COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
CARL LEE WILLIAMS
OPINION BY
v. Record No. 0278-98-2 JUDGE JERE M. H. WILLIS, JR.
MARCH 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Cary B. Bowen (Amy M. Curtis; Bowen, Bryant,
Champlin & Carr, on briefs), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his bench trial conviction for murder, in
violation of Code § 18.2-32, robbery, in violation of Code
§ 18.2-58, and statutory burglary, in violation of Code
§ 18.2-91, Carl Lee Williams contends (1) that the trial court
erred in admitting certain evidence, and (2) that the evidence is
insufficient to support his conviction. We disagree and affirm
the judgment of the trial court.
I. Background
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury verdict
and will not be set aside unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
On Sunday morning, November 3, 1996, Leslie Anne Coughenour
went to work in her Richmond law office. Early Monday morning,
November 4, 1996, her dead body was discovered in the office.
She had been tied to a chair with a cord from a nearby venetian
blind. Her right wrist had been severed, she had been beaten
about the head, and her throat had been cut. The cause of death
was determined to be asphyxiation, caused by a plastic bag
containing a rubber ball which was stuffed in her mouth.
Investigation revealed that an outside window into the men's
restroom had been broken. A hole had been knocked through the
wall between the women's restroom and the office copy room. The
lock on the copy room door had been broken. A boot print was
found on a plywood wall in the stairwell.
Missing from the office were two lap-top computers, a
computer printer, a black portable CD player housing a CD titled
"Classic Cuts," a Rolodex, a pair of binoculars, a small folding
multi-purpose tool, and $50 cash. Also missing was jewelry that
Ms. Coughenour was wearing when she left home Sunday morning,
including a ring described by Ms. Coughenour's friend, Andrea
Melillo, as containing diamonds and sapphires. Ms. Melillo
identified a photograph of the ring at trial.
Cherry Wright testified that Williams left her birthday
party Saturday night, upset that he had no cocaine. He returned
to her home Sunday evening with $250 worth of cocaine, a large
amount of cash, and some of the electronic equipment stolen from
Ms. Coughenour's office. He had sold the rest of the equipment
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for the cocaine and cash. He was wearing a ring, which Ms.
Wright testified looked just like the ring worn by the victim. 1
Williams gave Wright a Mickey Mouse watch similar to the one the
victim had worn. He had the victim's ATM card. The card was
used, or its use attempted, four times on the evening of November
3 and once in the afternoon of November 4.
Williams admitted that he frequently did a "B & E" whenever
he was low on cash or drugs. He told Ms. Wright and his
girlfriend, Keitha Thomas, that he knew what had happened to the
"lady lawyer." When questioned by police, Williams told them
that he was not in Richmond at all during the month of November.
He later admitted visiting his probation officer in November. He
testified that he had received the stolen goods from a friend,
Mark Cromartie, and that he had borrowed Cromartie's boots
because he needed boots for a job. Cromartie could not be
located.
On November 30, 1996, Williams was incarcerated at the
Richmond City jail on an unrelated charge. Examination disclosed
that the boot print found on the wall at the law office matched
the sole of one of the boots worn by Williams at the time of his
November 30 arrest.
1
When Andrea Melillo was asked to describe the ring, she
described the jewels as diamonds and sapphires. When Cherry
Wright was shown the same picture of the ring, she described the
jewels as diamonds and emeralds. Neither party noted this
discrepancy, either at trial or in this appeal.
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II. Motion to Suppress
Williams moved to suppress evidence relating to the
examination of his boot. He contended that the boot was seized
in violation of his Fourth Amendment rights and that its
examination constituted an unlawful search and seizure. The
trial court denied the motion to suppress and admitted into
evidence the results of the examination.
When Williams was arrested on November 30 and was committed
to jail, his clothing and belongings on his person were taken
from him, inventoried, and stored, pursuant to standard
procedure. He could have regained possession of his clothing and
belongings if he needed them for court dates or upon his release,
and he could have directed their delivery to a third party to
take home, but otherwise they were not available to him. They
were kept in a locked storage room, where each prisoner's
property was kept separately. Only authorized jail personnel
were allowed in the storage room.
Richmond Police Detective James Hickman received a tip that
Williams' boots would match the boot print found at the crime
scene. Hickman testified that he did not seek a search warrant
because he wanted to protect the identity of the informant. He
obtained Williams' boots from the storage room and had their
tread compared with the print at the crime scene.
Williams contends that his clothing was held in the storage
room for his benefit, that he had a reasonable expectation of
privacy in his clothing, and that the warrantless removal of his
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boots for inspection constituted an unreasonable search and
seizure, violative of his Fourth Amendment rights. This argument
raises an issue of first impression in Virginia and one that has
not been decided specifically by the United States Supreme Court.
However, we find guidance from the decisions of other
jurisdictions and from United States Supreme Court decisions
addressing parallel issues.
When a person has been lawfully arrested and his property
has been lawfully seized by the police pursuant to that arrest,
he retains no reasonable expectation of privacy in that property,
and later examination of the property by another law enforcement
officer does not violate the Fourth Amendment. See United States
v. Thompson, 837 F.2d 673, 674 (5th Cir. 1988). The Fourth
Amendment protects the privacy rights of persons, not of
property. See Oliver v. United States, 466 U.S. 170, 177 (1984);
Katz v. United States, 389 U.S. 347, 351 (1967). Once property
has been seized incident to a lawful arrest, subsequent
examination of that property imposes no greater intrusion upon
the privacy interests of the defendant. It would be useless and
meaningless to require a warrant under those circumstances. See
United States v. Turner, 28 F.3d 981, 983 (9th Cir. 1994);
Lockhart v. McCotter, 782 F.2d 1275, 1279-80 (5th Cir. 1986);
United States v. Oaxaca, 569 F.2d 518, 524 (9th Cir. 1978);
United States v. Jenkins, 496 F.2d 57, 73 (2nd Cir. 1974), cert.
denied, 420 U.S. 925 (1975).
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In State v. Copridge, 918 P.2d 1247 (Kan. 1996), the
defendant, having been arrested on a different charge, became a
suspect in a murder case. The police, without a warrant,
examined his shoes, which had been in jail custody since his
arrest. Upholding the warrantless examination of the shoes, the
Supreme Court of Kansas held that the relevant inquiry was not
whether the police had probable cause to search the seized shoes,
but whether the initial seizure of the shoes was lawful. Id. at
1251. See also United States v. McVeigh, 940 F.Supp. 1541,
1556-58 (D. Col. 1996). An item that has been lawfully seized
ceases to be private. See United States v. Burnett, 698 F.2d
1038, 1049 (9th Cir. 1983).
In United States v. Edwards, 415 U.S. 800 (1974), the
Supreme Court said:
[O]nce an accused has been lawfully arrested
and is in custody, the effects in his
possession at the place of detention that
were subject to search at the time and place
of his arrest may lawfully be searched and
seized without a warrant even though a
substantial period of time has elapsed
between the arrest and subsequent
administrative processing, on the one hand,
and the taking of the property for use as
evidence, on the other. This is true where
the clothing or effects are immediately
seized upon arrival at the jail, held under
the defendant's name in the "property room"
of the jail, and at a later time searched and
taken for use at the subsequent criminal
trial.
Id. at 807. Williams seeks to distinguish Edwards, noting that
the clothing examination in Edwards related to the charge on
which Edwards had been arrested. We find this distinction
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insignificant. The loss of privacy resulting from the initial
seizure and the loss of privacy resulting from the subsequent
examination are the same regardless of the crime in connection
with which the subsequent examination is made.
We hold that Williams enjoyed no expectation of privacy in
his boots. They had been lawfully seized upon his arrest and
continued to be seized, in the custody of the sheriff, who had
authority to permit their examination. See United States v.
Matlock, 415 U.S. 164, 169 (1974) ("[T]he consent of one who
possesses common authority over . . . effects is valid as against
the absent, nonconsenting person with whom that authority is
shared."). Because the boots were in the lawful custody of the
sheriff, the examination of the boots imposed no greater
intrusion on Williams' privacy.
III. Sufficiency of the Evidence
Williams contends that the evidence is insufficient to
support his conviction. We disagree.
Where the sufficiency of the evidence is
challenged after conviction, it is our duty
to consider it in the light most favorable to
the Commonwealth and give it all reasonable
inferences fairly deducible therefrom.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975).
The boot imprint left at the scene and the impression made
by Williams' boots were virtually identical. Cuts in the sole of
the boots were located in the same place on both the imprint and
the analyzed boot. Williams argues that the boots were not his,
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but had been borrowed by him from Cromartie. However, he offered
no evidence of this beyond his own testimony. It lay within the
province of the trial court to determine his credibility. See
Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479
(1993).
The credibility of Ms. Wright and Ms. Thomas was also
properly determined by the trial court. See id. The defense
presented evidence of their bias and sought to impeach them, but
the trial court chose to believe them.
Williams testified that Cromartie gave him the stolen
property. However, the Commonwealth presented overwhelming
evidence not only that Williams possessed the property, but also
that he lied about how and when he received it and about where he
was at the time of the break-in and murder.
Williams argues that the Commonwealth failed to exclude two
reasonable hypotheses of his innocence: (1) that the murder had
already occurred when he broke into the law office; and, (2) that
he and an unknown confederate committed the break-in together,
but the other person committed the murder. These hypotheses were
not presented at trial and, in any event, are not reasonable.
"The Commonwealth is only required to exclude hypotheses of
innocence that flow from the evidence, and not from the
imagination of [defense] counsel." Fordham v. Commonwealth, 13
Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).
No evidence suggested that Williams broke in after the
murder. Indeed, he denied being there at all.
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No evidence suggests that Williams committed the crimes with
someone else. Furthermore, this scenario would not exculpate
him, because in that event he would have been a co-perpetrator.
Williams admitted that he often committed break-ins when he
needed cash for drugs. He was out of drugs and cash shortly
before the break-in and murder. Following the crimes, he
possessed drugs, money and the property missing from the crime
scene. He lied about how and when he received the stolen
property. He was seen near the law office on the day of the
crime. He repeatedly lied to the police and to others about his
whereabouts and actions on November 3, 1996, and the following
days. Thus, the trial court's finding of guilt is supported by
the evidence and is not plainly wrong or without evidence to
support it. See Higginbotham, 216 Va. at 352, 218 S.E.2d at 537.
The judgment of the trial court is affirmed.
Affirmed.
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