Dennis Roger Bourne v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia
DENNIS ROGER BOURNE
MEMORANDUM OPINION * BY
v. Record No. 0309-02-4 JUDGE LARRY G. ELDER
MARCH 4, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Ann Hunter Simpson, Judge
Owaiian M. Jones (Corey L. Poindexter; Law
Offices of Owaiian M. Jones, on briefs), for
appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Dennis Roger Bourne (appellant) appeals from his jury trial
convictions for driving under the influence, second offense;
causing serious bodily injury while driving under the influence;
and possession of marijuana. On appeal, he contends the trial
court erroneously (1) concluded his consent to search and
related statements made to a police officer while in the
emergency room were voluntary; (2) allowed the Commonwealth to
cross-examine him on matters outside the scope of direct
examination; and (3) permitted the Commonwealth to impeach him
with a statement the court previously had ordered suppressed.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The Commonwealth challenges these assignments of error on both
procedural and substantive grounds.
We hold these issues lack substantive merit. The evidence
supports the conclusion that appellant's emergency room
statements and consent to search were voluntary. Further, the
trial court did not err in allowing the Commonwealth to
cross-examine appellant about relevant matters outside the scope
of direct examination and to impeach him with a statement it
previously had ordered suppressed due to the lack of Miranda
warnings. Thus, we affirm.
I.
BACKGROUND
On July 26, 1998, the twenty-three-year-old appellant and
his friend, David Eldert, were involved in a single-car
accident. That accident left Eldert with "permanent" and
"significant physical injuries."
When Trooper Connie Saubert arrived at the scene at
2:14 a.m., she found both appellant and Eldert had been ejected
from the vehicle and "there was debris, beer cans, all sorts of
items throughout the soybean field" where the crash had
occurred.
Appellant was transported to the emergency room at Mary
Washington Hospital. Trooper Saubert questioned appellant in
the emergency room at 4:28 a.m. as he awaited medical treatment
and again at 7:45 a.m. after he had been admitted and moved to a
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hospital room. In the emergency room interview, appellant
admitted that the pants in the treatment room and the marijuana
found inside the pants belonged to him. In the second
interview, appellant admitted he had been driving at the time of
the accident. Appellant was not advised of his Miranda rights
before either interview.
Appellant was indicted for the instant offenses. Prior to
trial, appellant moved to suppress both statements. The trial
court denied the motion as to the emergency room interview but
granted it as to the subsequent hospital room interview because
it found the interview was custodial and appellant had not been
Mirandized.
II.
MOTION TO SUPPRESS STATEMENTS AND FRUITS OF SEARCH
A.
PRESERVATION OF VOLUNTARINESS ISSUES FOR APPEAL
Prior to trial, appellant filed written motions to suppress
"any and all statements" on the ground that "the statements were
involuntary and in violation of his Miranda rights and/or
warnings." He also filed a written motion to exclude the
marijuana and related certificate of analysis "due to improper
search and seizure." At the hearing on the motions, he argued
that the questioning which occurred in the emergency room was a
custodial interrogation and that his resulting statements were
involuntary because of his "very serious mental and physical
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condition." We hold this argument was broad enough to include
the impact of appellant's intoxication on the voluntariness of
his statements. Further, in the context of appellant's written
motions, we hold this argument also encompassed a challenge to
the portion of his statements in which he consented to the
search of his pants and admitted that the fruits of that search
belonged to him. The trial court expressly ruled on both the
admissibility of the statements and the admissibility of the
marijuana. Thus, we reach the merits of these assignments of
error.
B.
VOLUNTARINESS OF CONSENT TO SEARCH
AND ACCOMPANYING STATEMENTS
On appeal of the denial of a motion to suppress, we view
the evidence in the light most favorable to the Commonwealth.
Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723
(1992). "[T]he trial court, acting as fact finder, must
evaluate the credibility of the witnesses . . . and resolve the
conflicts in their testimony . . . ." Witt v. Commonwealth, 215
Va. 670, 674, 212 S.E.2d 293, 297 (1975). "[W]e are bound by
the trial court's findings of . . . fact unless 'plainly wrong'
or without evidence to support them . . . ." McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)
(en banc).
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"Whether a statement is voluntary is ultimately a legal
rather than a factual question, but subsidiary factual decisions
are entitled to a presumption of correctness." Commonwealth v.
Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)
(citing Miller v. Fenton, 474 U.S. 104, 110, 112, 106 S. Ct.
445, 449, 450, 88 L. Ed. 2d 405 (1985)). "Voluntariness [of
consent to a search] is a question of fact to be determined from
all the circumstances . . . ." Schneckloth v. Bustamonte, 412
U.S. 218, 248-49, 229, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854(1973).
When the Commonwealth seeks to justify a warrantless search
on the basis of consent, it bears the burden of proving by a
preponderance of the evidence that the consent was voluntary.
Camden v. Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39
(1994). The Commonwealth bears the same burden when it seeks to
admit a defendant's statements. Stockton v. Commonwealth, 227
Va. 124, 140, 314 S.E.2d 371, 381 (1984). In order to determine
whether a particular statement or consent to search was
"voluntary," the test is whether the statement or consent to
search is "the product of an essentially free and unconstrained
choice" or whether the individual's "will has been overborne and
his capacity for self-determination critically impaired."
Schneckloth, 412 U.S. at 225-26, 229, 93 S. Ct. at 2047, 2049;
see Lowe v. Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117
(1977); Peterson, 15 Va. App. at 487-88, 424 S.E.2d at 723.
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When considering the circumstances of a particular case, a
court must consider both the details of the police conduct and
the characteristics of the accused. Schneckloth, 412 U.S. at
226, 229, 93 S. Ct. at 2047, 2049. Relevant characteristics of
the accused are his age, education, intelligence, mental and
physical condition, and knowledge and notice of his
constitutional right to refuse consent. See id. at 226, 227, 93
S. Ct. at 2047, 2048; Peterson, 15 Va. App. at 488, 424 S.E.2d
at 723. Although "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[,]' [t]he 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 . . . ." Peterson, 15 Va. App. at 488, 424
S.E.2d at 723 (quoting Colorado v. Connelly, 479 U.S. 157, 164,
107 S. Ct. 515, 520, 93 L. Ed. 2d 473 (1986)).
On appeal, appellant's only challenge to the voluntariness
of his consent to search and related statements concerns his
"physical and mental condition" at the time he purportedly
consented to the search and admitted the marijuana was his.
Appellant argues Trooper Saubert's testimony about his condition
at that time was inherently incredible because it was at odds
with the records of appellant's medical treatment and the
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testimony of the Commonwealth's forensic expert, Julia Pearson. 1
We disagree and hold that a preponderance of the evidence,
viewed in the light most favorable to the Commonwealth, supports
the trial court's finding that appellant's consent to the search
and related statements were voluntary.
Trooper Saubert obtained permission from appellant's
treating physician before she spoke with him at 4:28 a.m., and
she testified regarding appellant's appearance and
responsiveness during the conversation that followed. Pearson,
who had no direct contact with appellant, based her testimony on
the results of blood and urine tests performed on samples drawn
at 3:10 a.m., over an hour and fifteen minutes preceding Trooper
Saubert's encounter with appellant. Although Pearson gave
testimony regarding the rate at which the body eliminates
alcohol from the blood stream, which could support certain
inferences regarding the level of alcohol appellant may have had
in his blood stream when Trooper Saubert questioned him, this
1
The Commonwealth argues that appellant is not entitled to
present this argument on appeal because Pearson's testimony was
not before the trial court when it ruled on his motion to
suppress and appellant did not renew his motion or argue to the
trial court that Pearson's testimony was relevant to the court's
prior ruling on the suppression motion. We note the general
principle that, on appeal of the denial of a motion to suppress,
we consider the evidence adduced at the hearing on the motion to
suppress as well as the evidence adduced at trial. DePriest v.
Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43
(1987). Further, we assume without deciding that appellant's
motion to suppress sufficiently preserved for appeal appellant's
present challenge to Trooper Saubert's testimony based on
Dr. Pearson's trial testimony.
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testimony does not compel the conclusion that appellant's
consent and statements were involuntary for two reasons.
First, the trial court, as the trier of fact for purposes
of the motion to suppress, was not required to accept Pearson's
testimony regarding the likely impact of alcohol and other
substances detected in appellant's blood and urine on
appellant's mental and physical abilities. See Witt, 215 Va. at
674, 212 S.E.2d at 297. Second, Pearson admitted that the rate
at which an average person eliminates alcohol from the body may
vary and that the hospital's administration of fluids and
medications to appellant could cause the alcohol to be
eliminated from his system at a faster rate. Although the
results of appellant's urine screen showed amphetamines, cocaine
and marijuana in his system at 3:10 a.m., Pearson acknowledged
that the test results she viewed did not show the amounts of
those substances and that any information regarding amounts
would have been unhelpful because no correlation exists between
the levels of those substances in one's urine and their effect
on the brain. She also gave no testimony regarding the rates at
which those substances are eliminated from the body.
Thus, the trial court was entitled to accept as credible
Trooper Saubert's testimony about appellant's condition when she
spoke with him at 4:28 a.m., while appellant awaited a CAT scan,
after Saubert first obtained approval from appellant's treating
physician. Saubert testified that appellant did not "seem at
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all dazed [or] confused," "knew who he was," "seemed okay to
talk with," "was answering [her] questions," and was not "in any
kind of physical pain." Although the medical records indicated
appellant was "minimally responsive" when he first arrived in
the emergency room at 2:47 a.m., he was re-evaluated "after the
CTs and x-rays," at which time he was "much more awake," "alert
and oriented." The records thus established that appellant's
condition improved while he was in the emergency room and tend
to support Trooper Saubert's testimony about appellant's
condition at the time of the interview. This evidence supports
a finding, by a preponderance, that appellant's consent to the
search and related statements were "the product of an
essentially free and unconstrained choice" and that his "will
[was not] overborne [or] his capacity for self-determination
critically impaired." Schneckloth, 412 U.S. at 225-26, 229, 93
S. Ct. at 2047, 2049. Compare Peterson, 15 Va. App. at 488, 428
S.E.2d at 723-24 (in affirming finding that custodial confession
was involuntary, noting that questioning took place in ambulance
while accused, who had already been arrested, was in pain, had
blurred vision and breathing difficulties, and was "unable to
understand 'everything that was going on around him'" and that
questioning under these circumstances "was coercive police
activity rendering his statements involuntary and
inadmissible"). The fact that appellant was lying on a
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backboard and wearing a neck brace as he awaited a CAT scan does
not require a different result.
III.
SCOPE OF CROSS-EXAMINATION OF APPELLANT
Appellant contends the trial court erred by allowing the
Commonwealth to cross-examine him on matters not within the
scope of his direct examination. Under the facts of this case,
we hold the trial court's ruling was not error.
Code § 19.2-268 provides that "[i]n any case of felony or
misdemeanor, the accused may be sworn and examined in his own
behalf, and if so sworn and examined, he shall be deemed to have
waived his privilege of not giving evidence against himself, and
shall be subject to cross-examination as any other witness
. . . ."
[W]hen the accused voluntarily takes the
stand he "loses his character as a party,
becomes a mere witness, and may be examined
as fully as any other witness. . . . He may
be examined and must answer concerning all
matters which are relevant to the case,
whether testified to on the direct
examination or not."
Smith v. Commonwealth, 182 Va. 585, 598, 30 S.E.2d 26, 31 (1944)
(decided under predecessor statute containing identical language
to present Code § 19.2-268) (citation omitted); see also
Drumgoole v. Commonwealth, 26 Va. App. 783, 786-87, 497 S.E.2d
159, 161 (1998) (holding that defendant who testified on direct
examination only about reasons Commonwealth's witness would be
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motivated to give false testimony about him could be
cross-examined about circumstances surrounding malicious
wounding and robbery for which he was on trial).
Thus, appellant, by choosing to take the stand, subjected
himself to cross-examination about any matter relevant to his
prosecutions for driving under the influence and causing serious
bodily injury while doing so. Whether he was driving at the
time of the accident and with whom he discussed this issue were
facts relevant to the merits of appellant's prosecution.
Further, the challenged cross-examination regarding whether
appellant "told anybody . . . else [he] was driving that night"
affected his credibility, as well, because it was closely
related to the subject matter of appellant's direct examination,
in which he denied telling Eldert's former girlfriend or any
member of Eldert's family that he had been driving.
For these reasons, the trial court's refusal to limit the
scope of the Commonwealth's cross-examination of appellant in
the manner requested was not error.
IV.
USE OF APPELLANT'S SUPPRESSED STATEMENT FOR IMPEACHMENT
Appellant concedes that a statement obtained in violation
of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966), may be used to impeach a defendant's trial
testimony if that testimony is inconsistent with the suppressed
statement. See Harris v. New York, 401 U.S. 222, 226, 91 S. Ct.
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643, 646, 28 L. Ed. 2d 1 (1971). He argues, however, that his
trial testimony was not inconsistent with his suppressed
statement because he did not deny making the suppressed
statement and testified merely that he did not recall making a
statement to Officer Saubert. For two reasons, we disagree with
appellant's reasoning and hold that the trial court did not err
in allowing the challenged impeachment.
First, contrary to appellant's claim that he testified
merely that he did not recall talking to Officer Saubert, the
record reveals he originally testified, without equivocation,
that "[he] never told anybody" that he, rather than Eldert, was
driving at the time of the accident. After appellant denied
telling "anybody" he was driving at the time of the accident,
the Commonwealth sought to prove he admitted his act of driving
to Officer Saubert during the suppressed interview which
occurred in his hospital room. Thus, the suppressed statement
was admissible to impeach appellant's statement that he "never
told anybody" he was driving. "[T]he shield provided by Miranda
is not to be perverted to a license to testify inconsistently,
or even perjuriously, free from the risk of confrontation with
prior inconsistent utterances." Oregon v. Haas, 420 U.S. 714,
722, 95 S. Ct. 1215, 1221, 43 L. Ed. 2d 570 (1975).
Second, even if we view appellant's testimony as a whole
and construe it as a lack of recollection rather than an
unequivocal denial, the court's decision allowing the
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Commonwealth to impeach appellant with the previously suppressed
statement was not error. "[T]he statement of a witness that he
fails to recollect or does not recall his former . . . statement
constitutes an adequate foundation for his impeachment," McGehee
v. Perkins, 188 Va. 116, 125, 49 S.E.2d 304, 309 (1948), even
where the statement with which the impeachment will be
accomplished has been suppressed as a result of a Miranda
violation, Harris, 401 U.S. at 223, 91 S. Ct. at 644 (upholding
impeachment with prior statement rendered inadmissible under
Miranda where accused testified inconsistently with prior
statement during direct examination at trial and claimed on
cross-examination "that he could not remember virtually any of
the questions or answers [from the prior statement when those
questions and answers were] recited by the prosecutor"); see
Blaylock v. Commonwealth, 26 Va. App. 579, 596-97 & n.10, 496
S.E.2d 97, 105-06 & n.10 (1998) (despite prior ruling
suppressing statement to detective, upholding admission of
statement for impeachment where accused testified he did not
recall talking to detective).
Thus, we hold the trial court did not err in allowing the
Commonwealth to use the previously suppressed statement to
impeach appellant.
V.
For these reasons, we hold the evidence supports the
conclusion that appellant's emergency room statement and consent
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to search were voluntary. Further, we hold the trial court did
not err in allowing the Commonwealth to cross-examine appellant
about relevant matters outside the scope of direct examination
or to impeach him with a statement it previously had ordered
suppressed due to the lack of Miranda warnings. Thus, we
affirm.
Affirmed.
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