Valentina Djelebova v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 7, 2000
• Docket: 1748982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Lemons and Senior Judge Cole Argued at Richmond, Virginia

VALENTINA DJELEBOVA MEMORANDUM OPINION * BY v. Record No. 1748-98-2 JUDGE DONALD W. LEMONS MARCH 7, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE James M. Lumpkin, Judge Designate

John Kenneth Zwerling (Lisa Bondareff Kemler; Zwerling & Kemler, P.C., on briefs), for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Valentina Djelebova appeals her conviction for accessory

after the fact to robbery. On appeal, she argues that the trial

court erred (1) by denying her motion to suppress evidence and

(2) by instructing the jury that criminal liability for the

offense of accessory after the fact may exist beyond the

principal felon's apprehension and arrest. Finding no

reversible error, we affirm.

I. BACKGROUND

On September 26, 1998, Dorian Lester met with Albemarle

County Police Officer Rob Heide at the Albemarle County Police

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Department. Lester was accompanied by a woman Officer Heide

recognized as Lester's girlfriend. She wore a wide brimmed hat,

a black and yellow plaid mini-skirt and gloves. Heide knew

Lester from their previous work as bodyguards for a wealthy

Albemarle family. The family had recently received a telephone

call from a car rental agency in New York City asking for Lester

and indicating that he had rented a van that was overdue and

needed to be returned. Heide stated that Lester had been acting

strangely, that he recently purchased a new 9 millimeter pistol,

and that he claimed to have access to police ammunition. Heide

had also seen Lester with a box of Winchester +p+ ammunition

within the previous two years. According to Heide, Lester had

traded antique swords with George Moody, a jewelry dealer in

Charlottesville. Heide stated further that on September 26th,

Lester drove a dark blue or green minivan and that he believed

Lester carried a weapon in a shoulder holster.

A number of police officers knew Lester and described him

as a tall, thin man with dark, neatly groomed hair and a

distinct nose. They knew he was trained in the marital arts,

had a concealed weapons permit and worked as a bodyguard. A

number of officers had recently seen Lester with Djelebova.

Djelebova was described in a manner consistent with the woman

who accompanied Lester at the police station meeting with Heide.

On September 27, 1998, between three and five o'clock in

the afternoon, a neighbor of George Moody observed a dark blue

- 2 - minivan drive up and down the street five or six times.

Although she did not see anyone exit the van, she saw a man and

woman walk down the street to Moody's residence and knock on his

front door. The man was Caucasian, tall, thin, in his forties

with neatly groomed gray hair, wore a gray suit and had a

pointed nose. The woman was Caucasian, approximately five feet

tall and wore a yellow and black, plaid mini-skirt with black

pantyhose and long black gloves.

Moody met with a customer around 5:30 that evening and

showed her two emerald cut diamonds that he intended to sell to

another customer in San Francisco, California. At approximately

6:00 p.m., an Albemarle County police officer observed a dark

blue or green minivan parked several houses down from Moody's

bearing North Carolina license plates with damage to the front

passenger side. The vehicle was gone at 7:00 p.m. when the

officer left the area.

At 6:35 p.m., Moody's fiancée telephoned him and became

concerned when neither Moody nor his answering machine picked up

her call. She drove to his house and, shortly after 8:00 p.m.,

found his body in his basement where he made, repaired and sold

jewelry. Moody's safes were open, and a number of jewels and

other stones were scattered around the area. Empty jewelry

trays were found on his workbench and near his body on the

floor. The emerald cut diamonds that Moody was to sell to a

customer in California were missing. There were no signs of

- 3 - forced entry. Charlottesville police later found a single shell

casing near the body that was consistent with a bullet fired

from a Glock 9 millimeter, semi-automatic pistol. The casing

also indicated that the ammunition was +p+, a type normally used

by police officers. An autopsy later revealed that Moody died

as a result of a single bullet wound to the head.

On the morning of October 1st, the police contacted Jamie

Sacco, the owner of Snooky's pawnshop in Charlottesville and a

known associate of Lester. The police ascertained from Sacco

that Lester had recently driven a dark colored minivan with

damage to its front end, that Lester recently returned the van

to the Richmond International Airport, and that Lester borrowed

Sacco's car on September 29th so that he could obtain another

rental vehicle. According to Sacco, Lester also indicated that

he had acquired police ammunition and had recently bought a

Glock 9 millimeter, semi-automatic pistol that he kept on his

person. Sacco's wife told the police that Djelebova was known

to carry a "Barett" pistol in her purse. Sacco indicated that

Lester had recently inquired where he could sell or trade

diamonds and where he could purchase rubies. The detective

learned that Lester had arranged to meet with Sacco at the

pawnshop at 10:30 a.m. on October 1st to redeem certain pawned

items and to pick up a package. Lester had indicated to Sacco

that he was leaving the United States "for good" and going to

England.

- 4 - Between 6:00 a.m. and 7:00 a.m. on October 1st, police

contacted personnel at the Richmond International Airport

concerning the minivan that Lester had rented. It was confirmed

that there was a minivan, described as dark purple, in the lot

with visible damage to its front passenger side and bearing

North Carolina license plates. National Car Rental company

personnel confirmed that this was the minivan which had been

rented to Lester in New York and had been returned to the

airport facility on September 28th. Lester was also found to be

booked on an October 1st, 7:15 p.m. flight from Dulles Airport

to London.

Suspecting Lester and Djelebova in the murder and robbery

of Moody, police assembled the information and began the

paperwork necessary to obtain search warrants for Lester's

person, the rental minivan and the residence in Fluvanna County

where Lester was reported to have been living. Based on

Lester's background in security and surveillance, the nature of

the "execution" style murder, the knowledge that both Lester and

Djelebova might be carrying weapons and information that the

couple was leaving the United States for England that day,

police decided to intercept Lester and Djelebova in the basement

of the pawnshop during their planned meeting with Sacco. A SWAT

team was assembled and was directed to neither question nor

search the suspects other than a pat-down for weapons.

- 5 - Around noon on October 1st, Lester and Djelebova entered

the pawnshop basement. The SWAT team immediately detained them

and placed them in handcuffs. Police conducted a pat-down

search of Djelebova for weapons and found that she held a small

purse containing a hard object that the officer believed to be a

gun. The officer opened the purse and found a semi-automatic

Baretta pistol. A pat-down search of Lester produced a Glock 9

millimeter pistol.

Lester and Djelebova were taken to the police station, and

both were advised of their Miranda rights. They were held in

separate interrogation rooms. Djelebova was informed that the

police were conducting an investigation of a murder and a

robbery. According to Djelebova's statement, she and Lester

rented a car that was parked several blocks from the pawnshop.

They were scheduled to depart from Dulles Airport that evening

for England. She also said that Lester had given her some

precious gems that were stored in one of her suitcases located

in the vehicle. 1 At 4:05 p.m., Djelebova was served with an

arrest warrant for carrying a concealed weapon.

Djelebova was tried on indictments charging her with first

degree murder, robbery and use of a firearm. 2 During

1 A search warrant was later obtained for the rental car. It was executed later that evening after the car was towed to the police station. 2 Djelebova was initially charged in four separate indictments with the following offenses: (1) first degree

- 6 - deliberations at trial, the jury sent a question to the court

about the crime of accessory after the fact. The jurors

inquired whether liability for that offense continues between

the time of the commission of the offense and the arrest of the

primary criminal agent, or between the commission of the offense

and the trial of the primary criminal agent. Both defense

counsel advised the court that criminal liability for the

accessory begins "[a]fter the offense." The court instructed

the jury that, "[t]he offense of accessory after the fact does

cover the time period after the crime, period. After the

crime."

The foreman asked the question again and was informed by

the court that "accessory after the fact means accessory after

the crime." A juror then asked if there were "no limits" to

that, and the court responded again, "[i]t would be anytime

after the crime." With no further questions, and no remarks

from counsel, the jury returned to the jury room to deliberate.

After the jury returned to their deliberations, defense

counsel asserted that an accessory's criminal liability exists

murder, in violation of Code § 18.2-32; (2) robbery, in violation of Code § 18.2-58; (3) use of a firearm during the commission of a felony, in violation of Code § 18.2-53.1; and (4) grand larceny. Prior to trial, the court granted Djelebova's motion to require the Commonwealth to elect whether to try her on the murder, robbery and use of a firearm indictments or on the grand larceny indictment. The Commonwealth elected to go to trial on the murder, robbery and use of a firearm indictments.

- 7 - only until the primary perpetrator is arrested. Djelebova was

acquitted of first degree murder, robbery and use of a firearm

during the commission of a felony, and was convicted of being an

accessory after the fact to robbery.

II. MOTION TO SUPPRESS

When reviewing the trial court's denial of a defendant's

motion to suppress evidence, "the burden is upon the defendant

to show that the 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). This Court, however, is

"bound by the trial court's findings of historical fact unless

plainly wrong or without evidence to support them" and due

weight is given "to the inferences drawn from those facts by

resident judges and local law enforcement officers." McGee, 25

Va. App. at 198, 487 S.E.2d at 261 (citation omitted).

Specifically, Djelebova claims that she was arrested

without probable cause and, consequently, any evidence obtained

during her detention should have been suppressed. We disagree

and hold that police engaged in a proper investigatory stop

based on information linking Djelebova to the murder and robbery

of Moody, conducted a proper pat-down based on information that

Djelebova was armed and dangerous and, as a result of that

pat-down, acquired probable cause to detain and arrest Djelebova

for carrying a concealed weapon.

- 8 - A police officer may approach a person to investigate

possible criminal activity even though there is no probable

cause to arrest if the police officer can "point to specific and

articulable facts which, taken together with rational inferences

from those facts reasonably warrant that intrusion." Terry v.

Ohio, 392 U.S. 1, 21 (1968). A court examining an officer's

"articulable reasons for stopping a person" looks to the

objective reasonableness of the officer's behavior. Riley v.

Commonwealth, 13 Va. App. 494, 497, 412 S.E.2d 724, 725 (1992);

see Terry, 392 U.S. at 21-22. "'Ultimate questions of

reasonable suspicion and probable cause to make a warrantless

search' involve questions of both law and fact and are reviewed

de novo on appeal." McGee, 25 Va. App. at 197-98, 487 S.E.2d at

261 (quoting Ornelas v. United States, 517 U.S. 690, 691

(1996)).

When the suspects were detained at Snooky's pawnshop, the

police knew that Djelebova and Lester were companions. The day

before the murder, the couple had been seen together at the

Albemarle police station driving a vehicle consistent with the

vehicle seen near Moody's house around the time of the murder.

Furthermore, the couple that Moody's neighbor described knocking

on Moody's door the evening of the murder matched Officer

Heide's description of the clothing worn by the woman he

recognized as Lester's girlfriend on September 26th and the

description that was given of Lester by other police officers

- 9 - who knew him. Lester had dealt with the victim previously and

was known to carry the same model weapon and specialized

ammunition that was used in the murder. Additionally, Lester

was reportedly looking for somewhere to sell diamonds and, on

October 1st at 7:15 p.m., was leaving from Dulles Airport "for

good" to go to England with Djelebova. Based upon all of the

information available to them at the time of the seizure, we

hold that the officers' decision to conduct an investigatory

stop was reasonable.

Subsequent to the investigatory stop, both suspects were

subjected to a "patdown" for weapons. Based upon the

information known by the police, Djelebova was traveling with

Lester, was believed to be armed and was implicated along with

Lester in the murder and robbery of Moody. According to the

police officer who conducted the pat-down of Djelebova, he felt

a hard object that was "exactly what the shape of a small

handgun would feel like." It was located in the precise place

where Sacco's wife said Djelebova carried her weapon. Once the

police officer felt what he believed to be a weapon during his

pat-down of Djelebova, he was permitted to remove the weapon

from the purse in which she carried it. See Phillips v.

Commonwealth, 17 Va. App. 27, 31, 434 S.E.2d 918, 920-21 (1993).

Considering all of the information known to police, it was

reasonable for them to engage in a pat-down of Djelebova in the

interest of safety. See United States v. Hensley, 469 U.S. 221,

- 10 - 235 (1985); Servis v. Commonwealth, 6 Va. App. 507, 519, 371

S.E.2d 156, 162 (1988).

Following the pat-down search, police had probable cause to

arrest Djelebova for carrying a concealed weapon. Police knew

that the stated reason for the visit to Snooky's pawnshop was

for Lester to redeem certain pawned items and to recover a

package. Additionally, police knew that Djelebova and Lester

had airplane tickets to England that evening and had expressed

intentions not to return to the United States.

[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U.S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176 (1949). Moreover, [the Supreme Court of the United States'] observation in United States v. Cortez, 449 U.S. 411, 418 (1981), regarding "particularized suspicion," is equally applicable to the probable-cause requirement:

"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same-and so are law enforcement officers. Finally,

- 11 - the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."

Texas v. Brown, 460 U.S. 730, 742 (1983).

After voluntarily accompanying the police to the station to

answer questions, Djelebova told police that she and Lester had

parked a rental car several blocks from the pawnshop, and she

confirmed that the couple was scheduled to depart from Dulles

Airport that evening for England. Also, she told police that

Lester had given her some precious gems that were stored in one

of her suitcases located in the vehicle. She gave no indication

of intent to sell a firearm nor to have one repaired.

Accordingly, we hold that the investigatory stop was based

on reasonable, articulable suspicion that Djelebova was involved

in the murder and robbery of Moody, that the pat-down was

conducted in the interest of safety since Djelebova was known to

be armed and possibly dangerous and, as a result of that

pat-down, police acquired probable cause to detain and arrest

Djelebova for the offense of carrying a concealed weapon.

The trial court did not err in denying Djelebova's motion

to suppress evidence.

III. THE JURY INSTRUCTION

Djelebova next contends that the trial court erred by

failing to instruct the jury that liability for the offense of

- 12 - accessory after the fact ends at the time the person suspected

of committing the felony is arrested and charged.

After the jury retired to deliberate, it informed the court

that it was having difficulty understanding the instruction on

accessory after the fact. Specifically, the jury's question

pondered the duration of the existence of criminal liability.

When the trial court was advised that the jury had a question,

it explained the question to counsel and gave counsel an

opportunity to respond. Defense counsel told the court that

criminal liability exists for an accessory "after the offense,"

and, "after the offense, not after the arrest." The trial court

agreed. The jury was brought back into the courtroom and told

by the trial court that accessory after the fact "does cover the

period of time after the crime, period. After the crime."

The defense counsel was informed of the jury's question,

participated in defining the answer, and sat silently while an

answer virtually identical to the one he initially proposed to

the trial court was given to the jury. Defense counsel did not

object until after the jury left to deliberate further.

Consequently, the objection came too late. See Quesinberry v.

Commonwealth, 241 Va. 364, 380, 402 S.E.2d 218, 228 (1991)

(objection to trial court's response to jury question made after

the jury returns to the jury room to deliberate came too late

and barred consideration of the issue on appeal); Newton v.

Commonwealth, 29 Va. App. 433, 459-60, 512 S.E.2d 846, 858-59

- 13 - (1999) (objection to trial court's response to jury question

coming after jury retired to deliberate was barred). The matter

has not been preserved for appeal, and we are barred from its

consideration. See Rule 5A:18.

IV. CONCLUSION

Finding no reversible error, Djelebova's conviction is

affirmed.

- 14 -