Venable v. Com., 0744-90-1

• Decision Date: 23 April 1991
• Docket Number: No. 0744-90-1,0744-90-1
• Citation: 12 Va.App. 358,404 S.E.2d 74
• Parties: Manuel H. VENABLE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 74

404 S.E.2d 74

12 Va.App. 358

Manuel H. VENABLE v. COMMONWEALTH of Virginia.

Record No. 0744-90-1.

Court of Appeals of Virginia.

April 23, 1991.

Paul H. Wilson, Newport News, for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, MOON and WILLIS, JJ.

MOON, Judge.

Manuel H. Venable was convicted of first degree murder in the death of his brother. The dispositive issue of this appeal is whether his confession should have been suppressed because his physical and mental state were such at the time he made the statement that his ability to exercise his free will in making an intelligent waiver and voluntary statement was critically impaired.

Voluntariness is determined "in light of the totality of the circumstances, including not only the details of the interrogation, but also the characteristics of the accused, [whether] the statement was a product of an essentially free and unconstrained choice by its maker, or whether its maker's will was overcome and his capacity for self-determination critically impaired." Goodwin v. Commonwealth, 3 Va.App. 249, 253, 349 S.E.2d 161, 163-64 (1986). In Williams v. Commonwealth, 234 Va. 168, 360 S.E.2d 361 (1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988), the Virginia Supreme Court made its most recent interpretation of the standard by which we review questions of voluntariness.

The burden is upon the Commonwealth to prove, by a preponderance of the evidence, that Williams' statement was voluntary. See Rodgers v. Commonwealth, 227 Va. 605, 608, 318 S.E.2d 298, 300 (1984); Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381, cert. denied, 469 U.S. 873 [105 S.Ct. 229, 83 L.Ed.2d 158] (1984); Griggs v. Commonwealth, 220 Va. 46, 49, 255 S.E.2d 475, 477 (1979); McCoy v. Commonwealth, 206 Va. 470, 474, 144 S.E.2d 303, 307 (1965). 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. See Miller v. Fenton, 474 U.S. 104, 110-12 [106 S.Ct. 445, 449-51, 88 L.Ed.2d 405] (1985); Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163 (1987). Moreover, Rodgers points out that following a trial court's finding of voluntariness, the scope of our appellate review is limited to determining whether the evidence supports the finding. The trial court's finding on this issue is entitled to the "same weight as a fact found by a jury, and that finding will not be disturbed on appeal unless plainly wrong." Rodgers, 227 Va. at 608-09, 318 S.E.2d at 300.

Id., 234 Va. at 172, 360 S.E.2d at 364.

Thus, the findings by the trial judge, unless plainly wrong or without evidence to support them, will not be overturned on appeal.

On September 3, 1989, at approximately 4:47 a.m., Officer Brown went to a local convenience store and found the appellant bleeding from his chin. A medical crew arrived but the appellant, believing his injury to be minor, sent them away.

At approximately 5:25 a.m., Officer Brown responded to a dispatch sending him to 447 Rickneck Road, home of the appellant, a few blocks from the convenience store. At 5:31 a.m., Officer Brown found appellant next door at 451 Rickneck Road slumped over in a pool of blood. Medics reached the scene and transported the appellant to the hospital. Enroute to the hospital, the medics administered intravenous fluid to him. Appellant arrived at the hospital at approximately 6:10 a.m.

Upon arrival at the hospital, the appellant was found to be suffering from a slight cut on the chin, a very deep wound to the mid-forearm with a tendon exposed and a right mid-lower leg laceration. It was estimated that the appellant had lost 1,500 c.c.'s of blood, approximately one-third of the body's total blood volume. The treating physician detected the odor of alcohol on the appellant and his blood analysis indicated a .147 percent blood alcohol content and the presence of cocaine in his system. The appellant was covered in excrement "basically from his shoulders to his toes." The treating physician, Dr. Howard, felt it was evident that the appellant was under the influence of drugs. However, the doctor stated he had no trouble communicating with the appellant and received a brief history as to appellant's injuries.

The doctor described the appellant as being in "mild shock." After being administered a second IV, the patient was brought back into the normal range within five minutes. Between 6:45 and 7:00 a.m., after the patient had returned to normal and was out of shock, the police arrived. Sergeant Schockley and Detective Bennett requested the permission of Dr. Howard to question the appellant. Dr. Howard indicated that he had no reservations about giving this permission. Sergeant Schockley described the appellant as nervous and stated he detected the odor of alcohol but felt that the appellant was not drunk. The appellant was read his Miranda rights and indicated that he was willing to talk.

Officers Schockley and Bennett questioned the appellant for as long as forty-five minutes and found him to be cooperative and coherent. He was able to explain the events of the day in chronological order. The appellant stated that he had had nothing to drink since 2:00 a.m. in the morning of September 3rd and that prior to...