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. 
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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 
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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 
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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 
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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 
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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 selfdetermination 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. 
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 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 
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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 
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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 
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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, 
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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 
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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 
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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 
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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 

 

 1The 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. 
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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. 
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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.