COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges Argued at Salem, Virginia
JAMES READ DAVIS MEMORANDUM OPINION * BY v. Record No. 2985-98-3 JUDGE WILLIAM H. HODGES JANUARY 18, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY J. Samuel Johnston, Jr., Judge
Thomas S. Leebrick (Thomas S. Leebrick, P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
James Read Davis, appellant, was convicted in a bench trial
of being an accessory after the fact to grand larceny. On appeal,
appellant contends the trial court erred by denying his motion to
suppress evidence obtained as a result of a warrantless search and
seizure. Appellant also contends the evidence was insufficient to
support his conviction and the trial court erroneously admitted
hearsay evidence. Finding no error, we affirm.
FACTS
Between the late hours of April 21, 1998 and the early hours
of April 22, 1998, someone broke into Phillips Equipment
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Corporation (Phillips Equipment) and stole six riding lawn mowers
valued at $12,675. Five of the riding mowers were green and
yellow John Deere brand mowers, and one was a red and white mower
manufactured by Gravely. Someone had cut through a fence to gain
access to the lawn mowers. Police recovered a license plate lying
on the ground inside the fence.
Theodore Lee Lawrence testified that the license plate
belonged to a utility trailer owned by him and registered with DMV
in his name. Lawrence loaned the trailer to appellant "two and a
half, three years" earlier because Lawrence had no trailer hitch
on his truck enabling him to use the trailer. Appellant operated
a landscaping business, involving grading, seeding and the cutting
of lawns.
Investigator Robert Thompson investigated the theft. He
contacted DMV and learned that the license plate recovered at the
crime scene belonged to Lawrence's trailer. Lawrence told
Thompson that appellant had the trailer, so Thompson proceeded to
appellant's house. Thompson drove to appellant's house and saw
the trailer parked in appellant's yard. He parked in a driveway
on appellant's property leading to a garage. The trailer was
parked between the driveway and appellant's house. On his way to
appellant's house, Thompson noticed that the trailer had no
license plate. He verified that the VIN number on the trailer
matched that of the trailer owned by Lawrence, and he "saw what
appeared to be [lawn mower] tire tracks" going from the trailer to
- 2 - a garage. The garage was large enough to house the stolen lawn
mowers. He then proceeded to appellant's house, knocked on the
front door and side door but got no response. Seeing no one in
the backyard, Thompson called a deputy to remain at the scene
while he, Thompson, obtained a search warrant. While outside
waiting for the deputy, appellant came out of his house and asked
Thompson what he wanted. Thompson identified himself and advised
appellant that he was investigating the theft of lawn mowers.
Thompson told appellant "he wasn't under arrest and he wasn't
obligated to talk to [him]." Appellant "said he didn't know
anything about any lawn mowers or anything about anyone having his
trailer." Appellant "said he thought [the trailer] had the tag on
it the night . . . before." Thompson asked appellant "if he had
any objection if [he] searched his garage to see" if the stolen
lawn mowers were inside, and appellant "stated no." Thompson then
had appellant sign a permission to search form. The form
contained the following:
I, James Davis [and] Beverly Anderson, have bee[n] informed by Inv. Thompson and _____________ who made proper identification as (an) authorized law enforcement officer(s) of the Campbell Co. Sheriff's Office of my CONSTITUTIONAL RIGHT not to have a search made of the premises and property owned by me and/or under my care, custody and control, without a search warrant. Knowing of my lawful right to refuse to consent to such a search, I willingly give my permission to the above named officer(s) to conduct a complete search of the premises and property, including all buildings and vehicles, both
- 3 - inside and outside of the property located at RT 3 Box 250 J Lybg. (Wheeler RD). The above said officer(s) further have my permission to take from my premises and property, any letters, papers, materials or any other property or things which they desire as evidence for criminal prosecution in the case or cases under investigation. This written permission to search without a warrant is given by me to the above officer(s) voluntarily and without any threats or promises of any kind at 12:30 P.M. on this 22 day of April 1998, at RT 3 BOX 250 J Lybg.
After Thompson read the contents of the form to appellant,
appellant signed it. Deputy Jones and Beverly Anderson,
appellant's girlfriend, signed the form as witnesses. Appellant
then unlocked the garage, allowing Thompson to enter. Inside,
Thompson found the stolen lawn mowers. He asked appellant about
them, and appellant "said that was the first time he'd seen them"
and he did not know how they got in there. He told Thompson that
the last time he had been in the garage was around 9:00 p.m. the
night before (April 21, 1998). Appellant went to the other side
of the garage and made a telephone call on a cellular telephone.
Thompson testified that, earlier, before appellant exited his
house, he "heard what appeared to be [a] cellular phone ring
inside the garage." Thompson kept his attention on appellant the
entire time they were inside the garage and testified that
appellant did not touch any of the lawn mowers.
Thompson, Investigator Staton and Deputy Jones processed the
stolen lawn mowers for fingerprints, after which they arrested
- 4 - appellant. Appellant waived his Miranda rights, and Thompson
asked appellant if they would find any of appellant's fingerprints
on the stolen lawn mowers. Appellant "said maybe the Gravely
[mower], that he had walked over and touched it."
Thompson testified that he had earlier looked through an
opening in the garage door and saw a green John Deere tractor. On
cross-examination, Thompson was unsure whether he had looked into
the opening in the garage door before or after knocking on
appellant's door. However, Thompson reiterated that he did not
tell appellant that he had looked through the garage door or that
he had seen a John Deere lawn mower inside.
Defense witness Joey Keyes testified that he and Lawrence
Agee took the trailer between 1:00 a.m. and 3:00 a.m. without
appellant's permission and stole the lawn mowers from Phillips
Equipment without appellant's knowledge. Believing appellant was
out of town, he and Agee stored them in appellant's garage. Keyes
said the garage was unlocked when he and Agee placed the lawn
mowers inside. Afterwards, he padlocked the chain on the garage
door. Keyes testified that neither he nor Agee possessed a key to
open the padlock. When asked how he intended to take the lawn
mowers from the garage, Keyes said he "hadn't thought of that."
Keyes denied telling Investigator Guthrie that Agee called
appellant the night of the theft, and he denied telling Guthrie
that he suspected appellant knew about the theft.
- 5 - Beverly Anderson lives in appellant's house and is
appellant's girlfriend. She testified that she and appellant did
not hear Thompson knock on the door on April 22, 1998. They first
became aware of Thompson's presence when Anderson went upstairs
from the basement sleeping area and saw Thompson outside in the
yard.
Guthrie testified in rebuttal about a conversation he had
with Keyes. Keyes told Guthrie that Agee made a telephone call
after they loaded the lawn mowers on the trailer and left Phillips
Equipment, after which they took the stolen property to
appellant's garage. Keyes did not know if Agee spoke with
appellant, but Guthrie recalled that Keyes said "he assumed [Agee}
did, because that's where they took" the stolen lawn mowers and
stored them.
MOTION TO SUPPRESS
The trial judge denied appellant's motion to suppress,
finding that the Commonwealth showed that consent to search was
obtained independent of any possibly illegal search of the
curtilage. The trial judge found "no evidence" that appellant
knew that the officer may have looked into the garage "when his
consent was given freely and voluntarily."
On appeal, appellant asserts Investigator Thompson "illegally
developed probable cause for a search prior to obtaining consent,"
and "[t]he knowledge learned by his illegal methods was then used
to obtain the defendant's consent to search." Therefore,
- 6 - appellant argues, the evidence obtained from the garage was the
"fruit of the poisonous tree." Appellant also contends his
consent "was a product of implied or constructive duress or
coercion."
A. Exclusionary Rule
Generally, the exclusionary rule bars the admission of
"evidence seized and information acquired during an unlawful
search or seizure [and] also . . . derivative evidence
discovered because of the unlawful act." Warlick v.
Commonwealth, 215 Va. 263, 265, 208 S.E.2d 746, 748 (1974). In
determining whether the evidence is derivative and therefore
barred as "fruit of the poisonous tree," the question is
"'whether[,] granting establishment of the primary illegality,
the evidence to which instant objection is made has been come at
by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint.'" Wong Sun v. United States, 371 U.S. 471, 488 (1963)
(citation omitted). Evidence is obtained by means "sufficiently
distinguishable" to be admissible despite illegality if it is
"evidence attributed to an independent source" or "evidence
where the connection has become so attenuated as to dissipate
the taint." Warlick, 215 Va. at 266, 208 S.E.2d at 748.
The purpose of the exclusionary rule is "'to deter police
misconduct.'" Johnson v. Commonwealth, 21 Va. App. 172, 175,
462 S.E.2d 907, 909 (1995) (citation omitted). Where the illegal
- 7 - activity of the police did not lead to discovery of evidence a
party seeks to exclude, the exclusion of that evidence does not
meet the purpose of the exclusionary rule, which is to deter
future unlawful police conduct. See id. "A . . . consent to
search obtained subsequent to an unlawful search may be an
independent source if such . . . consent is not obtained by
exploitation of the unlawful search or is so attenuated as to
dissipate the taint of the unlawful search." Commonwealth v.
Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685 (1991).
"In reviewing a trial court's denial of a motion to
suppress, '[t]he burden is upon [the defendant] to show that
th[e] ruling, when the evidence is considered most favorably to
the Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). So viewed, the evidence proved
that appellant met with Thompson in appellant's yard, at which
time Thompson informed appellant he was investigating a theft of
lawn mowers. Thompson advised appellant he was not under arrest
and was not obligated to speak with him. Appellant denied
knowledge of the theft, and Thompson asked for appellant's
consent to search the garage. Thompson testified that he did
not inform appellant that he looked into the garage. Following
a detailed reading of the consent to search form advising
appellant of his constitutional rights, appellant signed the
form and consented to a search of his garage.
- 8 - Anderson testified that she and appellant were not aware of
Thompson's presence until she came upstairs and saw him in the
yard. Thus, there was no evidence that Anderson or appellant
were aware that Thompson looked in the garage.
Assuming arguendo that Thompson's act of peering through
the garage was an unlawful search, we find that appellant's
subsequent consent to search was "not obtained by exploitation of
the [allegedly] unlawful search." Ealy, 12 Va. App. at 755, 407
S.E.2d at 688.
B. Consent
Appellant contends his consent to search was given under
duress and coercion and was, therefore, invalid because Thompson
obtained appellant's consent based on his "exploitation of his
illegal search" of the garage. That argument assumes that
appellant was aware that Thompson looked in the garage and saw one
of the lawn mowers; however, as explained in Part A., above, there
was no evidence that appellant was aware of Thompson's search or
that Thompson informed appellant that he looked in the garage.
When the Commonwealth seeks to justify a warrantless search
on the basis of consent, it bears the burden of proving by a
preponderance of the evidence that the consent was voluntary. See
Camden v. Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39
(1994); see also Bumper v. North Carolina, 391 U.S. 543, 548
(1968). In order to determine whether consent to a particular
search was "voluntary," the test is whether the search is "the
- 9 - product of an essentially free and unconstrained choice" or
whether the consenter's "will has been overborne and his capacity
for self-determination critically impaired." Schneckloth v.
Bustamonte, 412 U.S. 218, 225-26 (1973); see also Lowe v.
Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977). "The
question whether a consent to a search was in fact 'voluntary' or
was the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the
circumstances." Schneckloth, 412 U.S. at 227.
Thompson carefully advised appellant of his constitutional
right "not to have a search made" of his garage and his "lawful
right to refuse to consent to such a search." Moreover, the
evidence established that Thompson did not tell appellant that he
looked into the garage and what he saw when he looked inside.
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). The fact finder believed Thompson's testimony that he
did not tell appellant that he looked in the garage and saw a John
Deere lawn mower. The Commonwealth presented credible, competent
and sufficient evidence to prove by a preponderance of the
evidence that appellant freely and voluntarily consented to the
search. Accordingly, the trial court did not err in refusing to
suppress the evidence on that basis.
- 10 - SUFFICIENCY OF THE EVIDENCE
After the Commonwealth presented its case-in-chief, counsel
for appellant moved to strike the evidence on the basis that
there was insufficient evidence that he stole the lawn mowers.
Defense counsel argued "at most their evidence would show I
suppose, and not conceding the point, but I would say at most a
misdemeanor of accessory after the fact." After the parties
rested, defense counsel argued there was no proof of "guilty
knowledge" or mens rea to support a conviction for grand larceny
or accessory after the fact.
"Absent proof of an admission against interest, knowledge
necessarily must be shown by circumstantial evidence." Lewis v.
Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983)
(guilty knowledge of receiving stolen goods can be proven by
circumstantial evidence). See also Campbell v. Commonwealth, 12
Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) (en banc) (intent must
often be proven by circumstantial evidence). Whether appellant
acted with the requisite mens rea was a question of fact to be
determined by the fact finder. See Branch v. Commonwealth, 14
Va. App. 836, 841, 419 S.E.2d 422, 426 (1992).
The five stolen lawn mowers were found in appellant's
padlocked garage less than twenty-four hours after the theft.
Appellant possessed the key to open the garage. Appellant told
Thompson the last time he entered the garage was 9:00 p.m. on
April 21, 1998, four to six hours before the theft occurred.
- 11 - However, after Thompson asked appellant if the police would find
his fingerprints on any of the stolen property, appellant said he
might have touched one of the stolen lawn mowers. Thompson
testified he carefully observed appellant inside the garage and
appellant did not touch any of the lawn mowers. Immediately after
the theft, Keyes and Agee drove to appellant's house, hid the lawn
mowers in the garage, and locked the garage door. Keyes testified
that Agee telephoned someone after the theft. Although Keyes
denied that appellant knew about the theft, the Commonwealth
impeached his credibility regarding his earlier denial that he
suspected that his accomplice, Agee, telephoned appellant just
before they stored the stolen goods in appellant's garage.
Finally, Keyes testified that neither he nor Agee possessed the
key to open the padlock and get into appellant's garage.
The Commonwealth's evidence was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable doubt
that appellant possessed guilty knowledge that stolen property was
stored in his garage.
ADMISSION OF GUTHRIE'S TESTIMONY
During the cross-examination of Keyes, the Commonwealth's
attorney questioned Keyes about a telephone call made by Agee
immediately after the crime. She then asked Keyes whether he
told Investigator Guthrie that he suspected appellant knew about
the crime. Keyes denied telling Guthrie that he thought Agee
- 12 - had called appellant, and he denied having any suspicion that
appellant knew about the completed theft.
During rebuttal, Guthrie testified that, in his
conversation with Keyes, Keyes "assumed that" Agee "spoke to"
appellant "because that's where they took" the property
immediately after the theft.
"'If a witness denies or is unable to recall a prior
statement, a party may impeach him by introducing other
evidence, such as another witness who heard the inconsistent
statement.'" Newton v. Commonwealth, 29 Va. App. 433, 443, 512
S.E.2d 846, 850 (1999) (quoting Edwards v. Commonwealth, 19 Va.
App. 568, 572, 454 S.E.2d 1, 2-3 (1995)). Although Keyes'
"assumption" that Agee called appellant may not have been
admissible in the first instance, by denying that he made a
statement indicating his "suspicion" or "assumption" that
appellant was aware of the crime, Keyes subjected himself to
impeachment through Guthrie's testimony. See id. Thus, Keyes'
statement to Guthrie that he assumed Agee spoke with appellant
necessarily indicated a suspicion that appellant was aware of
the completed crime. Accordingly, the trial judge did not
commit reversible error in allowing the testimony.
For the reasons stated, appellant's conviction is affirmed.
Affirmed.
- 13 -