Darryl Bruce Wheaton v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
DARRYL BRUCE WHEATON
MEMORANDUM OPINION * BY
v. Record No. 1409-95-2 CHIEF JUDGE NORMAN K. MOON
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Garrett M. Smith (Michie, Hamlett, Lowry,
Rasmussen & Tweel, P.C., on briefs), for
appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Darryl Bruce Wheaton appeals his conviction of attempted
murder and use of a firearm in the commission of attempted murder
in violation of Code § 18.2-53.1. Wheaton asserts that: (1) the
trial court erred in admitting his statement obtained without his
being advised of his Miranda rights; and (2) that the evidence
was insufficient to support his convictions.
We hold that: (1) Wheaton's statement was inconsistent with
his testimony at trial and was made under conditions assuring its
voluntary and trustworthy nature and therefore was properly
admitted for impeachment purposes; and (2) Wheaton failed to
properly preserve for appeal his arguments that the evidence was
insufficient to prove intent or that an act had been committed
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
toward the commission of murder, and therefore, Rule 5A:18 bars
consideration of these questions on appeal.
In the early morning hours of December 10, 1994, Albemarle
County Police Officers Raleigyh Anderson and Marcus T.
Billingslea responded to a 911 call from Wheaton who stated that
he had "choked his girlfriend and wanted to be arrested." The
officers drove to Southwood Market, Southwood Trailer Park,
Albemarle County, from which the call had originated. They were
informed that Wheaton had proceeded to the trailer of his
girlfriend and her son. When the officers arrived at the
trailer, an outside light was on, and the officers could see into
the trailer through a screen door as the interior door was open.
The officers knocked and announced their presence, but no one
answered the door.
The officers proceeded inside, repeatedly announcing their
presence as they entered. Wheaton responded, stating that he had
a gun and that if the officers came any closer he would shoot
them and himself. The officers drew their weapons, backed out of
the trailer, and called for backup. While waiting for backup to
arrive, both officers heard Wheaton talking in a loud "emotional,
kind of angry voice," stating that he wanted to see his "son one
last time." 1 Several additional officers arrived, including John
McKay and Ronald Kesner. McKay took a position about thirty feet
from the front door where he could see into the trailer. Kesner
1
Wheaton's girlfriend had a son who was not Wheaton's
biological child, but whom Wheaton treated as his son.
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stood behind a tree about fifteen to twenty feet from the front
door.
Wheaton continued moving around in the trailer and
occasionally yelling "I'm going to kill you, I'm going to kill
myself, I'm going to f---ing kill you . . ." and screaming that
he wanted to see his son. From his vantage point, McKay could
see that Wheaton was carrying a shotgun and a rifle and that he
was holding the barrels of both weapons up under his chin.
Wheaton stepped outside of the front door and Kesner and
McKay tried to convince him to give himself up and told him they
would try to get his son. Wheaton went back inside and sat down.
McKay, who could see Wheaton in the trailer, testified that
after he sat down, Wheaton appeared "a little bit calmer," but
that after a few more minutes, Wheaton stood up, "and there was
absolutely no doubt, you could see the determination and he had
changed." As he stood, Wheaton stated he was "going to f---ing
kill you" and McKay yelled to Kesner that Wheaton was coming
toward the door. Wheaton had the shotgun in his right hand and
the rifle in his left. McKay testified that as Wheaton came
toward the trailer door he lowered the shotgun down, pointing it
at the tree behind which Officer Kesner was standing. McKay
stated that as he kicked the screen door open, Wheaton shouted
"I'm going to f---ing kill you." McKay, Kesner, and other
officers fired upon Wheaton, hitting him several times. Kesner
testified that before firing, he saw the shotgun lowered in his
direction.
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Wheaton reentered the trailer, and the officers pursued
him inside where they found him lying face down. McKay
cuffed Wheaton and he was taken to the hospital. Detective James
E. Bunch, assigned to conduct the internal investigation of the
shooting, was present and stood on the porch where Wheaton had
been shot. Bunch testified that from that vantage point he could
see the tree Kesner had been standing behind and that he would
have been able to see anyone standing behind the tree.
At the hospital, blood tests revealed that Wheaton's blood
alcohol content was .015. Wheaton underwent surgery for the
multiple gunshot wounds and remained in the hospital. At 9:05
a.m. a warrant was issued for Wheaton's arrest. 2 Bunch visited
the hospital that morning and sought permission from hospital
administrators to speak with Wheaton. Wheaton indicated that he
wanted to speak with Bunch, and Bunch went to his room. Bunch
informed Wheaton that he was not under arrest, that he was not
being held under a warrant, and that Bunch's purpose in visiting
was to conduct an investigation of the shooting for the police
department. Although no guard was posted to Wheaton's room, the
police requested that the hospital inform them when Wheaton was
released.
Wheaton advised Bunch that he had been given morphine for
his operation, but indicated he wanted to talk with Bunch. Bunch
asked Wheaton a variety of questions about the incident including
2
The warrant was executed eleven days later.
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questions about what Wheaton recalled saying at various points.
Wheaton stated that he could not recall what he had said to the
arriving officers and that he had trouble recalling much of what
had occurred. Bunch testified that during this conversation,
Wheaton appeared coherent, was cooperative, nonconfrontational,
and understood the questions asked.
Admission of Statement
At trial the Commonwealth used Wheaton's statement to
impeach his testimony. Wheaton's counsel objected, arguing that
Wheaton's statement constituted custodial interrogation and that
it should be excluded because Wheaton had not been given his
Miranda rights.
The Commonwealth argues that Wheaton failed to properly
preserve the issue of the admission of his statement, by failing
to file a written suppression motion seven days in advance of
trial as required by Code § 19.2-266.2. However, Code
§ 19.2-266.2 also provides that a "[c]ourt may . . . for good
cause shown and in the interest of justice, permit the motions or
objections to be raised at a later time." While we recognize the
disadvantage to the Commonwealth, the trial judge's decision to
rule on the substantive merits of Wheaton's objection at trial
effectively waived the requirement that a written motion be made
in advance. Accordingly, Wheaton's objection to admission of his
statement may be considered on appeal.
There are two requirements which must be met for the
in-court use of a defendant's out-of-court statement where the
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statement was obtained in violation of Miranda: (1) the statement
must be inconsistent with the accused's testimony at trial; and
(2) the statements must have been obtained under circumstances
which assure their trustworthiness and voluntariness. Harris v.
New York, 401 U.S. 222, 226 (1971). Assuming, arguendo, that
Wheaton was in custody at the time of his statement to Bunch, and
consequently that his statement was taken in violation of
Miranda, we hold that the statement was admissible for
impeachment purposes.
At trial, Wheaton was asked if he recalled telling Bunch
that he did not remember substantial portions of the stand-off.
He testified that "I think I've never stated that I had a full--"
and was interrupted by the Commonwealth who asked for a "yes" or
"no" answer. Wheaton replied that "I can't answer that way.
It's not a yes or no question to me sir. I was on morphine that
day, there was anything--." After commenting to the court that
Wheaton was being unresponsive, the Commonwealth impeached
Wheaton's testimony by having him read Bunch's question and his
response in which Wheaton stated "I don't remember half the
stuff, or half the shit . . . ." Further, Wheaton testified, on
direct, that he had made certain comments to the officers when
they first arrived on the scene. The Commonwealth impeached this
testimony with Wheaton's statement by having him read aloud
Bunch's question inquiring if he could remember saying anything
to the officers and Wheaton's response "[n]o, sir." Wheaton's
statement was again used for impeachment purposes when Wheaton
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testified that he had never fully lowered his shotgun. At that
point the Commonwealth had Wheaton read aloud his statement to
Bunch that the shotgun was "straight out." This evidence is
sufficient to sustain the finding that Wheaton's statement was
inconsistent with his testimony at trial on several points and
was used in a manner which satisfied criterion one as delineated
in Harris.
We also hold the evidence was sufficient to sustain the
finding that Wheaton's statement was both trustworthy and
voluntary. Wheaton's statement was obtained immediately after
the event in question by a police officer conducting an internal
investigation. Wheaton indicated that he wanted to speak with
Bunch and had the hospital administration informed of his desire
to talk the morning Bunch came to the hospital and sought
permission to speak with Wheaton. Bunch informed Wheaton that he
was not under arrest, that he wasn't being held under warrant and
that Bunch was there in order to conduct an investigation of the
shooting for the police department. Wheaton answered a variety
of questions and at no point indicated a desire not to answer.
Bunch testified that Wheaton was cooperative and coherent
throughout the questioning.
Finding that both Harris criteria were met, we hold that
Wheaton's statement was properly admitted for impeachment
purposes. Accordingly, we need not reach the issue of whether
Wheaton was in custody at the time he made his statement to
Bunch.
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Sufficiency of the Evidence
Rule 5A:18 provides that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling . . . ." McQuinn v. Commonwealth, 20 Va. App.
753, 755, 460 S.E.2d 624, 626 (1995) (en banc). Here, Wheaton
filed a written motion to set aside the verdict, in which he
argued that the evidence was insufficient because "the element of
malice was not proved beyond a reasonable doubt because [Wheaton]
was suicidal at the time of the offense and the deadly weapon
from which the jury might have inferred malice was in [his]
possession for the purpose of committing suicide."
However, on brief, Wheaton raises two new arguments not
contained in his motion to set aside the verdict. First, he
argues that the evidence was insufficient to prove that he had
the requisite intent to commit murder. Second, he argues that
the evidence was insufficient to prove that he committed an act
toward the commission of murder by lowering his weapon. Because
Wheaton failed to preserve these questions, Rule 5A:18 now bars
consideration of these questions on appeal. Further, because the
record does not show any obvious miscarriage of justice, neither
the ends of justice nor good cause permit waiver of the Rule
5A:18 bar. Commonwealth v. Mounce, 4 Va. App. 433, 436, 357
S.E.2d 742, 744 (1987).
Wheaton's argument that the granting of his petition for
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appeal on this issue, by a three judge panel of this Court, bars
by res judicata our review of whether these issues were properly
preserved, is without merit. Wheaton incorrectly relies on our
decision in Brown v. Commonwealth, 8 Va. App. 474, 382 S.E.2d 296(1989), in which the Commonwealth asserted that the defendant's
argument that the evidence was insufficient was procedurally
barred by Rule 5A:18 because the defendant's "motion to set aside
the verdict was too vague and general." Id. at 480, 382 S.E.2d
at 300. We held that the defendant's general objection that the
evidence was contrary to the law and evidence was adequate to
preserve the question for appeal because, "[t]he record makes
clear that the trial court considered and ruled upon the motion
to set aside as challenging the sufficiency of the evidence to
support the convictions." Id. Here, however, unlike Brown, the
record does not reflect that the trial court was given notice of,
or the opportunity to rule on, the issues raised on brief. The
only sufficiency argument made to the court was Wheaton's
assertion that malice had not been proved. On brief, Wheaton
raises for the first time the arguments that the evidence was
insufficient to prove intent or that an act had been committed
toward the commission of murder.
Holding that these questions were not properly raised before
the trial court, and therefore were not properly preserved, Rule
5A:18 bars consideration of these questions on appeal.
Accordingly, we affirm.
Affirmed.
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