Darrell W. Willis v. Commonwealth

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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