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Present: Judges Annunziata, Clements and Kelsey

Argued at Salem, Virginia

Record No. 1128-02-3






OCTOBER 7, 2003


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
of methamphetamine

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
fairly deducible

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

of place."

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

attention span.

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
interrogation, "the

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
. 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)
(citation omitted).

Applying these principles to the case at bar, we find that
Poindexter knowingly,

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
methamphetamine. McClure

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
that there

was a marked change in his ability to comprehend what was going

on once he was arrested . . . his responses then became lucid
and to

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.

(Emphasis added).

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.




[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

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