COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Agee * and Felton
Argued at Richmond, Virginia
JAMES SLYVESTER JONES
MEMORANDUM OPINION * * BY
v. Record No. 1077-02-2 JUDGE WALTER S. FELTON, JR.
APRIL 1, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
Vanessa E. Hicks, Assistant Public Defender,
for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Linwood T. Wells, Jr., Assistant Attorney
General, on brief), for appellee.
James Jones was convicted in a bench trial of attempting to
possess cocaine, in violation of Code §§ 18.2-257 and 18.2-250,
and possessing a firearm after having been convicted of a
felony, in violation of Code § 18.2-308.2. On appeal, Jones
contends the trial court erred: (1) in denying his motion to
suppress the evidence; (2) in admitting the juvenile records
because the Commonwealth failed to prove that the juvenile
* Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
petition in fact pertained to him; and (3) in finding the
evidence sufficient beyond a reasonable doubt to convict him of
possessing a firearm after having been convicted of a felony.
For the following reasons, we affirm in part and reverse in
part.
I. BACKGROUND
On July 23, 2000, at approximately 10:30 p.m., Officers
Brian O'Donnell, Joseph Trahey, and Greg Annis of the
Charlottesville Police Department were traveling on foot in the
vicinity of 321 Sixth Street. The officers were in the area
because of numerous complaint calls to the police department
regarding drug dealing in front of the residence at 321 Sixth
Street. The officers approached the residence from the backyard
and observed three young males standing in front on the
sidewalk. As the officers approached them, the three men
dispersed and ran. Jones and another man ran towards Cherry
Avenue with Officer Annis in pursuit.
Officer O'Donnell noticed that as Jones ran away, he was
also crouching over. As a result, Officer O'Donnell shone his
flashlight on Jones and saw that he had a gun in his right hand. 1
Officer O'Donnell yelled "Gun," and commanded Jones to "[g]et on
the ground." Subsequently, Officer O'Donnell wrestled him to
the ground. As he did so, he heard the sound of Jones' gun hit
1
Jones does not dispute that he possessed the gun at the
time of the confrontation.
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the pavement. Once Jones was on the ground, Officer O'Donnell
handcuffed and searched him while Officer Trahey recovered the
gun.
During the search, Officer O'Donnell recovered from Jones'
right rear jeans pocket, a knotted plastic bag containing nine
off-white, rock-like substances. At that point, Officer
O'Donnell placed Jones under arrest for drug possession. Jones
was taken to the police department and read his Miranda rights. 2
He signed a waiver of those rights and subsequently admitted to
Officer O'Donnell that he had the gun for about two months. He
further stated that the substance found in his pocket was crack
cocaine, worth approximately $120, that he used to lace
marijuana. Jones was charged with attempting to possess
cocaine, 3 in violation of Code § 18.2-257 (18.2-250), and
possession of a firearm after having been convicted of a felony,
in violation of Code § 18.2-308.2.
On October 19, 2001, a hearing was held whereby Jones
requested suppression of the suspected cocaine, the firearm, and
any statements he made after being detained, on the grounds that
he was illegally seized, detained, and searched by officers of
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Chemical analysis determined that the substance recovered
from Jones was 1.030 grams of aspirin. Because the substance
seized from Jones was not actually cocaine, the substance he
thought he possessed, he was charged with attempted possession
of cocaine.
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the Charlottesville Police Department. At the hearing, Officer
O'Donnell was called to testify, among other things, as to why
he had conducted the search of Jones. He testified that when he
handcuffed Jones he was placing him into "investigative
detention," not arresting him because he had a gun in his hand
when he ran from the police. Officer O'Donnell expressed
concern that Jones might still have a weapon.
When asked why he conducted the search, the following
colloquy ensued:
[OFFICER O'DONNELL]: Basically, the time of
night, the numerous calls to the area about
specifically drug dealing, the fact that
[Jones] broke and ran at police presence and
the fact that he had a firearm on his person
-– well, in his hand as he ran. Those
things all together. I believed – I was
fairly certain that there were some type of
narcotics or other illegal substance on his
person.
MR. ZUG [Commonwealth's attorney]: And what
is it about those factors that lead you to
believe that – or led you to believe at that
time?
[OFFICER O'DONNELL]: My training experience
with people that I've arrested in the past.
The trial court denied Jones' motion to suppress. It held:
I think unless he's involved in this
vigorous flight and we have to be taken into
custody in that fashion and he's actually
cuffed and all, I think that under all those
circumstances I think he certainly was
reasonable in being detained at least to the
point of checking the status of that weapon
and the status of the defendant in relation
to the weapon. It, you know, again, it's
not a -– to me it's not a, what you call,
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slam dunk issue. I think it's an area that
you could debate about.
But, I really believe that the – I don't
think there was a – the probable cause. I'm
not satisfied absent the stop that there was
probable cause to search him. You see, I
think once the weapon gets out there, I find
that there is probable cause to detain him.
And combined with the flight and the
association with the drug activity in the
neighborhood, that all of that gives rise
to, certainly, a basis for a detention for
investigation. I think that's what the
officer did. And I think that would have
inevitably led to the finding of the drugs.
I think the officer, when a weapon is out
there, if he finds anything in the pocket
during the search that could conceivably be
a weapon, certainly he'd be able to search
him for that.
But I think basically that –- the way I'm
coming down on this is a bit of inevitable
discovery in the context of the
investigation. And that's really what I
think the answer to this.
At trial, Jones objected to the admission of certified
copies of juvenile and domestic relations district court records
to prove a prior felony conviction. He contended that the word
"Petition" on one document was hearsay, that the document's
admission violated his right to confront witnesses, and the
documents reflected that the social security number of the
person named was unknown. Officer O'Donnell testified that the
records were obtained using information provided by Jones,
including his name, date of birth, and social security number.
The trial court admitted the juvenile records into evidence. On
October 19, 2001, Jones was found guilty of attempting to
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possess cocaine and possessing a firearm after having been
convicted of a felony.
II. ATTEMPTED POSSESSION OF COCAINE
We first consider whether the trial court erred in denying
Jones' motion to suppress the evidence. Jones contends that the
police exceeded the scope of a legal Terry stop when they seized
cocaine from his person. 4 Furthermore, the evidence did not
support the application of the inevitable discovery exception to
the exclusionary rule. As a result, he argues that the trial
court should have suppressed the evidence. We agree.
In reviewing the trial court's denial of a motion to
suppress, the defendant has the burden to show that the ruling,
when the evidence is viewed in the light most favorable to the
Commonwealth, was reversible error. Murphy v. Commonwealth, 264
Va. 568, 573, 570 S.E.2d 836, 838 (2002). "A defendant's claim
that evidence was seized in violation of the Fourth Amendment
presents a mixed question of law and fact that we review de novo
on appeal." Id.; see also Ornelas v. United States, 517 U.S. 690,
691 (1996). "In making such a determination, we give deference to
the factual findings of the trial court and independently
determine whether the manner in which the evidence was obtained
meets the requirements of the Fourth Amendment." Murphy, 264 Va.
at 573, 570 S.E.2d at 838.
4
Terry v. Ohio, 392 U.S. 1 (1968).
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A. TERRY STOP
"The United States Supreme Court has articulated 'a narrowly
drawn authority to permit a reasonable search for weapons for the
protection of the police officer where [the police officer] has
reason to believe that he is dealing with an armed and dangerous
individual.'" Hall v. Commonwealth, 22 Va. App. 226, 228, 468
S.E.2d 693, 694 (1996) (quoting Terry v. Ohio, 392 U.S. 1, 27
(1968)). However, the authority to conduct a pat-down search does
not follow automatically from the authority to effectuate an
investigative stop. Harrell v. Commonwealth, 30 Va. App. 398,
403, 517 S.E.2d 256, 258-59 (1999). "Once a police officer has
properly detained a suspect for questioning he may conduct a
limited pat-down search for weapons if he reasonably believes that
the suspect might be armed and dangerous." Moore v. Commonwealth,
12 Va. App. 404, 406, 404 S.E.2d 77, 77 (1991) (quoting Williams
v. Commonwealth, 4 Va. App. 53, 66, 354 S.E.2d 79, 86 (1987)).
"The purpose of this 'pat-down' search is not to uncover evidence
of criminal activity, but to permit the officer to conduct his
investigation without encountering a violent response." Murphy,
264 Va. at 573-74, 570 S.E.2d at 839.
If during a lawful pat-down for weapons of a suspect's
outer clothing a police officer feels an object whose contour or
mass makes its identity immediately apparent, there has been no
invasion of the suspect's privacy beyond that already authorized
by the officer's search for weapons. Minnesota v. Dickerson,
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508 U.S. 366, 375-76 (1993). "[I]f the object is contraband,
its warrantless seizure would be justified by the same practical
considerations that inhere in the plain-view context." Id.
In the case before us, Officer O'Donnell conducted an
unlawful search of Jones and unlawfully seized from his rear
jeans pocket, a plastic bag containing what appeared to be nine
rocks of crack cocaine. There is no question that the initial
stop of Jones was proper. When Jones saw the police officer
approaching him, he fled carrying a handgun in his right hand.
When apprehended by Officer O'Donnell, Jones lost possession of
the weapon. Another officer subsequently recovered it. Officer
O'Donnell testified that he handcuffed Jones and placed him in
investigative detention. Officer O'Donnell was clear in stating
that Jones was not placed under arrest at that time. 5
When asked at the suppression hearing why he conducted the
search of Jones, Officer O'Donnell stated:
Basically, the time of night, the numerous
calls to the area about specifically drug
dealing, the fact that [Jones] broke and ran
at police presence and the fact that he had
a firearm on his person -- well, in his hand
as he ran. Those things all together. I
believed - I was fairly certain that there
were some types of narcotics or other
illegal substance on his person.
5
Since Jones was not under arrest at the time of the
search, we need not determine whether the search was incident to
a lawful arrest.
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(Emphasis added). Officer O'Donnell's stated intent in
conducting a search of Jones was to recover narcotics or other
illegal substances, not to determine whether Jones had
additional weapons on his person. We therefore conclude that
Officer O'Donnell's actions exceeded the permissible scope of
the limited search for weapons.
B. INEVITABLE DISCOVERY
The trial court incorrectly relied on the doctrine of
inevitable discovery in reaching its decision regarding the
issue of attempted possession of cocaine. Application of the
doctrine of inevitable discovery requires the Commonwealth to
show three things: (1) a reasonable probability that the
evidence in question would have been discovered by lawful means,
but for the police misconduct; (2) the leads making discovery
inevitable were possessed by the police at the time of the
misconduct; and (3) the police also prior to the misconduct were
actively pursuing the alternative line of investigation. Walls
v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d 175, 185
(1986). The Commonwealth failed to prove the existence of these
factors in this case. There was no specific complaint
concerning Jones, so there were no leads for the police to
follow prior to the police misconduct. In addition, Officer
O'Donnell was not actively pursuing any alternative line of
investigation. The inevitable discovery cannot be the direct
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result of the initial unlawful search, but rather must be
independent of it.
We reverse the judgment of the trial court finding Jones
guilty of attempted possession of cocaine and order the charge
dismissed.
III. ADMISSION OF JUVENILE RECORDS
We next consider whether the trial court erred in admitting
the juvenile petition and accompanying records.
"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). "Evidence is
admissible if it is both relevant and
material." Evans-Smith v. Commonwealth, 5
Va. App. 188, 196, 361 S.E.2d 436, 441
(1987).
Braxton v. Commonwealth, 26 Va. App. 176, 186, 493 S.E.2d 688,
692 (1997).
The Commonwealth offered as evidence a certified copy of a
petition and accompanying papers from the Charlottesville
Juvenile and Domestic Relations District Court. The petition
indicated that the records were those of James Sylvester Jones.
However, the social security number was shown as unknown. Jones
contends that the Commonwealth failed to prove that the juvenile
petition in fact pertained to him and as a result, should not
have been admitted into evidence. We disagree.
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Officer O'Donnell testified that the petition and
accompanying records were obtained using information provided by
Jones. Jones supplied Officer O'Donnell with his name, date of
birth, and social security number. With that information in
hand, Officer O'Donnell obtained the petition and accompanying
records. The trial court did not abuse its discretion in
admitting the juvenile petition and accompanying records.
IV. POSSESSION OF A FIREARM BY A CONVICTED FELON
We lastly consider whether the evidence was sufficient to
convict Jones of possessing a firearm after having been
convicted of a felony.
When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992).
Code § 18.2-308.2 states in relevant part:
A. It shall be unlawful for (i) any person
who has been convicted of a felony or (ii)
any person under the age of twenty-nine who
was found guilty as a juvenile fourteen
years of age or older at the time of the
offense of a delinquent act which would be a
felony if committed by an adult . . . to
knowingly and intentionally possess or
transport any firearm or to knowingly and
intentionally carry it about his
person . . . .
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Jones contends that there was a fatal variance between the
allegations in the indictment and the proof of the crime. He
argues that the Commonwealth chose to prosecute him under Code
§ 18.2-308.2(A)(i). However, instead of attempting to prove a
felony conviction under Code § 18.2-308.2(A)(i), the
Commonwealth proceeded to prove a violation under Code
§ 18.2-308.2(A)(ii) without amending the charge. We disagree.
Jones was indicted under the broad provisions of Code
§ 18.2-308.2. He was given fair notice of the charges against
him. He was put on notice that he would have to defend against
being in possession of a weapon after having been convicted of
either a felony or a delinquent act as a juvenile that would
have been a felony if it had been committed by an adult. See
generally Buchanan v. Commonwealth, 238 Va. 389, 397-98, 384
S.E.2d 757, 762-63 (1989). Thus, his argument is without merit.
What remains to be determined is whether Jones was in possession
of a weapon and whether the evidence was sufficient to prove
beyond a reasonable doubt his status as a convicted felon. As
to each issue, we answer in the affirmative.
At trial, Jones conceded the fact that he was in possession
of a weapon when he encountered Officer O'Donnell. Furthermore,
the evidence supported the trial court's finding that Jones was
a person prohibited from possessing weapons within the statutory
definition. The Commonwealth presented evidence that Jones was
born on May 29, 1980. In addition, it presented evidence that
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Jones was found guilty on a juvenile petition for unlawful
wounding, a felony if committed by an adult.
An adjudicatory hearing was held on November 1, 1994.
Jones entered a guilty plea that was accepted by the juvenile
and domestic relations district court. The petition reflects a
finding of guilty from which it can be reasonably inferred that
the juvenile court found Jones guilty of the offense charged in
the petition.
The Commonwealth presented evidence from which the court
could reasonably conclude that Jones was under the age of
twenty-nine when the present offense was committed and that he
was fourteen years of age or older when adjudicated guilty of
unlawful wounding, an offense that would have been a felony if
committed by an adult. The evidence was sufficient beyond a
reasonable doubt to convict Jones of a violation under Code
§ 18.2-308.2.
We affirm the judgment of the trial court finding Jones
guilty of possessing a firearm after having been convicted of a
felony.
V. CONCLUSION
We find that the trial court erred in denying Jones' motion
to suppress the evidence of the contraband seized from him.
Accordingly, we reverse the judgment of the trial court and
order the charge of attempted possession of cocaine be
dismissed. We also find that the trial court did not err in
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admitting Jones' juvenile records and, therefore, affirm the
judgment of the trial court, admitting the evidence. We further
find that the evidence was sufficient beyond a reasonable doubt
to convict Jones of possession of a firearm after having been
convicted of a felony, and affirm the trial court's judgment of
conviction.
Affirmed in part,
reversed and
dismissed in part.
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