                      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

                                 - 2 -
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

                                - 3 -
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).




                                - 4 -
     "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.

                                 - 5 -
     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



                               - 6 -
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.

                              - 7 -
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

                               - 8 -
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



                                 - 9 -
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


                              - 10 -
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.

                                - 11 -
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

                                - 12 -
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

                                - 13 -
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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