                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and McClanahan
Argued at Alexandria, Virginia


JOSEPH DONALD OLIVER
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1237-07-4                               JUDGE ELIZABETH A. McCLANAHAN
                                                                    JUNE 30, 2009
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Gaylord L. Finch, Judge

                 W. Michael Chick, Jr. (Office of the Public Defender, on brief), for
                 appellant.

                 Eugene Murphy, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       A jury convicted Joseph Donald Oliver of two counts of attempted capital murder in

violation of Code §§ 18.2-25 and 18.2-31(6), two counts of use of a firearm in the commission of

a felony in violation of Code § 18.2-53.1, and possession of a firearm as a convicted felon in

violation of Code § 18.2-308.2. Appellant argues on appeal that the trial court erred in denying

his motion to suppress his inculpatory statements to the police because (i) his condition rendered

his Miranda 1 waiver involuntary in the first instance, and (ii) he was interrogated without having

been “properly Mirandized” in the second instance. Appellant also argues that the court erred in




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
           Miranda v. Arizona, 384 U.S. 436 (1966).
excluding the testimony of a psychologist regarding the reliability of his statements to the

police. 2 For the following reasons, we affirm appellant’s convictions.

                                          I. Background

       We review the evidence in the “light most favorable” to the Commonwealth as the

prevailing party below. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003) (citations omitted). On October 11, 2005, appellant’s family reported him missing and

possibly suicidal. On October 29, 2005, appellant’s family drove by his apartment and saw his

car parked outside. While his family was on the phone with police, appellant walked out of the

apartment building. Appellant’s family approached him and convinced him to accompany them

to Richmond.

       Appellant indicated he needed some items out of his apartment, and his brother-in-law,

Darden Hutson, escorted him back into the apartment building. Hutson asked appellant if he had

any firearms. Appellant replied that he had two guns, one in his pants pocket and another in a

camera case. Hutson told appellant he could not bring the weapons with him, but appellant

insisted he needed them.

       Shortly after appellant and Hutson returned to the car, police arrived on the scene.

Hutson’s wife, Betty, approached the officers and explained that her brother was armed.

Meanwhile, appellant’s family continued to try to convince him to relinquish his weapons.

       When police approached appellant, he backed away from the parking lot and put one

hand on his camera case and the other in his pants pocket. Officer Huminik asked appellant if he

had any weapons, and appellant responded affirmatively, producing both guns. Officer Huminik




       2
         Judge Kathleen H. MacKay presided over the suppression hearing. Judge Gaylord L.
Finch presided over the trial and entered the final conviction and sentencing orders.

                                               -2-
instructed appellant to put the guns down. Appellant returned the guns to his pocket and a bag

he was carrying.

       Officer Feigleson was concerned appellant was suicidal and conversed with him for

nearly an hour in an attempt to save his life. As darkness approached and the weather grew

colder, appellant grew less responsive to Officer Feigleson’s questions and began moving his

hands across his guns more frequently. Officer Feigleson believed appellant “was warming up to

make a decision” and that he “was going to drive us to shoot him directly.” The officers decided

to disarm appellant with beanbag ammunition and taser darts.

       When the officers fired their stunning weapons, appellant responded by “shooting away

with both arms, both guns in both directions . . . ,” and expending all eleven shots available in his

two weapons. In the process, appellant pointed one of his guns at and shot Officers Feigleson

and McCaskill, who were standing together, within a few feet from appellant. One bullet

wounded Officer Feigleson in the leg while another passed through Officer McCaskill’s hair.

Appellant also shot at, but did not hit, two other officers. Police shot appellant twice in the chest.

       As appellant was being treated in the ambulance, he asked the medic if the officers were

“ok,” and stated, “I only wanted to hurt myself. I was hit by something and then I started

shooting.”

                   Appellant’s October 30, 2005 Statements to Detective Wallace

       On October 30, 2005, the day after the shooting, Detective Wallace visited appellant in

the hospital. Detective Wallace told appellant he wanted to “talk to him about what had

happened . . . the day before.” Appellant responded he “was confused about it at first, but . . .

since a day ha[d] passed, he remember[ed] better.” Detective Wallace asked appellant

background questions about his education and job history, and upon receiving appropriate

responses, provided him with a written Miranda warning and consent form.

                                                -3-
       Appellant indicated he could read and write, understood the form, and signed it. After he

was advised of his Miranda rights, appellant asked Detective Wallace “how long this would take

if he wanted a lawyer.” Detective Wallace responded that he would cease talking to appellant if

he wanted a lawyer. Then, as Detective Wallace testified,

               I . . . had him specify, do you want an attorney or do you want to
               talk, and actually, I said it several times, and then he asked what
               type of questions I was going to ask him, and I again said I just
               want to go over what happened the day before, and we’ll go from
               there.

In response, appellant “agreed to talk.”

       Appellant told Detective Wallace his weapons were concealed when the police arrived at

the scene, but when the officers asked to see his hands, he produced two handguns. At that time,

appellant moved to the front of his apartment building, sat down, and began talking with Officer

Feigleson. The officers and appellant reached a “stand-off” because appellant wanted to go back

into his apartment, and the officers refused.

       Appellant then recalled “something going by his cheek and then . . . being hit in the

chest.” The guns were in his lap, and appellant “leaned to the right . . . pull[ed] up and pull[ed]

the trigger . . . .” Appellant remembered hearing “loud popping noises,” followed by the

sensation of pain in his back. Detective Wallace testified as follows:

               Q: Did he indicate . . . who he had shot?

               A: He indicated that the officer that he was speaking with during
               the negotiations would be the officer that he would have shot
               because that’s the direction he had pointed towards.

                       *       *      *         *         *   *       *

               Q: Did the [d]efendant indicate how many times he shot his
               weapon?

               A: He remembers pulling the trigger over and over and when he
               was telling me that he’s actually demonstrating with his hand
               pulling the trigger.

                                                    -4-
                   Appellant’s November 23, 2005 Statements to Deputy Ruff

       On November 23, 2005, Deputy Ruff was posted as a guard outside appellant’s hospital

room. Deputy Ruff spoke with appellant and asked if the bullets had been removed from his

chest. Appellant replied that they been removed, but some fragments remained. Deputy Ruff

told him he was “very lucky.”

       No further conversation took place for approximately “a minute.” Appellant then asked

Deputy Ruff what caliber round the officers had used, and Deputy Ruff answered, “Nine

millimeter.” Appellant expressed surprise that the officers did not use a smaller round and stated

he had “Black Talons [in his guns] that night.” Deputy Ruff replied, “Oh, really?,” and appellant

went on to state that he had a Smith and Wesson Model 27 with Black Talons and a Model 60

with .38’s on the day of the shooting. He said the .38’s were low power, and he was surprised at

the damage that they did.

       Another pause followed before appellant stated, “I’m surprised that the taser isn’t as

strong as I thought it was.” Deputy Ruff responded, “Why do you say that?” Appellant

answered, “Because I was tasered four times that night and I still had enough strength at the end

to aim my weapon at the officer that was talking to me.”

       Appellant was charged with two counts of attempted capital murder in violation of Code

§§ 18.2-25 and 18.2-31(6), two counts of use of a firearm in the commission of a felony in

violation of Code § 18.2-53.1, and possession of a firearm as a convicted felon in violation of

Code § 18.2-308.2.

       In his suppression motion, appellant sought to exclude his inculpatory statements to both

Detective Wallace and Deputy Ruff. As to the statements to Detective Wallace, appellant

contended that, given his medical condition the day after the shooting, he was not “in any type of

condition to be able to waive his Miranda rights” when Detective Wallace advised him of those

                                               -5-
rights at that time. The trial court rejected this argument, finding from the evidence presented

that appellant was neither “confused in his mental state” nor “suffering some physical effects”

such as to render his waiver of the Miranda rights involuntary. The court further found that

appellant’s “confession” to Detective Wallace was “detailed, lucid, and there was no evidence

that he was in distress.”

        As to appellant’s later statements to Deputy Ruff, appellant argued that the deputy

interrogated him without advising him of his Miranda rights. Rejecting this argument, the trial

court found that Detective Wallace had already advised appellant of those rights and that,

alternatively, “the deputy’s actions in this case did not constitute an intentional interrogation.”

Deputy Ruff, the court explained, “was asking a simple question about the [d]efendant’s health,

and . . . everything else came out of that, . . . even . . . the conversation about the taser was

initiated by the [d]efendant . . . .” The court therefore denied appellant’s suppression motion.

        At trial, appellant sought to introduce the testimony of a psychiatrist, Dr. Michael

Hendricks, regarding the reliability of appellant’s statements to Detective Wallace and Deputy

Ruff. Based on appellant’s proffer of Dr. Hendricks’ testimony, the trial court ruled that the

proposed testimony was inadmissible.

        This appeal followed appellant’s conviction on each of the five charges against him.

                                             II. Analysis

                                  A. Denial of Motion to Suppress

        “In reviewing a trial court’s denial of a motion to suppress, ‘the burden is upon [the

defendant] to show that the ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted). Further, while we are bound to

“review de novo the trial court’s application of defined legal standards to the particular facts of a

                                                  -6-
case,” we review its “findings of historical fact only for clear error.” Ferguson v.

Commonwealth, 52 Va. App. 324, 334, 663 S.E.2d 505, 510 (2008) (citations omitted), aff’d,

___ Va. ___, ___ S.E.2d ___ (June 4, 2009) (No. 081645).

       Appellant argues that his motion to suppress his statements to Detective Wallace was

erroneously denied because the statements, as well as the Miranda waiver he executed, were not

voluntary. He also argues his statements to Deputy Ruff should have been suppressed because he

was not “Mirandized” prior to questioning.

       In support of the argument that his statements and written waiver given to Detective

Wallace were involuntary, appellant asserts that he had been shot the previous day, was

recovering from surgery, and was receiving pain medication and oxygen. He further notes that

he indicated to Detective Wallace he was “confused” as to the circumstances surrounding the

shooting.

       “Whether a statement is voluntary is ultimately a legal rather than a factual question, but

subsidiary factual questions are entitled to a presumption of correctness.” Venable v.

Commonwealth, 12 Va. App. 358, 359, 404 S.E.2d 74, 75 (1991). “[F]ollowing a trial court’s

finding of voluntariness, the scope of our appellate review is limited to determining whether the

evidence supports the finding.” Id. at 359-60, 404 S.E.2d at 75. “Thus, the findings by the trial

judge, unless plainly wrong or without evidence to support them, will not be overturned on

appeal.” Id. at 360, 404 S.E.2d at 75.

       Detective Wallace testified that he spoke with appellant’s doctor prior to interviewing

appellant in the intensive care unit, and was allowed to question appellant. Detective Wallace

asked appellant what medications he was taking, and appellant told him he was on a “painkiller,”

but could not identify it by name. Appellant indicated he had taken his last dose approximately

twenty minutes earlier.

                                                -7-
       Appellant told Detective Wallace he had worked for Toyota for fifteen years, but was

currently unemployed. Detective Wallace knew this information to be accurate because, in

searching appellant’s home, he had observed certificates relating to his employment with Toyota.

       Detective Wallace asked appellant about his educational background, and appellant stated

he had attended the University of Richmond for two years, but had left after being arrested for

arson and propelling a missile into an automobile. Detective Wallace later verified the accuracy

of this statement by obtaining a certified copy of appellant’s conviction.

       Detective Wallace noted that appellant seemed to have no trouble understanding his

questions and answered them appropriately. Upon determining that appellant could read and

write and understood his Miranda rights, Detective Wallace presented him with a written waiver

form. Detective Wallace explained the significance of appellant initialing the waiver of each

right, and appellant stated “he understood each right.” Appellant then asked Detective Wallace

“how long this would take if he wanted a lawyer,” and Detective Wallace responded that he

would not interview him if he wanted a lawyer. Detective Wallace testified as follows:

               I then had him specify, do you want an attorney or do you want to
               talk, and actually, I said it several times, and then he asked me
               what type of questions I was going to ask him, and I again said I
               just want to go over what happened the day before, and we’ll go
               from there.

       Appellant agreed to talk with Detective Wallace and gave a detailed statement that lasted

approximately an hour and a half. Appellant identified the types of guns he was holding in each

hand and noted that he had concealed them until the officers asked to see his hands. He also told

Detective Wallace the guns were loaded with Black Talons and Nyclad bullets. Detective

Wallace knew that Black Talon ammunition had been recovered from appellant’s apartment.

       Appellant told Detective Wallace that he came to a “stand-off” with police when the

officers refused to allow him to enter his apartment. Appellant never indicated to Detective


                                               -8-
Wallace that he did not understand “what was going on,” although he did describe the events

surrounding the shooting as “confusing.”

       Based on this record, the trial court’s finding that appellant’s waiver and statements were

voluntary was not plainly wrong nor without evidence to support it. Detective Wallace consulted

with appellant’s doctor prior to interviewing him, and was allowed to question appellant for

more than an hour. Appellant provided Detective Wallace with specific, accurate information

about his work and educational history, and his description of the events surrounding the

shooting was consistent with the physical evidence and statements of other witnesses. Appellant

inquired about his right to an attorney and elected to proceed after Detective Wallace informed

him the interview would terminate upon appellant’s request for counsel. Accordingly, the

motion to suppress appellant’s statements to Detective Wallace was properly denied.

       We now turn to appellant’s argument that his statement to Deputy Ruff should have been

suppressed because it was not preceded by Miranda warnings “reasonably contemporaneous with

the questioning.” Assuming, without deciding, that Deputy Ruff’s conversation with appellant

constituted an “interrogation” for purposes of Miranda, we conclude that no further Miranda

warnings were required at that time.

       “[W]here a person, after receiving Miranda warnings, has once given [] a knowing and

intelligent waiver of his constitutional rights, such waiver will be presumed to continue in effect

throughout subsequent custodial interrogations until the suspect manifests, in some way which

would be apparent to a reasonable person, his desire to revoke it.” Washington v.

Commonwealth, 228 Va. 535, 548-49, 323 S.E.2d 577, 586 (1984). See also Shell v.

Commonwealth, 11 Va. App. 247, 255-56, 297 S.E.2d 673, 677-78 (1990). Appellant received

the Miranda warnings from Detective Wallace and executed his waiver; and he presented no

evidence that he “ever manifested any desire to revoke the waivers he had given, and, therefore,

                                                -9-
no further warnings or waivers were required.” Washington, 228 Va. at 549, 323 S.E.2d at 586.

Thus, the trial court did not err in denying appellant’s motion to suppress his statement to Deputy

Ruff.

                              B. Exclusion of Psychiatrist’s Testimony

        With the admission of appellant’s statements to Detective Wallace and Deputy Ruff,

appellant sought to present the testimony of the psychiatrist, Dr. Michael Hendricks, relating to

the reliability of those statements. More specifically, appellant sought through Dr. Hendricks to

establish that his inculpatory statements to the two officers, i.e., that he “pointed” or “aimed” his

gun at Officer Feigleson at the time of the shootings, were unreliable. Appellant argues the trial

court erred in ruling that Dr. Hendricks’ proffered testimony was inadmissible.

        “The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Jones v.

Commonwealth, 50 Va. App. 437, 446, 650 S.E.2d 859, 863 (2007) (citations and internal

quotation marks omitted). To the extent we conclude an abuse of discretion has occurred, we

must determine whether the error was harmless. Id. The test for non-constitutional errors, such

as alleged in this case, is well established:

                “If, when all is said and done, the conviction is sure that the error
                did not influence the jury, or had but slight effect, the verdict and
                the judgment should stand . . . . But if one cannot say, with fair
                assurance, after pondering all that happened without stripping the
                erroneous action from the whole, that the judgment was not
                substantially swayed by the error, it is impossible to conclude that
                substantial rights were not affected . . . . If so, or if one is left in
                grave doubt, the conviction cannot stand.”

Id. at 446, 650 S.E.2d at 864 (quoting Atkins v. Commonwealth, 272 Va. 144, 154, 631 S.E.2d

93, 98 (2006) (internal quotation marks and other citations omitted)); see Code § 8.01-678

(“When it plainly appears from the record and the evidence given at the trial that the parties have



                                                 - 10 -
had a fair trial on the merits and substantial justice has been reached, no judgment shall be

arrested or reversed . . . . (quoted in Jones, 50 Va. App. at 446, 650 S.E.2d at 864)).

       In proffering the excluded testimony of Dr. Hendricks, defense counsel indicated the

doctor would state that, given “the way [appellant] thinks,” when “[h]e is told X and Y . . . the

next thing he believes should be Z, whether Z actually follows or . . . is unknown, but he will fill

in the blank with whatever he thinks is logical.” Thus, “[i]t may be X, Y, Z but to [appellant] it’s

X, Y, L and he sticks that in and that is the next logical step and it’s that statement of L that the

Commonwealth is seeking to use to show that he intended to kill the police . . . .” Dr. Hendricks,

according to defense counsel, would characterize such thinking as “over-intellectualization.”

       Defense counsel then represented that, for the above stated reasons, Dr. Hendricks was

“going to say” that appellant’s statements to the police “can’t be taken for what it’s worth.” That

is, Dr. Hendricks would specifically testify that appellant’s statements were “unreliable” or

“certainly . . . something to be questioned.”

       “The physical and psychological environment surrounding a confession can be very

relevant in determining whether a confession is reliable, and expert witnesses may testify ‘to a

witness’s or defendant’s mental disorder and the hypothetical effect of that disorder.’” Jackson

v. Commonwealth, 266 Va. 423, 438, 587 S.E.2d 532, 544 (2003) (quoting Pritchett v.

Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208 (2003)). However, expert witnesses are

not permitted to “render an opinion on the defendant’s veracity or reliability of a confession

because whether a confession is reliable is a matter in the jury’s exclusive province.” Id. (citing

Pritchett, 263 Va. at 187, 557 S.E.2d at 208).

       The portion of Dr. Hendricks’ proffered testimony expressly indicating that appellant’s

statements to the police were unreliable, or unworthy of belief, was therefore inadmissible, as

such testimony would have clearly invaded the province of the jury.

                                                 - 11 -
       As to the remainder of Dr. Hendricks’ proffered testimony, addressing “the way

[appellant] thinks,” we assume without deciding that it was admissible evidence of a mental

disorder appropriately bearing on the reliability of appellant’s statements to the police under the

standard set forth in Jackson and Pritchett and that the trial court erred in excluding it. We do so

in light of our conclusion that any such error was harmless.

       First, Dr. Hendricks’ mental disorder related testimony would, at most, render unreliable

appellant’s statement to Detective Wallace—not his statement to Deputy Ruff. Deputy Ruff did

not say anything to appellant that would fit into Dr. Hendricks’ construct that upon being told “X

and Y” appellant will “stick in” for “Z” what he thinks is a logical conclusion, even if “Z” does

not “actually follow[].” That is to say, Deputy Ruff did not suggest any set of facts to appellant

preceding appellant’s statement to the deputy that he was “tasered four times” at the time of the

shooting, but “still had enough strength at the end to aim [his] weapon at the officer that was

talking to [him].”

       Second, even without appellant’s inculpatory statements to Detective Wallace and

Deputy Ruff, the fact that appellant pointed one of his guns at and shot Officer Feigleson, as well

as Officer McCaskill, was established through the uncontroverted testimony of Officers Cruz,

Feigleson, Martin, McCaskill, and Shaw. In other words, had Dr. Hendricks’ proposed

testimony been admitted, and the jury been able to conclude, based on the doctor’s testimony,

that appellant’s admission that he “pointed” or “aimed” his gun at Officer Feigleson was

unreliable, evidence of that fact was presented through the testimony of five officers who were

present at the time of the shootings, including the two victims. Accordingly, the jury would still

have had substantial evidence upon which to conclude that appellant “intended the natural and

probable consequences of his acts,” i.e., to shoot the two police officers. Clanton v.

Commonwealth, 53 Va. App. 561, 568-69, 673 S.E.2d 904, 908 (2009) (en banc) (citing

                                               - 12 -
Velasquez v. Commonwealth, 276 Va. 326, 330, 661 S.E.2d 454, 456 (2008); Schmitt v.

Commonwealth, 262 Va. 127, 145, 547 S.E.2d 186, 198 (2001)).

       Thus, it plainly appears from the record that the exclusion of Dr. Hendricks’ proposed

testimony did not prevent appellant from receiving a fair trial on the merits and that substantial

justice has been reached in this case. See Code § 8.01-678.

       For these reasons, we affirm appellant’s convictions.

                                                                                     Affirmed.




                                               - 13 -
