COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

DARRYL BRUCE WHEATON 

 MEMORANDUM OPINION* BY 

v. Record No. 1409-95-2 CHIEF JUDGE NORMAN K. MOON 

 APRIL 22, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Garrett M. Smith (Michie, Hamlett, Lowry, 

Rasmussen & Tweel, P.C., on briefs), for 

appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Darryl Bruce Wheaton appeals his conviction of attempted 

murder and use of a firearm in the commission of attempted murder 

in violation of Code § 18.2-53.1. Wheaton asserts that: (1) the 

trial court erred in admitting his statement obtained without his 

being advised of his Miranda rights; and (2) that the evidence 

was insufficient to support his convictions. 

 We hold that: (1) Wheaton's statement was inconsistent with 

his testimony at trial and was made under conditions assuring its 

voluntary and trustworthy nature and therefore was properly 

admitted for impeachment purposes; and (2) Wheaton failed to 

properly preserve for appeal his arguments that the evidence was 

insufficient to prove intent or that an act had been committed 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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toward the commission of murder, and therefore, Rule 5A:18 bars 

consideration of these questions on appeal. 

 In the early morning hours of December 10, 1994, Albemarle 

County Police Officers Raleigyh Anderson and Marcus T. 

Billingslea responded to a 911 call from Wheaton who stated that 

he had "choked his girlfriend and wanted to be arrested." The 

officers drove to Southwood Market, Southwood Trailer Park, 

Albemarle County, from which the call had originated. They were 

informed that Wheaton had proceeded to the trailer of his 

girlfriend and her son. When the officers arrived at the 

trailer, an outside light was on, and the officers could see into 

the trailer through a screen door as the interior door was open. 

 The officers knocked and announced their presence, but no one 

answered the door. 

 The officers proceeded inside, repeatedly announcing their 

presence as they entered. Wheaton responded, stating that he had 

a gun and that if the officers came any closer he would shoot 

them and himself. The officers drew their weapons, backed out of 

the trailer, and called for backup. While waiting for backup to 

arrive, both officers heard Wheaton talking in a loud "emotional, 

kind of angry voice," stating that he wanted to see his "son one 

last time."1

 Several additional officers arrived, including John 

McKay and Ronald Kesner. McKay took a position about thirty feet 

from the front door where he could see into the trailer. Kesner 

 1Wheaton's girlfriend had a son who was not Wheaton's 

biological child, but whom Wheaton treated as his son. 
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stood behind a tree about fifteen to twenty feet from the front 

door. 

 Wheaton continued moving around in the trailer and 

occasionally yelling "I'm going to kill you, I'm going to kill 

myself, I'm going to f---ing kill you . . ." and screaming that 

he wanted to see his son. From his vantage point, McKay could 

see that Wheaton was carrying a shotgun and a rifle and that he 

was holding the barrels of both weapons up under his chin. 

 Wheaton stepped outside of the front door and Kesner and 

McKay tried to convince him to give himself up and told him they 

would try to get his son. Wheaton went back inside and sat down. 

 McKay, who could see Wheaton in the trailer, testified that 

after he sat down, Wheaton appeared "a little bit calmer," but 

that after a few more minutes, Wheaton stood up, "and there was 

absolutely no doubt, you could see the determination and he had 

changed." As he stood, Wheaton stated he was "going to f---ing 

kill you" and McKay yelled to Kesner that Wheaton was coming 

toward the door. Wheaton had the shotgun in his right hand and 

the rifle in his left. McKay testified that as Wheaton came 

toward the trailer door he lowered the shotgun down, pointing it 

at the tree behind which Officer Kesner was standing. McKay 

stated that as he kicked the screen door open, Wheaton shouted 

"I'm going to f---ing kill you." McKay, Kesner, and other 

officers fired upon Wheaton, hitting him several times. Kesner 

testified that before firing, he saw the shotgun lowered in his 

direction. 
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 Wheaton reentered the trailer, and the officers pursued 

 him inside where they found him lying face down. McKay 

cuffed Wheaton and he was taken to the hospital. Detective James 

E. Bunch, assigned to conduct the internal investigation of the 

shooting, was present and stood on the porch where Wheaton had 

been shot. Bunch testified that from that vantage point he could 

see the tree Kesner had been standing behind and that he would 

have been able to see anyone standing behind the tree. 

 At the hospital, blood tests revealed that Wheaton's blood 

alcohol content was .015. Wheaton underwent surgery for the 

multiple gunshot wounds and remained in the hospital. At 9:05 

a.m. a warrant was issued for Wheaton's arrest.2

 Bunch visited 

the hospital that morning and sought permission from hospital 

administrators to speak with Wheaton. Wheaton indicated that he 

wanted to speak with Bunch, and Bunch went to his room. Bunch 

informed Wheaton that he was not under arrest, that he was not 

being held under a warrant, and that Bunch's purpose in visiting 

was to conduct an investigation of the shooting for the police 

department. Although no guard was posted to Wheaton's room, the 

police requested that the hospital inform them when Wheaton was 

released. 

 Wheaton advised Bunch that he had been given morphine for 

his operation, but indicated he wanted to talk with Bunch. Bunch 

asked Wheaton a variety of questions about the incident including 

 2The warrant was executed eleven days later. 
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questions about what Wheaton recalled saying at various points. 

Wheaton stated that he could not recall what he had said to the 

arriving officers and that he had trouble recalling much of what 

had occurred. Bunch testified that during this conversation, 

Wheaton appeared coherent, was cooperative, nonconfrontational, 

and understood the questions asked. 

Admission of Statement

 At trial the Commonwealth used Wheaton's statement to 

impeach his testimony. Wheaton's counsel objected, arguing that 

Wheaton's statement constituted custodial interrogation and that 

it should be excluded because Wheaton had not been given his 

Miranda rights. 

 The Commonwealth argues that Wheaton failed to properly 

preserve the issue of the admission of his statement, by failing 

to file a written suppression motion seven days in advance of 

trial as required by Code § 19.2-266.2. However, Code 

§ 19.2-266.2 also provides that a "[c]ourt may . . . for good 

cause shown and in the interest of justice, permit the motions or 

objections to be raised at a later time." While we recognize the 

disadvantage to the Commonwealth, the trial judge's decision to 

rule on the substantive merits of Wheaton's objection at trial 

effectively waived the requirement that a written motion be made 

in advance. Accordingly, Wheaton's objection to admission of his 

statement may be considered on appeal. 

 There are two requirements which must be met for the 

in-court use of a defendant's out-of-court statement where the 
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statement was obtained in violation of Miranda: (1) the statement 

must be inconsistent with the accused's testimony at trial; and 

(2) the statements must have been obtained under circumstances 

which assure their trustworthiness and voluntariness. Harris v. 

New York, 401 U.S. 222, 226 (1971). Assuming, arguendo, that 

Wheaton was in custody at the time of his statement to Bunch, and 

consequently that his statement was taken in violation of 

Miranda, we hold that the statement was admissible for 

impeachment purposes. 

 At trial, Wheaton was asked if he recalled telling Bunch 

that he did not remember substantial portions of the stand-off. 

He testified that "I think I've never stated that I had a full--" 

and was interrupted by the Commonwealth who asked for a "yes" or 

"no" answer. Wheaton replied that "I can't answer that way. 

It's not a yes or no question to me sir. I was on morphine that 

day, there was anything--." After commenting to the court that 

Wheaton was being unresponsive, the Commonwealth impeached 

Wheaton's testimony by having him read Bunch's question and his 

response in which Wheaton stated "I don't remember half the 

stuff, or half the shit . . . ." Further, Wheaton testified, on 

direct, that he had made certain comments to the officers when 

they first arrived on the scene. The Commonwealth impeached this 

testimony with Wheaton's statement by having him read aloud 

Bunch's question inquiring if he could remember saying anything 

to the officers and Wheaton's response "[n]o, sir." Wheaton's 

statement was again used for impeachment purposes when Wheaton 
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testified that he had never fully lowered his shotgun. At that 

point the Commonwealth had Wheaton read aloud his statement to 

Bunch that the shotgun was "straight out." This evidence is 

sufficient to sustain the finding that Wheaton's statement was 

inconsistent with his testimony at trial on several points and 

was used in a manner which satisfied criterion one as delineated 

in Harris.

 We also hold the evidence was sufficient to sustain the 

finding that Wheaton's statement was both trustworthy and 

voluntary. Wheaton's statement was obtained immediately after 

the event in question by a police officer conducting an internal 

investigation. Wheaton indicated that he wanted to speak with 

Bunch and had the hospital administration informed of his desire 

to talk the morning Bunch came to the hospital and sought 

permission to speak with Wheaton. Bunch informed Wheaton that he 

was not under arrest, that he wasn't being held under warrant and 

that Bunch was there in order to conduct an investigation of the 

shooting for the police department. Wheaton answered a variety 

of questions and at no point indicated a desire not to answer. 

Bunch testified that Wheaton was cooperative and coherent 

throughout the questioning. 

 Finding that both Harris criteria were met, we hold that 

Wheaton's statement was properly admitted for impeachment 

purposes. Accordingly, we need not reach the issue of whether 

Wheaton was in custody at the time he made his statement to 

Bunch. 
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Sufficiency of the Evidence

 Rule 5A:18 provides that "[n]o ruling of the trial court 

. . . will be considered as a basis for reversal unless the 

objection was stated together with the grounds therefor at the 

time of the ruling . . . ." McQuinn v. Commonwealth, 20 Va. App. 

753, 755, 460 S.E.2d 624, 626 (1995) (en banc). Here, Wheaton 

filed a written motion to set aside the verdict, in which he 

argued that the evidence was insufficient because "the element of 

malice was not proved beyond a reasonable doubt because [Wheaton] 

was suicidal at the time of the offense and the deadly weapon 

from which the jury might have inferred malice was in [his] 

possession for the purpose of committing suicide." 

 However, on brief, Wheaton raises two new arguments not 

contained in his motion to set aside the verdict. First, he 

argues that the evidence was insufficient to prove that he had 

the requisite intent to commit murder. Second, he argues that 

the evidence was insufficient to prove that he committed an act 

toward the commission of murder by lowering his weapon. Because 

Wheaton failed to preserve these questions, Rule 5A:18 now bars 

consideration of these questions on appeal. Further, because the 

record does not show any obvious miscarriage of justice, neither 

the ends of justice nor good cause permit waiver of the Rule 

5A:18 bar. Commonwealth v. Mounce, 4 Va. App. 433, 436, 357 

S.E.2d 742, 744 (1987). 

 Wheaton's argument that the granting of his petition for 
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appeal on this issue, by a three judge panel of this Court, bars 

by res judicata our review of whether these issues were properly 

preserved, is without merit. Wheaton incorrectly relies on our 

decision in Brown v. Commonwealth, 8 Va. App. 474, 382 S.E.2d 296 

(1989), in which the Commonwealth asserted that the defendant's 

argument that the evidence was insufficient was procedurally 

barred by Rule 5A:18 because the defendant's "motion to set aside 

the verdict was too vague and general." Id. at 480, 382 S.E.2d 

at 300. We held that the defendant's general objection that the 

evidence was contrary to the law and evidence was adequate to 

preserve the question for appeal because, "[t]he record makes 

clear that the trial court considered and ruled upon the motion 

to set aside as challenging the sufficiency of the evidence to 

support the convictions." Id. Here, however, unlike Brown, the 

record does not reflect that the trial court was given notice of, 

or the opportunity to rule on, the issues raised on brief. The 

only sufficiency argument made to the court was Wheaton's 

assertion that malice had not been proved. On brief, Wheaton 

raises for the first time the arguments that the evidence was 

insufficient to prove intent or that an act had been committed 

toward the commission of murder. 

 Holding that these questions were not properly raised before 

the trial court, and therefore were not properly preserved, Rule 

 5A:18 bars consideration of these questions on appeal. 

 Accordingly, we affirm. 

 Affirmed.