                    COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
Argued at Salem, Virginia

BRYAN KEITH JOHNSON
                                            MEMORANDUM OPINION *
v.       Record No. 1819-94-3           BY JUDGE WILLIAM H. HODGES
                                             SEPTEMBER 3, 1996
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                        G. O. Clemens, Judge

            Mark D. Kidd (Osterhoudt, Ferguson, Natt,
            Aheron and Agee, P.C., on briefs), for
            appellant.
            H. Elizabeth Shaffer, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Tried by a jury upon an indictment charging him with the

murder of Ralph Day, Bryan Keith Johnson (appellant) was found

guilty of voluntary manslaughter.   On appeal, appellant contends

that the trial court erred in (1) refusing to suppress both his

statement and the results of the examination of his shoes by the

police; (2) excluding the trial testimony of Dr. Conrad H. Daum,

appellant's psychiatric expert; (3) excluding the testimony of

toxicologist Richard McGarry; (4) refusing to grant a mistrial

because one of the jurors failed to reveal during voir dire her
employment as a dispatcher with a local police department; and

(5) refusing to set aside the verdict because the evidence was

insufficient to sustain the conviction.   Finding no reversible

error, we affirm the conviction.

     "On appeal, we review the evidence in the light most
     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."      Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).     So viewed, the

evidence proved that on the afternoon of September 18, 1993,

Michael Walker noticed two men wandering in the street in the

vicinity of his Vinton apartment.      Walker did not recognize the

men, but later identified appellant as the younger of the two.

Walker watched as the two men approached the door of a basement

apartment nearby.   It took several minutes for them to gain entry

to the apartment.   Suspecting foul play, Walker called the

police.   Corporal R. A. Thompson and Officer R. E. Meador

responded to the call, spoke with Walker, and proceeded to the

basement apartment to investigate at about 5:00 p.m.
     Appellant answered the police officers' knock on the door of

the apartment.    Thompson asked if everything was "all right," and

appellant said that there was a dead man inside.     Thompson looked

inside and saw a man, later identified as Day, in a reclining

chair.    Thompson entered the apartment, checked Day for a pulse,

but found none.   The apartment was in disarray.    Bloodstains

appeared on the floor and wall, and broken glass was on the

floor.    Other than appellant, the only person present was Isaac

Turner, who was seated at the kitchen table.     Turner appeared to

have been beaten and his arm was bloody.

     Meador took appellant outside.      Appellant told Meador his

name and admitted that the apartment was his.     Appellant

volunteered that Day was homeless and had been his best friend.

Appellant asked if he was going to jail, and twice stated that he


                                 -2-
did not "kill his buddy."    Appellant said Day had fallen down

numerous times that day and the preceding day.   Initially,

appellant told the police that Day had been in the chair since

7:00 that morning.   Later, however, he said Day had been there

for only twenty minutes before the police arrived.

     Appellant appeared intoxicated, but was cooperative and

"clear."   At about 5:30 p.m., appellant's blood alcohol content

(BAC) measured 0.40 percent in a preliminary breath test

administered at the scene.   The police arrested appellant for

being drunk in public and transported him to the police station.
     At 11:30 p.m., after appellant had been under arrest for

about six hours, he was interviewed by Investigator Michael

Stovall.   Stovall advised appellant of his Miranda rights.

Appellant said he understood his rights, signed a waiver form,

and agreed to talk to the police.

     Stovall then talked with appellant for about an hour.

Stovall did not readminister the breath test because he thought

that the alcohol already would have passed through appellant's

system.    Stovall felt that appellant was responsive to his

questions and understood what was going on about him.

     After discussing matters with Stovall, appellant gave a

taped statement.   In the statement, appellant admitted that he

hit Day with his hands and feet.    Appellant further stated that

he was sober, that he knew what day of the week it was, and that

he had consumed no alcohol since the police arrived at his

apartment.

     At the conclusion of the statement, appellant agreed to give


                                 -3-
the police the shoes he was wearing.   Testing revealed traces of

human blood on the soles and tops of the shoes.

     The autopsy upon Day's body revealed extensive bruising of

the head and chest.   Day had suffered two broken ribs, which

punctured his left lung and caused the lung to collapse.    This

injury caused Day's death.   The ribs had been broken by blunt

force, consistent with Day having been stomped upon or kicked.

Unless Day had fallen against something, it was unlikely that the

injury was caused by falling down stairs.
     Turner testified that he, Day, and Jesse "Chief" Lewis were

homeless and that appellant was their "drinking buddy."    On the

morning of September 18, 1993, the four men were together at

appellant's apartment drinking alcohol appellant had supplied.

They had been drinking together for about three days.   Although

his memory was "patchy" and he passed out for a period of time,

Turner remembered that, at some point that day, appellant had

warned Day not to eat some food in the apartment.   Appellant left

the apartment.   When he returned, the food was gone.   Appellant

slapped Day, kicked him, and stomped on his chest as Day lay on

the floor.   Turner told appellant to stop, but was afraid to

intervene further because appellant had beaten him earlier.

     Turner testified that someone picked up Day and placed him

in the reclining chair.   Appellant resumed drinking.   When they

later discovered that Day was dead, appellant said that he had

not meant to kill Day, and asked what he was going to do.   Turner

did not observe anyone but appellant kick or stomp upon Day.

     Leonard Trout, appellant's cellmate after his arrest for



                                -4-
Day's murder, testified that appellant said he and Day had gotten

into a fight over some food.    Appellant admitted that he had

kicked Day and stomped upon him, and said that "Chief" was

involved in the fight.   Afterwards, they put Day in the recliner

and left the apartment to get some wine.   When they returned they

discovered Day was dead.

     Appellant testified in his own behalf.    He said that on

September 18, 1993 he been on a two week drinking binge with Day,

Turner, and Lewis.   Finding themselves out of alcohol on the

morning of September 18, they walked to a grocery store for more

alcohol, and consumed it later at appellant's apartment.

Appellant, Turner, and Lewis then went to a bar, leaving Day in

the apartment.   When they returned from the bar, they found Day

on the floor.    Appellant thought Day had simply passed out.

Appellant and Lewis placed Day in the recliner.   The group

continued to drink for about thirty minutes until Lewis

discovered that Day was dead.
     Appellant testified that he did not remember fighting with

Day and did not know who had hurt him.   Appellant said he

sometimes experiences blackouts when on a drinking binge.

Appellant further stated that he did not recall talking to the

police when they arrived at the apartment, and that he was drunk

when he gave his statement to Stovall.

                                 I.

     At a hearing on the motion to suppress, Dr. Daum, a

psychiatrist, testified that appellant was influenced by "some

residual intoxication" when he made his taped statement to the



                                 -5-
police.   Dr. Daum also testified that appellant's BAC could have

been as low as 0.05 or 0.06 percent at the time of his interview

with Stovall.

     The standards to be applied in determining whether a

statement was voluntary are well established.
          "Whether a statement is voluntary is
          ultimately a legal rather than factual
          question. Subsidiary factual questions,
          however, are entitled to a presumption of
          correctness. The test to be applied in
          determining voluntariness is whether the
          statement is the 'product of an essentially
          free and unconstrained choice by its maker,'
          or whether the maker's will 'has been
          overborne and his capacity for self-
          determination critically impaired.' In
          determining whether a defendant's will has
          been overborne, courts look to 'the totality
          of all the surrounding circumstances,'
          including the defendant's background and
          experience and the conduct of the
          police . . . ."


Midkiff v. Commonwealth, 250 Va. 262, 268, 462 S.E.2d 112, 116

(1995) (citations omitted).

     "'Statements made during a custodial interrogation and while

intoxicated are not per se involuntary or inadmissible.'"     Boggs

v. Commonwealth, 229 Va. 501, 512, 331 S.E.2d 407, 415 (1985),

cert. denied, 475 U.S. 1031 (1986) (citation omitted).

"[C]oercive police activity is a necessary predicate to the

finding that a confession is not 'voluntary' within the meaning

of the Due Process Clause of the Fourteenth Amendment."     Colorado

v. Connelly, 479 U.S. 157, 165 (1986).   However, in situations

where the accused has ingested intoxicants prior to his

statement, the degree of police coercion necessary to render the

statement involuntary may be lessened.


                                -6-
          The mental condition of the defendant is
          "surely relevant to [his] susceptibility to
          police coercion"; however, evidence of
          coercive police activity "is a necessary
          predicate to the finding that a confession is
          not 'voluntary' within the meaning of the Due
          Process Clause of the Fourteenth Amendment."
           The amount of coercion necessary to trigger
          the due process clause may be lower if the
          defendant's ability to withstand the coercion
          is reduced by intoxication, drugs, or pain,
          but some level of coercive police activity
          must occur before a statement or confession
          can be said to be involuntary.


Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722,

723 (1992) (citations omitted).
     Appellant argues that this Court's decision in Peterson

compelled the suppression of his statement and the results of the

examination of his shoes.   At the time the defendant in Peterson

was questioned by the police, he was being transported to the

hospital in an ambulance after having ingested cocaine.   He was

experiencing chest pains, blurred vision, and could not

understand what was going on around him because of injuries he

suffered when the police apprehended him.   We found the evidence

"supported the trial court's finding that the police authority,

asserted when the defendant was especially susceptible, overbore

his will and, thus, was coercive police activity rendering his

statements involuntary and inadmissible."   Id. at 488, 424 S.E.2d

at 724.   Cf. Goodwin v. Commonwealth, 3 Va. App. 249, 349 S.E.2d

161 (1986) (mentally retarded suspect's statement not involuntary

despite evidence that he was intoxicated three hours before his

interview with the police).

     Here, the evidence supports the trial court's finding of an




                                  -7-
absence of coercive police activity during the questioning of

appellant.   Although appellant's BAC had registered 0.40 six

hours earlier, appellant's own evidence was that his BAC may have

been as low as 0.05 or 0.06 when he gave his statement.      During

the interview, appellant told the police that he was sober.       He

appeared to understand what was going on about him, and he was

responsive to Stovall's questions.      Therefore, the evidence

supports the trial court's determination that appellant

voluntarily gave his statement and his consent to examine the

shoes.   The trial court did not err in denying the motion to

suppress.
                                  II.

     Before trial, appellant filed notice of his intention to

present evidence that he was insane at the time of the offense.

At trial, the defense sought to introduce the psychiatric

testimony of Dr. Daum who had evaluated appellant.      In a proffer

of his testimony, Dr. Daum stated that appellant suffered from

symptoms of alcohol dependence.    At the time of the offense,

appellant was alcohol dependant, which is classified in medical

terms as a "disease of the mind."       However, Dr. Daum could not

say that at the time of the offense appellant did not know the

difference between right and wrong or understand the consequences

of his actions.   He also could not testify that appellant was

legally insane at the time of the offense, or that appellant was

brain damaged from alcohol use.    The trial court found Dr. Daum's

testimony to be evidence of diminished capacity and excluded it.

     "It is well settled that a defendant is presumed to be



                                  -8-
legally sane until he proves to the satisfaction of the trier of

fact that he was insane at the time of the offenses for which he

is on trial."     Boblett v. Commonwealth, 10 Va. App. 640, 651, 396

S.E.2d 131, 137 (1990).    To establish an insanity defense, the

accused must show that "he did not know the difference between

right and wrong or that he did not understand the nature and

consequences of his acts."     Price v. Commonwealth, 228 Va. 452,

456, 323 S.E.2d 106, 108 (1984).
          For purposes of determining criminal
          responsibility a perpetrator is either
          legally insane or sane; there is no sliding
          scale of insanity. The shifting and subtle
          gradations of mental illness known to
          psychiatry are useful only in determining
          whether the borderline of insanity has been
          crossed. Unless an accused contends that he
          was beyond that borderline when he acted, his
          mental state is immaterial to the issue of
          specific intent.

Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d 682, 688

(1985).   Evidence which falls short of establishing an accused's

insanity and is merely probative of his diminished capacity is

not admissible.     See Smith v. Commonwealth, 239 Va. 243, 259-60,

389 S.E.2d 871, 879-80, cert. denied, 498 U.S. 881 (1990);

Bowling v. Commonwealth, 12 Va. App. 166, 174, 403 S.E.2d 375,

378-79 (1991).

     Dr. Daum's proffered testimony, either alone or in

conjunction with other evidence, did not establish that appellant

was insane at the time of the offense.    Although Dr. Daum stated

that alcohol dependence was classified medically as a mental

disease, he could not say that at the time of the offense

appellant did not know the difference between right and wrong or



                                  -9-
understand the consequences of his actions.   In the absence of

such conclusions, Dr. Daum's testimony amounted to nothing more

than evidence of appellant's diminished capacity at the time of

the offense.    Accordingly, the trial court did not err in

excluding it.

                                III.

     At the conclusion of the Commonwealth's case-in-chief, the

trial court granted appellant's motion to strike the evidence as

to first degree murder, and the case proceeded upon a charge of

second degree murder.   Subsequently, appellant sought to admit

the testimony of Richard McGarry, a toxicologist.   In a proffer

of his testimony, McGarry stated that increasing levels of

alcohol in the bloodstream affect a person's judgment,

coordination, and memory.   McGarry was able to testify about how

much alcohol a person of appellant's size would have had to

consume to reach a BAC of 0.40.    According to McGarry, six hours

after that reading, that same person would have a BAC of 0.28 if

he had consumed no more alcohol.
     Appellant argued that McGarry's testimony was relevant to

the jury's determination of the weight to give appellant's

statement to Stovall, made six hours after his arrest.   While

noting that portions of McGarry's testimony might be admissible,

the trial court excluded McGarry's testimony entirely because the

admissible and inadmissible portions of the testimony could not

be separated.

     Voluntary intoxication is a defense to first degree murder,

but not to any lesser form of homicide.    Essex v. Commonwealth,



                                -10-
228 Va. 273, 281-82, 322 S.E.2d 216, 220 (1984).   After the trial

court granted in part appellant's motion to strike, evidence that

he was intoxicated at the time of the offense was not relevant to

negate any element of a lesser included offense of first degree

murder.

     However, the testimony of McGarry may have been relevant for

other purposes.   "Evidence is relevant . . . if it has any

tendency to establish a fact which is properly at issue.   When

the probative value of evidence sought to be admitted outweighs

any prejudicial effect, and no other objection is pertinent, the

evidence is admissible."    Wise v. Commonwealth, 6 Va. App. 178,

188, 367 S.E.2d 197, 202-03 (1988).    "Any fact, however remote,

that tends to establish the probability or improbability of a

fact in issue is admissible."    Wynn v. Commonwealth, 5 Va. App.

283, 291, 362 S.E.2d 193, 198 (1987).

     When appellant sought to admit McGarry's testimony, the

Commonwealth already had introduced appellant's statement to

Stovall.   In addition, appellant had testified that, contrary to

portions of his statement to Stovall, he did not injure Day, did

not know how Day had gotten hurt, and that he was drunk when he

told Stovall otherwise.    McGarry's testimony about the effects of

alcohol on the human body could have strengthened appellant's

contentions that he did not remember how Day was injured, did not

remember talking with Stovall, and was intoxicated when he made

his statement to the police.    Thus, McGarry's testimony was

probative evidence the jury could have considered in determining

the weight to give appellant's statement to the police and his


                                -11-
testimony at trial.

     Even if the exclusion of McGarry's testimony was erroneous,

"error committed in the trial of a criminal case does not

automatically require reversal of an ensuing conviction."

Galbraith v. Commonwealth, 18 Va. App. 734, 742, 446 S.E.2d 633,

638 (1994).
          [N]on-constitutional error is harmless "when
          it plainly appears from the record and the
          evidence given at the trial that the parties
          have had a fair trial on the merits and
          substantial justice has been reached." "[A]
          fair trial on the merits and substantial
          justice" are not achieved if an error at
          trial has affected the verdict.
          Consequently, under Code § 8.01-678, a
          criminal conviction must be reversed unless
          "it plainly appears from the record and the
          evidence given at the trial that" the error
          did not affect the verdict. An error does
          not affect a verdict if a reviewing court can
          conclude, without usurping the jury's fact
          finding function, that, had the error not
          occurred, the verdict would have been the
          same.

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc) (citations omitted).

     As mentioned earlier, McGarry's proffered testimony would

have corroborated appellant's own testimony and could have

affected the jury's assessment of the reliability of appellant's

statement.   Had the jury rejected appellant's statement and

believed his testimony that he did not know how Day was injured,

there remained Turner's affirmative testimony that appellant, and

no one else, beat Day.   Moreover, while appellant was

incarcerated and was not intoxicated, appellant confessed to

Trout that he and Day had gotten into a fight over food and that



                               -12-
he had kicked and stomped upon Day during the fight.

     The credibility of neither Turner's nor Trout's testimony

would have been affected by that of McGarry.   Thus, in light of

this evidence, any error in excluding McGarry's testimony did not

affect the verdict and was harmless.

                                IV.

     During voir dire, the trial court asked the jurors as a

group if "any of you all have any present family members who are

working and occupied in law enforcement in any way?"    The court

also asked if the jurors had any relatives that had worked in law

enforcement and if "anyone else [has] any law enforcement

connections, any extended families or anything like that?"

During this questioning, Juror Annette Hoge did not reveal that

she was a dispatcher for the Salem Police Department.    The jury

list reported Hoge's occupation as "Salem Dispatcher."
     During the presentation of appellant's evidence, appellant's

attorney notified the court of Juror Hoge's occupation and moved

for a mistrial.   When questioned by the court, Hoge said she

understood the voir dire questions as requesting information
about family members and relatives, not the jurors themselves.

Hoge said that she was not a sworn police officer, had no

knowledge of the case other than what she had learned in the

courtroom, and that her occupation would not affect her ability

to decide the case fairly.

     The only argument raised at trial in support of appellant's

subsequent motion for a mistrial was that if appellant had

possessed information about Hoge's occupation at the time of jury



                               -13-
selection, he might have exercised his peremptory strikes

differently.   The Court of Appeals will not consider arguments on

appeal which were not presented to the trial court.     Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)

(citing Rule 5A:18).   Therefore, because the trial court was

never given the opportunity to rule upon them, we will not

consider appellant's arguments on appeal that he was denied his

constitutional and statutory rights to an impartial jury and that

Hoge should have been stricken for cause. 1
             When a motion for mistrial is made, based
          upon an allegedly prejudicial event, the
          trial court must make an initial factual
          determination, in the light of all the
          circumstances of the case, whether the
          defendant's rights are so "indelibly
          prejudiced" as to necessitate a new trial.
          Unless an appellate court can say that
          determination was wrong as a matter of law,
          it will not be disturbed on appeal.


Spencer v. Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619,

cert. denied, 498 U.S. 908 (1990) (citation omitted).    Upon

examination of Juror Hoge, the trial court determined that,

despite her occupation as a police dispatcher, she was impartial

and qualified to serve as a member of the jury.   Her explanation

for her failure to reveal this information earlier — that she

understood the voir dire questions as requesting information
about the association of family members with the police — appears
     1
      The Commonwealth contends that the motion for a mistrial
was untimely because the jury list put appellant on notice of
Hoge's occupation at the commencement of the trial. The jury
list reports Hoge's employment only as "Salem Dispatcher." From
viewing the videotape, it appears that appellant's attorney moved
for a mistrial when he first learned of Hoge's association with
the police. Therefore, we reject the Commonwealth's contention.



                               -14-
reasonable upon review of the questions posed.   Furthermore,

because appellant did not contend at trial that he would have

struck Hoge if he had known of her occupation, he did not

demonstrate to the trial court that a mistrial was warranted

under the circumstances.    Cf. Clozza v. Commonwealth, 228 Va.

124, 135-36, 321 S.E.2d 273, 280 (1984), cert. denied, 469 U.S.

1230 (1985) (no mistrial warranted where juror revealed during

the trial that she had a prior association with the police

department of another state, was acquainted with a potential

witness, and was familiar with the location of a prior crime the

defendant had committed).   Thus, the trial court did not err in

denying appellant's motion for a mistrial.
                                 V.

      Appellant challenges the sufficiency of the evidence that he

was the cause of Day's fatal injury.   Turner's testimony,

however, was direct evidence that only appellant kicked and

stomped upon Day.   The injuries Day suffered were consistent with

him being beaten in such a fashion.    Turner stated that after the

beating, Day was lifted into the chair, where he remained when

the police arrived.   Upon finding Day dead, appellant declared

that he had not intended to kill him, and wondered what he would

do.

      Of course, the jury also saw and heard Turner admit that his

memory of the day was incomplete and that he had passed out at

some point.   However, "[t]he weight which should be given to

evidence and whether the testimony of a witness is credible are

questions which the fact finder must decide."    Bridgeman v.



                                -15-
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

     Turner's testimony about appellant's beating of Day was

corroborated by the evidence that the apartment was in disarray

when the police arrived.   Human blood was present on appellant's

shoes and the walls and floor of the apartment.   Appellant told

Stovall he had hit Day with his hands and feet.   Finally,

appellant admitted to Trout that he had been involved in the

beating of Day.   Considered as a whole, this was sufficient to

establish beyond a reasonable doubt that appellant beat Day and

caused his fatal injury.
     Appellant contends that Day could have been injured by

falling down the stairs outside appellant's apartment.      There was

no evidence, however, that Day ever did so.   "The Commonwealth is

only required to exclude hypotheses of innocence that flow from

the evidence, and not from the imagination of the accused's

counsel."   Fordham v. Commonwealth, 13 Va. App. 235, 239, 409

S.E.2d 829, 831 (1991).

     The evidence was sufficient to support the jury's verdict of

voluntary manslaughter.    Accordingly, for the foregoing reasons,

we affirm appellant's conviction.


                                                Affirmed.




                                -16-
