Lindsay Elizabeth Wade v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: December 14, 2004
• Docket: 1878034
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Clements and Senior Judge Willis Argued at Alexandria, Virginia

LINDSAY ELIZABETH WADE MEMORANDUM OPINION* BY v. Record No. 1878-03-4 JUDGE JEAN HARRISON CLEMENTS DECEMBER 14, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY J. Howe Brown, Jr., Judge Designate

Michael D. Sawyer (Alexander N. Levay; Moyes & Levay, P.L.L.C., on briefs), for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Lindsay Elizabeth Wade was convicted in a bench trial of driving under the influence of

alcohol (DUI), in violation of Code § 18.2-266. On appeal, Wade contends the trial court erred (1)

in admitting an unauthenticated photocopy of the certificate of blood alcohol analysis into evidence

and (2) in denying her motion to suppress her pre-arrest statements to police. For the reasons that

follow, we affirm Wade’s conviction.

As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND

“In accordance with familiar principles of appellate review, we ‘state the evidence presented

at trial in the light most favorable to the Commonwealth, the prevailing party below.’” Pearson v.

Commonwealth, 43 Va. App. 317, 319, 597 S.E.2d 269, 270 (2004) (quoting Johnson v.

Commonwealth, 259 Va. 654, 662, 529 S.E.2d 769, 773 (2000)). As relevant to this appeal, the

evidence proved that, on September 27, 2002, at approximately 11:30 p.m., Investigator Michael

Powell of the Loudoun County Sheriff’s Department observed Wade exit from an apartment in the

area of the Leesburg Restaurant on King Street in the Town of Leesburg. Wade walked to a car

parked on King Street. As Wade attempted to get into the car, she “kind of fell down in the street

half way standing up holding onto the door.” Powell, who was working undercover in an unrelated

drug investigation, radioed his supervisor and informed him that he had just observed someone he

believed was “attempting to drive drunk.”

After getting in the car, Wade drove south on King Street. Powell followed her in the

unmarked “standard civilian” truck he was using. At the next intersection, Wade stopped at a traffic

light. When the light turned green, Wade “sat there for quite a while” before turning right onto

Loudoun Street. Powell observed that Wade was driving “very erratically,” crossing the center lane

of traffic and “weaving back and forth.” Powell notified the Leesburg police that he needed a

“Leesburg Unit” to respond. Wade, who had been heading away from the downtown area, then

turned right onto Ayr Street. Reaching the intersection of Ayr and Market Streets, Wade ran a stop

sign and headed east on Market Street back toward the downtown area. In front of the entrance to

the old hospital, Wade’s vehicle drifted to the right, nearly missing a truck parked at the curb, and

then veered left into the other lane of traffic. Several blocks farther down on Market Street, Wade’s

vehicle sideswiped a van that was parked in front of the Tally-Ho movie theater and then struck a

-2- woman who had stepped out from in front of the van, knocking her into the air and onto the

sidewalk.

While Powell radioed in a possible hit and run, asked for a rescue vehicle, and got out to

assist the fallen woman, he observed Wade’s vehicle accelerate from the scene, travel past a parking

garage and some vacant parking spaces in front of a hobby shop on the same side of the street, and

abruptly turn “the opposite way up a one-way alley.” Powell followed in his vehicle. He saw Wade

pull her vehicle into one of the parking spaces behind the stores fronting on south King Street and

then back out. Powell pulled in behind Wade’s vehicle and they were “pretty much nose to nose.”

Wade yelled, “I’ve got to get out of here. I’ve got to get out of here. Get out of my way.” Wade

then backed up her vehicle, made a U-turn, and appeared to Powell to be attempting to leave going

the wrong way. Powell then pulled his truck up to her vehicle in such a way as to block the front of

her vehicle. Powell then identified himself as a police officer, using his issued badge, and told

Wade to “turn off” the car. Wade responded, “You don’t know what kind of day I’ve had. I hit a

deer and I just hit somebody.”

Officer John Campbell of the Leesburg Town Police, who had been in communication with

Powell regarding the possible DUI and hit and run, responded to the alley. Upon approaching

Wade’s vehicle, he observed Wade in the driver’s seat “crying hysterically.” The officer asked

Wade how she was doing, and Wade continued to “cry frantically.” Campbell then asked Wade for

her driver’s license. After looking in her purse, Wade informed the officer that she was unable to

find her license. While speaking with Wade, Campbell noticed “an odor of alcoholic beverage

emitting from the vehicle” and asked Wade to step out of the car. Once Wade was out of the

vehicle, Campbell “continued to detect the same odor.” Campbell then “began conducting a DUI

investigation.”

-3- Campbell asked Wade how much she had had to drink, and she responded that she had had

two beers. Asked when she had consumed those beers, Wade stated her “last drink had been a

couple of hours earlier.” In response to the officer’s questions, Wade also stated that her highest

level of education was a “little over a year” in college, she was not taking medication or supposed to

be taking medication, and she had no physical impairments or disabilities that would impair her

performing field sobriety tests. Thereafter, Wade failed to satisfactorily perform two of the four

field sobriety tests administered by Campbell, and Campbell arrested her for DUI.

Investigator Powell remained at the scene while Officer Campbell questioned Wade but did

not participate in the questioning. Campbell did not administer Miranda warnings to Wade during

the pre-arrest questioning. Campbell testified that Wade was not free to leave while he was

questioning her.

After being informed of the Virginia implied consent law, Wade submitted to a breath test

administered by Officer Richard B. Thomas. At trial, the Commonwealth offered for admission

into evidence a photocopy of the certificate of blood alcohol analysis. Wade objected to the

admission of the photocopy on the grounds of “insufficient foundation” and the “best evidence

rule,” arguing that the officer “did not know who conducted the test” and was unable to “testify

what did or did not take place.” In response, the Commonwealth called Officer Campbell, who

testified that he was present when Officer Thomas administered the breath test; that, as a result of

the breath test, a certificate of blood alcohol analysis was generated by the Intoxilyzer machine; that

he observed the certificate generated by the machine; that he observed Thomas sign the original

certificate; and that the photocopy being offered by the Commonwealth was a “fair and accurate

photocopy” of the original certificate “generated by the Intoxilyzer” machine. The Commonwealth

again offered the certificate into evidence, arguing that a true and accurate photocopy “in this day

and age” satisfies the best evidence rule.

-4- Wade again objected to the certificate’s admissibility, arguing that the best evidence rule

and “the authenticity of the document” required the Commonwealth to produce the original or

account for its absence. Wade also argued that the photocopy was inadmissible hearsay because the

Commonwealth did not satisfy the foundation requirements of Code § 18.2-268.9. The trial court

overruled Wade’s objection and admitted the certificate into evidence.

The certificate of blood alcohol analysis revealed that Wade had a blood alcohol content of

.13 grams per 210 liters of breath. At the conclusion of the trial, the trial court found Wade guilty of

DUI, in violation of Code § 18.2-266.1 This appeal followed.

II. ANALYSIS

A. Admissibility of the Certificate of Blood Alcohol Analysis

On appeal, Wade’s sole claim of error regarding the certificate of blood alcohol analysis is

that the admission into evidence of the photocopy of the certificate was error because “the

Commonwealth did not provide the required attestation to the authenticity of the photocopy as

required by Code § 8.01-391(B).” Citing Williams v. Commonwealth, 35 Va. App. 545, 546 S.E.2d

735 (2001), Wade argues that, pursuant to Code § 8.01-391(B), the photocopy of the certificate was

admissible, in lieu of the original, only if authenticated as a true copy by the custodian of the record

or the person to whom the custodian reports. The Commonwealth’s failure to present such evidence

of authentication, she argues, renders the photocopy of the certificate inadmissible.

1 Wade was initially charged with felony hit and run, in violation of Code § 46.2-894, driving after forfeiture of license, in violation of Code § 18.2-272, and DUI, second or subsequent offense within five years, in violation of Code § 18.2-266. At the conclusion of the Commonwealth’s case-in-chief, the trial court struck the charge of driving after forfeiture of license and reduced the charge of DUI, second or subsequent offense within five years, to a charge of DUI, first offense. At the conclusion of the trial, the trial court dismissed the charge of felony hit and run. -5- The Commonwealth argues that Wade’s claim is procedurally barred under Rule 5A:18

because the argument she makes on appeal was never raised at trial. We agree with the

Commonwealth.

Rule 5A:18 provides in pertinent part:

No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling . . . . A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.

(Emphasis added.)

Pursuant to Rule 5A:18, we “will not consider an argument on appeal [that] was not

presented to the trial court.” Ohree v. Commonwealth, 25 Va. App. 299, 308, 494 S.E.2d 484, 488

(1998).

Under this rule, a specific argument must be made to the trial court at the appropriate time, or the allegation of error will not be considered on appeal. A general argument or an abstract reference to the law is not sufficient to preserve an issue. Making one specific argument on an issue does not preserve a separate legal point on the same issue for review.

Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc), aff’d,

No. 040019 (Va. Sup. Ct. Order of 10/15/04). Thus, “though taking the same general position as

in the trial court, an appellant may not rely on reasons which could have been but were not raised

for the benefit of the lower court.” West Alexandria Properties, Inc. v. First Va. Mortgage & Real

Estate Inv. Trust, 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980). In short, we will not consider an

argument on appeal that is different from the specific argument presented to the trial court, even if it

relates to the same issue. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416

(1994) (holding that appellant’s failure to raise the same specific arguments “before the trial court

precludes him from raising them for the first time on appeal”). The main purpose of this rule is to

ensure that the trial court and opposing party are given the opportunity to intelligently address, -6- examine, and resolve issues in the trial court, thus avoiding unnecessary appeals and reversals. Lee

v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 739 (1991) (en banc); Kaufman v. Kaufman, 12

Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).

In this case, Wade raised several arguments at trial relative to her claim that the copy of the

certificate was inadmissible. Initially, she stated that her objection to the photocopy was based on

its “insufficient foundation” and the “best evidence rule.” She argued that Officer Campbell “did

not know who conducted the test” and could not “testify what did or did not take place.” After the

Commonwealth presented additional evidence establishing that the offered photocopy was a “true

and accurate” copy of the original certificate, Wade raised the “[s]ame objection,” arguing that the

“whereabouts” of the original document had “not been ascertained.” The best evidence rule and

“the authenticity of the document,” she added, required the Commonwealth “to produce the original

document” or “to account for why it [did not] have the original document.” She later objected to the

admissibility of the photocopy of the certificate on the grounds that it was inadmissible hearsay

because the foundation requirements of Code § 18.2-268.9 were not met.

At no point, however, did Wade make before the trial court the argument she makes on

appeal. Indeed, Wade never mentioned Code § 8.01-391(B) or any of its requirements at trial or

argued that Officer Campbell was not the custodian of the record or the person to whom the

custodian reports. Thus, the trial court was never advised of the claim Wade now makes on appeal

and had no opportunity to consider, address, or resolve that issue. Moreover, our review of the

record reveals no reason to invoke the “ends of justice” or “good cause” exceptions to Rule 5A:18.

See Edwards, 41 Va. App. at 761, 589 S.E.2d at 448 (“We will not consider, sua sponte, a

‘miscarriage of justice’ argument under Rule 5A:18.”); M. Morgan Cherry & Assocs. v. Cherry,

38 Va. App. 693, 702, 568 S.E.2d 391, 396 (2002) (en banc) (holding that the “good cause”

exception to Rule 5A:18 will not be invoked where appellant had the opportunity to raise the

-7- issue at trial but did not do so). We hold, therefore, that Wade is barred by Rule 5A:18 from

raising this claim for the first time on appeal.2

B. Motion to Suppress

The Commonwealth concedes that Wade was not administered Miranda warnings prior to

her arrest for DUI. Wade claims that, because she was in custody when she made her pre-arrest

statements to Officer Campbell and because she was not administered Miranda warnings before she

made those statements, the trial court erred in denying her motion to suppress her statements. We

disagree with Wade’s premise that she was “in custody” when she made the subject statements.

“In reviewing a trial court’s denial of a motion to suppress, ‘the burden is upon [the

appellant] to show that the ruling . . . constituted reversible error.’” McGee v. Commonwealth, 25

Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va.

1007, 1010, 265 S.E.2d 729, 731 (1980)). While “we are bound by the trial court’s findings of

historical fact unless ‘plainly wrong’ or without evidence to support them,” id. at 198, 487 S.E.2d at

261, “we review de novo the trial court’s application of defined legal standards to the particular facts

of a case,” Quinn v. Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470, 475-76 (1997).

Relying on Officer Campbell’s testimony that she was not free to leave while he was

questioning her, Wade asserts “the Commonwealth conceded in the trial court that [Wade] was in

custody at the time of the [pre-arrest] statement.” Wade’s assertion is legally unsound. It is well

established that “‘[t]he initial determination of custody depends on the objective circumstances of

the interrogation, not on the subjective views harbored by either the interrogating officers or the

person being questioned.”’ Garrison v. Commonwealth, 36 Va. App. 298, 310, 549 S.E.2d 634,

2 Wade also contends on appeal that, without the certificate of analysis, the Commonwealth’s evidence was insufficient as a matter of law to prove she drove while under the influence of alcohol. Because our holding that appellate review of the certificate of analysis is procedurally barred renders this additional claim moot, we will not address it.

-8- 640 (2001) (quoting Stansbury v. California, 511 U.S. 318, 323 (1994)). Thus, Campbell’s

testimony that Wade “was not free to leave” during his pre-arrest questioning of her does not, by

itself, constitute a legally binding concession by the Commonwealth that Wade was in custody for

Miranda purposes.

“Although an accused in custody must be advised of certain constitutional rights prior to

being questioned, Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), a Terry stop of a person to

investigate a suspicion is not necessarily subject to the requirements of Miranda.” Bosworth v.

Commonwealth, 7 Va. App. 567, 572, 375 S.E.2d 756, 759 (1989) (citing Berkemer v. McCarty,

468 U.S. 420, 440 (1984)). “We have previously equated routine traffic stops with ‘Terry’ stops.”

Clarke v. Commonwealth 32 Va. App. 286, 299, 527 S.E.2d 484, 490 (2000). Hence,

persons temporarily detained pursuant to routine traffic stops are not “in custody” for Miranda purposes. In such cases, “the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions” that the detainee has committed a crime.

Nash v. Commonwealth, 12 Va. App. 550, 552, 404 S.E.2d 743, 744 (1991) (quoting Berkemer,

468 U.S. at 439). Only if the detained motorist is thereafter “subjected to treatment that places him

‘in custody’” is he or she entitled “to the protections prescribed by Miranda.” Bosworth, 7 Va. App.

at 572, 375 S.E.2d at 759 (citing Berkemer, 468 U.S. at 440).

Here, Officer Campbell had a reasonable articulable suspicion, based upon Investigator

Powell’s observations and reports, that Wade was operating her motor vehicle while intoxicated.

Having detained her based on that suspicion, Officer Campbell asked Wade for her driver’s license

to determine her identity. After observing the odor of alcohol emanating from the vehicle and from

Wade’s person when she exited the vehicle, Campbell asked a moderate number of routine

questions and asked Wade to perform field sobriety tests to determine whether she was intoxicated.

The officer never physically restrained Wade or told her she was not free to go. Nor did he draw his

-9- weapon or tell her she was under arrest. Only after confirming his suspicion that she was

intoxicated did Campbell arrest Wade, and thereby implicate Miranda. Thus, we hold that Wade

was not in custody for purposes of Miranda when she made her pre-arrest statements and the trial

court did not err in denying the motion to suppress.

C. Conclusion

For these reasons, we affirm Wade’s conviction.

Affirmed.

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