Megel v. Commonwealth

524 S.E.2d 139, 31 Va. App. 414, 2000 Va. App. LEXIS 44

• Court: Court of Appeals of Virginia
• Decided: February 1, 2000
• Docket: Record 1480-98-4
• Status: Published

Opinions

DUFF, Senior Judge.

Michael Megel, appellant, was convicted by a jury of possessing a firearm after having been convicted of a felony and was sentenced to serve twelve months in jail.

On appeal, appellant contends the trial court erred in denying his motion to suppress evidence seized by the police from his home without a warrant while he was serving a sentence in the Electronic Incarceration Program (EIP). Appellant also contends the Commonwealth unlawfully denied him access to psychiatric records which he could have used to impeach a Commonwealth’s witness. He further contends the trial court should have reviewed the psychiatric records before denying his post-trial request for a subpoena duces tecum to obtain the documents. Finding no error, we affirm.

FACTS 1

On October 22, 1996, the Fairfax County General District Court found appellant guilty of unlawful entry. Appellant received a twelve month jail sentence with six months suspended upon the condition that he remain of good behavior. The conviction order provided that appellant’s sentence was to be served through “electronic incarceration.”

Appellant entered the EIP program on February 21, 1997. He executed a written agreement to follow certain restrictions as a condition of being incarcerated in his home. Among these rules were the requirements that appellant submit to random urine tests, continuously wear a monitoring device on his anide, refrain from possessing weapons or intoxicating substances, and be subject to random, unannounced home visits by the sheriff.²

Acting upon an anonymous tip that appellant had a large bag of cocaine at his residence, Fairfax County Deputy Sheriff Ron Kidwell and Detectives Dan Janickey and Jule Longer-beam of the Fairfax County Police went to appellant’s home on July 22, 1997. Janickey and Longerbeam were wearing civilian clothing, and Kidwell was in uniform. The officers did not possess a warrant to search appellant’s home.

Kidwell knocked on the door and Veronica Barnick, appellant’s girlfriend, answered. Kidwell asked for appellant, and Barnick admitted the officers to the apartment. Appellant, Barnick, and their baby were in the living room of the apartment. Kidwell asked appellant if they could look around. Appellant said, “go ahead.” Janickey and Longerbeam quickly checked the other rooms in the apartment to ensure that no one else was present.

Janickey and Longerbeam then returned to appellant and his girlfriend. Janickey told appellant the police had received information that appellant might have drugs in the house. Janickey asked if appellant had any drugs. Appellant said he did not. Janickey asked appellant if he “would mind” if the officers looked around the apartment. Appellant replied that the officers were “welcome to look around” because they were “not going to find anything.”

Janickey and Longerbeam proceeded to the bedroom. In the bottom drawer of a dresser, among men’s underwear and socks, the officers found two handguns, a .357 caliber revolver and a .22 caliber revolver. In the dresser on the opposite side of the room the police found women’s undergarments.

The officers asked appellant, a previously convicted felon, about the guns. Appellant said the .22 caliber belonged to his girlfriend. Appellant said he had purchased the .357 for $150 as a wedding present for someone. Knowing that appellant previously had been convicted of a felony, Kidwell began to laugh. Appellant then became nervous and upset. Contrary to his earlier statement, appellant said his girlfriend had purchased the .357 caliber as a wedding present for someone.

The officers testified at the suppression hearing that they obtained appellant’s verbal consent to search the home. Appellant denied consenting to the search but believed he was required to permit the sheriff to search his home during any home visit.

At trial, the Commonwealth called Barnick as a witness. Barnick testified that both of the guns found in the apartment belonged to appellant. She said he had owned one of them for almost a year and the other for only a few days prior to the search. Barnick admitted she initially told the police the guns were hers because appellant had advised her to do so. During cross-examination, Barnick denied that she was receiving care at a mental health facility called Woodburn, that she had ever been prescribed any medications through Woodburn, and that she was then on medication. Although she and appellant were no longer living together at the time of appellant’s trial, she spent holidays with appellant’s parents. She said that custody of the child she and appellant shared- had “never been an issue.” During her rebuttal testimony, Barnick admitted she had met with appellant’s attorney a week earlier in preparation for appellant’s trial.

ANALYSIS

The Suppression Ruling

The trial court denied appellant’s motion to suppress, finding that appellant retained no expectation of privacy in his home while he was serving his sentence in the EIP. In its letter opinion denying the motion, the trial court further found that appellant consented to the search, “thus obviating the need for a warrant.”

In reviewing a trial court’s ruling on a motion to suppress, we view the evidence in the light most favorable to the prevailing party, the Commonwealth in this instance. See Greene v. Commonwealth, 17 Va.App. 606, 608, 440 S.E.2d 138, 139 (1994). “In performing such analysis, we are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to support them[,] and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.” McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

The Fourth Amendment to the Constitution of the United States protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... ” U.S. Const, amend. IV. “[T]he Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).

But the extent to which the Fourth Amendment protects people may depend upon where those people are____ [The] “capacity to claim the protection of the Fourth Amendment depends ... ° upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.”

Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)).

A court must determine whether the individual maintains a legitimate expectation of privacy in the object or premises to be searched, which involves a two-part inquiry. First, we must determine whether the individual has manifested “a subjective expectation of privacy” in the object of the challenged search. This inquiry is a factual determination to which we must give deference on appeal. Second, we must determine whether the expectation of privacy is objectively reasonable, one that society is willing to recognize as legitimate. This is a legal determination, requiring no deference on review.

Johnson v. Commonwealth, 26 Va.App. 674, 683-84, 496 S.E.2d 143, 148 (1998). But see Smith v. Maryland, 442 U.S. 735, 740 n. 5, 99 S.Ct. 2577, 2580 n. 5, 61 L.Ed.2d 220 (1979) (noting that “where an individual’s subjective expectations ha[ve] been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously c[an] play no meaningful role in ascertaining what the scope of Fourth Amendment protection [is]”).

First, we consider whether appellant manifested a subjective expectation of privacy in his home during his participation in the EIP.³ The trial court found as a fact that, based upon appellant’s testimony at the suppression hearing, appellant believed he was required to permit the police to search his home at any time police officers arrived for a home visit. Indeed, appellant’s apparent willingness to allow the officers to search his home supports this conclusion. We are bound to give deference to this finding of fact. See Johnson, 26 Va.App. at 684, 496 S.E.2d at 148.

Second, assuming appellant manifested a subjective expectation of privacy, we determine whether society is prepared to recognize as reasonable an expectation of privacy in the home of a participant in a program such as the EIP. Through the EIP, a person who has been convicted of a criminal offense, under certain circumstances, may be permitted to serve his or her sentence through “home/electronic incarceration” as administered by a supervising authority such as the sheriffs department.⁴ Code § 53.1-131.2(0 provides that “if the offender violates any provision of the terms of the home/electronic incarceration agreement, the offender may have the assignment revoked and, if revoked, shall be held in the jail facility to which he was originally sentenced.” If an EIP participant, “without proper authority or just cause, leaves his place of home/electronic incarceration, the area to which he has been assigned to work or attend education or other rehabilitative programs, or the vehicle or route of travel involved in his going to or returning from such place,” he or she is guilty of a Class 2 misdemeanor. Code § 53.1-131.2(E).

Among the rules of participation in the EIP, which appellant acknowledged in writing, was the condition that members of the sheriffs department would be permitted to visit the home where' appellant was confined. Appellant was further advised of the numerous prohibited acts which could result in his removal from the program or disciplinary action. If appellant disobeyed the rules of the EIP, he was subject to being incarcerated in jail instead of at home.

Under such circumstances, a participant in the EIP is far more restricted than one on probation or parole. A probationer or parolee generally enjoys freedom of movement; an EIP participant enjoys no such right. Thus, participation in the EIP is more analogous to a person serving time in a jail or prison. The participant’s home is the functional equivalent of a jail or prison cell. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the United States Supreme Court considered whether an inmate in a penal institution has a right to privacy in his prison cell entitling him to Fourth Amendment protection against unreasonable searches. The Court stated:

[W]hile persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. These constraints on inmates, and in some eases the complete withdrawal of certain rights, are “justified by the considerations underlying our penal system.” The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of “institutional needs and objectives” of prison facilities, chief among which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.

Id. at 524, 104 S.Ct. at 3199 (citations omitted). The Court held that

society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.

Id. at 526, 104 S.Ct. at 3200.

At the time of the challenged search, appellant was serving a sentence, albeit in his home, following the conviction of a crime. Appellant was subject to the rules and regulations of the EIP. If he failed to abide by those conditions, he was subject to further disciplinary action, removal from the program, and incarceration in jail. We find that, for purposes of the Fourth Amendment, appellant’s home was the functional equivalent of a jail cell. As one author has stated,

[Electronic incarceration appears to be commensurate with the metaphor of “a man’s home is his prison,” with the quantum leap of transposing inmates’ cells from a correctional facility to their homes. The net effect, therefore, would be that offenders who are serving part or all of their jail sentence at home would be afforded absolutely no fourth amendment constitutional protection from having their homes or their persons searched without a search warrant.

Alexander M. Esteves, Note, Changing of the Guard: The Future of Confinement Alternatives in Massachusetts, 17 New Eng. J. on Crim. & Civ. Confinement 133, 167 (1991) (footnote omitted).

At the time of the search, appellant had no reasonable expectation of privacy in the home, which was serving as his jail cell.⁵ Therefore, the search of appellant’s home carried with it no Fourth Amendment implications, and the trial judge did not err in denying the motion to suppress. In light of this conclusion, we need not consider whether appellant voluntarily consented to the search.

Disclosure of Bamick’s Psychiatric Records

The trial court entered a pretrial order requiring the Commonwealth to provide appellant with exculpatory evidence.⁶ After trial, appellant filed a request for a subpoena duces tecum to obtain from Woodburn the records of Barnick’s psychiatric treatment, as well as information regarding medications prescribed for her through the facility for the preceding ten years. Appellant contended, as he does on appeal, that the requested information should have been revealed by the Commonwealth before trial and that he was entitled to use the information to demonstrate that Barnick had committed perjury at trial. The trial court granted a motion to quash the subpoena duces tecum. Appellant subsequently filed a motion to vacate his conviction based upon the Commonwealth’s failure to disclose Bamick’s psychiatric records. The trial court denied this motion also.

We first address the aspect of appellant’s argument pertaining to the Commonwealth’s failure to provide the defense with Barnick’s psychiatric records prior to trial. It is unquestioned that “[t]he Commonwealth is required to provide a defendant exculpatory evidence, including evidence which impeaches the credibility of a prosecution witness.” Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124 (1996). In fulfilling this disclosure obligation, the “prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995). See also Williams v. Commonwealth, 16 Va.App. 928, 932, 434 S.E.2d 343, 346 (1993) (“[o]ne accused of a criminal offense may obtain exculpatory evidence known to the prosecution”). Moreover,

[i]n order for a defendant to establish a Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] violation, he must demonstrate that the undisclosed evidence was exculpatory and material either to the issue of guilt or to the issue of punishment. The mere possibility that “undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”

Goins, 251 Va. at 456, 470 S.E.2d at 124 (citations omitted).

We find nothing in the record to suggest that the Commonwealth or its agents had pretrial knowledge that Barnick had received psychiatric treatment. Indeed, defense counsel first broached the subject of Woodburn in cross-examination of Barnick. The Commonwealth could not have been expected to produce records of which none of its agents had knowledge.

Furthermore, the record does not show that Barnick’s psychiatric records would have proven that she testified untruthfully, that she harbored a bias against appellant, or that she possessed a motive to fabricate her testimony. Considering all of the evidence produced at trial against appellant, we cannot say the results of the trial would have been different had the Commonwealth provided appellant with Bamick’s psychiatric records.

To obtain information through a subpoena duces tecum, appellant was required to show that the requested documents were “material to the proceedings.” Rule 3A:12(b). A “trial court’s refusal to issue a subpoena duces tecum ... is not reversible error absent a showing of prejudice.” Gibbs v. Commonwealth, 16 Va.App. 697, 701, 432 S.E.2d 514, 516 (1993).

When appellant filed his subpoena duces tecum request, all that remained was for the trial court to sentence appellant. Barnick’s credibility was no longer at issue. Thus, Barnick’s psychiatric records were not material to the proceedings then pending in the trial court. Moreover, because the records would not have produced a different outcome at trial, as noted above, appellant has demonstrated no prejudice from the denial of his request for a subpoena duces tecum. Accordingly, we find no reversible error in the trial court’s decision.

Finally, we must determine whether Barnick’s psychiatric records qualified as after-discovered evidence necessitating a new trial.

“Motions for new trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance.... The applicant bears the burden to establish that the evidence (1) appears to have been discovered subsequent to trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborative or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial.”

Hopkins v. Commonwealth, 20 Va.App. 242, 249, 456 S.E.2d 147, 150 (1995) (en banc) (citation omitted).

Appellant has failed to prove that Barnick’s psychiatric records satisfy three of the four prongs of this test. Barnick was appellant’s former girlfriend, and she had met with defense counsel in preparation for trial. In fact, it was defense counsel who first mentioned the subject at trial, questioning Barnick specifically about Woodburn. The trial court found that Barnick was subpoenaed as a witness for the Commonwealth prior to trial. Therefore, appellant should have anticipated her appearance as a witness.

Considering these facts and circumstances, Barnick’s prior treatment at Woodburn does not appear to have been discovered after trial. In any event, however, the exercise of reasonable diligence by appellant would have revealed this information. As earlier noted, earlier access to Barnick’s records would not have produced an opposite result at another trial. Accordingly, the trial court did not err in refusing to set aside the verdict on the basis of after-discovered evidence.

For the foregoing reasons, we affirm appellant’s conviction.

Affirmed.

1 . After the petition for appeal was granted in this case, several transcripts (a partial transcript dated Februaiy 9, 1998 and transcripts of hearings held on November 5, 1997 and on January 12, 1998) were forwarded to this Court from the clerk's office of Fairfax County Circuit Court. " ‘After the record has been transmitted to this Court pursuant to [the Rules of Court] and an appeal has been granted, the record on appeal cannot be enlarged except by our award of a writ of certiorari under Code § 8.01-673.’ ” Watkins v. Commonwealth, 26 Va.App. 335, 341, 494 S.E.2d 859, 862 (1998) (quoting Godfrey v. Commonwealth, 227 Va. 460, 465, 317 S.E.2d 781, 784 (1984)). Appellant did not request, nor did we issue, a writ of certiorari to compel the transcripts to he forwarded to this Court. Accordingly, we do not consider them, despite their inclusion in the appendix.

2 . The record contains no evidence of a written agreement permitting the police to search appellant's residence without a warrant during his participation in the EIP.

3 . In his brief, appellant cites numerous cases discussing the validity of a waiver of the right to be free from unreasonable searches and seizures. This line of argument presumes a finding that appellant had a reasonable expectation of privacy in his home at the time of the search. Absent such an expectation, the question of waiver is irrelevant.

4 . Code § 53.1-131.2 further provides for participation in EIP for those accused of crimes pending trial. See Code § 53.1-131.2. In deciding the present case, we do not consider whether a participant in EIP who does not stand convicted and sentenced for a crime has an expectation of privacy in his place of confinement.

5 . There exist varying degrees of restraint of freedom on an individual who has been convicted of a crime, "ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.” Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709 (1987) (upholding Wisconsin administrative regulation allowing probation officers to search probationers' homes without warrant as long as probation officer obtains supervisor’s approval and has "reasonable grounds” for believing contraband is on premises). Persons whose sentences are suspended or who are on probation enjoy less freedom than those who have not been convicted of committing a crime. See, e.g., Anderson v. Commonwealth, 25 Va.App. 565, 490 S.E.2d 274 (1997) (upholding validity of one-year waiver of Fourth Amendment rights as condition of suspended sentence), aff'd en banc, 26 Va.App. 535, 495 S.E.2d 547, aff'd, 256 Va. 580, 507 S.E.2d 339 (1998). By analogy, a person under home incarceration enjoys less rights than those no longer serving a sentence of incarceration.

6 . The order required the Commonwealth to provide the defense with "any statements which the Commonwealth alleges were made by the accused which relate to the charges pending before this Court; any scientific tests and/or reports in the possession, custody or control of the Commonwealth which relate to the offense pending before this Court whether inculpatory or exculpatory; and any and all such other discoverable evidence required by Rule 3A:11 of the Rules of the Supreme Court of Virginia, as well as, exculpatory evidence indicating lack of guilt or mitigating degree of culpability and relating to questions of punishmentL] as well as evidence or leads to evidence on these matters including that which could be of use to the defense in the impeachment of prosecution witnesses as such is known or can become known to the Commonwealth____”