COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Coleman and Senior Judge Duff Argued at Alexandria, Virginia
ALLEN LEBEDUN, S/K/A ALLEN A. LEBEDUN MEMORANDUM OPINION * BY v. Record No. 0233-97-4 JUDGE SAM W. COLEMAN III JULY 7, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Leslie M. Alden, Judge
Crystal A. Meleen, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Allen A. Lebedun was convicted by a jury for abduction,
robbery, and use of a firearm in the commission of robbery. On
appeal, Lebedun contends the convictions should be reversed
because: (1) the search warrant was not supported by probable
cause and failed to recite the offense for which the search was
being conducted; (2) the general district court erred in refusing
to grant a continuance to obtain a court reporter at the
preliminary hearing; (3) the trial court erred by admitting into
evidence items seized from the home of an alleged accomplice; (4)
the trial court erred when it allowed a witness to examine pills
seized from Lebedun's apartment and to testify whether they were * Pursuant to Code § 17-116.010 this opinion is not designated for publication. the same type as those taken by the robbers; (5) the Commonwealth
failed to comply with the statutory notice and copy requirements
for introducing prior convictions evidence at sentencing; and (6)
the evidence is insufficient to identify him as one of the
perpetrators of the robbery. For the reasons that follow, we
affirm the convictions.
I. BACKGROUND
Two white males wearing masks entered the Annandale Doctors'
Pharmacy. The shorter man, who was wearing a rubber Halloween
mask, pointed a gun at the pharmacy clerk, Shirley Nelson. The
taller of the two men wore latex gloves and a blue knit cap
covering his head and most of his face. He pointed a silver
pistol at Marlene Book, the pharmacist and store owner, and
demanded narcotics. Book gathered various narcotics, including
amounts of Percocet, Roxicet, and Zanax, and gave them to the
robbers. When the taller assailant demanded money from the cash
register, Book gave him forty-six dollars. The assailants then
forced Book, Nelson, and a customer into a storage room and fled. Fairfax County Police Detective J.E. Agnew executed a search
warrant for Worth Myers' apartment where he found a blue ski mask
and a Halloween mask. Fairfax County Police Detective Jack Kirk
executed a warrant to search Lebedun's bedroom at Myers' sister's
apartment where Lebedun resided. Kirk found bags of prescription
drugs, a silver pistol, ammunition, and latex gloves in the
bedroom.
- 2 - At trial, Book and Nelson testified that the masks found at
Myers' apartment were "very similar" to the masks worn by the two
perpetrators during the robbery and that latex gloves and the
firearm found in Lebedun's bedroom were very similar to those
used by the taller assailant who wore the blue ski mask. Book
also testified that some of the pills seized from Lebedun's
bedroom were the same make and dosage as the drugs she was forced
to give to the robbers. Robert Russell, an acquaintance of Lebedun, testified that
during the three months preceding the robbery, Lebedun asked him
to obtain a handgun for him because he was "going to do a job on"
a pharmacy. Lebedun explained to Russell that he and Myers
planned to "hold up [a] pharmacy."
Lebedun was indicted on charges of robbing and abducting
Book, and use of a firearm in the commission of a robbery. A
jury convicted Lebedun on all charges.
II. THE SEARCH WARRANT A. Probable Cause
The Fourth Amendment provides that a search warrant shall
issue only upon a showing of probable cause supported by oath or
affirmation. See Gwynn v. Commonwealth, 16 Va. App. 972, 974,
434 S.E.2d 901, 903 (1993). Whether probable cause exists to
support the issuance of a warrant is to be determined from the
"totality of the circumstances" that are presented to the
magistrate. Illinois v. Gates, 462 U.S. 213, 238 (1983). The task of the issuing magistrate is simply
- 3 - to make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and the basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . concluding" that probable cause existed.
* * * * * * *
[A]n after-the-fact review of a magistrate's decision should not be made de novo[,] . . . great deference should be given to the magistrate's finding of probable cause.
Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666
(1991) (quoting Gates, 462 U.S. at 238).
In the present case, Detective Agnew's affidavit in support
of his request for a warrant to search Lebedun's home stated that
a fatal drug overdose had occurred at Myers' apartment, that an
informant had purchased prescription drugs from Myers, and that
Myers had told the informant how he and Lebedun while wearing
masks had committed a series of armed robberies of pharmacies in
Maryland and Virginia. The affidavit further stated that the
informant had on other occasions provided the police with
information regarding controlled drug purchases and had been
found to be reliable. The affidavit also said that a victim of
one robbery had observed Myers removing his mask as he left the
scene of the robbery and could identify Myers as one of the
robbers. The affidavit further stated that "Myers gave
statements [after his arrest] as to his involvement in the armed
- 4 - robberies of several pharmacies in Maryland and Virginia, against
his penal interest. In his statement [Myers] implicated one
Allen Lebedun as the second subject in the robberies."
Accordingly, the magistrate issued a warrant to search Lebedun's
apartment.
Lebedun contends the magistrate lacked probable cause to
issue the search warrant because the magistrate's decision was
based solely upon the unreliable assertions of Worth Myers.
Lebedun reasons that Myers' assertions were unreliable because he
admitted to using and distributing drugs. We find no merit in
the argument. The reliability of an informant's hearsay
statements in an affidavit "may be established by showing that
. . . the informer has made a declaration against his penal
interest." Polston v. Commonwealth, 24 Va. App. 738, 745, 485
S.E.2d 632, 634 (1997). Myers' admission that he and Lebedun
committed the robberies was a statement against his penal
interest and, as such, constituted reliable information upon
which the magistrate could find probable cause to issue a search
warrant. Based on the totality of circumstances presented in the
affidavit, the magistrate had a "substantial basis for
concluding" that Lebedun committed the robberies with Myers and
that evidence relating to the robberies could be found at
Lebedun's home. Accordingly, the search warrant was supported by
probable cause. B. Recitation of Offense Pertaining to Search Warrant
- 5 - Both the Fourth Amendment and Code § 19.2-56 require that a
search warrant "recite the offense in relation to which the
search is to be made." Code § 19.2-56; Gilluly v. Commonwealth,
221 Va. 38, 41, 267 S.E.2d 105, 106-07 (1980). The failure of a
warrant to state the related offense renders the warrant "fatally
defective," and the evidence seized in the execution of the
warrant inadmissible. Id.
Code § 19.2-56 further provides: "The judge, magistrate, or
other official authorized to issue criminal warrants shall attach
a copy of the affidavit required by [Code] § 19.2-54, which shall become part of the search warrant and served therewith."
(Emphasis added). Because the affidavit "become[s] part of the
search warrant," a search warrant sufficiently "recites the
offense" if it is attached to the affidavit which specifies the
offense to which the warrant pertains. However, a search warrant
does not recite the offense and is "fatally defective," where
"the evidence below establishe[s] conclusively that [the
deficient warrant and affidavit that did recite the offense] were
not attached until after the search warrant had been executed and the disputed items seized." Gilluly, 221 Va. at 41, 267 S.E.2d
at 107 (first emphasis added).
Relying on Gilluly, Lebedun contends the evidence fails to
show that the deficient warrant and affidavit were attached or
that they were attached when the search occurred. It is
undisputed that the warrant failed to recite the offense and that
- 6 - the affidavit expressly stated that the search pertained to
charges of robbery and abduction.
Lebedun had the burden of proving that the search warrant
was invalid. See Lebedun v. Commonwealth, ___ Va. App. ___, ___
S.E.2d ___ (1998); see also 4 Wayne R. LaFave, Search and Seizure
§ 11.2(b) at 218 (2d ed. 1987). Lebedun failed to meet this
burden. Lebedun offered no evidence to establish that the
warrant and the affidavit were not attached at the time of the
search. 1 When Detective Kirk testified on direct examination
that the search warrant and affidavit were attached when he "left
the apartment," Lebedun's counsel declined to ask him on
cross-examination whether they were attached at the time the
warrant was executed. Accordingly, the trial court did not err
in denying Lebedun's motion to suppress.
III. GENERAL DISTRICT COURT'S DENIAL OF MOTION FOR A CONTINUANCE
The circuit court granted Lebedun's in forma pauperis motion
to provide a court reporter to record and transcribe the
testimony at the preliminary hearing. However, the court
reporter did not appear at the preliminary hearing. After
advising the general district court judge that a court reporter
had been authorized to transcribe the hearing but was not
1 We construe Gilluly to require that in order for the affidavit to cure the search warrant's failure to recite the offense, the affidavit and the warrant must be attached when the warrant is executed. The purpose for requiring that the warrant recite the offense is to notify the owner or occupant of the premises to be searched of the offense being investigated.
- 7 - present, Lebedun asked the court to continue the preliminary
hearing. Apparently, no effort was made to obtain the services
of another court reporter. The Commonwealth objected to a
continuance noting that seven witnesses were present and prepared
to testify. The general district court denied the motion for
continuance. Lebedun's counsel tape recorded the preliminary
hearing, but, according to Lebedun, several portions of the
witnesses' testimony were inaudible or incomplete. On appeal,
Lebedun asks us to dismiss the indictment and to remand the case
to the general district court for a preliminary hearing with a
court reporter. "The decision whether to grant a continuance is a matter
within the sound discretion of the trial court." Lowery v.
Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509 (1990).
The Virginia Supreme Court has established a two-pronged test for
determining whether a trial court's denial of a continuance
request is reversible error. Under this test, we may reverse a
trial court's denial of a motion for a continuance only if it
appears from the record: (1) that the court abused its
discretion and (2) that the movant was prejudiced by the court's
decision. See Cardwell v. Commonwealth, 248 Va. 501, 509, 450
S.E.2d 146, 151 (1994).
The function of a preliminary hearing is to determine before
a judicial officer whether probable cause exists to believe that
an accused may have committed a criminal offense and whether
- 8 - reason exists for a grand jury to investigate the charges. See
Webb v. Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 38 (1963).
A preliminary hearing is not a vehicle for an accused to conduct
discovery. See Williams v. Commonwealth, 208 Va. 724, 729, 160
S.E.2d 781, 784 (1968).
Although a preliminary hearing is not constitutionally
mandated, an accused who has been arrested on a felony warrant is
statutorily entitled to a preliminary hearing. See Code
§ 19.2-218. Because a transcript of the testimony at a
preliminary hearing may be an effective tool for cross-examining
and impeaching witnesses at trial, Harley v. Commonwealth, 25 Va. App. 342, 348-50, 488 S.E.2d 647, 649-50 (1997), the circuit
court authorized Lebedun to employ a court reporter. See Roberts
v. Lavelle, 389 U.S. 40, 42-43 (1967) (per curiam); Code
§ 19.2-185. However, the responsibility for employing the court
reporter and having the court reporter present rested with the
appellant. Lebedun did not have a court reporter present for the
scheduled preliminary hearing and offered no justification other
than that the court reporter had not appeared. Lebedun could not
determine when a court reporter would be available or whether one
could be available that day.
Here, the general district court did not abuse its
discretion in denying the motion for a continuance. The
Commonwealth had committed to provide Lebedun a court reporter.
As with a non-indigent defendant, the court must determine
- 9 - whether a party has shown good cause for not having a court
reporter present for a scheduled preliminary hearing. In
deciding whether to continue a case, a court may properly
consider the convenience of the witnesses who are prepared to
testify at the scheduled proceeding. See Ex Parte Windham, 634
S.W.2d 718, 720-21 (Tex. Crim. App. 1982); Phifer v. State, 218
N.W.2d 354, 356-58 (Wis. 1974). The Commonwealth had seven
witnesses present to testify at the preliminary hearing, several
of whom had been subpoenaed to appear. Because the appellant
could not determine that a court reporter would be available that
day, the witnesses would likely have been required to reappear to
testify on another date. The appellant did not give a
justifiable reason why he did not have a court reporter present. Furthermore, Lebedun has not demonstrated that the lack of a
transcript of the preliminary hearing denied him the opportunity
to assess the strength of the Commonwealth's case or to impeach
the witnesses at trial. Lebedun was allowed to tape record the
testimony of the witnesses at the preliminary hearing and could
take notes of the proceedings. See Code § 16.1-69.35:2. After
the circuit court authorized Lebedun to employ a court reporter,
the responsibility for employing a reporter and having the
reporter present rested with the appellant. Moreover, Lebedun
has not shown that a transcript was essential for him to impeach
trial witnesses' testimony at the preliminary hearing. See Edwards v. Commonwealth, 19 Va. App. 568, 572, 454 S.E.2d 1, 3
- 10 - (1995). Although we do not doubt that Lebedun may have been
inconvenienced by the lack of a transcript of the preliminary
hearing, and we urge the trial courts to make reasonable efforts
to accommodate the transcribing of proceedings where a court
reporter has been specifically authorized, we find that under the
circumstances the general district court's denial of the motion
for a continuance was not an abuse of discretion. Accordingly,
we decline to dismiss the indictment and remand the case to the
general district court for a preliminary hearing.
IV. ADMISSIBILITY OF ITEMS SEIZED FROM MYERS' HOME
The Commonwealth introduced into evidence the blue ski mask
and Halloween mask seized from Myers' home. Lebedun contends the
trial court erred in admitting the masks because they were
irrelevant and unduly prejudicial to the charges against him. We
disagree. Evidence is relevant if it has any logical tendency to prove an issue in a case. Relevant evidence may be excluded only if the prejudicial effect of the evidence outweighs its probative value. The question whether the prejudicial effect of evidence exceeds its probative value lies within the trial court's discretion.
Goins v. Commonwealth, 251 Va. 442, 461-62, 470 S.E.2d 114, 127
(citation omitted), cert. denied, 117 S. Ct. 222 (1996).
"While a single circumstance, standing alone may appear
. . . immaterial or irrelevant, it frequently happens that the
combined force of many concurrent and related circumstances, each
insufficient in itself, may lead a reasonable mind irresistibly
- 11 - to a conclusion." Wynn v. Commonwealth, 5 Va. App. 283, 291, 362
S.E.2d 193, 198 (1987). The Commonwealth sought to prove that
Lebedun and Myers robbed the pharmacy while wearing the masks.
Book and Nelson testified that two men wearing masks entered and
robbed the pharmacy. They further testified that the masks found
in Myers' home were "very similar" to those used in the robbery.
Book testified that some of the prescription drugs found in
Lebedun's bedroom were similar to those taken by the masked
robbers. Considered with the Commonwealth's other evidence, the
masks tended to establish that Lebedun and Myers wore the masks
while robbing the pharmacy and that Myers stored the masks at his
residence after the robbery. Furthermore, the prejudicial effect
of the evidence did not outweigh its probative value of proving
that Lebedun perpetrated the robbery. Accordingly, we cannot say
that the trial court abused its discretion in admitting the masks
into evidence. See Coe v. Commonwealth, 231 Va. 83, 88, 340
S.E.2d 820, 823 (1986). V. ADMISSIBILITY OF PHARMACIST'S TESTIMONY REGARDING DRUGS SEIZED FROM LEBEDUN'S APARTMENT
During its case-in-chief, the Commonwealth showed Book the
pills seized from Lebedun's apartment and asked her to describe
"what [kind of pills] they appear[ed] to be." Lebedun objected
on the ground that the Commonwealth's question called for an
opinion and that Book had not been qualified as an expert
witness. The court overruled the objection and stated that Book
could testify as to "what they look like to her." Book testified
- 12 - that the drugs seized from Lebedun's apartment appeared to be of
the same type, color, and dosage that she handed over to the
robbers.
The trial court did not err in admitting Book's testimony
concerning the appearance and similarity of the pills. A lay
witness may testify that a common object he saw at one place was
identical to or different from one he saw at another place. See
Jones v. Commonwealth, 228 Va. 427, 442, 323 S.E.2d 554, 562
(1984); Claud v. Commonwealth, 217 Va. 794, 797-98, 232 S.E.2d 790, 792-93 (1977). "Like lay testimony identifying handwriting,
such testimony is a statement of fact based upon personal
observation and, as such, admissible for whatever weight the fact
finer cares to give it." Claud, 217 Va. at 798, 232 S.E.2d at
793. Here, Book was not asked to testify about the
pharmacological characteristics of the pills seized from
Lebedun's apartment. The appearance of the drugs that she handed
over to the robbers was a matter of personal observation, and she
could permissibly compare that observation to the appearance of
the drugs found in Lebedun's possession and introduced at trial. VI. NOTICE OF INTENT TO INTRODUCE PRIOR CONVICTIONS
More than a month before trial, the Commonwealth notified
Lebedun's counsel that it intended to introduce at the sentencing
phase of trial an August 2, 1977 conviction for robbery in
Fairfax County. The related order provided by the Commonwealth
indicated that the date of conviction was actually August 27,
- 13 - 1976. The Commonwealth also gave notice of its intention to
introduce evidence of four convictions in Montgomery County,
Maryland in January 1977, which included two convictions for
robbery and two convictions for use of a firearm in the
commission of a felony. The Maryland records provided by the
Commonwealth to Lebedun's counsel indicated that the convictions
were reversed and remanded on appeal, Lebedun was retried and
convicted on the same charges in 1979. At the sentencing
hearing, the Commonwealth introduced copies of the Fairfax County
and Montgomery County convictions as well as a copy of the
indictment that formed the basis of the Fairfax County
conviction. The Commonwealth did not provide Lebedun a copy of
the indictment prior to the trial. Code § 19.2-295.1 requires that the Commonwealth provide
notice of its intention to introduce evidence of the defendant's
prior convictions at the sentencing phase of a bifurcated trial.
This notice must include "the date of each prior conviction."
Code § 19.2-295.1. The statute further provides that "[p]rior to
the commencement of the trial, the Commonwealth shall provide to
the defendant photocopies of certified copies of the defendant's
prior criminal convictions which it intends to introduce at
sentencing." Id.
Lebedun argues that the trial court erred in permitting the
Commonwealth to introduce the prior convictions at sentencing
because the Commonwealth erroneously stated the dates of the
- 14 - respective convictions in its notice to defense counsel. Thus,
he contends, the Commonwealth failed to strictly comply with the
notice provisions of Code § 19.2-295.1, and the case must be
remanded for a new sentencing proceeding. We disagree.
Code § 19.2-295.1 is "procedural in nature" and "does not
convey a substantive right." Riley v. Commonwealth, 21 Va. App.
330, 337-38, 464 S.E.2d 636, 638-39 (1994). As such, the
statute's notice provisions are merely directory, and "precise
compliance [was] not . . . essential to the validity of the
proceedings. . . ." Commonwealth v. Rafferty, 241 Va. 319, 324,
402 S.E.2d 17, 20 (1991) (citation omitted). The purpose of the
notice provisions of Code § 19.2-295.1 is to provide defense
counsel with the opportunity to investigate the validity of the
convictions that the Commonwealth intends to introduce at
sentencing. Here, although the Commonwealth's notices
incorrectly stated the dates of the actual convictions, the
Fairfax County conviction order and the Maryland documentation
delivered to Lebedun sufficiently apprised him of the correct
conviction dates. Furthermore, while the indictment was
admissible as a part of the "record of conviction" of the Fairfax
County offense, see Brooks v. Commonwealth, 24 Va. App. 523, 532, 484 S.E.2d 127, 131 (1997), the Commonwealth was not required to
produce a copy of the indictment prior to trial. See Code
§ 19.2-295.1 (requiring prior notice of intention to introduce
"conviction" during sentencing phase). The Commonwealth's
- 15 - failure to strictly comply with the procedural requirements of
Code § 19.2-295.1 violated no substantive right and did not
prejudice Lebedun's ability to contest the validity of the
convictions. Therefore, the trial court did not err in admitting
proof of the prior convictions.
VII. SUFFICIENCY OF THE EVIDENCE - ROBBERY
Upon familiar principles of appellate review, we will not
disturb the jury's verdict unless it is plainly wrong or without
evidence to support it. Traverso v. Commonwealth, 6 Va. App.
172, 176, 366 S.E.2d 719, 721 (1988). When the sufficiency of
the evidence is challenged on appeal, we must determine whether
the evidence, viewed in the light favorable to the Commonwealth,
and the reasonable inferences fairly deducible from the evidence
support each and every element of the charged offense. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). When the Commonwealth relies upon circumstantial
evidence to prove its case, "[a]ll necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence." Boothe v.
Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987)
(citation omitted).
Viewed appropriately, the evidence is sufficient to prove
that Lebedun committed the robbery and abduction at the Annandale
pharmacy. Lebedun told Russell that he and Myers were "going to
do a job on" a pharmacy. Based upon the testimony of the victims
- 16 - and the physical evidence recovered by police, the jury could
have reasonably concluded that Myers possessed the masks worn
during the robbery and that Lebedun possessed the silver pistol
and latex gloves used in the offense. Furthermore, the fact that
police found drugs in Lebedun's possession identical to those
taken from the pharmacy warranted the inference that Lebedun
possessed drugs stolen from the pharmacy. "The unexplained
possession of recently stolen goods permits the fact finder to
infer that the possessor is the thief." Archer v. Commonwealth,
26 Va. App. 1, 13, 492 S.E.2d 826, 832 (1997). Considering the
totality of the facts and circumstances, the jury could have
reasonably concluded that Lebedun and Myers committed the robbery
using the masks, latex gloves, and silver pistol found in their
respective homes to procure some of the prescription drugs found
in Lebedun's possession. The jury was entitled to believe that
Lebedun carried out the plan that he described to Russell to
"hold up" the pharmacy with Myers. Accordingly, we find the
circumstantial evidence sufficient to identify Lebedun as a
perpetrator of the robbery.
For these reasons, we affirm the convictions. Affirmed.
- 17 -