COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
DENNIS JAMES OWEN
MEMORANDUM OPINION * BY
v. Record No. 1448-97-3 JUDGE SAM W. COLEMAN III
NOVEMBER 10, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
John S. Edwards for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Dennis James Owen was convicted by a jury of arson in
violation of Code § 18.2-77. On appeal Owen contends: (1) the
trial court should have disqualified the entire Pittsylvania
County Commonwealth's Attorney's Office because he had talked
with the Commonwealth's Attorney about the case before the
Commonwealth's Attorney was elected; (2) the facts used to obtain
the November 9, 1995 search warrant were stale and, therefore,
did not provide probable cause for issuance of the warrant;
(3) the trial court should have suppressed certain fruits of the
July 24, 1995 search because the investigators expanded the scope
of the search beyond Owen's consent; and (4) the trial court
should have granted a mistrial because the Commonwealth's expert
witness twice testified that the fire was deliberately set, after
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
being twice instructed by the court not to so testify. Because
Owen is procedurally barred from appealing issues one and two,
and because issues three and four lack merit, we affirm the
conviction.
I. BACKGROUND
On March 9, 1991, Owen's home, outbuilding, and boat burned.
As a result of the fire, Owen reported numerous items that had
been destroyed during the fire or stolen at the time of the fire.
On July 24, 1995, investigators executed a search warrant
for Owen's residence to search for items that Owen reported to
have been stolen from his home on May 6, 1995. Although the
warrant did not specify to search for firearms, during the search
the investigators discovered a cache of firearms, several of
which appeared to match rifles that Owen had reported missing
after the fire. According to an investigator's testimony, when
asked if the investigators could photograph and record serial
numbers from the firearms, Owen consented. Owen told
investigators that he had acquired the guns after the 1991 fire.
However, after tracing the serial numbers investigators
discovered that Owen had purchased four of the firearms prior to
the 1991 fire. Based in part on this information, investigators
obtained another search warrant, which they executed on November
9, 1995, during which they seized, among other things, two
firearms that matched weapons Owen claimed to have lost in the
1991 fire.
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Prior to trial, Owen made a motion to suppress the fruits of
the July 24 search warrant claiming that the investigators
expanded the search beyond the warrant's authority or his
consent. Because the July 24 search produced the probable cause
that led to the issuance of the November 9, 1995 search warrant,
Owen also made a motion that the fruits of the subsequent search
be suppressed. The trial court found, however, that Owen
voluntarily consented to the scope of the July 24 search and
denied the motion.
During trial, the Commonwealth's expert witness testified
that there had been three "set" fires in 1991. The trial court
ruled, in response to Owen's objection, that the expert could not
testify by giving an opinion that the fire was intentionally or
deliberately set. The trial court instructed the jury to
disregard the witness' statement. Subsequently, the expert
testified that "human action" caused the fire. Again the trial
court sustained defense counsel's objection and admonished the
jury to disregard the statement. The trial court denied Owen's
motion for a mistrial.
After the jury found Owen guilty, he filed a motion to set
aside the verdict and to dismiss the indictment, or, in the
alternative, to order a new trial. Owen asked the court to
reconsider its refusal to suppress the fruits of the November 9,
1995 search, assigning as a new and additional ground that the
facts were stale because they were based on events that had
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occurred 108 days earlier and, therefore, did not provide
probable cause to believe the items were still there. The trial
court refused to reconsider the suppression issues, citing Owen's
failure to argue the staleness issue before trial.
Also, in the motion to set aside, Owen asked for the first
time that the trial court disqualify the Pittsylvania County
Commonwealth's Attorney's Office from prosecuting the case based
on an alleged conflict of interest and to dismiss the indictment.
Owen presented evidence that shortly after the fire he had
briefly met with David Grimes, explained to Grimes that his house
had burned and that he was having trouble with his insurance
company, that the insurance company and the sheriff's office were
investigating him, and that he thought he needed a lawyer.
Grimes concurred. Owen made an appointment to follow up on the
matter, but later retained other counsel and never met again with
Grimes. Grimes was later elected Commonwealth's Attorney for
Pittsylvania County. The trial court refused to disqualify the
Commonwealth's Attorney or to dismiss the indictment, based in
part on Owen's failure to raise the issue until after trial.
II. ANALYSIS
A. Conflict Of Interest
Owen contends that the trial court should have disqualified
the entire Pittsylvania County Commonwealth's Attorney's Office
because the limited contact between the Commonwealth's Attorney
and Owen before trial created an attorney-client relationship and
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therefore, a conflict of interest. Although Owen knew of his
claimed conflict before trial, he first presented the issue to
the court six months after the jury returned its guilty verdict.
As with a juror's misconduct or a judge's disqualifying bias, a
party with prior knowledge of the facts he claims to constitute
misconduct who proceeds to verdict without raising an objection
will not thereafter be heard to complain about the matter. See
Mason v. Commonwealth, 219 Va. 1091, 1098, 254 S.E.2d 116, 120
(1979) (regarding disqualification of a judge); Wilson v.
Commonwealth, 157 Va. 962, 970, 162 S.E. 15, 17 (1932) (regarding
prosecutorial misconduct and referring to juror misconduct);
Tickel v. Commonwealth, 11 Va. App. 558, 563-64, 400 S.E.2d 534,
537-38 (1991) (regarding prosecutorial misconduct). The
contemporaneous objection rule, Rule 5A:18, prevents our
considering issues on appeal that were not "timely" raised in the
trial court. One purpose of the rule is to enable errors to be
corrected at the time to avoid retrials. A party does not make a
contemporaneous objection in accordance with Rule 5A:18 where he
complains for the first time in a motion to set aside a verdict
that a prosecutor should have been disqualified. To hold
otherwise would permit -- indeed would encourage -- defendants to
sit on their rights when error occurs and withhold it from the
trial court's consideration only to raise the issue in the event
of an adverse verdict. We cannot condone such a practice.
Because Owen did not assert a timely objection, he is barred from
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raising the issue on appeal. Rule 5A:18.
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B. Suppression of Evidence: Staleness of Probable Cause
Investigators obtained the facts during the July 24, 1995
search that were the basis for the November 9, 1995 search.
Thus, by the time the November 9, 1995 search was conducted, the
facts were 108 days old. Owen contends those facts, which
consisted of guns observed during the first search, were too
stale to support probable cause.
Owen did not raise the staleness issue prior to trial.
Again, he waited until six months after the verdict to raise the
issue, even though he was aware of the situation before trial.
The trial judge did not err in refusing to grant the post-trial
motion. Code § 19.2-266.2 provides that motions to suppress
evidence obtained in violation of the Fourth Amendment are to be
made prior to trial. Regardless of whether the requirement is
mandatory, a defendant must at least make a contemporaneous
objection. The defendant cannot await the determination of an
adverse verdict and then raise the issue to obtain a new trial.
C. Suppression of Evidence: Consent to Expand Search
The issue here is whether the officers conducting the search
obtained Owen's voluntary and informed consent to photograph and
record the serial numbers of guns that were observed during the
July 24, 1995 search, when the guns were not designated in the
search warrant. Whether Owen voluntarily consented "`is a
question of fact to be determined from the totality of all the
circumstances.'" Deer v. Commonwealth, 17 Va. App. 730, 735, 441
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S.E.2d 33, 36 (1994) (quoting Schneckloth v. Bustamonte, 412 U.S.
218, 227 (1973)). On appeal the trial court's finding of
voluntary consent must be accepted unless plainly wrong. See
Limonja v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481
(1989).
"[W]e review the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). The evidence showed that Owen
did not sign a consent to search form. Nevertheless, the trial
court found that the investigators told Owen that they had
discovered the guns and asked his permission to inspect them.
The investigators informed Owen that he was not required to
consent to their request. Nonetheless, after seeking assurances
that the guns would not leave the premises, Owen said "well go
ahead" and thereby consented to the investigators' request.
Owen asks this Court to find, despite the trial court's
ruling, that the totality of the circumstances coerced his
"consent." We decline to do so. Owen's reliance on Bumper v.
North Carolina, 391 U.S. 543 (1968), is misplaced. In Bumper,
officers obtained consent to search the premises by falsely
claiming to have a warrant authorizing the search. See Bumper
391 U.S. at 546-48. In contrast, these investigators explained
to Owen that the search warrant did not authorize them to expand
the search to examine the guns and that he was not required to
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consent to the expansion. Owen argues, however, that the
presence of numerous armed investigators "swarming all over his
home" was inherently coercive. The trial court was not persuaded
that the circumstances of the search coerced the consent. We
cannot say that the trial court's ruling was wrong as a matter of
law. See e.g., United States v. Elie, 111 F.3d 1135, 1145 (4th
Cir. 1997) (finding no coercive environment despite the presence
of six armed officers who had earlier ordered defendant to the
floor at gunpoint). Furthermore, Owen's failure to sign a
consent to search form does not render his oral consent
involuntary. See e.g. United States v. Lattimore, 87 F.3d 647,
651 (4th Cir. 1996) ("refusal to execute a written consent form
subsequent to a voluntary oral consent does not act as an
effective withdrawal of prior consent").
D. Mistrial: Expert Witness Testimony
Owen argues that the trial court erred in refusing to grant
a mistrial after the expert witness testified twice that the fire
resulted from human action.
The Commonwealth concedes, and we concur, that the expert's
testimony was inadmissible. See Callahan v. Commonwealth, 8 Va.
App. 135, 139, 379 S.E.2d 476, 478-79 (1989). However, the trial
judge promptly instructed the jury to disregard the statements.
"A trial court exercises its discretion when it determines
whether it should grant a motion for a mistrial." Beavers v.
Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420 (1993).
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"When a motion for a mistrial is made, based upon an allegedly
prejudicial event, the trial court must make an initial factual
determination, in the light of all the circumstances of the case,
whether the defendant's rights are so `indelibly prejudiced' as
to necessitate a new trial." Spencer v. Commonwealth, 240 Va.
78, 95, 393 S.E.2d 609, 619 (1990) (quoting LeVasseur v.
Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983)).
Because juries are presumed to follow prompt, explicit curative
instructions, a judgment will not be reversed for the improper
admission of evidence that a trial judge subsequently directs a
jury to disregard unless a manifest probability exists that the
evidence is so prejudicial that the fact finder could not
disregard the evidence. See Beavers, 245 Va. at 280, 427 S.E.2d
at 420. Here, the expert witness testified that the fire was
"set." Although the testimony may have exceeded the permissible
scope of the expert's opinion, the defendant concedes that the
evidence shows that the fire was "set" and the only issue was
whether the evidence proved that the defendant "set" the fire.
The other evidence proved that the fire originated in three
separate locations by the use of an accelerant, which tends to
prove that the fire was set. The expert's testimony was not so
prejudicial in nature that the jury could not disregard it.
Accordingly, the trial judge did not abuse his discretion in
denying the motion for a mistrial.
For the reasons stated, Owen's conviction is affirmed.
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Affirmed.
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