Jones v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia

TOBIN J. JONES
OPINION BY
v. Record No. 2598-98-1 JUDGE JERE M. H. WILLIS, JR.
MARCH 21, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge

James O. Broccoletti (Zoby & Broccoletti,
P.C., on brief), for appellant.

Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

On appeal from his conviction of first degree murder of his

wife, Megan Jones, in violation of Code § 18.2-32, Tobin J.

Jones contends that the trial court erred (1) in denying his

motion to suppress evidence seized from the home that he

formerly shared with his wife, (2) in finding that he

voluntarily consented to the search of the home, (3) in

admitting evidence of his status in a pretrial release program

for a prior offense and his violation of the conditions of that

program, (4) in refusing to strike testimony due to the

Commonwealth's failure to disclose statements made by him to
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
members of the sheriff's department, (5) in admitting into

evidence several letters written by him prior to trial, (6) in

refusing to grant a continuance or mistrial based on the

Commonwealth's untimely disclosure of exculpatory evidence, and

(7) in refusing to grant a mistrial based upon the

Commonwealth's failure to disclose certain of his statements to

his mental health evaluators. Finding no reversible error, we

affirm the judgment of the trial court.

I. Background

Prior to May 1996, Jones and Megan shared a residence on

Delaware Avenue in Norfolk. In May 1996, they separated and

Jones moved to 1701 Longwood Avenue. Late on the evening of May

11, 1996, a witness saw the Joneses walking together near the

Delaware Avenue home. A few hours later, the home's alarm

system was tripped. Jones called the alarm system company and

reported that he had accidentally set off the alarm. Soon

thereafter, neighbors heard loud music coming from the house.

The next day, Jones called two women and asked them for dates,

telling one that he was calling from the house while Megan was

resting.

On May 15, 1996, Jones was arrested outside the Delaware

Avenue house on other charges. At that time, the police seized

from him a key that opened the interior doors in the house. The

following day, he was released pursuant to a pretrial monitoring

- 2 -
program, which required him to wear an electronic surveillance

bracelet at all times and to remain in his Longwood Avenue home.

On the morning of May 18, 1996, while investigating a

report from Megan's parents that she was missing, police found

Jones at the Delaware Avenue residence, mowing the lawn. He had

cut off his electronic surveillance bracelet. Also at the house

was a U-haul truck, which was overdue for return. Jones

explained that he planned to transport some of Megan's

belongings to a house in North Carolina. The police came onto

the property to discuss Megan's whereabouts with Jones and

walked to the rear of the yard to look around. Jones did not

object. One of the officers detected a foul odor, which he

associated with a decomposing body, emanating from the rear of

the house and observed a large congregation of flies at an

upstairs window. Jones offered a ladder so that the police

could look into the second floor window. Looking through the

window, an officer saw a bundle wrapped in blankets in the

middle of the room.

Meanwhile, Jones was arrested for violating the conditions

of his pretrial release, was handcuffed, and was placed in the

back of a police car. Investigator Hockman took Jones out of

the police car, had the handcuffs removed, and questioned him

about the ownership of the house. Jones stated that he was an

owner of the house and that his name was on the deed. He

authorized the police to enter the house and signed a consent

- 3 -
form to that effect. He told the police that a key to the house

was on the patio. However, that key fit no outside door.

Investigator Dunn climbed the ladder into the second floor

bedroom. Finding the door to that room locked, he removed it

from its hinges to gain entry to the remainder of the house,

which he found unoccupied and secure. Dunn testified that he

would not have entered the house without Jones' consent and that

had Jones refused consent, he would have pursued other means to

gain lawful entry.

Unwrapping the bundle located in the upstairs bedroom, the

police found Megan Jones' decomposing body. The medical

examiner testified that she had been dead approximately one

week.

II. Motion to Suppress

Jones' first two assignments of error relate to the search

of the Delaware Avenue house. He contends that the trial court

erred in ruling that his consent to search the house was given

freely and in refusing to suppress the evidence found in the

house. We hold that Jones' consent was freely and voluntarily

given and that his consent justified the warrantless search of

the house.

The Commonwealth contends that because Jones and Megan had

separated and Jones had moved his residence to Longwood Avenue,

he lacks standing to object to a search of the Delaware Avenue

property. We disagree. Although Jones had moved his residence,

- 4 -
he remained a co-owner of the Delaware Avenue property, had

recent and apparently continuing access to it, and routinely and

frequently visited the property for proprietary purposes, such

as mowing the grass. We hold that under these circumstances, he

enjoyed a reasonable expectation of privacy in the property. We

note that this expectation was reasonable, not absolute. The

level of privacy that may reasonably be expected in an open yard

is not necessarily the same as would reasonably be expected

behind the closed door of a dwelling. See Shaver v.

Commonwealth, 30 Va. App. 789, 795-96, 520 S.E.2d 393, 396-97

(1999).

"Ultimate questions of reasonable suspicion and probable

cause . . . involve questions of both law and fact and are

reviewed de novo on appeal. . . . [We are, however,] bound by

the trial court's findings of historical fact unless 'plainly

wrong' or without evidence to support them . . . ." McGee v.

Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261

(1997) (en banc).

Jones argues that although he furnished the ladder by which

the police first looked through the upstairs rear window, he did

not do so until after the police invaded the privacy of his

backyard without a warrant. He argues that it was not until the

police invaded the privacy of his backyard that they first

detected the foul odor emanating from the house, observed the

congregation of flies on the window, became suspicious, and

- 5 -
pursued further inquiry. Thus, he argues, his concession in

producing the ladder was in response to an inquiry that derived

from an unlawful intrusion onto his property. He argues that

the entire course of investigation, including the ultimate

search of the house, resulted from and was tainted by this

unlawful intrusion and, thus, was constitutionally flawed. We

disagree.

The police went to the Delaware Avenue home looking for

Megan. She had not been seen or heard from for several days.

Her parents had been unable to contact her. They had lodged a

missing person report and had sought police assistance in

locating her.

When the police initially went to the Delaware Avenue house

on May 18, 1996, they were not investigating a crime. They had

no basis for believing that a crime had been committed and thus

had no ground on which to obtain a search warrant. See Code

§ 19.2-54. Rather, the police were engaged in what is

frequently termed their community caretaking function, the

maintenance of public order and the rendition of assistance to

persons needing or seeking that assistance. We gauge the

reasonableness of their conduct in the context of their

- 6 -
performance of that function, under the circumstances they

encountered upon arriving at the Delaware Avenue home. 1

Arriving at the home, the police saw Jones in the yard

mowing the grass. They could have stood on the sidewalk and

shouted at him, but considering the benign purpose of their

visit, we hold that it was reasonable for them to approach Jones

in the yard. The reasonableness and propriety of this approach

is reinforced by Jones' demonstrated lack of disapproval and his

willingness to talk to the police. We further hold that under

these circumstances and in the absence of any objection by

Jones, thereby suggesting consent, the police acted reasonably

in walking to the rear of the yard, in order to look for Megan

or for some indication of her whereabouts. At this point, they

detected the foul odor, which they immediately associated with a

decomposing body, and observed the flies. The entire subsequent

investigation flowed from the suspicion aroused by those

perceived facts and from Jones' cooperation and freely-given

consent.

Jones contends that because he was under arrest when he

consented to the police entry of the house, that consent was not

given freely and voluntarily.

1
Because the ultimate police entry into the house was
pursuant to Jones' consent, we do not address whether the
community caretaking function would have authorized such an
entry.

- 7 -
 "The fact that a defendant is in custody at the time the

consent is given does not of itself invalidate the consent."

Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879

(1998). Before requesting consent to enter the house, the

police removed Jones from the police vehicle and disengaged the

handcuffs. See Gregory v. Commonwealth, 22 Va. App. 100, 109,

468 S.E.2d 117, 122 (1996).

The question of whether a particular
"consent to a search was in fact voluntary
or was the product of duress or coercion,
express or implied, is a question of fact to
be determined from the totality of the
circumstances."

Deer v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33, 36

(1994) (citation omitted).

When he consented to the search of the house, Jones was not

handcuffed and had been removed from the police car. The record

discloses no evidence of coercion. Although Investigator Dunn

testified that he did not "believe" he had advised Jones of his

right to refuse consent, Investigator Hockman testified that

Dunn gave that advice. The consent form itself recites the

right to refuse. Under these circumstances, we hold that Jones'

consent to entry and search of the house was freely and

voluntarily given.

Because Jones' consent was voluntary, and the police acted

pursuant to it, the search of the house was valid. The police

reasonably believed that Jones retained a possessory interest in

- 8 -
the home. He informed them that his name remained on the deed

and that he was often at the home to perform custodial tasks.

He told them the location of a spare key. They had arrested him

from that house only a few days earlier. At the time of the

search, "the facts available to the officer at that moment . . .

'warrant[ed] a man of reasonable caution in the belief that the

consenting party had authority over the premises.'" Illinois v.

Rodriquez, 497 U.S. 177, 188 (1990) (citation omitted). Thus,

the police had valid consent to search the house.

III. Evidence of Pretrial Release and Violation

Jones contends that the trial court erred in admitting

evidence of his prior bad conduct. At trial, testimony was

introduced that on May 18, 1996, Jones was free on a pretrial

release program, awaiting trial for another crime. The program

included at-home detention with an electronic monitoring

bracelet. On May 18, when the police found Jones at the

Delaware Avenue house, he had cut off the bracelet and left his

home. By escaping the monitoring system, he violated the terms

of the pretrial release program.

The trial court ruled that the evidence relating to Jones'

pretrial monitoring and his violation of the monitoring

requirements supported the inference that he had guilty

knowledge of Megan's death and that he was preparing to cover up

his involvement in her death. Prior to admitting this evidence,

- 9 -
the trial court instructed the jury as to the purpose for which

they could consider it, stating:

You may consider that only as evidence of
the defendant's knowledge of anything in
this case. It may not be considered for any
other reason, nor should you in any way
speculate as to why the defendant may have
been on the electronic home monitoring as
bears on this case.

Several of the witnesses who testified for the Commonwealth

knew Jones because of his participation in the pretrial release

program. His participation in, and subsequent violation of, the

house arrest was entwined with evidence that he claimed a set of

keys, including keys to the Delaware Avenue house, so that he

could go to North Carolina, suggesting a plan to cover up the

crime. An accused is not entitled "to have the evidence

'sanitized' so as to deny the jury knowledge of all but the

immediate crime for which he is on trial." Scott v.

Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984).

Furthermore, Jones has demonstrated no prejudice resulting

from the admission of this evidence. "The responsibility of

balancing [the prejudice to the defendant and the probative

value of the evidence] is largely within the sound discretion of

the trial court . . . ." Coe v. Commonwealth, 231 Va. 83, 87,

340 S.E.2d 820, 823 (1986). We cannot say, as a matter of law,

that the trial court abused its discretion in admitting this

evidence.

- 10 -
 IV. Statements Made to Sheriff's Employees

Jones contends that the trial court erred in admitting the

testimony of Dora James, Minnie Woods, and Lieutenant Nathaniel

Blunt, employees of the Norfolk Sheriff's Department, concerning

statements made by him to them. He argues that, in violation of

a discovery order tracking the language of Rule 3A:11, the

Commonwealth failed to inform defense counsel of statements made

by him to these employees. The discovery order states, in

relevant part:

It is further ordered that the
Commonwealth's Attorney permit counsel for
the defendant to inspect and copy or
photograph any relevant written or recorded
statements or confessions made by the
accused, or copies thereof, or the substance
of any oral statements or confessions made
by the accused to any law enforcement
officer . . . .

Jones waived this argument as to the testimony of James and

Lieutenant Blunt. His only objection to Lieutenant Blunt's

testimony was made on the ground of hearsay, in response to

Blunt's testimony that Jones had been "creating a ruckus." At

the beginning of James' testimony, defense counsel objected

based on his pretrial arguments, which addressed only the

admissibility of evidence relating to Jones' violation of the

pretrial release program. After James completed her testimony,

defense counsel requested a sidebar conference to object to her

testimony. Objection made as to the admissibility of evidence

is timely only if raised when the questioned statement is made.

- 11 -
See Rule 5A:18; Harward v. Commonwealth, 5 Va. App. 468, 473,

364 S.E.2d 511, 513 (1988). At no proper time did Jones object

to the testimony of Lieutenant Blunt or James on the basis he

now raises. See Rule 5A:18; Ohree v. Commonwealth, 26 Va. App.

299, 307-08, 494 S.E.2d 484, 488-89 (1998).

Our remaining inquiry is whether Woods was "law enforcement

personnel" under the discovery order. The Commonwealth argues

that the definition of a law enforcement officer, as found in

Code § 9-169, does not include a ministerial employee such as

Woods.

"Law-enforcement officer" means any
full-time or part-time employee of a police
department or sheriff's office which is a
part of or administered by the Commonwealth
. . . and who is responsible for the
prevention and detection of crime and the
enforcement of the penal, traffic or highway
laws of this Commonwealth . . . .

Code § 9-169(9). Woods was employed by the Norfolk Sheriff's

Department as an "electronic surveillance supervisor . . . ."
Her duties included monitoring individuals released through the

pretrial program and making certain they complied with its

requirements. If faced with a violation of the program or of any

other law, her duty required her to report such violation to the

proper authority. However, although she was expected to report

observed violations to a law enforcement officer, she carried no

badge, had only a civilian identification card, had no arrest

authority, and could not enforce the law. Thus, she was not a

law enforcement officer "who is responsible for the prevention

and detection of crime and the enforcement of the penal, traffic

- 12 -
or highway laws." Id. The trial court correctly found no

discovery violation.

V. Admission of Letters

Jones contends that the trial court erred in admitting into

evidence several letters written by him during the time that he

was declared incompetent to stand trial. He argues that his

mental condition rendered him incompetent to testify as a

witness and, therefore, the letters should not have been

admitted into evidence.

Jones wrote several letters while his mental health was

being evaluated before trial: (1) Commonwealth's Exhibit 103,

to Bonnie Lambert on March 21, 1996, (2) Commonwealth's Exhibit

104, to Lambert on August 11, 1996, (3) Commonwealth's Exhibit

105, to Lambert on September 3, 1996, (4) Commonwealth's Exhibit

107, to Allison Wermes on June 13, 1996, and (5) Commonwealth's

Exhibits 113 and 114, to Vicki Clark on August 9 and 10, 1996.

Jones did not object to the introduction of Commonwealth's

Exhibits 103, 104, 105, and 107, and so cannot contest their

admission. See Rule 5A:18; Harward, 5 Va. App. at 473, 364

S.E.2d at 513 ("To be timely, an objection must be made when the

occasion arises - that is, when the evidence is offered

. . . .").

Jones objected at trial to the admission of Commonwealth's

Exhibits 113 and 114 on the ground that, at the time the letters

were written, he had been judged incompetent to stand trial.

- 13 -
Jones appears to assert that the tests for incompetence to

testify and incompetence to stand trial are equivalent. They

are not.

A criminal defendant is incompetent to stand trial if he

"lacks substantial capacity to understand the proceedings

against him or to assist his attorney in his own defense." Code

§ 19.2-169.1. A witness is competent to testify, however, if he

"possesses the capacity to observe, recollect, communicate

events, and intelligently frame answers to the questions asked

of him or her with a consciousness of a duty to speak the

truth." Greenway v. Commonwealth, 254 Va. 147, 153, 487 S.E.2d

224, 227 (1997). These tests are not equivalent, and Jones'

incompetence to stand trial does not, per se, render him

incompetent to be a witness or render his statements

inadmissible. "The admissibility of evidence is within the

broad discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988). The trial court ruled that Jones' incompetence to stand

trial at the time of writing the letters affected the weight to

be given the letters as evidence, not their admissibility. We

find no abuse of discretion in that ruling.

VI. Disclosure of Russell Hurdle's Testimony

Jones' final two assignments of error pertain to testimony

by Russell Hurdle, Jones' former cellmate. Hurdle testified

- 14 -
that Jones confessed his wife's murder soon after his

incarceration.

On May 18, 1996, Jones was confined in a holding cell at

the Norfolk Police Department with Hurdle, who was being held

for feloniously forging a traffic summons. Hurdle testified

that while in the holding cell, he asked Jones why he was being

held. Jones showed Hurdle his arrest warrant, charging him with

the murder of "Jane Doe." Jones told Hurdle that he was a

psychiatrist. Hurdle suggested that Jones could plead insanity.

Jones agreed and then told Hurdle that he had committed the

murder and that "Jane Doe" was actually his wife.

Hurdle testified at trial that he had pled guilty to the

forgery charge, as well as to prior convictions of possession of

cocaine eleven years earlier and of petit larceny thirteen years

earlier. He testified that he had received no consideration

from the Commonwealth in exchange for his testimony at Jones'

trial.

Defense counsel received a copy of Hurdle's criminal record

just prior to Hurdle's testimony. Upon conclusion of the

Commonwealth's direct examination of Hurdle, defense counsel

moved for a mistrial based on the untimely disclosure of

Hurdle's criminal record. He argued that the record was

exculpatory evidence, because he expected to use it to impeach

Hurdle's testimony. See Brady v. Maryland, 373 U.S. 83 (1963).

- 15 -
 "A defendant cannot simply allege the
presence of favorable material and win
reversal of his conviction." Rather, the
defendant must prove the favorable character
of the evidence he claims has been
improperly suppressed. Speculative
allegations are not adequate.

Hughes v. Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451,

461 (1994) (en banc) (citations omitted). Arguing for a

mistrial, defense counsel speculated that he needed time to

investigate the record and to seek further information on

Hurdle's prior convictions, on his prior arrests for which there

was no disposition recorded, as to other possible charges, and

as to any favorable plea agreement located in the file. Because

defense counsel did not proffer specifically any evidence that

might have impeachment value, he did not show a Brady violation. 2

Furthermore, Jones has shown neither that the evidence was

suppressed, nor that he suffered prejudice. Defense counsel had

a copy of Hurdle's criminal record at the time Hurdle testified.

Counsel was able to cross-examine Hurdle effectively and to

inquire into the plea agreement and its possible effects on

Hurdle's credibility. Hurdle admitted the forgery and the prior

convictions. The record shows no un-admitted evidence of

impeachment value.

Jones also argued for a mistrial on the ground that the

Commonwealth had not released Hurdle's statements to Jones'

2
Hurdle's criminal record is not a part of the record.

- 16 -
mental health examiners. He concedes that Code § 19.2-169.1

does not require such disclosure, but argues that upon receipt

of Dr. Voskanian's report finding him competent to stand trial,

the Commonwealth had a duty to correct certain misapprehensions

held by Dr. Voskanian. He asserts that he did not plead

insanity because the two mental health examiners assigned to his

case did not agree that he was legally insane at the time of the

murder.

Jones asserts that Dr. Voskanian's assessment of his mental

state was based on the assumption that he had not confessed

freely to the crime for a long time, thus implying that he knew

that his act was criminal. He argues that had Dr. Voskanian

known of his early confession to Hurdle, the doctor's diagnosis

might have been different. However, Jones did not call Dr.

Voskanian to proffer what effect, if any, knowledge of Hurdle's

testimony would have had on his report. Thus, Jones has

demonstrated no prejudice. See Smith v. Commonwealth, 16 Va.

App. 630, 635, 432 S.E.2d 2, 6 (1993).

The judgment of the trial court is affirmed.

Affirmed.

- 17 -