Jerry Lee Lewis, Jr v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
JERRY LEE LEWIS, JR.
MEMORANDUM OPINION * BY
v. Record No. 3064-01-1 JUDGE WILLIAM H. HODGES
OCTOBER 22, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
Charles E. Haden for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Jerry Lee Lewis appeals his bench trial convictions for
breaking and entering with the intent to commit larceny and petit
larceny, third or subsequent offense. He argues that the trial
court erred by (1) denying his motion to suppress evidence and (2)
finding the evidence sufficient to support his convictions. Lewis
contends that the evidence was obtained as a result of an illegal
seizure, that the police failed to bring him before a magistrate
"forthwith," and that he was too intoxicated to make a knowing and
intelligent waiver of his Miranda rights. For the reasons that
follow, we disagree and affirm his convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that during the early
morning hours of March 23, 2001, Officer Ted Bednarski responded
to a report of a break-in at a restaurant. When he arrived at
the scene he saw the restaurant's front window had been smashed
by a cinder block. The only person Bednarski saw in the
immediate vicinity was Lewis, who was sitting on a curb across
the parking lot consuming alcohol. Officer Anthony Bordeaux
testified that earlier that evening he had seen Lewis pushing a
shopping cart toward the shopping center where the restaurant is
located. Bednarski observed a shopping cart outside the front
of the restaurant and broken glass scattered across the area.
Officer Jeffrey Lawrence also arrived on the scene, and he
approached Lewis. The officer asked Lewis a few questions and
then asked if he would display the bottoms of his shoes. Lewis
complied, and Lawrence noted the soles of his shoes contained
glass fragments. Lawrence then searched Lewis' person,
recovering nearly $200 in cash. The officers placed Lewis in
the patrol car and asked him to remove his shoes. They then
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transported him to the police station, advised him of his
Miranda rights, and proceeded to interrogate him.
Detective Kimberly Brighton questioned Lewis. She
testified he smelled of alcohol but he did not slur his words or
have trouble walking. She determined Lewis was coherent and
able to answer her questions. Lewis stated he understood his
rights and chose to talk to the detective. Brighton asked
appellant to remove his outer layer of clothing. Laboratory
testing of these garments revealed numerous glass fragments
consistent with the broken glass from the restaurant window.
Appellant provided inconsistent statements regarding his
involvement in the crime.
ANALYSIS
I.
On appeal of a ruling on a motion to suppress, we view the
evidence in the light most favorable to the prevailing party,
here the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. See Commonwealth v. Grimstead, 12
Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e 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) (citing Ornelas v. United States, 517 U.S. 690, 699
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(1996)). However, we review de novo the trial court's
application of defined legal standards to the particular facts
of the case. See Ornelas, 517 U.S. at 699.
Probable Cause
Lewis argues the police lacked probable cause to detain
him.
"'Probable cause exists where "the facts and circumstances
within [the arresting officers'] knowledge and of which they had
reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief
that" an offense has been or is being committed.'" Jefferson v.
Commonwealth, 27 Va. App. 1, 12, 497 S.E.2d 474, 479 (1998)
(citation omitted). "[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).
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The Commonwealth concedes Lewis was seized at the time the
police placed him in the patrol car and asked him to remove his
shoes. Lewis' meeting with the police began as a consensual
encounter. He willingly spoke with Lawrence near the scene of
the burglary. He voluntarily provided identification and
revealed the soles of his shoes when asked to by the officer. 1
After Lawrence observed glass fragments in Lewis' shoes, he
detained the suspect.
The police officers investigating the burglary found Lewis
at the shopping center where the break-in occurred. Lewis
initially claimed he knew nothing about the incident, but he had
glass particles in the tread of his shoes. He also stated he
had been at the shopping center since 12:20 a.m., well before
the restaurant's alarm activated. "In determining whether
probable cause exists courts will test what the totality of the
circumstances meant to police officers trained in analyzing the
observed conduct for purposes of crime control." Powell v.
Commonwealth, 27 Va. App. 173, 177, 497 S.E.2d 899, 900 (1998)
(citation omitted). Lewis' location close to the crime scene
late at night combined with his responses to Lawrence's
questions and the presence of glass particles in his shoes,
1
We recently held "that an individual's expectation of
privacy in his or her shoes is an interest that society is
willing to accept as reasonable." Sheler v. Commonwealth, 38
Va. App. 465, 477, 566 S.E.2d 203, 208 (2002). However, unlike
Sheler, Lewis does not challenge the "search" of his shoes.
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provided the police with probable cause to detain appellant at
the scene.
Forthwith
Appellant also argues his motion to suppress should have
been granted because the police failed to take him to a
magistrate "forthwith" as required by Code § 19.2-80.
The police arrested Lewis at approximately 4:20 a.m. on a
Friday morning. Because of his high level of intoxication, the
officers decided not to bring him before a judge later that
morning. Instead, the officers waited until Monday morning. As
a result, over forty-eight hours elapsed between the time the
police took Lewis into custody and the time they brought him
before a magistrate. We assume without deciding that the delay
in bringing Lewis before the magistrate violated Code § 19.2-80.
Nevertheless, a violation of the statute "does not require
exclusion of his statements. This statutory violation does not
rise to the level of constitutional violation." Alatishe v.
Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82 (1991)
(finding that a delay in taking the defendant before a
magistrate did not require exclusion of statements he made while
being questioned by the police following his arrest).
Miranda
Lewis argues his waiver of his Miranda rights was not
freely and voluntarily given because he was extremely
intoxicated.
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"Statements made during a custodial interrogation and while
intoxicated are not per se involuntary or inadmissible. The
test is whether, by reason of the intoxication, the defendant's
'will was overborne' or whether the statements were the 'product
of a rational intellect and a free will.'" Boggs v.
Commonwealth, 229 Va. 501, 512, 331 S.E.2d 407, 415-16 (1985)
(citations omitted). "In assessing voluntariness, the court
must determine whether 'the statement is the "product of an
essentially free and unconstrained choice by its maker," or
. . . whether the maker's will "has been overborne and his
capacity for self-determination critically impaired."'" Roberts
v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709, 711
(1994) (citations omitted). When making such a determination,
"'courts look to the totality of all the surrounding
circumstances,' including the defendant's background,
experience, mental and physical condition and the conduct of the
police." Commonwealth v. Peterson, 15 Va. App. 486, 488, 424
S.E.2d 722, 723 (1992) (citation omitted).
Brighton testified Lewis smelled of alcohol and had
bloodshot eyes. However, she further stated Lewis was coherent
and did not appear to have trouble understanding or answering
her questions. Lewis admitted his high tolerance for alcohol.
He did not slur his words or have difficulty walking during his
encounter with the police. The evidence supports the trial
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court's conclusion that appellant understood his rights and
waived them freely and voluntarily.
II.
Lewis contends the evidence is insufficient to support his
convictions. Specifically, he argues the Commonwealth failed to
prove he broke into the restaurant or took any property from the
business.
"Guilt of breaking and entering a building may be established
by circumstantial evidence; eyewitnesses are not required." Hope
v. Commonwealth, 10 Va. App. 381, 385, 392 S.E.2d 830, 833 (1990)
(en banc). Kong Song Ni, the owner of the restaurant, testified
he closed the business at 10:00 p.m. and when he left the building
no windows were broken and the alarm was set. He explained he
ordinarily kept approximately two hundred dollars in small bills
in the cash register. The restaurant's alarm was activated around
2:00 a.m. and when the police arrived at the scene they discovered
the front window had been smashed with a cinder block. The police
noted a shopping cart was located immediately outside the
restaurant. Bordeaux testified he had seen Lewis less than two
hours before the break-in pushing a shopping cart near the
restaurant. The officers found Lewis a short distance from the
scene of the crime with glass in the treads of his shoes and
with nearly two hundred dollars in small bills on his person.
Lewis provided the police with inconsistent statements regarding
what he knew about the burglary. He later told Brighton that he
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owed $132 to his wife for child support and that he did not have
enough money to meet the obligation. The glass fragments found
on Lewis' clothing were consistent with the broken glass from
the restaurant.
"When an accused is found in possession of goods of a type
recently stolen, strict proof of identity of the goods is not
required." Henderson v. Commonwealth, 215 Va. 811, 812-13, 213
S.E.2d 782, 783 (1975).
"It is not necessary that the identity of stolen
property should be invariably established by
positive evidence. In many such cases
identification is impracticable, and yet the
circumstances may render it impossible to doubt
the identity of the property, or to account for
the possession of it by the accused upon any
reasonable hypothesis consistent with his
innocence."
Reese v. Commonwealth, 219 Va. 671, 673, 250 S.E.2d 345, 346
(1979) (quoting Gravely v. Commonwealth, 86 Va. 396, 402, 10
S.E. 431, 433 (1889)). Currency is not easily identified. See
Cook v. Commonwealth, 214 Va. 686, 687-88, 204 S.E.2d 252, 253
(1974). Lewis' possession of a similar amount of money in
similar denominations as the currency missing from the
restaurant, combined with Lewis' close proximity to the scene of
the crime a short time after the incident, allowed the trial
court to reasonably infer the money Lewis carried was taken from
the business.
"When a conviction is based upon circumstantial evidence,
such evidence 'is as competent and is entitled to as much weight
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as direct evidence, provided it is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt.'"
Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400
(1994) (citation omitted). "The Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
(1993). The Commonwealth excluded all reasonable hypotheses of
innocence and established beyond a reasonable doubt, through the
use of circumstantial evidence, that appellant broke into the
restaurant and stole the money found on his person.
Accordingly, we affirm the decision of the trial court.
Affirmed.
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