James Kelvin Johnson v. Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINIA
PUBLISHED

            Present: Judges Ortiz, Raphael and Senior Judge Annunziata
            Argued at Fairfax, Virginia


            JAMES KELVIN JOHNSON
                                                                                 OPINION BY
            v.     Record No. 0425-24-4                                   JUDGE STUART A. RAPHAEL
                                                                                JULY 8, 2025
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                           Michael F. Devine, Judge

                           Amy M. Jordan, Senior Assistant Public Defender, for appellant.

                           Elizabeth K. Fitzgerald, Assistant Attorney General (Jason S.
                           Miyares, Attorney General; Lauren C. Campbell, Assistant Attorney
                           General, on brief), for appellee.


                   Appealing his firearm and second-degree-murder convictions, James Kelvin Johnson

            argues that the trial court erred by failing to suppress the statements he made to detectives while

            recovering from a self-inflicted-gunshot wound in a hospital’s intensive-care unit. He also

            argues that the trial court erred by limiting the testimony of his expert witness. Finding that the

            trial court properly denied his suppression motion and that any error in the evidentiary ruling was

            harmless, we affirm.

                                                       BACKGROUND

                   We recite the facts in the light most favorable to the Commonwealth, the prevailing party

            below. Camann v. Commonwealth,
79 Va. App. 427
, 431 (2024) (en banc). “Doing so requires

            that we ‘discard’ the defendant’s evidence when it conflicts with the Commonwealth’s evidence,

            ‘regard as true all the credible evidence favorable to the Commonwealth,’ and read ‘all fair
inferences’ in the Commonwealth’s favor.”
Id.
(quoting Commonwealth v. Cady,
300 Va. 325
,

329 (2021)).

       The September 2022 shooting

       Johnson shot his wife, D.S.,1 in the couple’s third-floor bedroom just after 3:00 a.m. on

September 4, 2022. He called 911 at 3:19 a.m., reporting that he had accidentally shot his wife

in the head and that she needed an ambulance. Johnson said that his wife was still breathing.

       Several officers from the Fairfax County Police Department responded to the townhome.

Unsure of the situation inside, the officers secured the home’s perimeter and demanded that

Johnson surrender himself. Johnson did not respond. When an officer heard a gunshot, the

officers entered the home.

       When they reached the third floor, the officers discovered D.S. in the master bedroom,

slumped over and suffering from a gunshot wound to her left temple. They rendered aid until

paramedics arrived. D.S. was transported by ambulance to the hospital, where she was

pronounced dead.

       Officers found Johnson in a different bedroom on the third floor, suffering from a

self-inflicted-gunshot wound to his upper torso. A firearm lay on the floor. Johnson was

groaning in pain. Officers provided aid to Johnson, who asked if his wife was okay. Johnson

was transported by ambulance to Inova Fairfax Hospital, where he was admitted at 4:19 a.m.

Johnson was first treated in the emergency room and later transferred to the intensive-care unit.

       The hospital interview

       Detective Kyle Bryant was the lead homicide detective assigned to the case. He arrived

at the hospital around 6:00 a.m. but left without engaging Johnson in any substantive

conversation. Officer Glenn Esser also arrived around 6:00 a.m., dressed in his standard police


       1
           We omit the victim’s name to protect her family’s privacy.
                                                -2-
uniform. He stood to the side of the door of Johnson’s hospital room to provide security. Doing

so was “standard procedure” in shooting cases, regardless of whether the patient who had been

shot was a victim or a suspect. Esser did not prevent anyone from entering or leaving Johnson’s

room.

        Esser testified that he did not personally speak with Johnson. But from his vantage point,

Esser could observe Johnson’s condition and overhear his conversations with others. Johnson

was not physically restrained. Johnson was awake and alert at 6:00 a.m. but slow to

communicate. He became more responsive around 10:00 a.m., answering questions from his

nurses and doctors about “medical issues.” By 11:30 a.m., Johnson was engaging his nurses and

doctors in “normal” dialogue. He was also signing medical evaluations, waivers, and forms.

Many nurses and doctors walked in and out of Johnson’s room. Esser observed Johnson

speaking freely with them.

        Esser testified that it was not his job to restrain Johnson, only to observe. Esser never

told Johnson that he was not allowed to leave. Esser understood that Johnson was not under

arrest and that Esser had no obligation to detain him.

        Johnson and Esser could see each other. At one point, Johnson said he wanted to speak

to someone about the events of that morning. Esser called Bryant and told him that Johnson

“was alert and communicating and was asking questions and wanted to speak to somebody about

what had happened.”

        Bryant returned to the hospital around 11:30 a.m., and Detective David Vesser met him

there. Both were dressed in civilian clothes but wore badges of authority and carried sidearms

on their hips. Bryant testified that Johnson was “conscious, alert; he was talking.” Johnson lay

in his bed without physical restraints, but he was wearing an oxygen mask and had EKG pads, a

chest tube, and an IV that would have made it difficult for him to get out of bed.

                                                -3-
        Bryant asked Johnson if he was comfortable speaking, and Johnson said he was. Bryant

and Vesser interviewed Johnson for about 41 minutes, and an audio recording of their

conversation was introduced into evidence. Bryant read Miranda2 warnings to Johnson but told

him that he was not under arrest and that no charges had been filed against him. Johnson

indicated that he understood his rights. When Johnson asked if he needed a lawyer, Bryant

replied, “that’s totally up to you.”

        Johnson proceeded to describe the shooting incident to Bryant and Vesser. He recalled

talking with his wife about her desire to move in a few years. But Johnson did not want to move.

Johnson said that his health had seriously declined, causing problems in the couple’s marriage.

His wife liked to stay busy and go out with friends, but Johnson often was not healthy enough to

join in her outings. Johnson said that when the two disagreed, his wife would say he was wrong

or “out of line.”

        Johnson told Bryant that he slept with the gun under his pillow for protection. Johnson

said he was messing around with the gun as he surfed channels on the television, pulling it in and

out of his pocket and absentmindedly dropping it on the floor. His wife told him to stop playing

with it. But Johnson waved the gun in her direction. When D.S. asked, “So you going to shoot

me now?,” the gun went “pop.”

        Johnson took responsibility for shooting his wife but said it never should have happened.

He told the officers that he never kept a round of ammunition in the gun’s chamber; the

magazine was the only thing that he kept loaded. He said he had no reason to shoot his wife

because she was his “everything.”




        2
            Miranda v. Arizona,
384 U.S. 436
(1966).
                                                -4-
       Bryant left the hospital and, around 1:00 p.m., swore out an arrest warrant. Bryant

returned to the hospital and placed Johnson under arrest by handcuffing him to the hospital bed.

A grand jury later indicted Johnson for murder and for using a firearm to commit murder.

       Johnson’s suppression motion

       Johnson moved to suppress his hospital statements, arguing that he made them during a

custodial interrogation and had not knowingly, intelligently, or voluntarily waived his Miranda

rights. He also argued that his statements were involuntary.

       Officer Esser and Detective Bryant testified at the suppression hearing to the facts set

forth above. Johnson called Dr. Paula Ferrada, the Chief of Trauma and Acute Care Surgery at

Inova Fairfax Hospital. The trial court recognized Ferrada as an expert in trauma and acute care.

She testified that she cared for Johnson when he arrived at the hospital in “extremely critical”

condition. Ferrada described the treatment and the medications she administered to Johnson,

including pain medications, sedatives, muscle relaxants, and “local narcotics.” He received

Dilaudid—a pain medication that was “four times stronger than morphine and way stronger than

fentanyl.” Dilaudid is the “strongest” of the opiates; its side effects include dizziness, slower

reaction time, confusion, and impaired memory and decision-making. Johnson had an oxygen

mask over his nose and mouth and a blood pressure cuff on his arm. He was connected to an IV

tube and an EKG monitor. Ferrada said it would have been difficult for Johnson to leave his

room under those conditions. Her shift ended hours before Johnson spoke with Detectives

Bryant and Vesser. During her interactions with Johnson, he was responsive and did not appear

to be confused.




                                                -5-
       Johnson testified briefly. He claimed not to remember speaking to any officers at the

hospital.3

       The trial court denied the suppression motion. Based on the totality of the circumstances,

the court was not persuaded that Johnson was in custody under Miranda, so the court did not

reach whether Johnson waived his Miranda rights. The court further determined that Johnson’s

statements were voluntary.

       Johnson’s jury trial

       The Commonwealth called 14 witnesses at trial. Johnson’s hospital interview with

Bryant and Vesser was also played in the Commonwealth’s case-in-chief.

       The Commonwealth’s evidence showed that a Glock 19 semi-automatic firearm was

recovered from the bedroom where Johnson shot himself. A crime-scene detective testified that

the magazine for the gun could hold 15 rounds of ammunition. There were 13 cartridges in the

magazine and 1 spent cartridge casing still in the gun’s firing chamber. Another cartridge casing

matching the others was recovered from the master bedroom where Johnson shot his wife.

       The court received pre-recorded testimony from the medical examiner, Dr. Meghan

Kessler, that D.S. died from a gunshot wound to her left temple. She had “stippling”4 around the

wound, which suggested that she was shot at close range—“[l]ess than inches . . . to up to one to

two feet” away. The Commonwealth’s firearms expert testified that Johnson’s gun “was in

mechanical operating condition” with functioning safety features. She explained the gun’s




       3
          At trial, by contrast, Johnson testified that he recalled speaking with Detective Bryant at
the hospital and had tried to remember as many details as possible. Johnson said that he “was
trying to give [Bryant] everything he asked for,” and whatever Bryant asked, Johnson “had it
fresh.”

       The medical examiner explained that “stippling can result from burning or unburned
       4

gun powder particles” being “released from the muzzle of the gun.”
                                             -6-
mechanics, including the necessary steps to load and fire it. She confirmed on cross-examination

that to fire the weapon, a cartridge had to be loaded into the chamber.

       D.S.’s longtime friend and D.S.’s son also testified. Both said that D.S. had told them

that she was unhappy in the marriage and planned to leave Johnson.

       The defense presented Emmanuel Kapelsohn as a firearms expert. Like the

Commonwealth’s firearms expert, Kapelsohn explained that firing the Glock 19 required that a

round of ammunition be loaded into the chamber; loading the magazine is not enough.

       Johnson asked the court to recognize Kapelsohn “as an expert on the subject of firearms

and ballistics, firearm training, and unintentional discharges of firearms.” The Commonwealth

objected to Kapelsohn’s “testifying as an expert in unintentional shootings” because doing so

would “go to the ultimate issue” or address cases that were unrelated and irrelevant. The court

requested clarification on whether Kapelsohn would be talking about the “operation of

Mr. Johnson’s mind” or the “operation of the weapon.” Johnson replied that Kapelsohn would

“talk about the operation of the weapon” and, based on his experience, “the common causes of

unintentional discharge of firearms.”

       The court recognized Kapelsohn as an expert but limited his testimony to “the mechanics

of the weapon.” The trial judge observed that Kapelsohn “seems to be quite knowledgeable

about the operation [of the weapon]. As a psychologist, not so much.” Johnson did not object to

the limited scope of Kapelsohn’s expert designation.

       During Kapelsohn’s direct examination, when the defense tried to elicit testimony beyond

the designation, the trial court sustained the Commonwealth’s objection. The court permitted

Johnson to make the following proffer of what Kapelsohn would have said if permitted to testify:

               So if allowed, I would have asked the question, what is the most
               common reason for an unintentional discharge of this firearm, and
               Mr. Kapelsohn’s response would have been that someone

                                               -7-
                  intentionally pulled the trigger thinking that the firearm, that there
                  was no round in the chamber.

                          I would have also asked, what are some of the other reasons
                  for unintentional discharges of this firearm, and he would have
                  replied that it was involuntary muscular contraction and described
                  what that was.5

        On cross-examination, Kapelsohn testified that Johnson’s firearm had a tactile “loaded

chamber indicator,” which tells the user “when the chamber is loaded.” On redirect, Kapelsohn

clarified that the loaded chamber indicator on Johnson’s gun was so “subtle” that the user would

have to be “trained” to feel it.

        Johnson also testified, and his testimony mostly aligned with his recorded statements to

Bryant and Vesser at the hospital. He explained that on the night of the shooting, he and D.S.

were in the master bedroom; he was looking for a football game on television. D.S. sat in a chair

next to the bed and the two were talking about her wanting to move to a different state. Johnson

maintained that after the gun fell to the floor, he tried to put it in his pocket; it fell again when

Johnson missed his pocket. D.S. warned Johnson to stop playing with the gun. Her last words

before he shot her were, “So you going to shoot me now?”

        Johnson said he responded “[i]t’s not even loaded. Shut up,” before he waved the gun in

his wife’s direction and it went off. Johnson admitted that he had visited the shooting range

about twice a month since buying the gun in 2019. He always kept it close for protection,

sleeping with it under his pillow at night. Still, Johnson insisted that he never kept a round in the

chamber.

        The jury found Johnson guilty of second-degree murder and using a firearm to commit

murder. The court sentenced him to 16 years’ incarceration. Johnson noted a timely appeal.




        5
            Johnson supplemented his proffer after conclusion of the trial.
                                                 -8-
                                              ANALYSIS

    I. Motion to Suppress

         Johnson claims that the trial court violated his Fifth Amendment right against

self-incrimination by not suppressing his statements at the hospital. He argues that he was in

custody when Detectives Bryant and Vesser questioned him. Although Johnson received

Miranda warnings, he says that his medical condition prevented him from knowingly,

voluntarily, and intelligently waiving his Miranda rights. He also argues that his hospital

statements should have been excluded as coerced and involuntary.

         The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. amend. V. That right is also protected

“against abridgment by the States” by the Due Process Clause of the Fourteenth Amendment,

Malloy v. Hogan,
378 U.S. 1, 6
(1964), which provides that no State may “deprive any person of

life, liberty, or property, without due process of law,” U.S. Const. amend. XIV, § 1, cl. 3;

see Malloy,
378 U.S. at 8
(“The Fourteenth Amendment secures against state invasion the same

privilege that the Fifth Amendment guarantees against federal infringement—the right of a

person to remain silent unless he chooses to speak in the unfettered exercise of his own

will . . . .”).

         But the constitutional privilege against self-incrimination “generally is not self-

executing.” Minnesota v. Murphy,
465 U.S. 420, 425
(1984). A person must affirmatively

invoke the privilege if he wishes to remain silent in response to questions from the government

that elicit incriminating information.
Id. at 427, 429
. “This is sometimes called the ‘invocation

requirement.’” Thomas v. Commonwealth,
82 Va. App. 80
, 114 (2024) (en banc) (quoting

Salinas v. Texas,
570 U.S. 178, 183
(2013) (plurality opinion)).




                                                 -9-
       For instance, a witness who wishes to rely on the privilege when subpoenaed to testify at

trial or before a grand jury must “invoke[] the privilege and show[] that he faces a realistic threat

of self-incrimination.” Murphy,
465 U.S. at 427
. If the witness chooses instead “to answer, his

choice is considered to be voluntary since he was free to claim the privilege and would suffer no

penalty as the result of his decision to do so.”
Id. at 429
. Indeed, even a probationer who is

required to meet regularly with his probation officer and truthfully answer the questions put to

him is generally required to affirmatively invoke the privilege if he wants to remain silent in

response to questions that would elicit incriminating answers.
Id. at 440
.

       The Supreme Court has identified “two exceptions” to the invocation requirement.

Salinas,
570 U.S. at 184
. “First, . . . a criminal defendant need not take the stand and assert the

privilege at his own trial.”
Id.
(citing Griffin v. California,
380 U.S. 609
, 613-15 (1965)).

“Second, . . . a witness’[s] failure to invoke the privilege must be excused where governmental

coercion makes his forfeiture of the privilege involuntary.” Id. The Supreme Court has been

reluctant to create additional exceptions “to the ‘general rule’ that a witness must assert the

privilege to subsequently benefit from it.” Id. at 186 (declining to create “a third exception to the

invocation requirement for cases in which a witness [not in custody] stands mute and thereby

declines to give an answer that officials suspect would be incriminating”).

       Johnson relies on the second exception to the invocation requirement: when

governmental coercion renders the defendant’s “forfeiture of the privilege involuntary.” Id. at

184. The Court held in Miranda “that a suspect who is subjected to the ‘inherently compelling

pressures’ of an unwarned custodial interrogation need not invoke the privilege.” Id. (quoting

Miranda v. Arizona,
384 U.S. 436, 467-68
, 468 n.37 (1966)). “Due to the uniquely coercive

nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone




                                                - 10 -
the privilege ‘unless [he] fails to claim [it] after being suitably warned.’” Id. at 184-85

(alterations in original) (quoting Murphy,
465 U.S. at 429-30
).

           Miranda set forth the warnings that must be given to a suspect who is subjected to a

custodial interrogation, including that the suspect has the right to remain silent and the right to

request an attorney before or during questioning.
384 U.S. at 479
. “[F]ull comprehension of the

rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is

inherent in the interrogation process.” Davis v. United States,
512 U.S. 452, 460
(1994)

(alterations in original) (quoting Moran v. Burbine,
475 U.S. 412, 427
(1986)). In other words,

“once proper Miranda warnings are given, it resets the defendant’s obligation to invoke his right

to remain silent if he wants further questioning to stop.” Thomas, 82 Va. App. at 116.

           “A defendant who makes incriminating statements after being warned under Miranda

may move to suppress those statements on the ground that his Miranda waiver was not

voluntary, knowing, and intelligent, as well as on the ground that his confession itself was

coerced and not voluntary.” Id. at 101. Johnson makes both claims here, and we analyze them

in turn.

           A. Because Johnson was not in police custody, there was no Miranda violation.

           Miranda warnings “are required only when a suspect is both in custody and subjected to

interrogation.” Watts v. Commonwealth,
38 Va. App. 206, 214
(2002); Stansbury v. California,
511 U.S. 318, 322
(1994) (per curiam) (“only where there has been such a restriction on a

person’s freedom as to render him ‘in custody’” (quoting Oregon v. Mathiason,
429 U.S. 492,

495
(1977) (per curiam))). “In determining whether an individual was in custody, a court must

examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is

simply whether there [was] a “formal arrest or restraint on freedom of movement” of the degree

associated with a formal arrest.’” Stansbury,
511 U.S. at 322
(alteration in original) (quoting


                                                 - 11 -
California v. Beheler,
463 U.S. 1121, 1125
(1983) (per curiam)). “[T]he initial determination of

custody depends on the objective circumstances of the interrogation, not on the subjective views

harbored by either the interrogating officers or the person being questioned.” Id. at 323.

       “Whether the circumstances of [a police interview] were such as to require Miranda

warnings is a mixed question of law and fact.” Spinner v. Commonwealth,
297 Va. 384
, 392

(2019). “On appeal, we review such questions de novo but defer to the fact-finder’s findings of

historical fact unless they are plainly wrong or without evidence to support them.”
Id.
In doing

so, we “view the evidence in the light most favorable to the prevailing party, here the

Commonwealth, together with all inferences that may reasonably be drawn from it.”
Id.
Johnson asserts that the trial court erred by finding that he was not in custody when

questioned at the hospital. Johnson reasons that Bryant administered Miranda warnings,

Johnson was the lone suspect, a uniformed officer was standing at the door of his hospital room,

and his medical condition rendered him unable to leave.

       The United States Supreme Court has consistently treated “custody” as “a term of art that

specifies circumstances that are thought generally to present a serious danger of coercion.”

Howes v. Fields,
565 U.S. 499, 508-09
(2012). To determine “whether a person is in custody in

this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the

interrogation,’ a ‘reasonable person [would] have felt he or she was not at liberty to terminate the

interrogation and leave.’”
Id. at 509
(alteration in original) (first quoting Stansbury,
511 U.S. at

322-23
; and then quoting Thompson v. Koehane,
516 U.S. 99, 112
(1995)). “Not all restraints on

freedom of movement amount to custody for purposes of Miranda.”
Id.
- 12 -
       The location of the interrogation is relevant but not dispositive. For instance, a suspect is

not necessarily in custody despite being questioned at a police station.6 Nor is an inmate

necessarily in custody when held in prison and questioned about a crime that occurred outside

the prison.7 Conversely, a suspect who is questioned in his own home could be in custody for

Miranda purposes if the conditions are sufficiently coercive.8

       When police have questioned a suspect who is hospitalized, courts have sometimes found

the suspect to be in custody for Miranda purposes and sometimes not. See Kimberly F.

Winbush, What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule

of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional

Rights Before Custodial Interrogation—Suspect Hospital Patient,
30 A.L.R.6th 103
(2008 &

2024 Supp.) (collecting cases). As in other contexts, courts must consider “all of the

circumstances surrounding the interrogation.” Stansbury,
511 U.S. at 322
. “[N]o single factor

alone may necessarily establish custody for Miranda purposes, and not all factors may be

relevant in a given case.” Wass v. Commonwealth,
5 Va. App. 27, 33
(1987).




       6
           See, e.g., Mathiason,
429 U.S. at 495
(“[P]olice officers are not required to administer
Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be
imposed simply because the questioning takes place in the station house, or because the
questioned person is one whom the police suspect.”); Aldridge v. Commonwealth,
44 Va. App.
618, 643
(2004) (“[T]he fact that the detectives asked Aldridge to speak with them at a police
facility, rather than her dormitory room, does not automatically convert the meeting into a
custodial situation.”); Bottenfield v. Commonwealth,
25 Va. App. 316, 320, 329
(1997) (holding
that defendant was not in custody when questioned during an “informal interview” at the
sheriff’s office).
       7
         See, e.g., Howes,
565 U.S. at 516
(holding that an inmate was not in custody where,
among other considerations, he was “told at the outset of the interrogation, and was reminded
again thereafter, that he could leave and go back to his cell whenever he wanted”).
       8
         See, e.g., Wass v. Commonwealth,
5 Va. App. 27, 33
(1987) (“[E]ven in the home,
police domination of the scene may produce a coercive environment and an abridgment of
freedom, and Miranda warnings may be required before questioning.”).
                                            - 13 -
       In the context of a suspect who is questioned at the police station, we identified the

relevant circumstances to

                 include: “(1) the manner in which the individual is summoned by
                 the police, (2) the familiarity or neutrality of the surroundings,
                 (3) the number of officers present, (4) the degree of physical
                 restraint, (5) the duration and character of the interrogation, and
                 (6) the extent to which the officers’ beliefs concerning the potential
                 culpability of the individual being questioned were manifested to
                 the individual.”

Aldridge v. Commonwealth,
44 Va. App. 618, 642
(2004) (quoting Harris v. Commonwealth,
27

Va. App. 554, 565
(1998)).

       The circumstances relevant to the “in custody” determination are broader when police

question a suspect who is being treated at a hospital. The 2008 A.L.R. annotation and our

unpublished cases9 involving police questioning at a hospital suggest the following

non-exhaustive list of potentially relevant considerations:

             •   Whether others were present during questioning, “such as medical staff and
                 visitors and family of the patient.”10

             •   The “time of day” of questioning, “with questioning that occurs during the middle
                 of the day, as opposed to late at night, suggesting that police have not created a
                 custodial situation.”11

             •   Whether law-enforcement officers accompanied the suspect to the hospital.12


       9
        We may consider such unpublished decisions as “informative” though not “binding.”
Rule 5A:1(f).
       10
          30 A.L.R.6th at 120; see Stevenson v. Commonwealth, No. 1614-19-1, slip op. at 7-8,
2020 Va. App. LEXIS 288
, at *10 (Nov. 24, 2020) (“Hospital staff interrupted when they needed
to conduct business or treat appellant. Appellant’s family member was also allowed to be in the
hospital room with him.”); Nixon v. Commonwealth, No. 1768-06-3, slip op. at 3,
2008 Va. App.
LEXIS 148
, at *2 (Mar. 25, 2008) (“Appellant’s daughter and nurses were present during the
interview.”).
       11
            30 A.L.R.6th at 120.
       12
         30 A.L.R.6th at 120; see Stevenson, slip op. at 7-8,
2020 Va. App. LEXIS 288
, at *10
(defendant “voluntarily transported himself” to the hospital).
                                              - 14 -
             •   Whether the police maintained a constant presence at the patient’s hospital
                 room.13

             •   Whether the suspect was prevented from leaving the hospital by police or, instead,
                 by the patient’s medical condition.14

             •   The number of officers involved in the questioning.15

             •   Whether the suspect agreed to speak or cooperate with police.16

             •   Whether “the tone of a police interview with a hospital patient [was] . . .
                 accusatorial,” or “friendly and neutral.”17

             •   The length of the interview.18


       13
          30 A.L.R.6th at 120; see Stevenson, slip op. at 8,
2020 Va. App. LEXIS 288
, at *11
(“[W]hile Officer Ramirez was standing near the door, he was ‘not guarding the door or stopping
the door.’”).
       14
           30 A.L.R.6th at 121; see Kincaid v. Commonwealth, No. 1381-22-2, slip op. at 11,
2023 Va. App. LEXIS 837
, at *17 (Dec. 19, 2023) (“Kincaid was neither handcuffed nor
restrained in any way. Neither his, nor anyone else’s, movements into or out of his exam or
hospital room were restricted by law enforcement.”); Rhodes v. Commonwealth, No. 0697-22-2,
slip op. at 11,
2023 Va. App. LEXIS 665
, at *15 (Oct. 3, 2023) (“Although we are mindful of
Rhodes’s vulnerable physical position, there is no indication that Detective Horn sought to
exploit that condition.”); Stevenson, slip op. at 8,
2020 Va. App. LEXIS 288
, at *11 (suspect was
“not handcuffed, locked in the room, or otherwise restrained”); Nixon, slip op. at 9,
2008
Va. App. LEXIS 148
, at *15 (Appellant’s “confinement was caused by [her] own physical
incapacity—not police compulsion. At no time did the police attempt to physically restrain
[appellant]: [she] was not handcuffed, nor did the police guard [her] hospital room to prevent
[her] escape.” (alterations in original) (quoting DeJesus v. State,
655 A.2d 1180, 1191
(Del.
1995))).
       15
           30 A.L.R.6th at 121; see Kincaid, slip op. at 11,
2023 Va. App. LEXIS 837
, at *17
(questioning officer was the “only” officer present); Stevenson, slip op. at 8,
2020 Va. App.
LEXIS 288
, at *10-11 (“[W]hile five officers were present at the hospital, there were only three
who stayed in appellant’s room, and only one was in uniform. . . . While more than one officer
was present in appellant’s hospital room during questioning, we conclude that the number of
officers in the present case does not suggest coercion.”).
       16
         30 A.L.R.6th at 122; see Nixon, slip op. at 2,
2008 Va. App. LEXIS 148
, at *2
(defendant was “talkative, cooperative, and willing to answer questions”).
       17
            30 A.L.R.6th at 122.
       18
          30 A.L.R.6th at 122; see Kincaid, slip op. at 11,
2023 Va. App. LEXIS 837
, at *17
(“very brief and consisted of very few questions”); Stevenson, slip op. at 9, 2020 Va. App.
                                              - 15 -
            •   The timing of the suspect’s arrest in relation to the interview.19

As in other interrogation contexts, “the ultimate inquiry into whether an individual is subject to

custodial interrogation is simply whether there is a formal arrest or restraint on freedom of

movement of the degree associated with formal arrest.” Keepers v. Commonwealth,
72 Va. App.

17
, 34 (2020) (quoting Spinner, 297 Va. at 392).

       Considering the totality of circumstances, we agree with the trial court that Johnson was

not in custody when Detectives Bryant and Vesser questioned him at the hospital. Bryant did not

question Johnson when he first saw him around 6:00 a.m. Bryant returned to the hospital to

speak with Johnson at 11:30 a.m., only after Officer Esser told him that Johnson had asked to

speak with someone about what happened. Although Esser was dressed in his police uniform

and stood at the hospital door for security, he did not speak with Johnson. As doctors and nurses

walked in and out of the room, Johnson was alert, spoke freely with them, and asked questions.

The medical equipment connected to Johnson would have made it difficult for him to get out of

bed, but his immobility was not caused by the police; Johnson was receiving essential medical

care because he had shot himself in the chest.

       Moreover, Bryant did not force the conversation. Although Bryant took the precaution to

read Johnson his Miranda rights, Bryant told Johnson that he was not under arrest and that no

charges had been filed. He asked if Johnson wanted to speak with him and Johnson said he did.

Bryant and Vesser conversed with Johnson in a mild tone, asking open-ended questions, not




LEXIS 288, at *12 (“The questioning lasted no more than twenty to thirty minutes, and it did not
prolong or interfere with his medical treatment.” (footnote omitted)); King v. Commonwealth,
No. 2619-97-1, slip op. at 3,
1998 Va. App. LEXIS 618
, at *4 (Dec. 8, 1998) (“single question,
posed by one police officer to an unrestrained defendant, in a neutral hospital setting, incidental
to the routine investigation of a traffic accident”).
       19
         30 A.L.R.6th at 122; see Kincaid, slip op. at 11,
2023 Va. App. LEXIS 837
, at *17
(“Kincaid was not taken into custody at the conclusion of either interview.”).
                                              - 16 -
accusatory ones. See 30 A.L.R.6th at 122 (“[W]here the tone is friendly and neutral, courts

usually find no custody.”).

       Given those facts, the invocation rule applied: if Johnson wished to assert his right to

remain silent in response to police questioning, he had to affirmatively invoke it. The situation

here was no more coercive than a myriad other situations in which law-enforcement officers

question suspects who are not in custody. See notes 6-7 supra.

       Johnson relies on our unpublished decision in Commonwealth v. Corrales,

No. 2360-00-2,
2001 Va. App. LEXIS 109
(Mar. 6, 2001), but we find it distinguishable.

Corrales, who was later indicted for murdering her newborn infant, had been questioned by

police three times in her hospital room as she recovered from the delivery. Slip op. at 1-2,
2001

Va. App. LEXIS 109
, at *1-2. Her visitors were asked to leave when the police arrived, and her

boyfriend and her medical providers were not allowed to be present when the police questioned

her. Id. at 4-5,
2001 Va. App. LEXIS 109
, at *6. Police provided Miranda warnings in the third

interview, but they continued to question her after she “unambiguously requested an attorney

three times.” Id. at 4-6, 9-10,
2001 Va. App. LEXIS 109
, at *6-7, 11. Taking the facts in the

light most favorable to Corrales—who had won her suppression motion—the panel found that

she was in custody for Miranda purposes and that the police violated Miranda by not stopping

their interrogation. Id. at 9-10,
2001 Va. App. LEXIS 109
, at *11-12. In this case, by contrast,

we take the facts in the light most favorable to the Commonwealth. And Johnson has failed to

identify any improper conduct or coercion by police.

       We reject Johnson’s argument that by providing Miranda warnings, the detectives

effectively conceded that Johnson was “in custody” for Miranda purposes. We agree with

Professor LaFave and his colleagues that “it would be bizarre if such solicitude for a suspect not

actually in custody were deemed to make the suspect’s statement subject to suppression under

                                              - 17 -
Miranda.” Wayne R. LaFave et al., Criminal Procedure § 6.6(f) at 836 (4th ed. 2015). Or as

Judge Wilkinson put it, to find that “the reading of Miranda warnings to a suspect should by

itself create custody . . . would convert admirable precautionary measures on the part of officers

into an investigatory obstruction.” Davis v. Allsbrooks,
778 F.2d 168, 172
(4th Cir. 1985).

       Our caselaw is more nuanced than that. We said in Barkley v. Commonwealth,
39

Va. App. 682
(2003), that providing Miranda “warnings does not necessarily place the individual

‘in custody’ at the level of restraint associated with a formal arrest.”
Id. at 694
. So reading a

defendant his Miranda rights “does not transform an otherwise consensual encounter into an

investigatory seizure.”
Id.
For instance, officers might give Miranda warnings “out of ‘an

abundance of caution.’”
Id. at 695
. “On the other hand, coupled with other indicia of coercion,

it might corroborate the objective reasonableness of the individual’s belief that he was not free to

leave.”
Id. at 694-95
(emphasis added). Such other indicia of coercion were present in Corrales.

We find none here.

       In short, Johnson was not in custody for Miranda purposes when he was questioned at the

hospital. We therefore reject his claim that his Miranda waiver was invalid. The fact that

Johnson was not in custody means that no waiver was required in the first place.20

       B. Johnson’s statements at the hospital were not coerced.

       Johnson also argues that, even if his Miranda rights were not violated, his statements to

the detectives at the hospital were made involuntarily and should have been excluded under the

Due Process Clause. He says that he “was in extremely critical condition after undergoing life-




       20
          We thus do not reach the Commonwealth’s argument that Johnson waived his Miranda
rights by choosing to testify at trial. See Paxton v. Commonwealth,
80 Va. App. 449
, 466-69 &
n.7 (2024) (explaining that a defendant whose Miranda objection has been overruled does not
waive the objection by choosing to testify in his own defense in response to the erroneous
admission of his confession), aff’d on other grounds, ___ Va. ___ (May 29, 2025).

                                               - 18 -
saving medical interventions.” He “was suffering from a self-inflicted gunshot wound, wearing

an oxygen mask, and had a chest tube inserted into his torso.” He was taking medicine that can

“impair a person’s ability to process information and make decisions.” He previously had only

minimal experience with the criminal-justice system.

       We “must make an independent evaluation of the evidence to determine whether the

confession[] w[as] voluntary. In doing so, we may rely upon the observations of the trial judge

and his findings of fact, except as to the ultimate issue of voluntariness.” Morris v.

Commonwealth,
17 Va. App. 575, 579
(1994); see also Thomas, 82 Va. App. at 102 (“[W]hen

determining the admissibility of a confession, ‘the ultimate issue of “voluntariness” is a legal

question.’” (quoting Miller v. Fenton,
474 U.S. 104, 110
(1985))).

       To evaluate whether a statement is voluntary, we examine “the totality of the

circumstances to determine whether the statement is the ‘product of an essentially free and

unconstrained choice by its maker,’ or whether the maker’s will ‘has been overborne and his

capacity for self-determination critically impaired.’” Rodriguez v. Commonwealth,
40 Va. App.

144, 157
(2003) (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 225
(1973)). We consider

“both ‘the details of the interrogation’ and ‘the characteristics of the accused.’”
Id.
(quoting

Kauffmann v. Commonwealth,
8 Va. App. 400, 405
(1989)). Regarding the interrogation, we

consider the “techniques employed, including evidence of trickery and deceit, psychological

pressure, threats or promises of leniency, and duration and circumstances of the interrogation.”

Keepers, 72 Va. App. at 41 (quoting Terrell v. Commonwealth,
12 Va. App. 285, 291
(1991)).

Relevant characteristics of the accused include his “age, intelligence, mental and physical

condition, background and experience with the criminal justice system.”
Id.
(quoting

Washington v. Commonwealth,
43 Va. App. 291, 302
(2004)).




                                               - 19 -
       Johnson’s argument here focuses only on his weakened state at the hospital, neglecting

the question of whether the police acted coercively to induce his statements. But the privilege

against self-incrimination protected by the Fifth and Fourteenth Amendments has a state-action

requirement. The Fifth Amendment provides that no person “shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. amend. V, cl. 3 (emphasis added). The Due

Process Clause of the Fourteenth Amendment provides that no State “shall . . . deprive any

person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1,

cl. 3 (emphasis added). “Because only state action may violate a criminal defendant’s due

process rights, ‘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.’”

Bottenfield v. Commonwealth,
25 Va. App. 316, 323
(1997) (quoting Colorado v. Connelly,
479

U.S. 157, 167
(1986)); accord Gaskins v. Clarke, ___ Va. ___, ___ (July 25, 2024) (per curiam)

(“[A] deprivation of liberty or property is not, under the Due Process Clause, ‘attributable to a

State unless it is traceable to the State’s power or authority.’” (quoting Lindke v. Freed,
601 U.S.

187, 198
(2024))); French v. Va. Marine Res. Comm’n,
64 Va. App. 226, 234
(2015) (“With a

few notable exceptions, the Constitution restrains only state action—not the actions of private

individuals.”).

       Connelly aptly shows why police coercion is required to render a confession involuntary.

While in a psychotic state induced by chronic schizophrenia, Connelly approached an off-duty

police officer and confessed to murdering a young girl.
479 U.S. at 160-61
. After the officer

provided Miranda warnings, Connelly said he understood his rights but still wanted to talk about

the murder.
Id. at 160
. He described how he killed the child and showed the officers where he

did it.
Id.
Despite finding that “the police had done nothing wrong or coercive,” the trial court

determined the confession was involuntary because “Connelly’s illness destroyed his volition

                                                - 20 -
and compelled him to confess.”
Id. at 162
. The Colorado Supreme Court affirmed, concluding

that the confession was not “the product of a rational intellect and a free will.”
Id. at 162
(citation omitted). The Supreme Court reversed. “Absent police conduct causally related to the

confession,” the Court said, “there is simply no basis for concluding that any state actor has

deprived a criminal defendant of due process of law.”
Id. at 164
. In other words, “some sort of

‘state action’” is essential to show a violation of the Due Process Clause.
Id. at 165
.

       We followed Connelly in Commonwealth v. Peterson,
15 Va. App. 486
(1992). We said

that the level of police coercion sufficient to render a confession involuntary “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.”
Id. at 488
.

       Johnson identifies no police coercion that was used in questioning him, even considering

his weakened and medicated state. To the contrary, Johnson willingly spoke with the detectives.

The questions were open-ended, not accusatory or leading. The detectives did not use any

“trickery [or] deceit, psychological pressure, threats or promises of leniency.” Keepers, 72

Va. App. at 41 (quoting Terrell,
12 Va. App. at 291
). Johnson was told he was not under arrest.

He was not restrained. Even though Johnson was not in custody, Detective Bryant took the

precautionary step to read him his Miranda rights, something that, even in a custodial setting,

“resets the defendant’s obligation to invoke his right to remain silent if he wants further

questioning to stop.” Thomas, 82 Va. App. at 116. And the interview was not unduly long,

lasting only 41 minutes. Compare Morris,
17 Va. App. at 580
(finding the confession voluntary

despite that it resulted from “three interrogation sessions over a period of approximately six

hours”), with Mincey v. Arizona,
437 U.S. 385, 396
(1978) (finding the confession involuntary

where the defendant was interrogated for nearly four hours while incapacitated and sedated in an

                                                - 21 -
intensive-care unit). The evidence supports the trial court’s finding that, throughout the

interview, Johnson was “fully engaged in this conversation, completely understanding.”

       We disagree with Johnson that Mincey and Peterson show that his confession was

involuntary. Mincey was wounded in a shootout at his apartment during a narcotics raid in

which a police officer was killed. Mincey,
437 U.S. at 387
. Mincey “arrived at the hospital

‘depressed almost to the point of coma’” and suffered damage to his “sciatic nerve and partial

paralysis of his right leg.”
Id. at 396, 398
. The interrogating officer “told Mincey he was under

arrest for the murder of a police officer,” questioned him for about four hours after reading him

Miranda warnings, and refused to stop the interrogation despite Mincey’s repeated requests for a

lawyer.
Id. at 396
. Because Mincey had already been arrested, there was no question that he

was in a custodial interrogation. The Court held that the resulting confession was involuntary

and therefore inadmissible.
Id. at 400-02
.

       Nothing like that occurred here. Unlike Mincey, Johnson was told he was not under

arrest. Unlike Mincey, Johnson declined to invoke his right to remain silent after being read

Miranda warnings. And the tone of the questioning was gentle, not aggressive.

       Peterson is likewise distinguishable. Peterson moved to suppress statements he made to

a police officer who rode with him in an ambulance to the hospital. Peterson,
15 Va. App. at

488
. But Peterson had been arrested and was already in police custody before the officer

accompanied him to the hospital.
Id.
Notably, several police officers had injured Peterson while

apprehending him. Id.21 Peterson “was unable to understand ‘everything that was going on



       21
          According to the record in Peterson, one police officer had struck Peterson on the
shoulder with a baton, another kneed him twice in the back while he lay face down on the street,
and a third struck him in the shoulder three times with his fist. See Brief of Appellee at 2-5,
Commonwealth v. Peterson,
15 Va. App. 486
(1992) (No. 1428-92-4). Peterson was then
transported to and interrogated at the police station until his continuing chest pains and request
for an ambulance prompted his emergency transport to the hospital. Id. at 4-5.
                                                - 22 -
around’ him as a result of [his] injuries.” Id. Although the trial court “found no misconduct” by

police when they arrested Peterson and later transferred him to the hospital, the court “concluded

that the defendant’s statements made in response to police questioning, while in the ambulance

. . . , were involuntary and, therefore, inadmissible.” Id. We affirmed. Id. at 489. Viewing the

evidence in the light most favorable to Peterson, we upheld the trial court’s finding “that the

police authority, asserted when the defendant was especially susceptible, overbore his will and,

thus, was coercive police activity rendering his statements involuntary and inadmissible.” Id. at

488.

       Unlike in Peterson, we take the facts here in the light most favorable to the

Commonwealth. Unlike Peterson, Johnson had not been arrested, was not in police custody

when questioned, and had not been previously interrogated at the police station before being

rushed to the hospital. Nor did the officers here control Johnson’s access to emergency medical

care. As the trial judge put it, this “was one of the most mild interrogations” the court had “ever

read about, listened to, observed, [or] encountered.”

       In sum, the record here shows that the police did not engage in any coercive tactics when

they interviewed Johnson at the hospital. So the trial court did not err in finding that Johnson’s

statements were voluntary.

   II. Expert Testimony

       Johnson argues in his second assignment of error that “the trial court erred by limiting the

defense expert’s testimony on the subject of unintentional discharges of firearms.” He says that

the trial court should have permitted Kapelsohn to testify that the most common reason for the

unintentional discharge of a firearm is not knowing that a round of ammunition has been

chambered. The Commonwealth objected at trial on the ground that Kapelsohn’s testimony

would “go to the ultimate issue” and would not be relevant. Johnson’s opening brief argues that

                                               - 23 -
Kapelsohn’s testimony would not have addressed the ultimate issue of whether Johnson

accidentally shot his wife but simply show the most common reason for accidental shootings.

He says this testimony is no different from the expert’s testimony permitted in Stevens v.

Commonwealth,
72 Va. App. 546
(2022), that “it is ‘very common’ for child victims of abuse to

wait weeks, months, or years to initially report the offense.”
Id. at 552
. He also notes that the

Supreme Court recently held in Diaz v. United States,
602 U.S. 526
(2024), that an expert’s

testimony in a drug-trafficking case “that most drug couriers know that they are transporting

drugs” was admissible and did not go to the ultimate issue of whether the defendant herself was

knowingly transporting drugs.
Id. at 528, 538
.

       We assume without deciding that Johnson’s argument is preserved.22 We further assume

without deciding that the trial court erred by excluding Kapelsohn’s testimony. Even so, we find

that putative error to be harmless.

       Our Supreme Court recently addressed the standard of review for non-constitutional

harmless error. See Shaw v. Commonwealth, ___ Va. ___ (Apr. 17, 2025). “A non-

constitutional error is deemed harmless when we ‘can conclude that the error did not influence

the jury or had but slight effect.’”
Id.
at ___ (quoting Commonwealth v. Kilpatrick,
301 Va. 214
,

216 (2022) (per curiam)). “‘To reach this conclusion, the evidence of guilt must be so

overwhelming that it renders the error insignificant by comparison such that the error could not



       22
          It is not clear that Johnson preserved his argument below or adequately addressed it in
the opening brief. See Rules 5A:18; 5A:20(e). The trial court excluded Kapelsohn’s testimony
on the ground that he was unqualified to render an opinion on the mental state of persons who
accidentally discharge a firearm, not on the ground that Kapelsohn’s testimony addressed the
ultimate issue. Johnson’s opening brief focused primarily on the ultimate-issue question. See
Lafferty v. Fairfax Cnty. Sch. Bd.,
293 Va. 354, 365
(2017) (“Absent argument and authority, an
assignment of error is deemed to be abandoned.”). On the other hand, Johnson does argue in
passing that Kapelsohn was qualified to render the excluded opinion. Johnson Br. 33-44.
Because the waiver question presents a close call, the harmless-error doctrine provides the better
and narrower ground for decision.
                                                - 24 -
have affected the’ outcome.”
Id.
at ___ (quoting Kilpatrick, 301 Va. at 217). “In a criminal

case, we must be able to conclude that if the error had not occurred, the jury still would have

convicted the defendant.” Id. at ___ (citing Kotteakos v. United States,
328 U.S. 750, 764
(1946)).23 In Shaw, for instance, the Court found harmless the exclusion of the defense expert’s

testimony about the defendant’s impaired mental state—evidence offered to negate culpability.

But the Court found “‘the evidence of guilt . . . so overwhelming that it render[ed] the [alleged]

error insignificant by comparison such that the [alleged] error could not have affected the’

outcome.”
Id.
at ___ (third and fourth alterations in original) (quoting Kilpatrick, 301 Va. at

216-17).

        “[H]armless error review requires ‘case-specific application of judgment.’” Id. at ___

n.10 (quoting Welsh v. Commonwealth, ___ Va. ___, ___ (Mar. 20, 2025)). In conducting that

analysis, “we must place [the expert’s] proffered testimony into the context of the trial. This

requires a review of the elements of the offense, the potential effect of [the expert’s] opinions

regarding those elements, and how those opinions fit with all of the other evidence in the case.”

Id. at ___.

        Using that approach here, we find that the jury’s guilty verdict would not have been

different had Kapelsohn been permitted to testify that most accidental shootings occur because

the shooter is unaware that a round is in the chamber. The jury was instructed that

second-degree murder requires proof of malice and that malice could be inferred “from the

deliberate use of a deadly weapon.” The jury was also instructed that the crime of using a



        23
           In adopting the standard of review for non-constitutional error in Clay v.
Commonwealth,
262 Va. 253
(2001), the Court found the federal standard in Kotteakos
persuasive and consistent with Code § 8.01-678. Id. at 259-60. Code § 8.01-678 provides that
“[w]hen it plainly appears from the record and the evidence given at the trial that the parties have
had a fair trial on the merits and substantial justice has been reached, no judgment shall be . . .
reversed . . . [f]or any . . . error committed” by the trial court.
                                                  - 25 -
firearm while committing a murder could be shown by proof that Johnson “used a firearm . . .

while committing murder.”

       The jury knew Johnson’s theory that the shooting was not deliberate; Johnson repeatedly

insisted that he accidentally shot his wife because he did not think that a round was chambered.

The jury heard Johnson say on the recording of the 911 call that “I was playing with my gun and

I shot my wife.” It heard him repeatedly say in the hospital interview that he does not keep a

bullet in the chamber and did not know what was different this time. He could “always pull the

trigger and there was nothing in it.”

       The jury was also well aware that an accidental shooting could occur if the trigger was

pulled by a person who was unaware that a bullet was chambered. The Commonwealth’s expert

and Kapelsohn both testified that the mechanics of the weapon required a person to chamber a

round to fire it. The key question for the jury to resolve was whether Johnson deliberately or

accidentally shot his wife. Kapelsohn’s testimony that it was common for unintentional

shootings to occur because the shooter does not know a round is chambered only indirectly

addressed that question.

       By contrast, the evidence overwhelmingly showed that Johnson shot his wife

deliberately, not accidentally. The jury heard testimony that Johnson had a motive to shoot her.

A long-time friend testified that D.S. had become unhappy in the marriage and planned to leave

Johnson. D.S.’s son testified that she also told him that there was nothing left for her in the

marriage and that she planned to leave Johnson. D.S. last told her son that in August 2022, the

month before Johnson shot her.

       Johnson’s claim that he shot his wife accidentally was also undermined by his own

testimony. To start, Johnson’s testimony revealed that he was quite knowledgeable about his

Glock. He bought it in 2019 and, since then, had practiced firing it twice a month at the shooting

                                               - 26 -
range. He had taken a five-hour course in gun safety to obtain a concealed-carry permit. He

slept with the gun under his pillow. As Kapelsohn testified, the gun had an indicator on the side

of the weapon showing that a round was chambered; though “subtle,” the indicator could be felt

by someone who was “well trained.”

       And in recounting the shooting, Johnson’s own testimony tended to refute that he

accidentally shot his wife. Johnson admitted that his wife told him before he shot her “that she

still was planning to move” out, though he said it would be “in a couple years.” He said he kept

picking up and dropping the gun when his wife told him, “Stop playing with it.” He admitted

that she said, “So you going to shoot me now?,” strongly suggesting that he was pointing it at

her. And at close range. Dr. Kessler’s testimony placed the gun from no more than two feet to

“less than inches” away from the victim’s left temple. Johnson said he responded, “[i]t’s not

even loaded. Shut up.” But Johnson admitted, “I waved my hand up, and then it went off.”

From the 911 recording, the jury also heard Johnson’s demeanor after shooting his wife; he

sounded calm and detached, though he said his wife was still breathing.

       “Taken as a whole,” we find the evidence that Johnson deliberately shot his wife to be

“overwhelming.” Kilpatrick, 301 Va. at 218. We also find that excluding Kapelsohn’s

testimony that most unintentional shootings occur because the shooter does not know a round is

chambered “did not influence the jury[] or had but slight effect.” Id. at 216 (alteration in

original). Accordingly, any error in excluding Kapelsohn’s testimony was harmless.

                                           CONCLUSION

       The trial court properly denied Johnson’s suppression motion and committed no

reversible error in excluding Kapelsohn’s testimony.

                                                                                           Affirmed.




                                               - 27 -