COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
DARRELL W. WILLIS
MEMORANDUM OPINION * BY
v. Record No. 0171-96-3 JUDGE LARRY G. ELDER
FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
C. Lynn Lawson (Humes J. Franklin, Jr.;
Franklin, Franklin, Denney & Ward, P.L.C., on
briefs), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Eugene P. Murphy, Assistant Attorney
General, on brief), for appellee.
Darrell W. Willis (appellant) appeals his convictions of
breaking and entering, sodomy, and animate object sexual
penetration. Code §§ 18.2-89, -67.1, -67.2. For the reasons
that follow, we affirm.
I.
FACTS
Around midnight on September 14, 1993, a man broke into the
trailer of the victim through a bedroom window and attacked her
in her bed. He placed his finger inside the victim's vagina and
forced her to commit oral sodomy on him before the victim was
able to escape. The victim immediately reported the attack to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the police. She subsequently informed them that although she did
not see her assailant's face, she did observe that his penis was
"huge" and that a "bump or a sore" protruded from it.
Thirteen months later, in October, 1994, Lieutenant Mader of
the Augusta County police submitted an affidavit for a search
warrant to examine appellant's penis "to determine if [it] is
large and has a bump or a sore on it." The magistrate issued the
search warrant and a physician examined appellant's penis.
Following the examination, appellant was arrested and
charged with breaking and entering, sodomy, and animate object
sexual penetration. Prior to his trial, the trial court denied
appellant's motion to suppress the evidence obtained during the
examination of his penis, which included photographs and the
testimony of the examining physician.
At his trial, appellant sought to impeach the credibility of
a witness for the Commonwealth, Mr. Stinnett, by introducing an
employment record that stated that he was fired due to his "lack
of attention to detail." The Commonwealth filed a motion in
limine to exclude this evidence, and the trial court sustained
the Commonwealth's motion.
Near the end of the trial, appellant testified on his own
behalf. Appellant's prior criminal record includes convictions
of petit larceny and misdemeanor sexual battery. During
cross-examination, the Commonwealth's attorney attempted to
impeach appellant's credibility by proving that he had a prior
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conviction of a misdemeanor involving moral turpitude. The
following exchange took place:
Q. Prior to this, have you ever been
convicted of any crimes involving
moral turpitude?
A. What does that mean? What does
"moral turpitude" mean?
Q. Have you ever been convicted of any
crime . . . like lying or cheating,
or stealing or sexually assaulting
anybody?
Appellant's counsel immediately objected and, out of the presence
of the jury, moved for a mistrial. The trial court denied
appellant's motion, ruling that sexual battery was a crime
involving moral turpitude and that the Commonwealth's attorney's
question was proper. After the jury returned, appellant answered
that he had been convicted of a crime involving moral turpitude.
At the conclusion of the evidence, appellant requested a
jury instruction regarding his alibi defense. Over appellant's
objection, the trial court refused to give the instruction.
However, the trial court did instruct the jury regarding the
presumption of innocence and the standard of reasonable doubt.
II.
PROBABLE CAUSE TO ISSUE WARRANT
Appellant contends that the trial court erred when it denied
his motion to suppress the evidence obtained from the examination
of his penis. He argues that the magistrate who issued the
search warrant ordering the examination did not have probable
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cause to believe that his penis would match the description given
by the victim of her assailant's penis. We disagree.
When issuing a search warrant, "'the task of the issuing
magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit
before him . . . there is a fair probability that . . . evidence
of a crime will be found in a particular place.'" Lanier v.
Commonwealth, 10 Va. App. 541, 547, 394 S.E.2d 495, 499 (1990)
(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,
2332, 76 L.E.2d 527 (1983)). Although the magistrate must base
his conclusion of probable cause upon objective facts contained
in the affidavit and reasonable inferences therefrom, the
magistrate "need only conclude that it would be reasonable to
seek the evidence in the place indicated in the affidavit."
Gwinn v. Commonwealth, 16 Va. App. 972, 975, 434 S.E.2d 901, 903
(1993) (citations omitted). "Upon review, a search warrant will
be upheld if the evidence, viewed as a whole, provided the
magistrate a 'substantial basis' for concluding that probable
cause existed to issue the warrant." Id.
We hold that the magistrate could conclude from the facts
contained in the affidavit that it was reasonable to examine
appellant's penis for evidence of the crime committed against the
victim. The affidavit indicated that the victim had observed
that the penis of her assailant was large and contained a bump or
sore. It also stated that a cigarette butt found outside the
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window that served as the point-of-entry of the assailant
contained DNA that matched appellant's. In addition, the
statements of appellant and Mr. Stinnett placed appellant near
the victim's neighborhood around the time of the attack, and
appellant had been convicted of sexually battering another woman
in the area nine months earlier. These facts contained in the
affidavit provided a substantial basis for the magistrate to
conclude that it would be reasonable to search appellant's penis
to see if it matched the description offered by the victim.
Appellant argues that even if the magistrate had probable
cause to issue the search warrant during the weeks following the
attack, the victim's observations of her assailant's penis were
too stale to justify the examination of his penis thirteen months
later. We disagree.
Although probable cause must be based on facts reasonably
related in time to the date of the issuance of the warrant,
"circumstances occurring substantially before the issuance of a
search warrant can justify [its] issuance . . . if such past
circumstances disclose a 'probable cause' of a continuous nature
so as to support a rational conclusion that the past probable
cause is still operative at the time of [issuance]." Pierceall
v. Commonwealth, 218 Va. 1016, 1021, 243 S.E.2d 222, 225 (1978),
cert. denied, 439 U.S. 1067, 99 S. Ct. 833, 59 L.E.2d 32 (1979).
When the crime under investigation is not a continuing offense
and the desire of law-enforcement authorities is to search for
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the fruits, instrumentalities, or evidence of the prior crime, a
significant factor in evaluating the staleness of the affidavit
is the nature of the evidence sought. See Wayne R. Lafave,
Search and Seizure § 3.7(a) (3d. ed. 1996).
We hold that the information provided by the victim in
September, 1993 still justified the examination of appellant's
penis in October, 1994. In filing the affidavit, Lt. Mader
sought evidence that appellant's penis matched the description
given by the victim of her assailant's penis. Specifically, Lt.
Mader sought to determine if appellant's penis was large and if
it exhibited a bump or a sore. Given the nature of the evidence
sought, it was reasonable for the magistrate to conclude that an
examination of appellant's penis would still reveal that it was
large, even though the victim's observations were thirteen months
old. In addition, while genital sores are known to have an
ephemeral nature, a "bump" has a more permanent quality. Thus,
based on the facts contained in the affidavit, it was reasonable
for the magistrate to conclude that a bump noticed by the victim
on the night of her attack would still exist in October, 1994.
III.
ADMISSIBILITY OF WITNESS' EMPLOYMENT HISTORY
Appellant contends that the trial court committed reversible
error when it refused to admit the evidence of Mr. Stinnett's
employment history for the purpose of impeaching Mr. Stinnett's
credibility. We disagree.
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"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, 16-17, 371 S.E.2d 838, 842 (1988)
(citation omitted). "Evidence is admissible if it is both
relevant and material. '[E]vidence is relevant if it tends to
establish the proposition for which it is offered.' Evidence is
material if it relates to a matter properly at issue." Evans-
Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441
(1987) (citation omitted). In addition, evidence may be admitted
only if "its probative value outweighs policy considerations."
Blain, 7 Va. App. at 17, 371 S.E.2d at 842. "Any evidence which
would tend to convince the jury that the witness's perception,
memory, or narration is defective or that his or her veracity is
questionable is relevant for the purposes of impeachment."
Charles E. Friend, The Law of Evidence in Virginia § 4-1 (1993).
We hold that the trial court did not abuse its discretion
when it ruled that the evidence of Mr. Stinnett's employment
history was not relevant to his credibility as a witness.
Although the issue of Mr. Stinnett's credibility was a material
issue at appellant's trial, the evidence proffered by appellant's
attorney was not probative of Mr. Stinnett's ability to perceive,
remember or narrate past events. Appellant's counsel proffered
that the employment record stated that Mr. Stinnett was fired
from a job not more than four years before the trial "as a result
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of [his] lack of attention to detail." However, the proffer
included only sparse information regarding the nature of Mr.
Stinnett's responsibilities during his employment and the
circumstances that led to his termination. Although the
proffered evidence tends to prove that Mr. Stinnett was
previously not a successful employee, the vague, declaratory
statement by Mr. Stinnett's former employer that he was fired
because of his inattention to detail, without more of a link,
does not tend to prove the fact at issue: whether Mr. Stinnett's
perception, memory or narration is defective.
IV.
IMPEACHMENT OF APPELLANT
Appellant contends that the trial court erred when it denied
his motion for a mistrial after the Commonwealth's attorney
attempted to impeach appellant's credibility by proving a prior
conviction of a misdemeanor involving moral turpitude. Appellant
argues that reversible error was committed when the
Commonwealth's attorney asked him if he had a prior conviction
for a crime involving moral turpitude and then defined such
crimes to include sexual battery. He asserts that the trial
court committed reversible error when it ruled that sexual
battery was a crime of moral turpitude, denied his motion for a
mistrial, and ordered him to answer the Commonwealth's attorney's
question. We disagree.
A denial of a motion for a mistrial following either the
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production of inadmissible evidence or an improper statement by
counsel is not reversible error "unless there is a manifest
probability that the evidence or statement was prejudicial to the
adverse party." Coffey v. Commonwealth, 188 Va. 629, 636, 51
S.E.2d 215, 218 (1949); see Terry v. Commonwealth, 5 Va. App.
167, 169, 360 S.E.2d 880, 881 (1987). The probability of
prejudice exists when either the evidence or the statement is "so
impressive that it probably remained on the minds of the jury and
influenced the verdict." Id.
Assuming without deciding that the trial court erroneously
ruled that sexual battery was a misdemeanor involving moral
turpitude, 1 we hold that neither the Commonwealth's attorney's
inclusion of sexual battery in his definition of crimes involving
moral turpitude nor appellant's admission that he had a prior
conviction of a crime involving moral turpitude constitutes
reversible error.
The inclusion by the Commonwealth's attorney of sexual
battery in his definition of crimes involving moral turpitude was
unlikely to have influenced the jury. Any prejudicial effect of
this statement was diluted by the simultaneous mention of "lying,
1
In Virginia, the credibility of a witness may be impeached
by showing that he was previously convicted of a felony, perjury,
or a misdemeanor that involved moral turpitude. See Ramdass v.
Commonwealth, 246 Va. 413, 423, 437 S.E.2d 566, 572 (1993),
vacated on other grounds, U.S. , 114 S. Ct. 2701, 129
L.E.2d 830 (1994) (stating that a litigant's right to impeach for
prior criminal conduct has been confined to the aforementioned
convictions).
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cheating, or stealing" as crimes involving moral turpitude. Any
possible stigmatizing effect of the Commonwealth's attorney's
comment was negated by the trial court's instruction to the jury
that it must not consider appellant's prior conviction of a crime
involving moral turpitude as evidence of guilt. "'Once a jury is
instructed regarding the use or limitations placed on specific
evidence, they are presumed to follow such instructions,'" and
nothing in the record indicates that the jury failed in this
respect. Lawson v. Commonwealth, 13 Va. App. 109, 112, 409
S.E.2d 466, 467 (1991) (quoting Lewis v. Commonwealth, 8 Va. App.
574, 580, 383 S.E.2d 736, 740 (1989)).
In addition, appellant was not unduly prejudiced by his
admission that he had previously been convicted of a crime
involving moral turpitude because his admission was accurate and
admissible. The record indicates that appellant had a prior
conviction of petit larceny, which is a misdemeanor involving
moral turpitude that may be used to impeach the credibility of a
witness. See Bell v. Commonwealth, 167 Va. 526, 538-39, 189 S.E.
441, 447 (1937).
Furthermore, non-constitutional error is harmless "'[w]hen
it plainly appears from the record and the evidence given at the
trial that the parties have had a fair trial on the merits and
substantial justice has been reached.'" Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(quoting Code § 8.01-678). Even if the Commonwealth's attorney
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had not made his comment regarding sexual battery, the evidence
in the record overwhelmingly proves that appellant was the person
who attacked the victim. The record shows that appellant visited
a friend who lived across the street from the victim's trailer on
the night of the attack. In addition, the victim testified that
her attacker was "a lot taller" than her and that she could feel
a "sore" on his penis. The record shows that the victim is five
feet, nine inches tall and that appellant is six feet, six inches
tall, and an examination of appellant's penis thirteen months
after the attack revealed that it had three lesions near its head
that "appeared to have been there for a while." Also, the
Commonwealth introduced into evidence a cigarette butt that
conclusively proved that appellant was the person who attacked
the victim. The cigarette butt was found on the day after the
attack on the ground outside of the victim's trailer. It was
lying underneath the window through which the assailant had
entered the victim's trailer and bore the brand "Salem." The
victim testified that in September, 1993 both she and her
boyfriend smoked "Merit Menthol" cigarettes and that during the
day on September 14, the date of her attack, she had picked up
all cigarette butts and other debris from her yard. Forensic
tests revealed that DNA found on this cigarette butt matched
appellant's DNA and was unique to eight percent of the Caucasian
population. During an interview on the day after the attack,
appellant was observed smoking a "Salem" cigarette. Because the
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evidence overwhelmingly proves that appellant was the man who
attacked the victim, we conclude that any prejudice caused by the
Commonwealth's attorney's reference to sexual battery in his
definition of crimes involving moral turpitude could not have
affected the verdict.
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V.
REFUSAL OF ALIBI INSTRUCTION
Appellant contends that the trial court erred in refusing to
instruct the jury regarding his alibi theory. We disagree.
"[W]hen the jury is properly instructed on the presumption of
innocence and reasonable doubt, 'a separate instruction on alibi
[is] neither necessary nor required.'" Crabbe v. Commonwealth,
221 Va. 419, 421, 270 S.E.2d 727, 728 (1980) (quoting Minor v.
Commonwealth, 213 Va. 278, 281, 191 S.E.2d 825, 827 (1972)); see
also Titcomb v. Wyant, 1 Va. App. 31, 36, 333 S.E.2d 82, 85
(1985). Because the record shows that the jury was properly
instructed on both the presumption of innocence and reasonable
doubt, the trial court did not err when it refused to instruct
the jury regarding appellant's theory of alibi.
For the foregoing reasons, we affirm the convictions of
breaking and entering, sodomy, and animate object sexual
penetration.
Affirmed.
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