
Johnson identifies no police coercion that was used in questioning him, even considering
his weakened and medicated state. To the contrary, Johnson willingly spoke with the detectives.
The questions were open-ended, not accusatory or leading. The detectives did not use any
“trickery [or] deceit, psychological pressure, threats or promises of leniency.” Keepers, 72
Va. App. at 41 (quoting Terrell, 12 Va. App. at 291). Johnson was told he was not under arrest.
He was not restrained. Even though Johnson was not in custody, Detective Bryant took the
precautionary step to read him his Miranda rights, something that, even in a custodial setting,
“resets the defendant’s obligation to invoke his right to remain silent if he wants further
questioning to stop.” Thomas, 82 Va. App. at 116. And the interview was not unduly long,
lasting only 41 minutes. Compare Morris, 17 Va. App. at 580 (finding the confession voluntary
despite that it resulted from “three interrogation sessions over a period of approximately six
hours”), with Mincey v. Arizona, 437 U.S. 385, 396 (1978) (finding the confession involuntary
where the defendant was interrogated for nearly four hours while incapacitated and sedated in an
- 21 - intensive-care unit). The evidence supports the trial court’s finding that, throughout the
interview, Johnson was “fully engaged in this conversation, completely understanding.”
We disagree with Johnson that Mincey and Peterson show that his confession was
involuntary. Mincey was wounded in a shootout at his apartment during a narcotics raid in
which a police officer was killed. Mincey, 437 U.S. at 387. Mincey “arrived at the hospital
‘depressed almost to the point of coma’” and suffered damage to his “sciatic nerve and partial
paralysis of his right leg.” Id. at 396, 398. The interrogating officer “told Mincey he was under
arrest for the murder of a police officer,” questioned him for about four hours after reading him
Miranda warnings, and refused to stop the interrogation despite Mincey’s repeated requests for a
lawyer. Id. at 396. Because Mincey had already been arrested, there was no question that he
was in a custodial interrogation. The Court held that the resulting confession was involuntary
and therefore inadmissible. Id. at 400-02.
Nothing like that occurred here. Unlike Mincey, Johnson was told he was not under
arrest. Unlike Mincey, Johnson declined to invoke his right to remain silent after being read
Miranda warnings. And the tone of the questioning was gentle, not aggressive.
Peterson is likewise distinguishable. Peterson moved to suppress statements he made to
a police officer who rode with him in an ambulance to the hospital. Peterson, 15 Va. App. at
488. But Peterson had been arrested and was already in police custody before the officer
accompanied him to the hospital. Id. Notably, several police officers had injured Peterson while
apprehending him. Id.21 Peterson “was unable to understand ‘everything that was going on
21 According to the record in Peterson, one police officer had struck Peterson on the shoulder with a baton, another kneed him twice in the back while he lay face down on the street, and a third struck him in the shoulder three times with his fist. See Brief of Appellee at 2-5, Commonwealth v. Peterson, 15 Va. App. 486 (1992) (No. 1428-92-4). Peterson was then transported to and interrogated at the police station until his continuing chest pains and request for an ambulance prompted his emergency transport to the hospital. Id. at 4-5. - 22 - around’ him as a result of [his] injuries.” Id. Although the trial court “found no misconduct” by
police when they arrested Peterson and later transferred him to the hospital, the court “concluded
that the defendant’s statements made in response to police questioning, while in the ambulance
. . . , were involuntary and, therefore, inadmissible.” Id. We affirmed. Id. at 489. Viewing the
evidence in the light most favorable to Peterson, we upheld 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.
Unlike in Peterson, we take the facts here in the light most favorable to the
Commonwealth. Unlike Peterson, Johnson had not been arrested, was not in police custody
when questioned, and had not been previously interrogated at the police station before being
rushed to the hospital. Nor did the officers here control Johnson’s access to emergency medical
care. As the trial judge put it, this “was one of the most mild interrogations” the court had “ever
read about, listened to, observed, [or] encountered.”
In sum, the record here shows that the police did not engage in any coercive tactics when
they interviewed Johnson at the hospital. So the trial court did not err in finding that Johnson’s
II. Expert Testimony
Johnson argues in his second assignment of error that “the trial court erred by limiting the
defense expert’s testimony on the subject of unintentional discharges of firearms.” He says that
the trial court should have permitted Kapelsohn to testify that the most common reason for the
unintentional discharge of a firearm is not knowing that a round of ammunition has been
chambered. The Commonwealth objected at trial on the ground that Kapelsohn’s testimony
would “go to the ultimate issue” and would not be relevant. Johnson’s opening brief argues that
- 23 - Kapelsohn’s testimony would not have addressed the ultimate issue of whether Johnson
accidentally shot his wife but simply show the most common reason for accidental shootings.
He says this testimony is no different from the expert’s testimony permitted in Stevens v.
Commonwealth, 72 Va. App. 546 (2022), that “it is ‘very common’ for child victims of abuse to
wait weeks, months, or years to initially report the offense.” Id. at 552. He also notes that the
Supreme Court recently held in Diaz v. United States, 602 U.S. 526 (2024), that an expert’s
testimony in a drug-trafficking case “that most drug couriers know that they are transporting
drugs” was admissible and did not go to the ultimate issue of whether the defendant herself was
knowingly transporting drugs. Id. at 528, 538.
We assume without deciding that Johnson’s argument is preserved.22 We further assume
without deciding that the trial court erred by excluding Kapelsohn’s testimony. Even so, we find
that putative error to be harmless.
Our Supreme Court recently addressed the standard of review for non-constitutional
harmless error. See Shaw v. Commonwealth, ___ Va. ___ (Apr. 17, 2025). “A non-
constitutional error is deemed harmless when we ‘can conclude that the error did not influence
the jury or had but slight effect.’” Id. at ___ (quoting Commonwealth v. Kilpatrick, 301 Va. 214,
216 (2022) (per curiam)). “‘To reach this conclusion, the evidence of guilt must be so
overwhelming that it renders the error insignificant by comparison such that the error could not
22 It is not clear that Johnson preserved his argument below or adequately addressed it in the opening brief. See Rules 5A:18; 5A:20(e). The trial court excluded Kapelsohn’s testimony on the ground that he was unqualified to render an opinion on the mental state of persons who accidentally discharge a firearm, not on the ground that Kapelsohn’s testimony addressed the ultimate issue. Johnson’s opening brief focused primarily on the ultimate-issue question. See Lafferty v. Fairfax Cnty. Sch. Bd., 293 Va. 354, 365 (2017) (“Absent argument and authority, an assignment of error is deemed to be abandoned.”). On the other hand, Johnson does argue in passing that Kapelsohn was qualified to render the excluded opinion. Johnson Br. 33-44. Because the waiver question presents a close call, the harmless-error doctrine provides the better and narrower ground for decision. - 24 - have affected the’ outcome.” Id. at ___ (quoting Kilpatrick, 301 Va. at 217). “In a criminal
case, we must be able to conclude that if the error had not occurred, the jury still would have
convicted the defendant.” Id. at ___ (citing Kotteakos v. United States, 328 U.S. 750, 764
(1946)).23 In Shaw, for instance, the Court found harmless the exclusion of the defense expert’s
testimony about the defendant’s impaired mental state—evidence offered to negate culpability.
But the Court found “‘the evidence of guilt . . . so overwhelming that it render[ed] the [alleged]
error insignificant by comparison such that the [alleged] error could not have affected the’
outcome.” Id. at ___ (third and fourth alterations in original) (quoting Kilpatrick, 301 Va. at
216-17).
“[H]armless error review requires ‘case-specific application of judgment.’” Id. at ___
n.10 (quoting Welsh v. Commonwealth, ___ Va. ___, ___ (Mar. 20, 2025)). In conducting that
analysis, “we must place [the expert’s] proffered testimony into the context of the trial. This
requires a review of the elements of the offense, the potential effect of [the expert’s] opinions
regarding those elements, and how those opinions fit with all of the other evidence in the case.”
Id. at ___.
Using that approach here, we find that the jury’s guilty verdict would not have been
different had Kapelsohn been permitted to testify that most accidental shootings occur because
the shooter is unaware that a round is in the chamber. The jury was instructed that
second-degree murder requires proof of malice and that malice could be inferred “from the
deliberate use of a deadly weapon.” The jury was also instructed that the crime of using a
23 In adopting the standard of review for non-constitutional error in Clay v. Commonwealth, 262 Va. 253 (2001), the Court found the federal standard in Kotteakos persuasive and consistent with Code § 8.01-678. Id. at 259-60. Code § 8.01-678 provides that “[w]hen 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, no judgment shall be . . . reversed . . . [f]or any . . . error committed” by the trial court. - 25 - firearm while committing a murder could be shown by proof that Johnson “used a firearm . . .
while committing murder.”
The jury knew Johnson’s theory that the shooting was not deliberate; Johnson repeatedly
insisted that he accidentally shot his wife because he did not think that a round was chambered.
The jury heard Johnson say on the recording of the 911 call that “I was playing with my gun and
I shot my wife.” It heard him repeatedly say in the hospital interview that he does not keep a
bullet in the chamber and did not know what was different this time. He could “always pull the
trigger and there was nothing in it.”
The jury was also well aware that an accidental shooting could occur if the trigger was
pulled by a person who was unaware that a bullet was chambered. The Commonwealth’s expert
and Kapelsohn both testified that the mechanics of the weapon required a person to chamber a
round to fire it. The key question for the jury to resolve was whether Johnson deliberately or
accidentally shot his wife. Kapelsohn’s testimony that it was common for unintentional
shootings to occur because the shooter does not know a round is chambered only indirectly
addressed that question.
By contrast, the evidence overwhelmingly showed that Johnson shot his wife
deliberately, not accidentally. The jury heard testimony that Johnson had a motive to shoot her.
A long-time friend testified that D.S. had become unhappy in the marriage and planned to leave
Johnson. D.S.’s son testified that she also told him that there was nothing left for her in the
marriage and that she planned to leave Johnson. D.S. last told her son that in August 2022, the
month before Johnson shot her.
Johnson’s claim that he shot his wife accidentally was also undermined by his own
testimony. To start, Johnson’s testimony revealed that he was quite knowledgeable about his
Glock. He bought it in 2019 and, since then, had practiced firing it twice a month at the shooting
- 26 - range. He had taken a five-hour course in gun safety to obtain a concealed-carry permit. He
slept with the gun under his pillow. As Kapelsohn testified, the gun had an indicator on the side
of the weapon showing that a round was chambered; though “subtle,” the indicator could be felt
by someone who was “well trained.”
And in recounting the shooting, Johnson’s own testimony tended to refute that he
accidentally shot his wife. Johnson admitted that his wife told him before he shot her “that she
still was planning to move” out, though he said it would be “in a couple years.” He said he kept
picking up and dropping the gun when his wife told him, “Stop playing with it.” He admitted
that she said, “So you going to shoot me now?,” strongly suggesting that he was pointing it at
her. And at close range. Dr. Kessler’s testimony placed the gun from no more than two feet to
“less than inches” away from the victim’s left temple. Johnson said he responded, “[i]t’s not
even loaded. Shut up.” But Johnson admitted, “I waved my hand up, and then it went off.”
From the 911 recording, the jury also heard Johnson’s demeanor after shooting his wife; he
sounded calm and detached, though he said his wife was still breathing.
“Taken as a whole,” we find the evidence that Johnson deliberately shot his wife to be
“overwhelming.” Kilpatrick, 301 Va. at 218. We also find that excluding Kapelsohn’s
testimony that most unintentional shootings occur because the shooter does not know a round is
chambered “did not influence the jury[] or had but slight effect.” Id. at 216 (alteration in
original). Accordingly, any error in excluding Kapelsohn’s testimony was harmless.
CONCLUSION
The trial court properly denied Johnson’s suppression motion and committed no
reversible error in excluding Kapelsohn’s testimony.
Affirmed.
- 27 -