COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner Argued at Salem, Virginia
DENNIS (NMN) GRAVES MEMORANDUM OPINION * BY v. Record No. 1316-98-3 JUDGE SAM W. COLEMAN III JUNE 29, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge
Thomas S. Leebrick (Thomas S. Leebrick, P.C., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General, (Mark L. Earley, Attorney General, on brief), for appellee.
Dennis Graves was convicted by bench trial for driving after
having been declared an habitual offender, second offense. On
appeal, Graves contends that (1) the trial court erred by refusing
to consider his motion to suppress a statement allegedly obtained
in violation of his Fifth Amendment right against
self-incrimination; (2) the trial court erred by admitting a
Department of Motor Vehicle (DMV) transcript as proof of his prior
adjudication as an habitual offender; and (3) the evidence was
insufficient to support the conviction. Finding no error, we
affirm.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. BACKGROUND
Officer Taylor observed Graves' car weave a little bit, spin
its wheels, and squeal when Graves shifted gears. After the car
slid to a stop at a traffic light with its tires again squealing,
Taylor activated his lights and pursued the vehicle. Before
Taylor overtook the vehicle, Graves stopped and fled on foot.
Graves, who was wearing a blue sweatshirt with green sleeves and a
black Pittsburgh Steelers cap, ran behind a residence. Officer
Taylor lost sight of Graves momentarily but discovered him less
than two or three minutes later, lying in the fetal position next
to a wood pile in the backyard of the residence. As Officer
Taylor approached, he drew his weapon and requested Graves to come
out from his hiding area. Graves replied, "You got me. I give
up."
Officer Taylor placed Graves under arrest and upon return to
the patrol car asked Graves his name, date of birth, and Social
Security number. After Taylor called in Graves' name and date of
birth, the dispatcher informed Taylor that Graves' license had
been revoked based upon an habitual offender adjudication. Taylor
asked Graves about his driver's license status, to which Graves
admitted "he was an habitual offender since high school." Graves
denies having made this statement and testified at trial that what
he said in response to Taylor's question was that he was an
habitual offender "when [he] was in high school."
- 2 - When Officer Taylor testified that Graves admitted he had
been an habitual offender since high school, defense counsel
objected on the ground that Taylor had obtained the statement as
the result of a custodial interrogation without having first
advised Graves of the Miranda warnings. Responding to the
objection, the Commonwealth's attorney pointed out that Graves was
required to have filed a pretrial motion at least seven days
before trial in compliance with Code § 19.2-266.2 to suppress the
statement at issue. At trial, defense counsel did not state a
reason for not having filed a pretrial suppression motion and the
trial court overruled Graves' objection.
ANALYSIS
The trial court did not err in refusing to hear Graves'
objection because Graves neither complied with the pretrial filing
requirements of Code § 19.2-266.2, nor presented any reason or
justification to the trial court as to what "good cause" existed
for his not having the motion timely heard pretrial, or why "in
the interest of justice," it was necessary to hear the motion at
trial. Furthermore, the court did not err by admitting the DMV
transcript. Finally, we find the evidence is sufficient to prove
that Graves had notice of his prior adjudication as an habitual
offender and is sufficient to support the conviction for driving
after having been declared an habitual offender, second offense.
- 3 - Code § 19.2-266.2 provides that motions to suppress
statements obtained in violation of a defendant's Fifth Amendment
privilege against self-incrimination shall be made prior to trial:
Defense motions or objections seeking (i) suppression of evidence on that grounds that such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments . . . shall be raised by motion or objection, in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel not later than seven days before trial. . . . The court may, however, for good cause shown and in the interests of justice, permit the motions or objections to be raised at a later time.
Code § 19.2-266.2; see also Rule 3A:19(d) (stating that "for good
cause shown," the trial court can hear motions barred by failure
to file pretrial).
Graves concedes that Code § 19.2-266.2 applies to his
motion, but argues that the trial court abused its discretion by
refusing to consider his motion to suppress for "good cause
shown and in the interests of justice." We disagree. After
Graves objected to the admissibility of his statement, the
Commonwealth argued that the objection was not timely. The
trial court overruled the objection and refused to hear the
suppression motion. Graves offered no explanation for his
failure to move for the statement's suppression pretrial. Nor
did Graves argue that hearing his motion at trial was necessary
to attain the ends of justice. Where a defendant moves to
suppress a statement for the first time at trial, if the
- 4 - defendant offers no "good cause" for hearing the otherwise
barred motion, nor presents any basis to support a finding that
the "interests of justice" demand that the motion be heard, a
trial court does not abuse its discretion by refusing to hear
the objection. Although Graves' argument on appeal sets forth
justification for his failure to raise the motion pretrial, the
trial court had no opportunity to consider those arguments and
we decline to consider them here for the first time. See Rule
5A:18. Accordingly, we find that the trial court did not abuse
its discretion by refusing to hear Graves' untimely motion to
suppress.
We find that the trial court did not err in admitting Graves'
DMV transcript indicating he had been declared to be an habitual
offender on June 10, 1997. See Smoot v. Commonwealth, 18 Va. App.
562, 564-65, 445 S.E.2d 688, 690 (1994). However, the transcript
indicated that the order adjudicating Graves an habitual offender
was "not accepted by addressee." Therefore, the transcript,
although admissible, was insufficient to prove Graves had the
requisite notice that he had been declared to be an habitual
offender on June 10, 1997. See Reed v. Commonwealth, 15 Va. App.
467, 472-73, 424 S.E.2d 718, 720-21 (1992) (requiring defendant
have actual knowledge of having been declared an habitual offender
to convict for driving after having been adjudicated an habitual
offender); Bibb v. Commonwealth, 212 Va.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner Argued at Salem, Virginia
DENNIS (NMN) GRAVES MEMORANDUM OPINION * BY v. Record No. 1316-98-3 JUDGE SAM W. COLEMAN III JUNE 29, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge
Thomas S. Leebrick (Thomas S. Leebrick, P.C., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General, (Mark L. Earley, Attorney General, on brief), for appellee.
Dennis Graves was convicted by bench trial for driving after
having been declared an habitual offender, second offense. On
appeal, Graves contends that (1) the trial court erred by refusing
to consider his motion to suppress a statement allegedly obtained
in violation of his Fifth Amendment right against
self-incrimination; (2) the trial court erred by admitting a
Department of Motor Vehicle (DMV) transcript as proof of his prior
adjudication as an habitual offender; and (3) the evidence was
insufficient to support the conviction. Finding no error, we
affirm.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. BACKGROUND
Officer Taylor observed Graves' car weave a little bit, spin
its wheels, and squeal when Graves shifted gears. After the car
slid to a stop at a traffic light with its tires again squealing,
Taylor activated his lights and pursued the vehicle. Before
Taylor overtook the vehicle, Graves stopped and fled on foot.
Graves, who was wearing a blue sweatshirt with green sleeves and a
black Pittsburgh Steelers cap, ran behind a residence. Officer
Taylor lost sight of Graves momentarily but discovered him less
than two or three minutes later, lying in the fetal position next
to a wood pile in the backyard of the residence. As Officer
Taylor approached, he drew his weapon and requested Graves to come
out from his hiding area. Graves replied, "You got me. I give
up."
Officer Taylor placed Graves under arrest and upon return to
the patrol car asked Graves his name, date of birth, and Social
Security number. After Taylor called in Graves' name and date of
birth, the dispatcher informed Taylor that Graves' license had
been revoked based upon an habitual offender adjudication. Taylor
asked Graves about his driver's license status, to which Graves
admitted "he was an habitual offender since high school." Graves
denies having made this statement and testified at trial that what
he said in response to Taylor's question was that he was an
habitual offender "when [he] was in high school."
- 2 - When Officer Taylor testified that Graves admitted he had
been an habitual offender since high school, defense counsel
objected on the ground that Taylor had obtained the statement as
the result of a custodial interrogation without having first
advised Graves of the Miranda warnings. Responding to the
objection, the Commonwealth's attorney pointed out that Graves was
required to have filed a pretrial motion at least seven days
before trial in compliance with Code § 19.2-266.2 to suppress the
statement at issue. At trial, defense counsel did not state a
reason for not having filed a pretrial suppression motion and the
trial court overruled Graves' objection.
ANALYSIS
The trial court did not err in refusing to hear Graves'
objection because Graves neither complied with the pretrial filing
requirements of Code § 19.2-266.2, nor presented any reason or
justification to the trial court as to what "good cause" existed
for his not having the motion timely heard pretrial, or why "in
the interest of justice," it was necessary to hear the motion at
trial. Furthermore, the court did not err by admitting the DMV
transcript. Finally, we find the evidence is sufficient to prove
that Graves had notice of his prior adjudication as an habitual
offender and is sufficient to support the conviction for driving
after having been declared an habitual offender, second offense.
- 3 - Code § 19.2-266.2 provides that motions to suppress
statements obtained in violation of a defendant's Fifth Amendment
privilege against self-incrimination shall be made prior to trial:
Defense motions or objections seeking (i) suppression of evidence on that grounds that such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments . . . shall be raised by motion or objection, in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel not later than seven days before trial. . . . The court may, however, for good cause shown and in the interests of justice, permit the motions or objections to be raised at a later time.
Code § 19.2-266.2; see also Rule 3A:19(d) (stating that "for good
cause shown," the trial court can hear motions barred by failure
to file pretrial).
Graves concedes that Code § 19.2-266.2 applies to his
motion, but argues that the trial court abused its discretion by
refusing to consider his motion to suppress for "good cause
shown and in the interests of justice." We disagree. After
Graves objected to the admissibility of his statement, the
Commonwealth argued that the objection was not timely. The
trial court overruled the objection and refused to hear the
suppression motion. Graves offered no explanation for his
failure to move for the statement's suppression pretrial. Nor
did Graves argue that hearing his motion at trial was necessary
to attain the ends of justice. Where a defendant moves to
suppress a statement for the first time at trial, if the
- 4 - defendant offers no "good cause" for hearing the otherwise
barred motion, nor presents any basis to support a finding that
the "interests of justice" demand that the motion be heard, a
trial court does not abuse its discretion by refusing to hear
the objection. Although Graves' argument on appeal sets forth
justification for his failure to raise the motion pretrial, the
trial court had no opportunity to consider those arguments and
we decline to consider them here for the first time. See Rule
5A:18. Accordingly, we find that the trial court did not abuse
its discretion by refusing to hear Graves' untimely motion to
suppress.
We find that the trial court did not err in admitting Graves'
DMV transcript indicating he had been declared to be an habitual
offender on June 10, 1997. See Smoot v. Commonwealth, 18 Va. App.
562, 564-65, 445 S.E.2d 688, 690 (1994). However, the transcript
indicated that the order adjudicating Graves an habitual offender
was "not accepted by addressee." Therefore, the transcript,
although admissible, was insufficient to prove Graves had the
requisite notice that he had been declared to be an habitual
offender on June 10, 1997. See Reed v. Commonwealth, 15 Va. App.
467, 472-73, 424 S.E.2d 718, 720-21 (1992) (requiring defendant
have actual knowledge of having been declared an habitual offender
to convict for driving after having been adjudicated an habitual
offender); Bibb v. Commonwealth, 212 Va. 249, 250, 183 S.E.2d 732,
733 (1971) (finding that where notice of suspension was sent to
- 5 - defendant's last known address but returned unopened, Commonwealth
cannot rely on statutory presumption that defendant had notice of
suspension).
Despite the inadequacy of the DMV transcript, we find that
the evidence was sufficient to support Graves' conviction. When a
defendant challenges the sufficiency of the evidence, we review
the facts in the light most favorable to the prevailing party,
granting to that party all reasonable inferences fairly deducible
therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975). During his arrest, Graves admitted to
Officer Taylor that he "had been an habitual offender since high
school." His statement is proof of actual notice that he was an
habitual offender. Thus, our finding that the DMV transcript was
not proof of actual notice does not render the evidence
insufficient to support his conviction.
Finally, Officer Taylor's testimony was sufficient to prove
that Graves was the operator of the vehicle. The driver wore a
Pittsburgh Steelers hat and fled behind a residence. Minutes
later, Taylor discovered Graves hiding behind the residence
wearing a Pittsburgh Steelers hat. On being discovered, Graves
exclaimed, "You got me. I give up." We find the evidence
sufficient to prove Graves' identity as the operator of the
vehicle.
In conclusion, the trial court did not err by admitting the
DMV transcript, but the transcript did not prove Graves had notice
- 6 - of having been declared an habitual offender. Additionally, the
trial court did not err by admitting Graves' inculpatory statement
which proved actual notice. Therefore, because the Commonwealth's
evidence was sufficient to prove Graves' identity and guilty
knowledge, the evidence was sufficient to support the conviction.
Accordingly, we affirm the conviction.
Affirmed.
- 7 -