COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
DEMETRIUS DEANGELO ASKEW
OPINION BY
v. Record No. 2062-01-1 JUDGE ROBERT J. HUMPHREYS
AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Robert W. Jones, Jr. (Jones & Jones, P.C., on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Demetrius Deangelo Askew appeals his convictions after a
bench trial, for possession of cocaine, in violation of Code
§ 18.2-250, and possession of a firearm while in possession of
cocaine, in violation of Code § 18.2-308.4(A). Askew contends the
trial court erred in denying his motion to suppress the evidence
against him, and in ruling that a violation of Code
§ 18.2-308.4(A) requires a mandatory minimum sentence of five
years. For the reasons that follow, we affirm the judgment of the
trial court.
On September 14, 2000, at approximately 10:45 p.m., Newport
News Vice and Narcotics Division Detective D.M. Best received a
telephone call from a known informant. The informant told Best
that he had observed a "black male sitting on the steps" at 811
36th Street, Apartment No. 1, in Newport News and that he had
observed that the man had cocaine in his pocket. The informant
described the man as five feet six inches in height, 145 pounds,
with a medium brown complexion, a medium length "afro," wearing a
gray T-shirt and black or dark blue pants. This particular
informant had worked as a paid informant for the previous three
years, and information from the informant had led to over 200
arrests involving drug-related charges. The informant had never
relayed unreliable information.
Best immediately contacted officers in the vicinity, who
responded to the scene within six minutes. They observed Askew,
who matched the informant's description, seated on the steps next
to a woman. The officers handcuffed Askew, advised him of his
Miranda rights, and told him they had information he was in
possession of cocaine. One officer then asked Askew if he wanted
to tell him where the cocaine was, and Askew motioned by nodding
his head toward the left front pocket of his pants. The officer
then recovered the cocaine from Askew's pocket. Upon searching
Askew, the officer also recovered a firearm.
At the conclusion of the suppression hearing, Askew argued
that the evidence should be suppressed as the information received
from the informant, although reliable, did not convey when the
informant had observed the information relayed to Officer Best.
The trial court denied the motion, finding:
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I think it's fairly clear. He said he was
outside standing on the steps at this
address and they went there within five or
six minutes and there he was.
After the subsequent trial, the court convicted Askew of the
charges.
During the sentencing hearing of July 18, 2001, the
Commonwealth argued that the trial court should impose the
"mandatory" five-year sentence on the firearm charge, pursuant to
Code § 18.2-308.4(A). The court ruled, "I'm going to go with not
mandatory," and sentenced Askew to five years in prison, with four
years suspended.
The following day, the Commonwealth filed a motion for
re-sentencing, arguing that the trial court should have imposed
the mandatory minimum five-year sentence for the firearm
conviction. Following the August 1, 2001 hearing on the matter,
the trial court modified the sentence to reflect the full
five-year sentence. Although Askew argued that the mandatory
minimum sentence did not apply to his firearm conviction, he did
not object to the trial court's ruling in this regard.
On appeal, Askew contends the trial court erred in denying
his motion to suppress the evidence against him, and in
re-sentencing him on the firearm conviction, ordering that he
serve the full five-year term.
In reviewing a trial court's ruling on a suppression motion,
we consider the evidence in the light most favorable to the
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prevailing party below, the Commonwealth in this instance,
granting to it all reasonable inferences fairly deducible
therefrom. 1
"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. 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. 2
Moreover, "[o]n appeal, it is the defendant's burden to show
'that the denial of [the] motion to suppress constitute[d]
reversible error.'" 3 "Our review of the record includes evidence
adduced at both the trial and the suppression hearing." 4
The United States Supreme Court has held that "a tip from a
known informant whose reputation can be assessed and who can be
held responsible if [his] allegations turn out to be fabricated"
may, standing alone, provide "sufficient indicia of reliability to
1
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991).
2
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d
259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517
U.S. 690, 691, 699 (1996)).
3
Moss v. Commonwealth, 30 Va. App. 219, 223, 516 S.E.2d
246, 248 (1999) (quoting Motley v. Commonwealth, 17 Va. App.
439, 440-41, 437 S.E.2d 232, 233 (1993)).
4
Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d
138, 139 (1994).
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provide an officer with reasonable suspicion to make an
investigatory stop." 5 However, "the test of constitutional
validity [of a warrantless arrest] is whether at the moment of
arrest the arresting officer had knowledge of sufficient facts and
circumstances to warrant a reasonable man in believing that an
offense has been committed." 6 "When the factual basis for
probable cause is provided by an informer, the informer's (1)
veracity, (2) reliability, and (3) basis of knowledge are 'highly
relevant' factors in the overall totality-of-the-circumstances
probable cause analysis." 7 Indeed, the United States Supreme
Court has held:
[t]his totality-of-the-circumstances
approach is far more consistent with our
prior treatment of probable cause than is
any rigid demand that specific "tests" be
satisfied by every informant's tip. Perhaps
the central teaching of our decisions
bearing on the probable-cause standard is
that it is a "practical, nontechnical
conception." Brinegar v. United States, 338
U.S. 160, 176 (1949). "In dealing with
probable cause, . . . as the very name
implies, we deal with probabilities. These
are not technical; they are the factual and
5
Florida v. J.L., 529 U.S. 266, 270 (2000) (citing Adams v.
Williams, 407 U.S. 143, 146-47 (1972)); see also Johnson v.
Commonwealth, 20 Va. App. 49, 54-55, 455 S.E.2d 261, 264 (1995).
6
Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248,
250 (1970).
7
Russell v. Commonwealth, 33 Va. App. 604, 610, 535 S.E.2d
699, 702 (2000).
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practical considerations of everyday life on
which reasonable and prudent men, not legal
technicians, act." Id., at 175. 8
Thus,
[i]f, for example, a particular informant is
known for the unusual reliability of his
predictions of certain types of criminal
activities in a locality, his failure, in a
particular case, to thoroughly set forth the
basis of his knowledge surely should not
serve as an absolute bar to a finding of
probable cause based on his tip. 9
Here, Askew does not dispute the veracity of the informant,
or his or her reliability. Instead, Askew's sole contention is
that because Officer Best did not testify that the informant
relayed to him the particular time during which he or she observed
the "black male" sitting on the steps and observed that he had
cocaine in his possession, the tip was insufficient to support
probable cause for Askew's arrest. We disagree and hold that
based on the informant's undisputed history of reliability and
under the totality of the circumstances, the predictive nature, as
well as the accuracy and detail of the informant's tip and
accompanying description, compensated for the alleged deficiency
in the basis of the informant's knowledge and provided probable
cause for Askew's arrest. Furthermore, the record establishes
8
Illinois v. Gates, 462 U.S. 213, 230-31 (1983).
9
Id. at 233 (citing United States v. Sellers, 483 F.2d 37
(5th Cir. 1973)).
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that the officers observed Askew in the subject location only
minutes after receiving the tip.
Askew also contends that the mandatory minimum punishment
provided for a violation of Code § 18.2-308.4, which is contained
in the third, unlettered paragraph of the code section, applies
only to violations of subsection (B) and not to violations of
subsection (A). 10 We disagree.
Code § 18.2-308.4 provides as follows, in relevant part:
A. It shall be unlawful for any person
unlawfully in possession of a controlled
substance classified in Schedule I or II of
the Drug Control Act (§ 54.1-3400 et seq.)
of Title 54.1 to simultaneously with
knowledge and intent possess any firearm.
B. It shall be unlawful for any person to
possess, use, or attempt to use any pistol,
shotgun, rifle, or other firearm or display
such weapon in a threatening manner while
committing or attempting to commit the
illegal manufacture, sale, distribution, or
the possession with the intent to
manufacture, sell, or distribute a
controlled substance classified in Schedule
I or Schedule II of the Drug Control Act
10
The Commonwealth contends Askew failed to raise an
objection in this regard during the re-sentencing hearing.
However, we find that Askew's argument to the trial court during
the hearing sufficiently explained his contention and noted his
objection, if merely by implication, allowing the trial court to
specifically consider the argument in reaching its ruling. See
Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269,
272 (1997) ("The laudatory purpose behind Rule 5A:18 . . . is to
require that objections be promptly brought to the attention of
the trial court with sufficient specificity that the alleged
error can be dealt with and timely addressed and corrected when
necessary.").
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(§ 54.1-3400 et seq.) of Title 54.1 or more
than one pound of marijuana.
Violation of this section shall constitute a
separate and distinct felony and any person
convicted thereof shall be guilty of a Class
6 felony, shall not be eligible for
probation, and shall be sentenced to a
minimum, mandatory term of imprisonment of
five years, which shall not be suspended in
whole or in part. Such punishment shall be
separate and apart from, and shall be made
to run consecutively with, any punishment
received for the commission of the primary
felony.
To construe the statute as Askew urges would have us
attribute to the General Assembly the creation of a criminal
offense without providing punishment for a violation of that
offense, a result that is irrational and which we will not ascribe
to the legislature. 11 Further, the plain language of the statute
makes the punishment provided for in the third paragraph
applicable to the entire statutory "section," not to merely one of
the subsections contained therein. 12
Lastly, and contrary to Askew's contention, the legislative
history of the statute supports such a construction. Prior to the
1999 amendment of the statute, Code § 18.2-308.4 provided that a
violation of subsection (A) was a Class 6 felony and that a
11
Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608,
609 (1998) ("The primary objective of statutory construction is
to ascertain and give effect to legislative intent. . . . The
plain, obvious, and rational meaning of a statute is to be
preferred over any curious, narrow, or strained construction.").
12
See id. ("A statute is not to be construed by singling
out a particular phrase . . . .").
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violation of subsection (B) was a separate and distinct felony
punishable by a mandatory three-year term of imprisonment for the
first offense, and by a mandatory five-year term of imprisonment
for a subsequent offense. Thus, each subsection provided for a
separate penalty for each separately defined offense.13 However,
when the legislature amended Code § 18.2-308.4 in 1999, it
provided that a "[v]iolation of this section shall constitute" a
Class 6 felony punishable by a mandatory five-year term of
imprisonment. 14 Thus, the General Assembly declared that a
violation of either subsection shall be a Class 6 felony subject
to a mandatory minimum five-year term of imprisonment.
Accordingly, Askew's contention that the legislature's
refusal to entertain House Bill 1607 in 2001, which contained a
proposed amendment to change the wording of the third paragraph to
"Violation of subsection A or B shall constitute . . .," has no
merit. As with any proposed but unsuccessful legislation, there
may be a host of reasons for the legislature's failure to pass a
proposed bill. Thus, while we are bound by the legislative intent
discernable from the enactment of a statute that becomes law
13
See Moore v. Commonwealth, 27 Va. App. 192, 197-98, 497
S.E.2d 908, 910 (1998) ("A violation of Code § 18.2-308.4(A) is
punishable as a Class 6 felony. . . . A violation of subsection
(B) is a 'separate and distinct felony' that is punishable by a
mandatory 'term of imprisonment of three years for a first
conviction and for a term of five years for a second or
subsequent conviction.'").
14
Code § 18.2-308.4(B) (emphasis added).
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following passage in both houses of our bicameral legislature, we
decline to accept the corollary proposed by Askew. We will
neither speculate as to possible reasons, nor ascribe a specific
intent to the entire legislature, for the failure of proposed
legislation to successfully run the legislative gauntlet.
Therefore, we hold that the penalty provision of the statute
proscribes the penalty for a violation of either subsection (A) or
(B), and we affirm the judgment of the trial court.
Affirmed.
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