Clarence R. McCray v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 7, 1998
• Docket: 1961971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia

CLARENCE R. McCRAY MEMORANDUM OPINION * BY v. Record No. 1961-97-1 JUDGE RICHARD S. BRAY JULY 7, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge Brian D. Lytle for appellant.

John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Clarence R. McCray (defendant) was convicted for seven

felonies and two misdemeanors arising from seven separate

incidents of "purse-snatching." On appeal, defendant challenges

the trial court's failure to suppress his confession to police

and the sufficiency of the evidence to support several of the

convictions. Finding no error, we affirm the trial court.

The parties are conversant with the record, and this

memorandum opinion recites only those facts necessary to

disposition of the appeal. I. The Confession

On October 18, 1996, defendant voluntarily accompanied

Hampton police to the offices of detectives investigating the

subject offenses. Although not then under arrest, defendant was * Pursuant to Code § 17-116.010 this opinion is not designated for publication. advised of his Miranda rights and willingly submitted to three

hours of intermittent questioning relative to a rash of local

"purse-snatchings." Unaware that a victim had already identified

him as the perpetrator of one offense, defendant repeatedly

denied involvement in the crimes. However, when Detective

Jimmy L. Forbes escorted defendant to a nearby magistrate's

office to secure a warrant charging robbery, he requested to talk

with Forbes "right now" and confessed to the instant crimes. He

further agreed to an additional interview and, on October 20th,

affirmed to Forbes his earlier statements, with added details of

the offenses. Defendant later moved the trial court to suppress his

confessions, arguing that they had not been "freely and

voluntarily given." At the related hearing, Forbes acknowledged

that defendant's health was "poor" on October 18th, but noted

that he "displayed no difficulty" "comprehend[ing] simple

questions" and "did not appear to be under the influence of any

substance." However, Detective Nisley, also involved in the

questioning, recalled that defendant was a "physical wreck" and

suspected he was "on . . . cocaine." Defendant testified that he

had smoked "crack" and consumed gin prior to the interrogation,

and confessed in hope of release and upon Forbes' promise of

"some help."

In denying the motion, the trial court determined, from "the

totality of the evidence," that defendant, "acting of his own

- 2 - free will with knowledge and intelligence," decided "to tell

Detective Forbes . . . about [his involvement in] the crimes."

The court specifically noted that Forbes "spent much greater

time" with defendant than Nisley.

"Although the issue of voluntariness is a question of law

subject to the court's independent review of the entire record,

'the trial court's subsidiary factual findings, upon which

voluntariness is determined, . . . will not be disturbed on

appeal unless plainly wrong.'" Green v. Commonwealth, ___ Va.

App. ___, ___, ___ S.E.2d ___, ___ (1998) (citations omitted).

"[T]he burden is upon the defendant to show the trial judge's

ruling, when the evidence is viewed in the light most favorable

to the Commonwealth, constituted reversible error." Id. at ___,

___ S.E.2d at ___ (citing Fore v. Commonwealth, 220 Va. 1007,

1010, 265 S.E.2d 729, 731 (1989)).

"The test for voluntariness is 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.'" Jenkins

v. Commonwealth, 244 Va. 445, 453-54, 423 S.E.2d 360, 366 (1992)

(citations omitted). "'In determining whether the defendant's

will has been overborne, courts look to the totality of all the

surrounding circumstances,' including the defendant's background,

experience, mental and physical condition and the conduct of the

police." Commonwealth v. Peterson, 15 Va. App. 486, 488, 424

- 3 - S.E.2d 722, 723 (1992) (citations omitted).

We recognize that "[t]he 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." Id. (statement ruled involuntary when defendant on

cocaine, "'having problems' breathing, having chest pains, and

connected to a heart monitor in an ambulance en route to the

hospital"). However, "mere emotionalism, confusion, or

depression do not dictate a finding" that a confession was

involuntarily given. See Harrison v. Commonwealth, 244 Va. 576,

583, 423 S.E.2d 160, 164 (1992) (citation omitted).

The instant record discloses that defendant consistently

denied involvement in the crimes during the several hours of

initial questioning, later confessing in a further interview

undertaken at his request and affirmed by him several days

thereafter. The trial court determined from the related evidence

that defendant was "responsive . . . alert, [and reasonably]

articulate," throughout and "made the intellectual decision of

his own freewill that he wanted to [confess]." This finding is

supported by the record and will not be disturbed on appeal.

II. The Assault & Battery Conviction

Victim Vernita K. Aiken testified that, on October 17, 1996,

she returned to her parked car and discovered her "purse . . .

- 4 - tipped over" and wallet missing. She immediately noticed

defendant "at the end of [her] car," about to leave the area by

bicycle. Aiken "yelled" to defendant, grabbed both him and the

bike, and a struggle ensued, ending when Aiken fell to the ground

and defendant fled on foot with the wallet. Aiken suffered

"scratches" and "scrapes," which resulted in scarring to her

legs. Defendant was convicted of petit larceny and assault and

battery, complaining on appeal that the evidence does not support

the latter conviction. "Assault and battery, . . . requires proof of 'an overt act

or an attempt . . . with force and violence, to do physical

injury to the person of another,' 'whether from malice or from

wantonness,' together with 'the actual infliction of corporal

hurt on another . . . willfully or in anger.'" Boone v.

Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250, 251 (1992)

(citations omitted). "[T]he slightest touching of another . . .

if done in a rude, insolent or angry manner, constitutes a

battery for which the law affords redress." Crosswhite v.

Barnes, 139 Va. 471, 477, 124 S.E. 242, 244 (1924) (citation

omitted). "'[W]here there is physical injury to another person,

it is sufficient that the cause is set in motion by the

defendant, or that the [victim] is subjected to its operation by

means of any act or control which the defendant exerts.' 'The

law upon the subject is intended primarily to protect the

sacredness of the person, and, secondarily, to prevent breaches

- 5 - of the peace." Banovitch v. Commonwealth, 196 Va. 210, 219, 83

S.E.2d 369, 374 (1954) (citations omitted).

Here, the trial court concluded from the evidence that

Aiken's injuries resulted from defendant's deliberate acts

directed toward her, attended by the requisite "touching" and

wrongful purpose, a finding supported by the record.

III. The Robbery Convictions

Victim Lisa Gray testified that, on October 7, 1996,

defendant "ran into [her] like a football player," "grabbed [her]

purse," and "dragg[ed her] through the dirt." Gray required

medical treatment, including physical therapy. The court

convicted defendant of robbery. Victim Doris Cavedo testified that, on October 14, 1996,

defendant "rode beside [her] on a bicycle and grabbed [her] purse

off [her] arm," "pull[ing] [her] down" and along the "ground" for

ten feet. During the offense, defendant "turned and looked" at

Cavedo but continued dragging her until he secured possession of

the purse. Cavedo was treated for "cracked ribs," a leg injury

and various scratches and bruises, care which required

hospitalization for eight days, followed by two weeks in a

convalescent center. The court found defendant guilty of

unlawful wounding and robbery.

In challenging both the Gray and Cavedo robbery convictions,

defendant argues that the evidence establishes only that "contact

and injur[ies were] . . . incidental to the grabbing of the

- 6 - purse[s]" and, therefore, proves only two larcenies from the

person.

"'Robbery, a common law offense in Virginia, is defined as

the "taking, with intent to steal, of the personal property of

another, from his person or in his presence, against his will, by

violence or intimidation."'" Jones v. Commonwealth, 26 Va. App.

736, 738, 496 S.E.2d 668, 669 (1998) (citation omitted). "The touching or violation necessary to prove [robbery] may be indirect, but cannot result merely from the force associated with the taking." Instead, "[v]iolence or force requires a physical touching or violation of the victim's person." . . . "'[T]he offense of robbery . . . is not related to the force used on the object taken but to the force or intimidation directed at the person of the victim.'"

Id. at 739, 496 S.E.2d at 670 (quoting Winn v. Commonwealth, 21

Va. App. 179, 181-82, 462 S.E.2d 911, 912-13 (1995)). Thus,

"additional circumstances" are necessary "to transform the taking

from a larceny to a robbery," including a "struggle, where the

victim is knocked down, or . . . put in fear -- in other words,

where the defendant employs violence or intimidation against the

victim's person." Winn, 21 Va. App. at 182, 462 S.E.2d at 913

(citation omitted).

Here, the evidence clearly supports the finding that

defendant directed the requisite deliberate violence and

intimidation against both Gray and Cavedo, physically injuring

and intimidating each as he consummated the requisite "taking."

IV. The Unlawful Wounding Conviction

- 7 - Lastly, defendant complains that evidence of the attack upon

Doris Cavedo fails to support the conviction for unlawful

wounding. "An element necessary to both malicious and unlawful

wounding is the 'intent to maim, disfigure, disable, or kill' the

victim." Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d

250, 251 (1992); Code § 18.2-51. "'[A]n intent to maim,

disfigure or kill may be presumed' when an attack is 'attended

with . . . violence and brutality.'" Id. at 133, 415 S.E.2d at

252 (citations omitted). The nature and circumstances of

defendant's aggravated attack on Cavedo clearly gives rise to the

presumption that he possessed the requisite intent to maim,

disfigure, disable or kill her, and provides ample support for

the conviction. Accordingly, we affirm the disputed convictions.

Affirmed.

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