COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton Argued at Chesapeake, Virginia
NICKKINBA M. BRASWELL MEMORANDUM OPINION * BY v. Record No. 1639-00-1 JUDGE NELSON T. OVERTON JUNE 12, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge
Stephen B. Plott (Cannon, Collins & Plott, PLC, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Nickkinba M. Braswell appeals his conviction after a bench
trial of two counts of robbery and two counts of use of a firearm
in the commission of a robbery. He argues that the trial court
erred in (1) failing to suppress evidence as fruit of an illegal
seizure, (2) failing to suppress his confession as involuntarily
given, and (3) overruling his motion to strike the evidence. For
the reasons that follow, we disagree and affirm his convictions.
BACKGROUND
Viewed in the light most favorable to the Commonwealth,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 48 (1991), the evidence proved that around 8:30 p.m. on December
8, 1999, Officer Ian McNett received a radio dispatch that a woman
matching the description of the "teen bandit" had been seen in a
specified neighborhood. The "teen bandit" was a young woman
wanted for committing several armed robberies. The dispatch
indicated that the woman was seen in the company of a black male.
Shortly after receiving the dispatch, McNett saw a woman
matching the description of the "teen bandit" walking in the named
area with two black males, one of whom was Braswell. McNett
exited his vehicle and approached the trio. He displayed his
badge and asked to speak with them. Braswell and the young woman
stopped, but the other man, Detore Brown, started edging away,
with his hands in his pockets. McNett testified that, because the
woman was a possible armed robbery suspect, he was concerned that
Brown was concealing his hands. Brown refused several requests
from McNett to show his hands, even after McNett and Officer
Martin Deaver drew their weapons. McNett stated that Brown's
failure to comply caused him to fear that Brown might be armed.
McNett ordered Braswell and the woman to the ground. Brown
refused to show his hands until Braswell said, "Just do what they
say." Brown then removed his hands from his pockets and got on
the ground. Deaver conducted a pat-down search of Brown and
recovered a black semiautomatic pistol from Brown's pocket.
Braswell's command, and Brown's reaction, caused the officers to
believe that Braswell and Brown were together and that Braswell
- 2 - exerted a certain amount of control over Brown. When other
officers, who had been investigating recent robberies in the area,
arrived at the scene they stated that Brown and Braswell matched
the physical descriptions of two black males who had committed two
recent grocery store robberies. The officers handcuffed all three
suspects and transported them to the police station in order to
investigate their suspicions.
The officers contacted Detective D.S. Dempsey, who had been
investigating the grocery store robberies. Dempsey arrived at the
station and recognized Braswell as one of the two men caught on
videotape during one of the robberies. Dempsey first interviewed
Brown. After Brown had been read and waived his Miranda rights,
he gave a verbal and a written confession implicating himself and
Braswell in the grocery store robberies. Dempsey then interviewed
Braswell, who also waived his Miranda rights, verbally and in
writing. He subsequently confessed to robbing the two grocery
stores.
At trial, Virginia Smith identified Braswell as one of the
two men who robbed her. Smith testified that on the evening of
December 2, 1999, she was working as a cashier at a grocery
store when two men entered. One of the men, who Smith
identified as Brown, placed a candy bar on her counter as if to
purchase the item. When Smith opened the cash register, the man
reached into the cash drawer and started grabbing money.
Brown's companion, who Smith described as the taller of the two
- 3 - and identified in court as Braswell, produced a shotgun, which
he pointed at Smith.
Oneta McClellan testified that she was working as a cashier
at a grocery store on the night of December 4, 1999, when a man
approached her counter, pointed a handgun at her, and began
taking cash from the drawer of her register. She stated that
the robber had a male companion but she could not identify
either man, except to say that they were black males.
Brown and Braswell are black males, and Dempsey testified
that Braswell is taller than Brown.
I.
In appropriate circumstances, an officer, lacking probable cause to arrest, may nevertheless approach a person he or she suspects of being engaged in criminal activity to investigate such activity. An officer may detain a person in a "Terry stop" if the officer possesses articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, is engaging in one, or is about to engage in one. In determining whether an officer had a particularized and objective basis for suspecting a person of criminal activity, a court must consider the totality of the circumstances.
Clarke v. Commonwealth, 32 Va. App. 286, 294-95, 527 S.E.2d 484,
488-89 (2000). McNett had received information that the "teen
bandit" had just been seen in the area in the company of a black
male. The "teen bandit" was suspected of committing several
armed robberies and was wanted by the police. The woman matched
the description of the "teen bandit," providing McNett with
- 4 - reasonable suspicion to stop the group to investigate further.
Because the "teen bandit" was known to be armed, McNett asked
the trio to show their hands. Brown began edging away as soon
as McNett approached. By refusing to display his hands, Brown
caused McNett to suspect that he was armed and trying to conceal
criminal activity. "[E]vasive behavior in the presence of the
police is a pertinent factor in determining reasonable
suspicion." Wallace v. Commonwealth, 32 Va. App. 497, 504, 528
S.E.2d 739, 742 (2000). When McNett drew his weapon and ordered
everyone to the ground, Brown still refused to take his hands
from his pockets. Not until Braswell commanded Brown to comply
with the officer's request did Brown show his hands and get on
the ground. The interaction between Brown and Braswell caused
McNett to believe that the two men were associated with each
other and that Braswell exerted authority over his companion.
Additionally, other officers arrived at the scene and identified
Brown and Braswell as matching the descriptions of two black
males wanted for committing two recent armed robberies in the
area.
"Although the authority to conduct a pat-down search does
not follow automatically from the authority to effect an
investigative stop, '[w]here the officer can "point to
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton Argued at Chesapeake, Virginia
NICKKINBA M. BRASWELL MEMORANDUM OPINION * BY v. Record No. 1639-00-1 JUDGE NELSON T. OVERTON JUNE 12, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge
Stephen B. Plott (Cannon, Collins & Plott, PLC, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Nickkinba M. Braswell appeals his conviction after a bench
trial of two counts of robbery and two counts of use of a firearm
in the commission of a robbery. He argues that the trial court
erred in (1) failing to suppress evidence as fruit of an illegal
seizure, (2) failing to suppress his confession as involuntarily
given, and (3) overruling his motion to strike the evidence. For
the reasons that follow, we disagree and affirm his convictions.
BACKGROUND
Viewed in the light most favorable to the Commonwealth,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 48 (1991), the evidence proved that around 8:30 p.m. on December
8, 1999, Officer Ian McNett received a radio dispatch that a woman
matching the description of the "teen bandit" had been seen in a
specified neighborhood. The "teen bandit" was a young woman
wanted for committing several armed robberies. The dispatch
indicated that the woman was seen in the company of a black male.
Shortly after receiving the dispatch, McNett saw a woman
matching the description of the "teen bandit" walking in the named
area with two black males, one of whom was Braswell. McNett
exited his vehicle and approached the trio. He displayed his
badge and asked to speak with them. Braswell and the young woman
stopped, but the other man, Detore Brown, started edging away,
with his hands in his pockets. McNett testified that, because the
woman was a possible armed robbery suspect, he was concerned that
Brown was concealing his hands. Brown refused several requests
from McNett to show his hands, even after McNett and Officer
Martin Deaver drew their weapons. McNett stated that Brown's
failure to comply caused him to fear that Brown might be armed.
McNett ordered Braswell and the woman to the ground. Brown
refused to show his hands until Braswell said, "Just do what they
say." Brown then removed his hands from his pockets and got on
the ground. Deaver conducted a pat-down search of Brown and
recovered a black semiautomatic pistol from Brown's pocket.
Braswell's command, and Brown's reaction, caused the officers to
believe that Braswell and Brown were together and that Braswell
- 2 - exerted a certain amount of control over Brown. When other
officers, who had been investigating recent robberies in the area,
arrived at the scene they stated that Brown and Braswell matched
the physical descriptions of two black males who had committed two
recent grocery store robberies. The officers handcuffed all three
suspects and transported them to the police station in order to
investigate their suspicions.
The officers contacted Detective D.S. Dempsey, who had been
investigating the grocery store robberies. Dempsey arrived at the
station and recognized Braswell as one of the two men caught on
videotape during one of the robberies. Dempsey first interviewed
Brown. After Brown had been read and waived his Miranda rights,
he gave a verbal and a written confession implicating himself and
Braswell in the grocery store robberies. Dempsey then interviewed
Braswell, who also waived his Miranda rights, verbally and in
writing. He subsequently confessed to robbing the two grocery
stores.
At trial, Virginia Smith identified Braswell as one of the
two men who robbed her. Smith testified that on the evening of
December 2, 1999, she was working as a cashier at a grocery
store when two men entered. One of the men, who Smith
identified as Brown, placed a candy bar on her counter as if to
purchase the item. When Smith opened the cash register, the man
reached into the cash drawer and started grabbing money.
Brown's companion, who Smith described as the taller of the two
- 3 - and identified in court as Braswell, produced a shotgun, which
he pointed at Smith.
Oneta McClellan testified that she was working as a cashier
at a grocery store on the night of December 4, 1999, when a man
approached her counter, pointed a handgun at her, and began
taking cash from the drawer of her register. She stated that
the robber had a male companion but she could not identify
either man, except to say that they were black males.
Brown and Braswell are black males, and Dempsey testified
that Braswell is taller than Brown.
I.
In appropriate circumstances, an officer, lacking probable cause to arrest, may nevertheless approach a person he or she suspects of being engaged in criminal activity to investigate such activity. An officer may detain a person in a "Terry stop" if the officer possesses articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, is engaging in one, or is about to engage in one. In determining whether an officer had a particularized and objective basis for suspecting a person of criminal activity, a court must consider the totality of the circumstances.
Clarke v. Commonwealth, 32 Va. App. 286, 294-95, 527 S.E.2d 484,
488-89 (2000). McNett had received information that the "teen
bandit" had just been seen in the area in the company of a black
male. The "teen bandit" was suspected of committing several
armed robberies and was wanted by the police. The woman matched
the description of the "teen bandit," providing McNett with
- 4 - reasonable suspicion to stop the group to investigate further.
Because the "teen bandit" was known to be armed, McNett asked
the trio to show their hands. Brown began edging away as soon
as McNett approached. By refusing to display his hands, Brown
caused McNett to suspect that he was armed and trying to conceal
criminal activity. "[E]vasive behavior in the presence of the
police is a pertinent factor in determining reasonable
suspicion." Wallace v. Commonwealth, 32 Va. App. 497, 504, 528
S.E.2d 739, 742 (2000). When McNett drew his weapon and ordered
everyone to the ground, Brown still refused to take his hands
from his pockets. Not until Braswell commanded Brown to comply
with the officer's request did Brown show his hands and get on
the ground. The interaction between Brown and Braswell caused
McNett to believe that the two men were associated with each
other and that Braswell exerted authority over his companion.
Additionally, other officers arrived at the scene and identified
Brown and Braswell as matching the descriptions of two black
males wanted for committing two recent armed robberies in the
area.
"Although the authority to conduct a pat-down search does
not follow automatically from the authority to effect an
investigative stop, '[w]here the officer can "point to
particular facts from which he reasonably inferred that the
individual was armed and dangerous" [he is] justified in
searching for weapons.'" Harris v. Commonwealth, 33 Va. App.
- 5 - 325, 334, 533 S.E.2d 18, 22 (2000) (citation omitted). After
Brown submitted to McNett's authority, the officers performed a
pat-down search for weapons. The search revealed that Brown was
carrying a handgun in his coat pocket.
The officers then possessed probable cause to arrest
Braswell. "[P]robable cause is a flexible, common-sense
standard." Texas v. Brown, 460 U.S. 730, 742 (1983). "[A]n
investigating officer does not have to 'deal with hard
certainties, but with probabilities,' and is permitted to make
'common-sense conclusions about human behavior' in assessing a
situation." Carson v. Commonwealth, 12 Va. App. 497, 502, 404
S.E.2d 919, 922 (citation omitted), aff'd on reh'g en banc, 13
Va. App. 280, 410 S.E.2d 412 (1991), aff'd, 244 Va. 293, 421
S.E.2d 415 (1992). In determining the existence of probable
cause, we look to the totality of the circumstances involved.
See Miles v. Commonwealth, 13 Va. App. 64, 68, 408 S.E.2d 602,
604 (1991), aff'd on reh'g en banc, 14 Va. App. 82, 414 S.E.2d
619 (1992). Braswell was in the company of a suspected armed
robber, he appeared to exert control over his armed companion,
indicating that the two were working together, and the officers
recognized Braswell and Brown as matching the descriptions of
the perpetrators of two recent armed robberies. Given the
totality of the circumstances, combined with the officers'
reasonable suspicions, McNett possessed probable cause to detain
- 6 - Braswell. Accordingly, the trial court did not err in denying
Braswell's motion to suppress.
II.
Braswell argues that the trial court should have suppressed
his confession as involuntary because he was unlawfully detained
and because the police exerted undue pressure upon him. After
the officers transported Braswell and Brown to the station,
Dempsey first interviewed Brown and secured a confession to the
two robberies. Dempsey then met with Braswell. Dempsey read
him his Miranda rights from a preprinted form which Braswell
signed, acknowledging that he understood them. Dempsey then
asked appellant if he would speak to him. Appellant agreed and
approximately forty minutes later signed two written
confessions.
"In order for a confession given during a custodial
interrogation to be admissible at trial, the Commonwealth must
show that the accused was apprised of his right to remain silent
and that he knowingly, intelligently, and voluntarily elected to
waive that right." Roberts v. Commonwealth, 18 Va. App. 554,
557, 445 S.E.2d 709, 711 (1994). As stated above, Braswell was
legally detained at the time of his questioning. Dempsey
explained to Braswell his constitutional rights. Braswell
acknowledged that he understood his rights and he voluntarily
waived them. After speaking with Dempsey for less than an hour,
Braswell confessed to robbing the grocery stores with Brown.
- 7 - The record does not reflect any untoward behavior on the part of
the police officers or that Braswell was not acting of his own
free will. The trial court did not err by refusing to suppress
Braswell's confession.
III.
Finally, Braswell argues that the evidence adduced at trial
was insufficient to prove beyond a reasonable doubt that he was
guilty of armed robbery. In a signed statement he provided to
the police, appellant admitted robbing the two grocery stores
with Brown.
In Virginia an extrajudicial confession of an accused that he committed the offense with which he is charged is not, alone and uncorroborated, adequate proof of the corpus delicti. "The purpose of the corroboration rule is to reduce the possibility of punishing a person for a crime which was never, in fact, committed."
Jefferson v. Commonwealth, 6 Va. App. 421, 424, 369 S.E.2d 212,
214 (1988) (citations omitted). But "[w]here 'the commission of
the crime has been fully confessed by the accused, only slight
corroborative evidence is necessary to establish the corpus
delicti.'" Id. (citation omitted).
Appellant admitted committing the December 2 and December 4
robberies, and admitted that these robberies were committed at
gunpoint. The victims' testimony sufficiently corroborated
appellant's confession. The Commonwealth's evidence was
competent, was not inherently incredible, and was sufficient to
- 8 - prove beyond a reasonable doubt that appellant was guilty of
robbery and use of a firearm in the commission of a robbery.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
- 9 -