Allen Lebedun, s/k/a Allen A. Lebedun v. CW

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia

ALLEN LEBEDUN, S/K/A
ALLEN A. LEBEDUN
MEMORANDUM OPINION * BY
v. Record No. 0233-97-4 JUDGE SAM W. COLEMAN III
JULY 7, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

Crystal A. Meleen, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

Allen A. Lebedun was convicted by a jury for abduction,

robbery, and use of a firearm in the commission of robbery. On

appeal, Lebedun contends the convictions should be reversed

because: (1) the search warrant was not supported by probable

cause and failed to recite the offense for which the search was

being conducted; (2) the general district court erred in refusing

to grant a continuance to obtain a court reporter at the

preliminary hearing; (3) the trial court erred by admitting into

evidence items seized from the home of an alleged accomplice; (4)

the trial court erred when it allowed a witness to examine pills

seized from Lebedun's apartment and to testify whether they were
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the same type as those taken by the robbers; (5) the Commonwealth

failed to comply with the statutory notice and copy requirements

for introducing prior convictions evidence at sentencing; and (6)

the evidence is insufficient to identify him as one of the

perpetrators of the robbery. For the reasons that follow, we

affirm the convictions.

I. BACKGROUND

Two white males wearing masks entered the Annandale Doctors'

Pharmacy. The shorter man, who was wearing a rubber Halloween

mask, pointed a gun at the pharmacy clerk, Shirley Nelson. The

taller of the two men wore latex gloves and a blue knit cap

covering his head and most of his face. He pointed a silver

pistol at Marlene Book, the pharmacist and store owner, and

demanded narcotics. Book gathered various narcotics, including

amounts of Percocet, Roxicet, and Zanax, and gave them to the

robbers. When the taller assailant demanded money from the cash

register, Book gave him forty-six dollars. The assailants then

forced Book, Nelson, and a customer into a storage room and fled.
Fairfax County Police Detective J.E. Agnew executed a search

warrant for Worth Myers' apartment where he found a blue ski mask

and a Halloween mask. Fairfax County Police Detective Jack Kirk

executed a warrant to search Lebedun's bedroom at Myers' sister's

apartment where Lebedun resided. Kirk found bags of prescription

drugs, a silver pistol, ammunition, and latex gloves in the

bedroom.

- 2 -
 At trial, Book and Nelson testified that the masks found at

Myers' apartment were "very similar" to the masks worn by the two

perpetrators during the robbery and that latex gloves and the

firearm found in Lebedun's bedroom were very similar to those

used by the taller assailant who wore the blue ski mask. Book

also testified that some of the pills seized from Lebedun's

bedroom were the same make and dosage as the drugs she was forced

to give to the robbers.
Robert Russell, an acquaintance of Lebedun, testified that

during the three months preceding the robbery, Lebedun asked him

to obtain a handgun for him because he was "going to do a job on"

a pharmacy. Lebedun explained to Russell that he and Myers

planned to "hold up [a] pharmacy."

Lebedun was indicted on charges of robbing and abducting

Book, and use of a firearm in the commission of a robbery. A

jury convicted Lebedun on all charges.

II. THE SEARCH WARRANT
A. Probable Cause

The Fourth Amendment provides that a search warrant shall

issue only upon a showing of probable cause supported by oath or

affirmation. See Gwynn v. Commonwealth, 16 Va. App. 972, 974,

434 S.E.2d 901, 903 (1993). Whether probable cause exists to

support the issuance of a warrant is to be determined from the

"totality of the circumstances" that are presented to the

magistrate. Illinois v. Gates, 462 U.S. 213, 238 (1983).
The task of the issuing magistrate is simply

- 3 -
 to make a "practical, common-sense decision
whether, given all the circumstances set
forth in the affidavit before him, including
the veracity and the basis of knowledge of
persons supplying hearsay information, there
is a fair probability that contraband or
evidence of a crime will be found in a
particular place." And the duty of a
reviewing court is simply to ensure that the
magistrate had a "substantial basis for . . .
concluding" that probable cause existed.

* * * * * * *

[A]n after-the-fact review of a magistrate's
decision should not be made de novo[,] . . .
great deference should be given to the
magistrate's finding of probable cause.

Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666

(1991) (quoting Gates, 462 U.S. at 238).

In the present case, Detective Agnew's affidavit in support

of his request for a warrant to search Lebedun's home stated that

a fatal drug overdose had occurred at Myers' apartment, that an

informant had purchased prescription drugs from Myers, and that

Myers had told the informant how he and Lebedun while wearing

masks had committed a series of armed robberies of pharmacies in

Maryland and Virginia. The affidavit further stated that the

informant had on other occasions provided the police with

information regarding controlled drug purchases and had been

found to be reliable. The affidavit also said that a victim of

one robbery had observed Myers removing his mask as he left the

scene of the robbery and could identify Myers as one of the

robbers. The affidavit further stated that "Myers gave

statements [after his arrest] as to his involvement in the armed

- 4 -
robberies of several pharmacies in Maryland and Virginia, against

his penal interest. In his statement [Myers] implicated one

Allen Lebedun as the second subject in the robberies."

Accordingly, the magistrate issued a warrant to search Lebedun's

apartment.

Lebedun contends the magistrate lacked probable cause to

issue the search warrant because the magistrate's decision was

based solely upon the unreliable assertions of Worth Myers.

Lebedun reasons that Myers' assertions were unreliable because he

admitted to using and distributing drugs. We find no merit in

the argument. The reliability of an informant's hearsay

statements in an affidavit "may be established by showing that

. . . the informer has made a declaration against his penal

interest." Polston v. Commonwealth, 24 Va. App. 738, 745, 485

S.E.2d 632, 634 (1997). Myers' admission that he and Lebedun

committed the robberies was a statement against his penal

interest and, as such, constituted reliable information upon

which the magistrate could find probable cause to issue a search

warrant. Based on the totality of circumstances presented in the

affidavit, the magistrate had a "substantial basis for

concluding" that Lebedun committed the robberies with Myers and

that evidence relating to the robberies could be found at

Lebedun's home. Accordingly, the search warrant was supported by

probable cause.
B. Recitation of Offense Pertaining to Search Warrant

- 5 -
 Both the Fourth Amendment and Code § 19.2-56 require that a

search warrant "recite the offense in relation to which the

search is to be made." Code § 19.2-56; Gilluly v. Commonwealth,

221 Va. 38, 41, 267 S.E.2d 105, 106-07 (1980). The failure of a

warrant to state the related offense renders the warrant "fatally

defective," and the evidence seized in the execution of the

warrant inadmissible. Id.

Code § 19.2-56 further provides: "The judge, magistrate, or

other official authorized to issue criminal warrants shall attach

a copy of the affidavit required by [Code] § 19.2-54, which shall
become part of the search warrant and served therewith."

(Emphasis added). Because the affidavit "become[s] part of the

search warrant," a search warrant sufficiently "recites the

offense" if it is attached to the affidavit which specifies the

offense to which the warrant pertains. However, a search warrant

does not recite the offense and is "fatally defective," where

"the evidence below establishe[s] conclusively that [the

deficient warrant and affidavit that did recite the offense] were

not attached until after the search warrant had been executed and
the disputed items seized." Gilluly, 221 Va. at 41, 267 S.E.2d

at 107 (first emphasis added).

Relying on Gilluly, Lebedun contends the evidence fails to

show that the deficient warrant and affidavit were attached or

that they were attached when the search occurred. It is

undisputed that the warrant failed to recite the offense and that

- 6 -
the affidavit expressly stated that the search pertained to

charges of robbery and abduction.

Lebedun had the burden of proving that the search warrant

was invalid. See Lebedun v. Commonwealth, ___ Va. App. ___, ___

S.E.2d ___ (1998); see also 4 Wayne R. LaFave, Search and Seizure

§ 11.2(b) at 218 (2d ed. 1987). Lebedun failed to meet this

burden. Lebedun offered no evidence to establish that the

warrant and the affidavit were not attached at the time of the

search. 1 When Detective Kirk testified on direct examination

that the search warrant and affidavit were attached when he "left

the apartment," Lebedun's counsel declined to ask him on

cross-examination whether they were attached at the time the

warrant was executed. Accordingly, the trial court did not err

in denying Lebedun's motion to suppress.

III. GENERAL DISTRICT COURT'S DENIAL OF MOTION FOR A CONTINUANCE

The circuit court granted Lebedun's in forma pauperis motion

to provide a court reporter to record and transcribe the

testimony at the preliminary hearing. However, the court

reporter did not appear at the preliminary hearing. After

advising the general district court judge that a court reporter

had been authorized to transcribe the hearing but was not

1
We construe Gilluly to require that in order for the
affidavit to cure the search warrant's failure to recite the
offense, the affidavit and the warrant must be attached when the
warrant is executed. The purpose for requiring that the warrant
recite the offense is to notify the owner or occupant of the
premises to be searched of the offense being investigated.

- 7 -
present, Lebedun asked the court to continue the preliminary

hearing. Apparently, no effort was made to obtain the services

of another court reporter. The Commonwealth objected to a

continuance noting that seven witnesses were present and prepared

to testify. The general district court denied the motion for

continuance. Lebedun's counsel tape recorded the preliminary

hearing, but, according to Lebedun, several portions of the

witnesses' testimony were inaudible or incomplete. On appeal,

Lebedun asks us to dismiss the indictment and to remand the case

to the general district court for a preliminary hearing with a

court reporter.
"The decision whether to grant a continuance is a matter

within the sound discretion of the trial court." Lowery v.

Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509 (1990).

The Virginia Supreme Court has established a two-pronged test for

determining whether a trial court's denial of a continuance

request is reversible error. Under this test, we may reverse a

trial court's denial of a motion for a continuance only if it

appears from the record: (1) that the court abused its

discretion and (2) that the movant was prejudiced by the court's

decision. See Cardwell v. Commonwealth, 248 Va. 501, 509, 450

S.E.2d 146, 151 (1994).

The function of a preliminary hearing is to determine before

a judicial officer whether probable cause exists to believe that

an accused may have committed a criminal offense and whether

- 8 -
reason exists for a grand jury to investigate the charges. See

Webb v. Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 38 (1963).

A preliminary hearing is not a vehicle for an accused to conduct

discovery. See Williams v. Commonwealth, 208 Va. 724, 729, 160

S.E.2d 781, 784 (1968).

Although a preliminary hearing is not constitutionally

mandated, an accused who has been arrested on a felony warrant is

statutorily entitled to a preliminary hearing. See Code

§ 19.2-218. Because a transcript of the testimony at a

preliminary hearing may be an effective tool for cross-examining

and impeaching witnesses at trial, Harley v. Commonwealth, 25 Va.
App. 342, 348-50, 488 S.E.2d 647, 649-50 (1997), the circuit

court authorized Lebedun to employ a court reporter. See Roberts

v. Lavelle, 389 U.S. 40, 42-43 (1967) (per curiam); Code

§ 19.2-185. However, the responsibility for employing the court

reporter and having the court reporter present rested with the

appellant. Lebedun did not have a court reporter present for the

scheduled preliminary hearing and offered no justification other

than that the court reporter had not appeared. Lebedun could not

determine when a court reporter would be available or whether one

could be available that day.

Here, the general district court did not abuse its

discretion in denying the motion for a continuance. The

Commonwealth had committed to provide Lebedun a court reporter.

As with a non-indigent defendant, the court must determine

- 9 -
whether a party has shown good cause for not having a court

reporter present for a scheduled preliminary hearing. In

deciding whether to continue a case, a court may properly

consider the convenience of the witnesses who are prepared to

testify at the scheduled proceeding. See Ex Parte Windham, 634

S.W.2d 718, 720-21 (Tex. Crim. App. 1982); Phifer v. State, 218

N.W.2d 354, 356-58 (Wis. 1974). The Commonwealth had seven

witnesses present to testify at the preliminary hearing, several

of whom had been subpoenaed to appear. Because the appellant

could not determine that a court reporter would be available that

day, the witnesses would likely have been required to reappear to

testify on another date. The appellant did not give a

justifiable reason why he did not have a court reporter present.
Furthermore, Lebedun has not demonstrated that the lack of a

transcript of the preliminary hearing denied him the opportunity

to assess the strength of the Commonwealth's case or to impeach

the witnesses at trial. Lebedun was allowed to tape record the

testimony of the witnesses at the preliminary hearing and could

take notes of the proceedings. See Code § 16.1-69.35:2. After

the circuit court authorized Lebedun to employ a court reporter,

the responsibility for employing a reporter and having the

reporter present rested with the appellant. Moreover, Lebedun

has not shown that a transcript was essential for him to impeach

trial witnesses' testimony at the preliminary hearing. See
Edwards v. Commonwealth, 19 Va. App. 568, 572, 454 S.E.2d 1, 3

- 10 -
(1995). Although we do not doubt that Lebedun may have been

inconvenienced by the lack of a transcript of the preliminary

hearing, and we urge the trial courts to make reasonable efforts

to accommodate the transcribing of proceedings where a court

reporter has been specifically authorized, we find that under the

circumstances the general district court's denial of the motion

for a continuance was not an abuse of discretion. Accordingly,

we decline to dismiss the indictment and remand the case to the

general district court for a preliminary hearing.

IV. ADMISSIBILITY OF ITEMS SEIZED FROM MYERS' HOME

The Commonwealth introduced into evidence the blue ski mask

and Halloween mask seized from Myers' home. Lebedun contends the

trial court erred in admitting the masks because they were

irrelevant and unduly prejudicial to the charges against him. We

disagree.
Evidence is relevant if it has any logical
tendency to prove an issue in a case.
Relevant evidence may be excluded only if the
prejudicial effect of the evidence outweighs
its probative value. The question whether
the prejudicial effect of evidence exceeds
its probative value lies within the trial
court's discretion.

Goins v. Commonwealth, 251 Va. 442, 461-62, 470 S.E.2d 114, 127

(citation omitted), cert. denied, 117 S. Ct. 222 (1996).

"While a single circumstance, standing alone may appear

. . . immaterial or irrelevant, it frequently happens that the

combined force of many concurrent and related circumstances, each

insufficient in itself, may lead a reasonable mind irresistibly

- 11 -
to a conclusion." Wynn v. Commonwealth, 5 Va. App. 283, 291, 362

S.E.2d 193, 198 (1987). The Commonwealth sought to prove that

Lebedun and Myers robbed the pharmacy while wearing the masks.

Book and Nelson testified that two men wearing masks entered and

robbed the pharmacy. They further testified that the masks found

in Myers' home were "very similar" to those used in the robbery.

Book testified that some of the prescription drugs found in

Lebedun's bedroom were similar to those taken by the masked

robbers. Considered with the Commonwealth's other evidence, the

masks tended to establish that Lebedun and Myers wore the masks

while robbing the pharmacy and that Myers stored the masks at his

residence after the robbery. Furthermore, the prejudicial effect

of the evidence did not outweigh its probative value of proving

that Lebedun perpetrated the robbery. Accordingly, we cannot say

that the trial court abused its discretion in admitting the masks

into evidence. See Coe v. Commonwealth, 231 Va. 83, 88, 340

S.E.2d 820, 823 (1986).
V. ADMISSIBILITY OF PHARMACIST'S TESTIMONY
REGARDING DRUGS SEIZED FROM LEBEDUN'S APARTMENT

During its case-in-chief, the Commonwealth showed Book the

pills seized from Lebedun's apartment and asked her to describe

"what [kind of pills] they appear[ed] to be." Lebedun objected

on the ground that the Commonwealth's question called for an

opinion and that Book had not been qualified as an expert

witness. The court overruled the objection and stated that Book

could testify as to "what they look like to her." Book testified

- 12 -
that the drugs seized from Lebedun's apartment appeared to be of

the same type, color, and dosage that she handed over to the

robbers.

The trial court did not err in admitting Book's testimony

concerning the appearance and similarity of the pills. A lay

witness may testify that a common object he saw at one place was

identical to or different from one he saw at another place. See

Jones v. Commonwealth, 228 Va. 427, 442, 323 S.E.2d 554, 562

(1984); Claud v. Commonwealth, 217 Va. 794, 797-98, 232 S.E.2d
790, 792-93 (1977). "Like lay testimony identifying handwriting,

such testimony is a statement of fact based upon personal

observation and, as such, admissible for whatever weight the fact

finer cares to give it." Claud, 217 Va. at 798, 232 S.E.2d at

793. Here, Book was not asked to testify about the

pharmacological characteristics of the pills seized from

Lebedun's apartment. The appearance of the drugs that she handed

over to the robbers was a matter of personal observation, and she

could permissibly compare that observation to the appearance of

the drugs found in Lebedun's possession and introduced at trial.
VI. NOTICE OF INTENT TO INTRODUCE PRIOR CONVICTIONS

More than a month before trial, the Commonwealth notified

Lebedun's counsel that it intended to introduce at the sentencing

phase of trial an August 2, 1977 conviction for robbery in

Fairfax County. The related order provided by the Commonwealth

indicated that the date of conviction was actually August 27,

- 13 -
1976. The Commonwealth also gave notice of its intention to

introduce evidence of four convictions in Montgomery County,

Maryland in January 1977, which included two convictions for

robbery and two convictions for use of a firearm in the

commission of a felony. The Maryland records provided by the

Commonwealth to Lebedun's counsel indicated that the convictions

were reversed and remanded on appeal, Lebedun was retried and

convicted on the same charges in 1979. At the sentencing

hearing, the Commonwealth introduced copies of the Fairfax County

and Montgomery County convictions as well as a copy of the

indictment that formed the basis of the Fairfax County

conviction. The Commonwealth did not provide Lebedun a copy of

the indictment prior to the trial.
Code § 19.2-295.1 requires that the Commonwealth provide

notice of its intention to introduce evidence of the defendant's

prior convictions at the sentencing phase of a bifurcated trial.

This notice must include "the date of each prior conviction."

Code § 19.2-295.1. The statute further provides that "[p]rior to

the commencement of the trial, the Commonwealth shall provide to

the defendant photocopies of certified copies of the defendant's

prior criminal convictions which it intends to introduce at

sentencing." Id.

Lebedun argues that the trial court erred in permitting the

Commonwealth to introduce the prior convictions at sentencing

because the Commonwealth erroneously stated the dates of the

- 14 -
respective convictions in its notice to defense counsel. Thus,

he contends, the Commonwealth failed to strictly comply with the

notice provisions of Code § 19.2-295.1, and the case must be

remanded for a new sentencing proceeding. We disagree.

Code § 19.2-295.1 is "procedural in nature" and "does not

convey a substantive right." Riley v. Commonwealth, 21 Va. App.

330, 337-38, 464 S.E.2d 636, 638-39 (1994). As such, the

statute's notice provisions are merely directory, and "precise

compliance [was] not . . . essential to the validity of the

proceedings. . . ." Commonwealth v. Rafferty, 241 Va. 319, 324,

402 S.E.2d 17, 20 (1991) (citation omitted). The purpose of the

notice provisions of Code § 19.2-295.1 is to provide defense

counsel with the opportunity to investigate the validity of the

convictions that the Commonwealth intends to introduce at

sentencing. Here, although the Commonwealth's notices

incorrectly stated the dates of the actual convictions, the

Fairfax County conviction order and the Maryland documentation

delivered to Lebedun sufficiently apprised him of the correct

conviction dates. Furthermore, while the indictment was

admissible as a part of the "record of conviction" of the Fairfax

County offense, see Brooks v. Commonwealth, 24 Va. App. 523, 532,
484 S.E.2d 127, 131 (1997), the Commonwealth was not required to

produce a copy of the indictment prior to trial. See Code

§ 19.2-295.1 (requiring prior notice of intention to introduce

"conviction" during sentencing phase). The Commonwealth's

- 15 -
failure to strictly comply with the procedural requirements of

Code § 19.2-295.1 violated no substantive right and did not

prejudice Lebedun's ability to contest the validity of the

convictions. Therefore, the trial court did not err in admitting

proof of the prior convictions.

VII. SUFFICIENCY OF THE EVIDENCE - ROBBERY

Upon familiar principles of appellate review, we will not

disturb the jury's verdict unless it is plainly wrong or without

evidence to support it. Traverso v. Commonwealth, 6 Va. App.

172, 176, 366 S.E.2d 719, 721 (1988). When the sufficiency of

the evidence is challenged on appeal, we must determine whether

the evidence, viewed in the light favorable to the Commonwealth,

and the reasonable inferences fairly deducible from the evidence

support each and every element of the charged offense. See

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). When the Commonwealth relies upon circumstantial

evidence to prove its case, "[a]ll necessary circumstances proved

must be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence." Boothe v.

Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987)

(citation omitted).

Viewed appropriately, the evidence is sufficient to prove

that Lebedun committed the robbery and abduction at the Annandale

pharmacy. Lebedun told Russell that he and Myers were "going to

do a job on" a pharmacy. Based upon the testimony of the victims

- 16 -
and the physical evidence recovered by police, the jury could

have reasonably concluded that Myers possessed the masks worn

during the robbery and that Lebedun possessed the silver pistol

and latex gloves used in the offense. Furthermore, the fact that

police found drugs in Lebedun's possession identical to those

taken from the pharmacy warranted the inference that Lebedun

possessed drugs stolen from the pharmacy. "The unexplained

possession of recently stolen goods permits the fact finder to

infer that the possessor is the thief." Archer v. Commonwealth,

26 Va. App. 1, 13, 492 S.E.2d 826, 832 (1997). Considering the

totality of the facts and circumstances, the jury could have

reasonably concluded that Lebedun and Myers committed the robbery

using the masks, latex gloves, and silver pistol found in their

respective homes to procure some of the prescription drugs found

in Lebedun's possession. The jury was entitled to believe that

Lebedun carried out the plan that he described to Russell to

"hold up" the pharmacy with Myers. Accordingly, we find the

circumstantial evidence sufficient to identify Lebedun as a

perpetrator of the robbery.

For these reasons, we affirm the convictions.
Affirmed.

- 17 -