                  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.


                                - 2 -
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.

                                 - 3 -
     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.


                                - 4 -
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
                               - 5 -
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
                               - 6 -
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.

                                - 7 -
                    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
                               - 8 -
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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