COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
KELLY PAIGE EDWARDS
MEMORANDUM OPINION * BY
v. Record No. 2362-97-1 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John M. Folkes, Judge
David B. Hargett (Joseph D. Morrissey;
Morrissey, Hershner & Jacobs, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The trial judge convicted Kelly Paige Edwards of operating a
motor vehicle while under the influence of alcohol. See Code
§ 18.2-266. Edwards contends that the trial judge erred (1) by
failing to suppress the arresting officer's testimony concerning
the basis for stopping Edwards' vehicle and (2) by refusing to
permit defense witnesses to testify concerning events related to
the stop. For the reasons that follow, we affirm the conviction.
I.
Edwards first contends that "the trial [judge] err[ed] by
failing to suppress evidence obtained as a result of the traffic
stop when the arresting officer, who did not offer any testimony
as to his knowledge, training, and experience, merely observed
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
[Edwards'] tires touch the centerline, and therefore the officer
did not possess a legally sufficient 'reasonable articulable
suspicion' that [Edwards] was engaged in criminal activity."
When we review a trial judge's denial of a motion to
suppress, we consider de novo the ultimate questions of
reasonable suspicion and probable cause. See Shears v.
Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996).
"In performing such analysis, we are bound by the trial [judge's]
findings of historical fact unless 'plainly wrong' or without
evidence to support them and we give due weight to the inferences
drawn from those facts by [the trial judge] and local law
enforcement officers." McGee v. Commonwealth, 25 Va. App. 193,
198, 487 S.E.2d 259, 261 (1997).
At the suppression hearing, Police Officer Doss testified
that he saw two vehicles in a business complex at 1:30 a.m., when
all the businesses were closed. As the vehicles left the parking
area, the officer followed one of the vehicles onto Route 17.
When the officer saw the vehicle "cross or touch the centerline a
few times," he activated the video camera mounted in his vehicle.
The officer followed the vehicle as it entered another parking
lot. When the vehicle left the parking lot, the officer followed
it on several other roadways. The officer observed the vehicle
cross the center line again. Later, he saw the vehicle straddle
the yellow line as it made a "wide right" turn. The officer
stopped the vehicle to investigate whether the driver was under
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the influence of alcohol. As the officer testified, the trial
judge and the other participants at the trial viewed the
videotape.
When the officer approached Kelly Edwards, the driver of the
vehicle, the officer smelled a strong odor of alcohol coming from
the interior of the vehicle. Edwards admitted that she drank
several beers that evening, consuming the last beer two hours
before the stop. The officer demonstrated to Edwards a "finger
count test" that he intended to use to judge Edwards' sobriety.
While testifying, the officer admitted that he did not properly
demonstrate the test. The officer also testified that when
Edwards exited her vehicle, she swayed as she walked to the rear
of her vehicle. After Edwards took a preliminary breath test,
the officer arrested her for driving under the influence of
alcohol.
In our review of Edwards' claim that the trial judge
improperly overruled Edwards' motion to suppress the evidence, we
are guided by the following principles:
"'When the police stop a motor vehicle and
detain an occupant, this constitutes a
seizure of the person for Fourth Amendment
purposes.'" "In order to justify an
investigatory stop of a vehicle, the officer
must have some reasonable, articulable
suspicion that the vehicle or its occupants
are involved in, or have recently been
involved in, some form of criminal activity."
"To determine whether an officer has
articulated a reasonable basis to suspect
criminal activity, a court must consider the
totality of the circumstances, including the
officer's knowledge, training, and
experience." "'[A] trained law enforcement
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officer may [be able to] identify criminal
behavior which would appear innocent to an
untrained observer.'"
Neal v. Commonwealth, 27 Va. App. 233, 237-38, 498 S.E.2d 422,
424 (1998) (citations omitted).
The evidence proved that on the morning of the incident the
officer was a lieutenant on uniformed patrol and was the shift
supervisor. When the officer testified concerning events he
observed, he illustrated his testimony by using the videotape he
made while observing those events. His testimony was more than
sufficient to prove that he observed "erratic driving behavior."
See Neal, 27 Va. App. at 239 n.3, 498 S.E.2d at 425 n.3.
Indeed, the officer testified that Edwards' vehicle crossed the
center line several times and made an improper turn.
The trial judge observed the videotape and came to the same
conclusion, finding that Edwards "crossed the centerline a couple
of times." Under those circumstances, "a brief detention for
[an] investigative purpose is justified where an officer has
reasonable suspicion supported by articulable facts that
'criminal activity may be afoot.'" Harmon v. Commonwealth, 15
Va. App. 440, 444, 425 S.E.2d 77, 79 (1992) (citation omitted).
Because the officer had a reasonable, articulable suspicion that
Edwards was driving improperly, see May v. Commonwealth, 3 Va.
App. 348, 353-54, 349 S.E.2d 428, 431 (1986), the trial judge did
not err in denying the motion to suppress.
II.
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At the hearing on the motion to suppress, Edwards sought to
introduce the testimony of two expert witnesses to comment upon
the events shown on the videotape. One proposed witness, a
former state trooper, would have testified that when he observed
the videotape, he saw Edwards commit no traffic infractions. The
other witness, a defensive driving coordinator, would have rated
Edwards' driving performance on the videotape. The trial judge
excluded the proffered testimony. Edwards contends that "the
trial [judge] err[ed] in refusing to permit testimony from [her]
witnesses who would have testified as to the measurements of the
road, the obstructions adjacent to the road which would justify
defensive-driving measures, the number of vehicles that routinely
touch the centerline at various locations, and their opinions
that [Edwards], whose driving was captured by video, neither
drove erratically nor committed any traffic infractions."
The principle is well established in Virginia that "where
the facts and circumstances shown in evidence are such that men
of ordinary intelligence are capable of comprehending them,
forming an intelligent opinion about them, and drawing their own
conclusions therefrom, the opinion of an expert founded upon such
facts is inadmissible." Venable v. Stockner, 200 Va. 900, 904,
108 S.E.2d 380, 383 (1959).
The trial judge had the opportunity to view the videotape
and did so while the officer testified. Based on the officer's
testimony and the events depicted on the videotape, the trial
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judge drew his own conclusions regarding appellant's driving on
the night in question and whether the officer had a reasonable
articulable suspicion that Edwards was driving improperly. The
proffered expert testimony would have invaded the province of the
trial judge as the trier of fact. See Schooler v. Commonwealth,
14 Va. App. 418, 422, 417 S.E.2d 110, 112 (1992). Accordingly,
we hold that the trial judge did not err in excluding the expert
testimony.
For these reasons, we affirm the judgment.
Affirmed.
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Kelly Paige Edwards v. Commonwealth of Virginia
Combined Opinion