COURT OF APPEALS OF VIRGINIA
Present: Judges Pett y, Chafin and O’Brien Argued at Williamsburg, Virginia

ANDRE MARQUISE HARRIS MEMORANDUM OPINION * BY v. Record No . 1754-17-1 JUDGE MAR Y GRACE O’BRIEN MARCH 26, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge Stephen K. Smith for appellant. Rosemary V. Bourne, Senior Assist ant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Following a bench trial, Andre Marquise Harris (“appellant”) w as convicted of two counts of burglary, in violation of Cod e § 18.2-91; grand larceny of a firearm, in violation of Code § 18.2-95; petit la rceny, in violation of C ode § 18.2-96; and r eckless handling of a firearm, in violation of Code § 18.2-56.1. Appellant filed a motion to sup press statements made during a two-hour police interview, which the court granted in part and denied in part. On appeal, he asserts that the court erred by not granting his suppression motion in full. For the following reasons, we agree with the court’s ruling and affirm appellant’s conviction s. BACKGROUND Appellant was admitte d to the hospital on D ecember 27 , 2015 fo llowing a self-inflicted gunshot wound to his left leg. A fter two surgeries and a blood transfusion, appellant was released from the hospital on December 31 , 2015. Shortly before his rel ease, appellant received pain

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.UNPUBLISHED- 2 - medication. Upon appell ant’s discharge, two Hampton police off icers arrested and transported him to the police station for ques tioning about burglaries they wer e investigating. At the police station, appellant was dressed only in his hospi tal gown with a bedsheet wrapped around him. He was s eated in an interview room, and De tective William Darden provided him a second chair to elevate his injured leg. Detective Darde n advised appellant of his rights under Miranda v. Arizona, 38 4 U.S. 436 (1966), a nd appellant signed a form waiving these rights. Detective Darden and his partner , Detective Jones, interviewed appellant for approximately two hours. 1 Detective Darden observed that appellant, who was twenty-one years old and had completed the tenth grade, was “focused and articulate.” The i nterview, which was videotaped, began at 1:01 p.m. an d concluded at approximately 3:00 p.m. Th e court viewed the videotape at the suppression hearing. During the interview, Detectives Darden and Jones entered and l eft the room sev eral times. Appellant was permitte d to smoke a cigaret te and drink water. At 1:17 p.m., ap pellant made an admission about his involvement in one of the burglaries. Dete ctive Darden continued to question appellant until 1:50 p.m. and then left the room. Detective Darden returned at 1: 54 p.m. and continued to speak with appellant. At that point, appellant mentioned “some degree of fatigue,” but the court fou nd that he was “s till very conversant with [Detective] Darden.” At 1: 58 p.m., Detective Darden left again, and appellant attempted to sleep. Detective Jones entered the room at 2:03 p.m. and spoke to appellant for approximately ten minutes. During that time, appe llant expressed that he was hav ing difficulty cooperating due to lack of sleep. At 2:23 p .m., appellant admitted “something about be ing a lookout on the second [house]” that was burglarized. By 2:25 p.m., appellant “was yawning and his head was back.” At 2:27 p.m., the detectives discussed bringing appellant’s pain medicine to him.

1 The record does not indicate De tective Jones’s first name.- 3 - Appellant testified that during the interview he “was so drugg ed up that [he] couldn’t stay focused,” and he could not remember anythin g he said. He also stated that he fell asleep in the interview room and his leg was “t hrobbing” from pain. However, appellant acknowledged that he did not tell the detectives about the pain until the end of the interview. The court found that the intervie w was consensual and voluntar y until 2:25 p.m. when appellant “lost his ab ility to articulate.” Prior to that time , appellant was found to be “appropriately responsive” to the detectives’ questions. The court suppressed all statements mad e after 2:25 p.m., but ruled that statements made before that time were admissible

. ANALYSIS Appellant contends that the court erred by not suppressing the entirety of his statements to police during the interview because they were made involuntaril y. He asserts that the police engaged in coercive conduct by transporting him to the police s tation while he was s till wearing his hospital gown and interviewing hi m while he was under the influ ence of pain medication. Appellant concedes t hat he knowingly and intelligently waived h is Miranda rights. See Miranda,
384 U.S. at 475. However, at a hearing on a mot ion to suppress, the Commonwealt h must prove by a preponderance of the evidence that “a defendant’s confession wa s freely and volunt arily given.” Bottenfield v. Commonwealth, 2 5 Va. App. 316, 3 23 (1997). In a ssessing voluntariness, “the trial court must decide whether the statement was the ‘product of an essentially free and unconstrained choice by its maker,’ or whether the maker’s will ‘has been ove rborne and his capacity for self-determination critically impaired.’” I d. (quoting Commonw ealth v. Peterson, 15 Va. App. 486, 487-88 (1992)). The co urt must look to “the totality of all th e surrounding circumstances.” Id. (quoting Peterson, 15 Va. App. at 488).- 4 - “On appeal, we consider the entir e record in determining wheth er the trial court properly denied appellant’s motion to sup press.” Patterson v. Commonwea lth, 17 Va. App. 64 4, 648 (1994). The issue of voluntariness presents a question of law requiring us to make an independent determination from the totality o f the circumstan ces. Novak v. Commonwealth, 20 Va. App. 373, 386-87 (1995). See Midkiff v. C ommonwealth, 250 Va. 262, 268-6 9 (1995). In conducting our analysis, we conside r a defendant’s “age, intelligence, mental and physical cond ition, background and experience with the criminal justice system, the conduct of the police, and the circumstances of the interview.” Washington v. C ommonwealth, 43 Va. App. 291, 3 02 (2004) (quoting Bottenfield, 25 Va. App. at 323). “[W]e are bound by the trial court’s subs idiary factual findings unless those findings are plainly wrong.” Wilson v. Co mmonwealth, 13 Va. Ap p. 549, 551 (1992). As a threshold matter, to find a statement involuntary, we mus t conclude that it resulted from police coercion. Washington , 43 Va. App. at 303. See als o Peterson, 15 Va. App. at 488 (“[E]vidence of coercive polic e activity ‘is a necessary predic ate to the finding that a confession is not “voluntary”’” (quoting Colora do v. Connelly, 479 U.S. 157, 164 (1986))). In determining whether the police coerced a conf ession, we evaluate “the inter rogation techniques employed, including evidence of trickery and deceit, psychological pressu re, threats or promises of leniency, and [the] duration and circumstances of the interrogation.” Te rrell v. Commonwealth, 12 Va. App. 285, 291 (1991). The United States Supreme Cour t case of Mincey v. Arizona, 437 U.S. 385 (1978), demonstrates when police actions in questioning a defendant may render his confession involuntary. In Mincey, the defendant was in the intensive care unit, “lyingon his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus.” 437 U. S. at 399. He com plained that his pain was “unbearable” and that he could not think clearly. Id. at 398. However, t he police persisted in questioning him, on ly stopping when the defendant “lost cons ciousness or received medical- 5 - treatment . . . and returned rele ntlessly” to questioning him a fter each interruptio n. Id. at 400-01. The Supreme Court held that the defendant’s statements should h ave been suppressed, finding that they were “the result of virtua lly continuous questioning of a seriously and painfully wounded man on the edge of consciousness.” Id. at 401. Here, appellant contends that he was susceptible to police coer cion because of his recent release from the hospital, lack of clothing except a hospital g own, and medical condition. He analogizes his situation to the circumstances of Commonwealth v . Peterson, 15 Va. App. 486. In Peterson, police officers interrogated the defendant as he was being transported to the hospital in an ambulance. 15 Va. App . at 488. During questioning, the defend ant had difficulty breathing, experienced chest pain, and was connected to a he art monitor. Id. His vision was blurred, and he was unable to understand what w as occurring because of his inju ries. Id. We concluded that the evidence supported the trial cour t’s finding that the police “o verbore [the defendant’s] will” with coercive activity, thereby rende ring his statements involuntary . Id. Cf. Sellers v. Commonwealth, 41 Va. App. 268, 272, 275-76 (2003) (finding n o evidence of pol ice coercion because the defendant did not “suffer the serious and debilitating ph ysical problems that Peterson was s uffering” despite the detective’s act of waking th e defendant twic e during his in terview). In this case, however, appellant has failed to establish any c oercive police activity that rendered his statements involuntar y. At the suppression hearin g, appellant acknowledged that he did not tell the detectives about his pain until the end of the interview. Although he had taken pain medicine and testified that he f ell asleep durin g the interview , the court reviewed the videotape and found that he was fully conversant with the detectives and seem ed “appropriately responsive” to the questions. These factual findi ngs are not plainl y wrong, and t herefore we will no t disturb them on appeal. See Wilson, 13 Va. Ap p. at 551. Additionally, we have stated: [A] deficient mental condition (w hether the resul t of a pre-exi sting mental illness or , for example, pain ki lling narcotics administ ered- 6 - after emergency treatment) is no t, without more, enough to rend er a waiver [or confession] involuntar y . . . . The ev idence [must] show that law enforcement officials ex ploited [the accused’s] weaken ed condition with coe rcive tactics. Rodriguez v. Commonwealth, 40 V a. App. 144, 163 (2003) (quotingUnited States v. Cristobal, 293 F.3d 134, 141 (4th Cir . 2002)). Although the court found that appellant “los t the ability to articulate” at 2:25 p.m., the record does not show that the pol ice exploited appellant’s condition at any point before or du ring the interview. Further, unlike the defendants in Mincey and Peterson, at the time of his confession appellant had already received medical treatment for his gunsho t wound and had b een released from the hospital. Cf. Mincey, 437 U. S. at 399; Peterson, 15 Va. Ap p. at 488. Followi ng appellant’s discharge, the police transporte d him to the police station, wh ere they provided a second chair to elevate his injured leg. They a lso gave him water and a cigare tte, and they took numerous breaks during the two-hour interview. Appellant was not handcuffed or threatened, and his statements did not result from deceptive or co nfusing questioning tactics. Based on the totality of circum stances, we hold that the polic e did not use coercive tactics to obtain appellant’s confession. T herefore, we conclude that the court did not err by denying in part appellant’s suppression motion, and we affirm appellant’s convi ctions. Affirmed.