Riley v. Com.

• Decision Date: 17 April 2009
• Docket Number: Record No. 080920.
• Citation: 277 Va. 467,675 S.E.2d 168
• Parties: Brian Patrick RILEY v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

675 S.E.2d 168

277 Va. 467

Brian Patrick RILEY v. COMMONWEALTH of Virginia.

Record No. 080920.

Supreme Court of Virginia.

April 17, 2009.

James C. Clark (F. Andrew Carroll III; Land, Clark, Carroll, Mendelson & Blair, on brief), for appellant.

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

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.

Brian Patrick Riley was convicted in a bench trial in the Circuit Court of the City of Alexandria of driving while intoxicated in violation of Code § 18.2-266 and maiming another person as a result of driving while intoxicated in violation of Code § 18.2-51.4. The primary issue in this appeal is whether Riley met his burden to present evidence sufficient to establish the affirmative defense of unconsciousness predicated upon sleepwalking.

Because the circuit court did not make a factual finding that Riley was sleepwalking at the time of the charged offenses, and because Riley's unconsciousness defense was predicated solely on the assumption that he was in fact sleepwalking, Riley failed to meet his burden to establish his unconsciousness defense. Without that defense, the evidence established merely voluntary intoxication and was otherwise sufficient to sustain his conviction for maiming. We will thus affirm the judgment of the Court of Appeals of Virginia upholding Riley's convictions.

I. RELEVANT FACTS AND PROCEEDINGS¹

Riley drove his vehicle after admittedly ingesting three or four sleeping pills, an antihistamine, and a pain reliever. While driving, Riley struck and severely injured Paris Gebrekidan, hit two other vehicles, and then drove off the street onto grass, coming to a stop after striking a tree. As a result of the accident, which occurred at approximately 7:00 p.m. on January 27, 2006, amputation of Gebrekidan's left leg below the knee was required.

Immediately prior to the accident, Hiwot Gebrekidan, the victim's sister, had parked her vehicle beside the victim's vehicle in order to transfer shopping items from one car to the other. Hiwot turned on her hazard lights, and the two sisters exited Hiwot's vehicle to begin their task. Moments later, Hiwot heard a "big sound" and observed her sister lying on the ground. The accident took place at a dead-end street bordered by parked cars. Hiwot testified that she did not hear any sound of braking before the vehicle struck her sister, and Officer Eric Lemke, one of the police officers who responded to the accident, testified there were no skid marks on the roadway leading to the point of impact.

Hiwot identified Riley as the driver of the vehicle that struck her sister. Hiwot testified that after the accident, she yelled for Riley, "asking where he was," but he did not respond. Instead, he followed Hiwot as she went to her apartment complex to seek assistance.

Joseph Minasie, the victim's 15-year-old nephew, observed Riley after the accident and testified that Riley was "just standing there numb as if nothing happened." When Minasie asked Riley whether he caused the accident, Riley first responded with statements that did not make any sense, but Riley finally admitted that he did, stating "it was just a chain reaction."

Several police officers spoke to and observed Riley at the scene of the accident. Officer Lemke noted that Riley was wearing sweatpants and a t-shirt despite the fact that it was 30-35 degrees outside. Officer Melvin Brooks testified that he observed Riley swaying back and forth and speaking incoherently. The officer asked Riley if he was the driver of the gray Honda involved in the accident; Riley responded incoherently, telling the officer "a friend of his had been driving his car earlier." The officer repeated the question, and Riley stated that he "was the driver of the vehicle in the accident, but [he did not] recall what happened." Riley also informed Officer Brooks that he had consumed "two shots of whiskey" and was a diabetic.²

Riley acknowledged to Officer George Ladislaw that he was involved in the accident. Pointing to the gray Honda involved in the accident, Officer Ladislaw asked Riley if the vehicle was his. Riley said it was not his vehicle. When asked where his vehicle was, Riley pointed to the other side of the street and stated his car was a "346" and "[i]t is either green or green." According to the officer, there was no such vehicle on the street.

Because Riley appeared intoxicated, Officer Brooks administered field sobriety tests. Officer Brooks explained each test to Riley, and Riley indicated that he understood the instructions and, according to Officer Brooks, "appeared to be" trying to follow the instructions.

The officer administered four tests, the "alphabet test, the number count test, [the] finger touch ... test and the one-legged stand test." Riley's responses to the "alphabet test" and the "number count test" were erratic. Riley refused to perform the "finger touch test." Officer Brooks demonstrated the "one-legged stand test" to Riley. The officer testified that Riley, instead of standing on one foot and counting as instructed, "picked up his right foot off the ground and ... put it right back down on the ground immediately and then ... started walking forward." Officer Brooks then placed Riley under arrest.

Subsequently, Officer Brooks took Riley to a local hospital to have a blood test administered. The results of Riley's blood test showed he had no alcohol in his system but had .04 mg. per liter of diphenhydramine, an antihistamine; .06 mg. per liter of propoxyphene, a pain reliever; and 0.56 mg. per liter of zolpidem, a sleeping pill.

While at the hospital, Riley told two different officers that he had been drinking with friends at "Zig's Bar."³ Riley stated to one of the officers that he thought the accident occurred off Interstate 395. When that officer tried to explain to Riley about the accident, Riley just stared at the officer. Riley told the other officer that he had been working in Front Royal that day and had returned home using Interstate 66 to Interstate 395. When the officer informed Riley that those two highways did not intersect, Riley insisted he had taken this impossible route.

Riley's fiancée, Melanie Walck, who resided with Riley, testified that she spoke with Riley on the day of the accident at about 5:00 p.m. According to Walck, Riley told her that he was going to have dinner and then take a nap until she arrived home. When Walck arrived at approximately 10:30 p.m., she found the burners on the stove turned on, food on the kitchen counter, and plates on the table. When she checked the bedroom to see if Riley was there, she found the bed disheveled, magazines on the bed, and the bedside light on. She testified that Riley reads a paper or a magazine when he lies down to sleep. She further testified that Riley always wears sweatpants and a t-shirt when sleeping and he would never leave the house dressed in his nightclothes or without his wallet and cellular telephone.⁴

Walck could not find Riley in the apartment and became concerned that he was sleepwalking or had suffered a seizure because the circumstances were similar to those of a prior incident when Walck believed Riley had been sleepwalking. After calling some friends who lived nearby, Walck learned about the accident and went to the scene, which was approximately a quarter mile from her and Riley's apartment. Upon arriving, Walck met Officer Lemke and advised him that Riley's behavior was consistent with prior episodes when Riley had taken sleeping pills. Walck also stated Riley had abused sleeping pills in the past, causing a problem in their relationship.

Shortly after she arrived on the scene, Walck and Officer Lemke returned to her and Riley's apartment. Walck retrieved from a briefcase several "blister packs" of medication, including "Ambien," "Lunesta," and "Sonata," as well as Riley's empty prescription bottle for Sonata.

According to Walck, Riley has a history of seizures and sleep problems. Walck testified that during her relationship with Riley, he rarely slept seven or eight hours until he received a prescription for Sonata. Walck further testified that Riley previously had several episodes that Walck described as sleepwalking. She explained that four of those episodes lasted about ten to fifteen minutes each during which Riley seemed "foggy" and talked to people who were not there. Walck testified about three longer episodes that lasted up to three hours. In one such episode, Riley got out of bed, went downstairs, turned on the stove burners, and started cooking food. Walck stated that Riley eventually went back to bed and returned to normal sleep. Riley never left the apartment during any of the episodes, and he had no recollection of them when he awakened.

Riley also testified he had a history of epileptic seizures and was prescribed Sonata for sleep apnea. The sleep apnea was diagnosed when Riley underwent a sleep study; sleepwalking was not observed during the testing. Riley acknowledged that he had also taken Ambien intermittently over the last five to six years but claimed he did not suspect his use of sleeping pills was associated with the episodes described as sleepwalking. Riley admitted he was aware of the episodes and his bizarre, behavior during them.

He further testified that on the night of the accident, he did not intend to leave the apartment and was going to bed at 5:00 p.m. for the evening.⁵ Riley stated he took "probably three pills" of Ambien, but admitted on cross-examination that "based on the testing ... it's quite obvious[ ]" that he took at least four pills. Riley claimed that he took more than one pill of Ambien because he wanted to be able to sleep and one pill would not have accomplished that purpose. Riley remembered taking the Ambien pills and going to bed. He stated that the next thing he remembered was being in jail.

Riley acknowledged he...