Bynum v. Commonwealth

                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia


ROBBIN A. BYNUM
                                               OPINION BY
v.          Record No. 2194-97-1         JUDGE DONALD W. LEMONS
                                            NOVEMBER 3, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                      Von L. Piersall, Jr., Judge
            S. Earl Griffin (Daniel D. Dickenson, III;
            Griffin, Pappas & Scarborough, P.C., on
            briefs), for appellant.

            John H. McLees, Jr., Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.



     Robbin A. Bynum was convicted by a jury of aggravated

malicious wounding, use of a firearm while committing aggravated

malicious wounding, and maliciously shooting into an occupied

vehicle.    On appeal, he contends the trial court erred in:   (1)

allowing the Commonwealth to introduce a statement during its

case-in-chief that the court had previously suppressed; (2)

allowing the statement to be used as substantive evidence, rather

than for the limited purpose of impeachment; and (3) admitting

the entire statement, as opposed to the portions which were

inconsistent with his trial testimony.    Mr. Bynum also contends

that if the statement had been properly suppressed, the remaining

evidence was insufficient to support his convictions.    We

disagree with each of his contentions and affirm.
                            BACKGROUND

     On May 17, 1996, in the early evening hours, Katherine

Bynum, the victim, was shot by her husband, Robbin A. Bynum,

appellant, while she was seated in Mr. Bynum's truck in the

driveway of their home.   Following a disagreement between them,

Mr. Bynum fired a bullet through the windshield hitting Mrs.

Bynum.   She left the scene immediately after the shooting.     The

evidence reveals that Mr. Bynum did not know his wife had been

hit by the bullet.
     The following morning, Mr. Bynum came to the Portsmouth

Police Department for questioning.     While there, he made a

statement regarding the incidents of the previous evening.      Prior

to trial, the trial judge ruled that the statement was made in

violation of Miranda v. Arizona, 384 U.S. 436 (1966), and granted

Mr. Bynum's motion to suppress.   At the trial, however, counsel

for Mr. Bynum referred to a portion of the suppressed statement

in his opening statement to the jury.    Counsel acknowledged that

Mr. Bynum had fabricated a story for the police during his

initial questioning and stated that Mr. Bynum would address his

statement in his trial testimony.    The Commonwealth's attorney

made no objection during counsel's statement.

     After Mr. Bynum's counsel completed his opening statement,

the Commonwealth's attorney sought a ruling from the court

regarding whether opposing counsel's reference to the suppressed

statement allowed the Commonwealth to introduce the statement for



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either impeachment or substantive purposes.    Because defense

counsel had told the jury about the statement, the trial judge

ruled that the Commonwealth could introduce the statement in its

case-in-chief or for impeachment of the defendant.    The

Commonwealth later introduced Mr. Bynum's entire statement into

evidence as a part of its case-in-chief.

        Mrs. Bynum testified at trial that she arrived at the home

she shared with Mr. Bynum at approximately 4:30 p.m. on May 17,

1996.    She stated that they spent several hours together and that

they shared a liter of rum.    Some time later that evening, Mrs.

Bynum stated that she entered Mr. Bynum's truck to go buy

cigarettes before they went to a local festival.    She testified

that a disagreement ensued between the couple when she found a

bottle of vodka hidden in the truck that Mr. Bynum had allegedly

consumed before she arrived home that afternoon.    Mrs. Bynum

testified that the two argued through the closed window of the

truck.    Mrs. Bynum stated that as she backed the truck out of the

driveway, she did not see a gun in her husband's hand, nor did

she see him shoot, although she heard the shot and felt the

bullet as it entered her shoulder.
        Detective Leroy Saunders, Jr., of the Portsmouth Police

Department, testified that he took a statement from Mr. Bynum on

the morning of May 18, 1996.    The audiotape of the statement was

played for the jury.    In the statement, Mr. Bynum said that an

altercation had occurred between himself and his wife on the




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previous evening.    Mr. Bynum stated that his wife left their home

in his truck to purchase cigarettes and that an argument ensued

when she returned.   Mr. Bynum stated that his wife suspected him

of seeing an old girlfriend and that Mrs. Bynum retrieved his gun

from their bedroom and threatened to go to the house of the woman

to kill her.   In this statement, Mr. Bynum described a "tussling

contest" between himself and his wife which took place outside

the house and in front of the truck when he tried to remove the

gun from his wife's hands.   Mr. Bynum told Detective Saunders

that during the struggle, a bullet was discharged which entered

the windshield of the truck.   Mr. Bynum stated that after the gun

went off, he was able to remove the gun from her hands, and he

began to walk back to the house.   He stated that his wife then

entered the truck and began yelling at him until he went into the

house.   Mr. Bynum stated that his wife then drove away in the

truck.   In his statement to Detective Saunders, Mr. Bynum also

stated that he had thought about killing his wife, although he

had not had such thoughts the previous evening.
     Mr. Bynum testified on his own behalf that on the evening of

the shooting, he was carrying a large sum of money on his person,

as well as a gun for protection.   He stated that he and his wife

had an argument when she found out he had been drinking earlier

that afternoon.   He testified that his wife was in the truck

while they argued.   He stated that he removed his gun from his

pocket and displayed it to scare his wife.   He stated that he




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accidentally shot the windshield of the truck when he lost his

balance and fell into a flowerbed on the way back to the house.

Mr. Bynum further stated that because his wife drove the truck

out of the driveway, he did not realize she had been shot and he

continued into the house.

                      ADMISSION OF THE STATEMENT

     Mr. Bynum contends the trial court erred when it allowed the

Commonwealth to introduce a statement during its case-in-chief

that had been previously suppressed.     For the reasons that

follow, we hold that the introduction of the statement was not

reversible error.
     The court's initial suppression of the statement was

erroneous.    In determining whether a suspect is in custody for

purposes of Miranda, "the only relevant inquiry is how a

reasonable man in the suspect's shoes would have understood his

situation."    Berkemer v. McCarty, 468 U.S. 420, 442 (1984).     The

"totality of the circumstances" considered in this inquiry

includes "whether a suspect is questioned in neutral or familiar

surroundings, the number of officers present, the degree of

physical restraint, and the duration and character of the

interrogation."     Lanier v. Commonwealth, 10 Va. App. 541, 554,

394 S.E.2d 495, 503 (1990).    A police officer's subjective view

that the individual being questioned is a suspect, if

undisclosed, does not bear upon the question of whether the

individual is in custody for Miranda purposes.     Stansbury v.




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California, 511 U.S. 318 (1994).   The officers' beliefs are

relevant only to the extent that "potential culpability of the

individual [is] manifested to the individual."     Harris v.

Commonwealth, 27 Va. App. 554, 565, 500 S.E.2d 257, 262 (1998).

     At the hearing held on the motion to suppress Mr. Bynum's

statement, Sergeant Timothy J. Stenger of the Portsmouth Police

Department testified that on May 18, 1996, at approximately 8:00

a.m., he arrived at the Bynum home to speak with Mr. Bynum.

Sergeant Stenger stated that Mr. Bynum volunteered to accompany

the officers to the police station.     Mr. Bynum was given the

option of driving himself to the station, but he chose to ride

with the officers.   Mr. Bynum was continually assured that he was

free to leave and that he was not under arrest.    Mr. Bynum was

never handcuffed.
     Detective Leroy Saunders, also of the Portsmouth Police

Department, testified about his interview with Mr. Bynum.      The

detective stated that he did not give Mr. Bynum his Miranda

warnings because, although he believed Mr. Bynum was the only

suspect throughout the interview, he did not consider him to be

in custody at that time.   Mr. Bynum returned home after making

his statement.   Under these circumstances, Mr. Bynum was not in

custody at the time of his interview.

     Mr. Bynum argues that the trial court erred by allowing the

previously suppressed statement to be introduced in the

Commonwealth's case-in-chief.   In addition, Mr. Bynum argues that



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only those portions that were inconsistent with his trial

testimony should have been admitted.   He suggests that admission

of his statement should have been limited during

cross-examination or rebuttal to those specific portions that

would impeach his testimony.

     The trial court initially suppressed Mr. Bynum's statement.

"A trial court is empowered to change a legal determination as

long as it retains jurisdiction over the proceedings before it."

 Turner v. Wexler, 244 Va. 124, 128, 418 S.E.2d 886, 888 (1992).

Therefore, the trial court could reverse its previous decision

to suppress the statement.

     In addition, an appellate court may affirm the judgment of a

trial court when it has reached the "right result for the wrong

reason."   Driscoll v. Commonwealth, 14 Va. App. 449, 451, 417

S.E.2d 312, 313 (1992).   Following Mr. Bynum's counsel's use of

the statement in his opening statement, the court stated that

counsel had "opened the door" to its use and allowed the

Commonwealth to introduce it during its case-in-chief.   However,

statements made during an opening statement are not evidence;

therefore, opening statements may not "open the door" to

otherwise inadmissible evidence.   Fields v. Commonwealth, 2 Va.

App. 300, 307, 343 S.E.2d 379, 382-83 (1986).   We hold that

although the trial court's reason for allowing the previously

suppressed statement to be introduced was incorrect, because the

initial suppression was in error, the right result was reached.




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A statement made by a defendant constitutes a party admission,

admissible not only for impeachment, but also as substantive

evidence.   Satcher v. Commonwealth, 244 Va. 220, 256, 421 S.E.2d

821, 843 (1992).

     Additionally, Mr. Bynum testified on his own behalf.

"[W]here an accused unsuccessfully objects to evidence which he

considers improper and then on his own behalf introduces

testimony of the same character, he thereby waives his objection,

and we cannot reverse for alleged error."    Hubbard v.

Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992); see also

Snead v. Commonwealth, 138 Va. 787, 801-02, 121 S.E. 82, 86

(1924); Culbertson v. Commonwealth, 137 Va. 752, 757, 119 S.E.

87, 88 (1923); Hutchinson v. Commonwealth, 133 Va. 710, 716-17,

112 S.E. 624, 626 (1922); Snarr v. Commonwealth, 131 Va. 814,

818, 109 S.E. 590, 592 (1921).    Having testified about the

substance of his previously suppressed statement, Mr. Bynum

rendered harmless any error that may have occurred from the

introduction of the statement in the Commonwealth's

case-in-chief.

     When the sufficiency of the evidence is an issue on appeal,

an appellate court must view the evidence and all reasonable

inferences fairly deducible therefrom in the light most favorable

to the Commonwealth.   Cheng v. Commonwealth, 240 Va. 26, 42, 393

S.E.2d 599, 608 (1990).

     Apart from Mr. Bynum's statement at the police station,



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testimony also included Mrs. Bynum's testimony regarding the

details of the shooting.   She described the events leading up to

the shooting, stating, "[h]e shot me."   In addition, Mr. Bynum

admitted he lied to the police when he gave his initial

statement.   Furthermore, Mr. Bynum admitted he shot his wife.

The evidence was sufficient to support Mr. Bynum's convictions.




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Accordingly, the convictions are affirmed.

                                             Affirmed.




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Benton, J., concurring.

     I believe the majority's use of the "right for the wrong

reason" principle is inappropriate under the circumstances of

this case.

     First, the Commonwealth does not argue that the principle is

applicable to this case.   Indeed, the Commonwealth concedes on

brief that the trial judge's pretrial suppression ruling,

although "wrong . . . [, it] has, however, become the law of the

case."   The Commonwealth's brief does not urge this Court to

apply the "right for the wrong reason" analysis the majority

invokes.
     Second, the trial judge's ruling suppressing the statement

was a pretrial ruling that the Commonwealth could have appealed,

see Code § 19.2-398, and elected not to do so.    When the

Commonwealth failed to appeal that ruling pursuant to Code

§ 19.2-398, it was barred from seeking a reversal of that

decision.    "[T]he legislature has narrowly limited the

Commonwealth's right to appeal suppression orders."      Commonwealth

v. Ragland, 7 Va. App. 452, 453, 374 S.E.2d 183, 183 (1988).

Thus, we have no authority "in this appeal [to] permit the

Commonwealth to accomplish indirectly what it cannot do directly,

and we [should] therefore reject the alternative ground advanced

for the admissibility of [the] confession."    Hart v.

Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 811 (1980).

     Because we must strictly construe the limitation on the



                               - 11 -
Commonwealth's right to appeal the trial judge's pretrial ruling,

see Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5

(1990), we cannot now review the pretrial suppression ruling

under the rubric of applying the "right for the wrong reason"

doctrine.    The sole argument the Commonwealth advances for

affirming the trial judge's ruling is that the admission of

Bynum's statement was harmless error because the statement "was

nevertheless admissible to impeach Bynum's trial testimony that

he shot his wife accidentally."    I would affirm the conviction

for that reason.
     After the trial judge's pretrial ruling suppressing Bynum's

statement because it was taken in violation of Bynum's Miranda

rights, Bynum's counsel informed the jury in his opening remarks

that Bynum would testify and would tell the jury that Bynum gave

a statement to the police and lied while giving that statement.

Bynum's counsel then detailed certain events that Bynum related

to the police when he gave his statement.    Bynum did, in fact,

testify in his defense.     He related to the jury the events that

led to his interrogation by the police and testified concerning

statements he made to the police.

     Pursuant to Harris v. New York, 401 U.S. 222 (1971), Bynum's
statement could have been used by the Commonwealth in

cross-examination or in rebuttal to impeach Bynum's trial

testimony.    Id. at 226.   See also Oregon v. Hass, 420 U.S. 714,

722 (1975).   Furthermore, the record makes abundantly clear that



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Bynum's decision to testify about the statements he made to the

police was independent of the Commonwealth's use of his statement

in its case-in-chief.   Bynum's counsel signalled that decision

before the Commonwealth put on its evidence.   I believe these

circumstances render the earlier admission of Bynum's statement

to the police harmless error.

       At trial, Bynum argued that the evidence was insufficient to

convict him because the evidence failed to prove he had the

requisite specific intent.   Bynum abandons that argument on

appeal and argues, instead, that in the absence of his statement

to the police the evidence was insufficient to prove he shot the

gun.   Bynum's testimony at trial proved he shot the gun.   Thus, I

would hold that the evidence was sufficient to prove beyond a

reasonable doubt that Bynum was guilty of the offense of

aggravated malicious wounding.
       For these reasons, I would also affirm the convictions.




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