Kevin Michel Criss v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 5, 2001
• Docket: 0364001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Humphreys and Senior Judge Overton Argued at Chesapeake, Virginia

KEVIN MICHEL CRISS MEMORANDUM OPINION * BY v. Record No. 0364-00-1 JUDGE ROBERT J. HUMPHREYS JUNE 5, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge

James O. Broccoletti (James P. Normile, IV; Zoby & Broccoletti, P.C., on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Kevin Criss appeals his conviction, after a bench trial,

for possession with intent to distribute more than five pounds

of marijuana and conspiracy to distribute more than five pounds

of marijuana. Criss contends that the trial court erred 1) in

admitting his statement, which he alleges was made as a result

of coercion by the arresting officer; and, 2) in admitting

evidence found in the box addressed to 23 Neville Street, which

he alleges was illegally searched without a warrant. Because

this opinion has no precedential value and because the parties are

conversant with the facts, we do not recite them in detail here.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. We first note that "[t]he admission of evidence is within

the broad discretion of the trial court." Pavlick v.

Commonwealth, 27 Va. App. 219, 226, 497 S.E.2d 920, 923 (1998). 1

"[The Supreme Court has] held that a confession may be

involuntary and hence inadmissible when induced by threats to

prosecute members of the confessor's family." Tipton v.

Commonwealth, 224 Va. 256, 262, 295 S.E.2d 880, 883 (1982)

(citation omitted). However, we have not held, as Criss seems

to suggest, that "threats" to prosecute members of the

confessor's family are per se unreasonable. Instead, "the

question in each case is whether the defendant's will was

overborne at the time he confessed. If so, the confession

cannot be deemed 'the product of a rational intellect and a free

will.'" Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (citations

omitted). Thus,

[i]n assessing the voluntariness of a confession on appeal, we must independently determine whether, in light of the totality of the circumstances, including not only the details of the interrogation, but also the characteristics of the accused, the statement was the product of an essentially free and unconstrained choice by its maker, or whether the maker's will was overcome and his capacity for self-determination critically impaired.

1 Although Criss frames the issues on appeal as pertaining to "motions to suppress" evidence, Criss made no pretrial motion to suppress the evidence in this case. Rather, he objected to the admissibility of certain evidence on state law, as well as constitutional grounds.

- 2 - Novak v. Commonwealth, 20 Va. App. 373, 386-87, 457 S.E.2d 402,

408 (1995) (citations omitted).

Here, Criss argues he inferred coercion from Detective

Franklin Chappell's statements. However, unlike the

circumstances in Hammer v. Commonwealth, 207 Va. 135, 147-48,

148 S.E.2d 878, 885 (1966), Detective Chappell testified at

trial to the statements he made to Criss. The trial court had

the opportunity to evaluate Detective Chappell's credibility

with respect to the statements he made to Criss and their

context. Moreover, since Criss elected to contest their

admissibility at trial rather than seek a pretrial suppression

hearing, the trial court was given no opportunity to evaluate

the coercive effect, if any, these statements had on Criss. We

therefore cannot find that the trial court erred in concluding

that Criss' statement was the product of an essentially free and

unconstrained choice and that his will was not overborne by the

detective's statements. Accordingly, we find no error in the

trial court's admission of Criss' statement.

We note finally that the only Fourth Amendment argument

that Criss raised before the trial court pertained to the

investigation and resulting search that occurred in California.

However, the trial court issued a more exhaustive ruling in

denying Criss' motion and addressed both the California search

and the Virginia search. As a basis for its ruling with regard

to the Virginia search, the trial court concluded that Criss had

- 3 - no expectation of privacy in the box prior to its delivery to

his home.

Likewise, we find no merit in Criss' argument that the

search of the box prior to delivery to his home was illegal. On

this record, there is no evidence that "Dennis Barnard," the

individual to whom the package was addressed, was an alter ego

or pseudonym for Criss, nor that Criss ever identified himself

as Barnard. 2 Instead, the evidence merely demonstrates that

Criss accepted delivery and possession of the box and its

contents. Thus, we find no evidence to suggest that prior to

delivery, Criss possessed any expectation of privacy in the box

and/or its contents. In light of this, Criss had no standing to

assert an alleged Fourth Amendment violation based on the

actions of police prior to delivery of the box to his home. See

Rakas v. Illinois, 439 U.S. 128, 143 (1978) ("[The] capacity to

claim the protection of the Fourth Amendment depends not upon a

property right in the invaded [thing] but upon whether the

person who claims the protection of the Amendment has a

legitimate expectation of privacy in the invaded [thing].").

Criss correctly notes that the trial court erroneously

based its conclusion that Criss had no expectation of privacy in

the box on its belief that Criss lost his privacy interest once

2 To the contrary, counsel for Criss objected when the prosecutor referred to Criss as having identified himself as Barnard.

- 4 - UPS became the "lawful custodian" of the box. See United States

v. Jacobsen, 466 U.S. 109, 114 (1984) (the principle is well

established that individuals retain an expectation of privacy in

letters and sealed packages that have been deposited in the

mail). However, as set forth above, we find that the trial

court reached the correct result in finding that Criss had no

expectation of privacy in the box prior to delivery.

Accordingly, the judgment of the trial court is affirmed. See

Harris v. Commonwealth, 33 Va. App. 325, 332, 533 S.E.2d 18, 21

(2000) (as long as the correct reason, along with a factual

basis to support it, is raised in the trial court, an appellate

court may affirm the judgment of a trial court when it has

reached the right result for the wrong reason).

Affirmed.

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