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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and Kelsey
Argued at Salem, Virginia
Record No. 1128-02-3
ROGER DEAN POINDEXTER
COMMONWEALTH OF VIRGINIA
BY JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 7, 2003
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Christopher K. Kowalczuk for appellant.
Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Roger Dean Poindexter appeals his conviction for the possession
with intent to distribute, in violation of Code ? 18.2-248. He
contends on appeal that the trial
court erred in denying his motion to suppress his confession.
For the reasons that follow, we
On appeal, we review the evidence, and all reasonable inferences
therefrom, in the light most favorable to the party prevailing
below, in this case, the
Commonwealth. See Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48
(1991). So viewed, the evidence establishes that, on September
10, 2000 at approximately
10:00 p.m., a motorist telephoned the Botetourt County Sheriff’s
Department and reported that
another motorist was driving erratically.
Deputy K.S. McClure received the information and traveled to the
location of the car. He
observed Poindexter sitting behind the wheel of a Jeep in the
middle of a field, approximately
thirty or fifty yards off the road. Based on tire tracks near
the car, McClure concluded that the
car had "gone through a ditch" that runs parallel to
the road. He testified that the car "looked out
Deputy McClure approached the vehicle and asked Poindexter, the
driver of the vehicle,
for his license and registration. Poindexter handed the officer
credit cards several times before
finally retrieving his license from his wallet. McClure noted
that Poindexter’s eyes were
constricted, that he looked pale, that he had poor hand-eye
coordination, and that he had a short
McClure ordered Poindexter out of the car and began to
administer field sobriety tests.
McClure first asked Poindexter to recite the alphabet from E
through U "without singing the little
song that all of us" know. McClure had to explain the test
four times because Poindexter
continuously interrupted him with nonsensical mumbling and
babbling. Poindexter finally began
the test, starting with the letter E and proceeding directly to
U, then V, W, X, Y, and Z.
For the second test, McClure asked Poindexter to count backwards
from thirty-nine to
zero. McClure had to explain this test three times. Poindexter
began the test by noting that
"thirty-nine cars were in the Vinton Motor lot which leaves
about two or three." Poindexter tried
again, starting with thirty-nine, proceeding backwards to
thirty-one but skipping thirty-five, and
then reciting forty, forty-one, and forty again.
Poindexter failed the third test as well. McClure explained
that, on his command, he
wanted Poindexter to touch the tip of his nose with the tip of
his finger while tilting his head
back and keeping his eyes closed. McClure told Poindexter to
touch his nose using his right
hand. Poindexter used his left. McClure next instructed
Poindexter to touch his nose using his
left hand. Poindexter used his right. McClure gave several more
commands, and Poindexter
used the wrong hand each time.
McClure administered a breathalyzer test which revealed a .000
blood alcohol level.
Believing Poindexter was under the influence of an intoxicant
other than alcohol, McClure
placed him under arrest for driving under the influence of
drugs. McClure secured Poindexter in
the back of his patrol car.
McClure and a partner then searched the Jeep. Inside, they found
a small box that
contained a small plastic bag. The plastic bag held a granulated
substance. Subsequent analysis
revealed the substance was 22.7 grams of crystal
McClure returned to the patrol car and read Poindexter the
Miranda warnings. McClure
asked Poindexter if he understood his rights, and Poindexter
answered "yes." McClure also
asked Poindexter if, "having these rights in mind, do you
wish to make, do you wish to talk to us
now?" Poindexter replied, "Yeah, I’ll do anything I
just can’t go back to jail with my back."
McClure proceeded to ask Poindexter three questions. First,
McClure asked, "Whose
dope is in the box?" Poindexter answered, "What dope?
No, it’s not mine, I’m not sure.
Actually I’m taking it to Bobby Thornhill on Field’s Avenue for
Tim from over on Ninth Street."
Second, McClure asked Poindexter if he had "snorted any of
this?" Poindexter replied, "Well,
I’ve had about a quarter of a gram of it today." Third,
McClure asked Poindexter if he bought the
substance. Poindexter responded, "No, I’m just taking it to
Bobby Thornhill over in Blue Ridge
for Tim." No further questions were asked.
McClure testified that Poindexter’s demeanor changed after
placing him under arrest.
"He became lucid," according to McClure. Poindexter
answered his questions "very quickly"
and "there wasn’t the same hesitation, the same degree of
thought put into them as . . . before."
McClure did not have to repeat his questions, nor did he have to
repeat the Miranda warnings.
Before trial, Poindexter moved to suppress the introduction of
his statements to the
police. He argued that, given his impaired mental state, he did
not knowingly, intelligently, or
voluntarily waive his Miranda rights. The trial court denied the
To admit incriminating statements given during a custodial
Commonwealth must show that the accused was apprised of his
right to remain silent and that he
knowingly, intelligently, and voluntarily waived that
right." Green v. Commonwealth, 27
Va. App. 646, 652, 500 S.E.2d 835, 838 (1998). "The [trial] court must decide whether the
defendant knowingly and intelligently relinquished and abandoned
his rights. The court’s
determination is a question of fact based upon the totality of
the circumstances that will not be
disturbed on appeal unless plainly wrong." Watkins v.
Commonwealth, 229 Va. 469, 477, 331
S.E.2d 422, 429-30 (1985) (citations omitted); see also Harrison
v. Commonwealth, 244 Va. 576,
581, 423 S.E.2d 160, 163 (1992).
The voluntariness of the defendant’s waiver is subject to the
same analysis as the
voluntariness of statements under the Due Process Clause. United
States v. Cristobal, 293 F.3d
134, 140 (4th Cir. 2002); see also Colorado v. Connelly, 479
U.S. 157, 169-70 (1986) (stating
that "[t]here is obviously no reason to require more in the
way of a ‘voluntariness’ inquiry in the
Miranda waiver context than in the Fourteenth Amendment
confession context"). Under this
analysis, voluntariness is a question of law which we review de
novo. See Midkiff v.
Commonwealth, 250 Va. 262, 268-69, 462 S.E.2d 112, 116 (1995).
This Court is bound,
however, by "the trial court’s subsidiary factual findings
unless those findings are plainly
wrong." Wilson v. Commonwealth, 13 Va. App. 549, 551, 413
S.E.2d 655, 656 (1992); Sellers
v. Commonwealth, 41 Va. App. 268, 272, 584 S.E.2d 452, 455
(2003). 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." Connelly, 479 U.S. at
167; see also Commonwealth v. Peterson, 15 Va. App. 486, 488,
424 S.E.2d 722, 723 (1992).
"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." Peterson, 15 Va. App. at 488, 424 S.E.2d at
723. Thus, 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, 415-16 (1985)
Applying these principles to the case at bar, we find that
intelligently, and voluntarily waived his Miranda rights and
that the trial court properly denied
his motion to suppress incriminating statements he made to the
Deputy McClure testified that Poindexter’s behavior clearly
improved upon his arrest,
that he was "lucid," and that he answered questions
regarding his Miranda rights quickly and
without hesitation. When the officer read Poindexter his rights,
he expressly stated that he
understood them before he answered any questions. Poindexter
then composed thoughtful,
complete sentences in response to McClure’s questions about the
further testified that Poindexter acted rationally and was
"[v]ery able and capable of answering
any questions" when he was taken to have his blood drawn
and to be presented before a
magistrate. Also, when McClure explained the arrest and booking
process, Poindexter stated he
Notwithstanding Poindexter’s failure to properly perform the
field sobriety tests
administered shortly after the police stopped his vehicle,
Poindexter gave the necessary attention
to the tests, listened to a set of rights pertaining to those
tests, stated he understood the rights, and
elected to take the tests.
At the time of his arrest, Poindexter was 42 years old, had a
high school education and
had attended one year of college. He had been convicted of
several felony and driving offenses
and was, therefore, familiar with police encounters.
Accordingly, the trial court made the following findings of
Arrest appears to have had a remarkably sobering effect on the
defendant. The unchallenged testimony of the deputy is
was a marked change in his ability to comprehend what was going
on once he was arrested . . . his responses then became lucid
the point and were responsive to the questions asked . . . .
defendant gives every indication of understanding what he was
doing once the warnings were given to him.
Under a totality of the circumstances test and viewing the
evidence in the light most
favorable to the Commonwealth, we cannot say that the trial
court’s decision was plainly wrong.
The record supports the trial court’s finding that Poindexter
was lucid and able to understand the
procedures followed when the police presented and questioned him
about his rights under
Miranda. Thus, we hold that Poindexter knowingly and
intelligently waived his rights. These
same facts also support the finding that Poindexter’s mental
condition was consistent with a
voluntary waiver. Finally, Poindexter’s assertion that his
waiver was involuntary due to police
intimidation or coercion is procedurally barred under Rule 5A:18
because he failed to present
this argument to the trial court. See Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d
484, 488 (1998) (stating "this Court will not consider an
argument on appeal which was not
presented to the trial court").
We affirm the trial court’s decision.
Code ? 17.1-413, this opinion is not designated for publication.