COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
MARVIN TROY BUTLER
OPINION BY
v. Record No. 1403-98-4 JUDGE JAMES W. BENTON, JR.
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
James C. Love, IV (Love & Associates, P.C.,
on brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Marvin Troy Butler was convicted of possession of cocaine
with intent to distribute. On appeal, he contends the trial
judge erred in denying his motions to suppress the evidence and
to set aside the verdict based on juror misconduct. We affirm
the conviction.
I.
Butler contends the trial judge should have suppressed the
evidence because the police unlawfully impounded and conducted an
inventory search of his vehicle. In reviewing the trial judge's
denial of Butler's motion to suppress, "[w]e view the evidence in
the light most favorable to [the Commonwealth], the prevailing
party below, and we grant all reasonable inferences fairly
deducible from that evidence." Commonwealth v. Grimstead, 12 Va.
App. 1066, 1067, 407 S.E.2d 47, 48 (1991). We consider de novo
whether the evidence, so viewed, establishes that the officers
unlawfully infringed upon Butler's Fourth Amendment right to be
free from unreasonable searches and seizures. See McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)
(en banc).
Shortly after midnight, Thomas Gregg, an Alexandria police
officer, determined that a motor vehicle was traveling
forty-three miles-per-hour in a thirty-five mile-per-hour zone.
From the license plate number, he learned that Butler owned the
car and that Butler's permit to drive had been suspended.
Officer Gregg recalled that another officer had stopped Butler
the previous week. On that occasion, Butler had run from the
officer, who later found money and a gun in the vicinity of
Butler's vehicle.
After Officer Gregg requested assistance from other
officers, Butler's vehicle turned to enter the parking garage of
an apartment complex. Butler entered a code, which opened a
steel gate, and drove into the garage. Officer Gregg followed
Butler into the garage, stopped behind Butler's vehicle, and
activated his emergency lights. When Butler began to exit his
vehicle, Officer Gregg ordered him to put his hands on the
vehicle's trunk. Officer Gregg frisked Butler for weapons and
attempted to arrest him for driving while his permit was
suspended. Butler resisted. After a scuffle, Officer Gregg put
handcuffs on Butler and placed him in the police car.
Other officers arrived and entered the garage after Officer
Gregg used the emergency release to open the gate. Butler told
the officers he did not live in the apartments, declined to say
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whom he was visiting, and refused to tell them where he lived.
Officer Gregg testified that he made the inquiries in order to
seek permission of a resident to leave Butler's locked vehicle in
the garage. Officer Gregg also testified that a police officer
who lived in the apartment complex said Butler's vehicle had to
be moved because it did not have a decal authorizing it to park
in the garage. Lacking permission of a resident or manager of
the apartment complex to leave the vehicle in the garage, the
police impounded Butler's vehicle and conducted an inventory
search.
When inventorying the vehicle, the police found two rocks of
crack cocaine and cash. After Officer Gregg transported Butler
to the police station, he searched the backseat of his police car
and found an additional chunk of crack cocaine hidden under the
seat.
II.
The Supreme Court of Virginia has previously recognized the
right of the police to impound a vehicle in the possession of a
person arrested away from his or her residence, provided there
are no immediate means to protect the vehicle and the police act
pursuant to reasonable policies and procedures. See Cabbler v.
Commonwealth, 212 Va. 520, 522-23, 184 S.E.2d 781, 782-83 (1971).
Inventory searches that are conducted in accordance with those
policies and procedures are reasonable, see id.; see also South
Dakota v. Opperman, 428 U.S. 364, 373-74 (1976), absent a
suggestion that the search "was a pretext concealing an
investigatory police motive." Opperman, 428 U.S. at 376.
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Butler was arrested as he exited his vehicle, which was
parked in the gated garage of an apartment complex in which he
claimed he was not a resident. He did not claim that he was a
guest of any resident of the complex and provided no basis to
support a conclusion that he had authority to park in the space.
Officer Gregg testified that, under these circumstances, it was
department policy to impound and inventory the vehicle.
These facts establish that the decision to impound Butler's
vehicle was reasonable. In drawing this conclusion, we note that
the provisions of Code § 19.2-80.1 are inapplicable to this case
because no other licensed driver was present at the scene who
could have been designated by Butler to drive the vehicle from
the garage. The police, acting pursuant to their established
policy, therefore, had a legitimate reason to impound and
inventory Butler's vehicle. Accordingly, we hold that the trial
judge did not err in refusing to suppress the evidence discovered
during the inventory search.
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III.
The record discloses that during voir dire, one of the
prospective jurors indicated that he would have "a little bit" of
discomfort if a defendant did not testify in his own defense.
When told that "[t]he law specifically provides that a defendant
need not testify and that a jury cannot use that against a
defendant," the prospective juror said he could abide by the law.
The record indicates that the only prospective juror with his
first name did not serve on the jury.
Butler did not testify at trial. After the trial, defense
counsel filed a motion to set aside the verdict. In support of
the motion, defense counsel filed an affidavit that a juror told
him other jurors had said during deliberations that if the
cocaine was not Butler's, he should have testified to that
effect. The trial judge denied the motion.
"Virginia has been more careful than most states to protect
the inviolability and secrecy of jury deliberations, adhering to
the general rule that the testimony of jurors should not be
received to impeach their verdict, especially on the ground of
their own misconduct." Kasi v. Commonwealth, 256 Va. 407, 425,
508 S.E.2d 57, 67 (1998), cert. denied, 119 S. Ct. 2399 (1999).
The Supreme Court of Virginia generally has "limited findings of
prejudicial juror misconduct to activities of jurors that occur
outside the jury room." Jenkins v. Commonwealth, 244 Va. 445,
460, 423 S.E.2d 360, 370 (1992) (citation omitted). Indeed, the
Court has held that although a trial judge may receive testimony
concerning juror misconduct, see Commercial Union Ins. Co. v.
Moorefield, 231 Va. 260, 265, 343 S.E.2d 329, 333 (1986), the
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trial judge is not required to examine jurors in response to
allegations of jury misconduct that is confined to the jury room.
See Jenkins, 244 Va. at 460, 423 S.E.2d at 370.
Butler has not alleged that any extraneous evidence was
injected into the jury's deliberations. See Evans-Smith v.
Commonwealth, 5 Va. App. 188, 210, 361 S.E.2d 436, 449 (1987)
(finding reversible error where the trial judge refused to
examine the jurors where the defendant provided affidavits
indicating that some jurors had consulted an almanac during their
deliberations). Butler contends that because only one of the
prospective jurors indicated that he would be troubled by a
defendant's failure to testify, some of the other jurors must
have lied during voir dire. The possibility that some jurors
discussed Butler's failure to testify does not necessarily mean,
however, that they lied during voir dire.
The Fifth Amendment provides, in pertinent part, that "[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself." U.S. Const. amend. V. The trial judge
instructed the jury that "there is no burden on the defendant to
produce any evidence." If during their deliberations, some of
the jurors discussed the absence of evidence, that discussion was
intrinsic to the deliberative process and the "alleged
misconduct, if it occurred, was clearly within the confines of
the jury room." Jenkins, 244 Va. at 460, 423 S.E.2d at 370.
Thus, we cannot say the trial judge erred in denying the motion.
For the foregoing reasons, we affirm the judgment.
Affirmed.
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