COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
ROBBIN A. BYNUM
OPINION BY
v. Record No. 2194-97-1 JUDGE DONALD W. LEMONS
NOVEMBER 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
S. Earl Griffin (Daniel D. Dickenson, III;
Griffin, Pappas & Scarborough, P.C., on
briefs), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Robbin A. Bynum was convicted by a jury of aggravated
malicious wounding, use of a firearm while committing aggravated
malicious wounding, and maliciously shooting into an occupied
vehicle. On appeal, he contends the trial court erred in: (1)
allowing the Commonwealth to introduce a statement during its
case-in-chief that the court had previously suppressed; (2)
allowing the statement to be used as substantive evidence, rather
than for the limited purpose of impeachment; and (3) admitting
the entire statement, as opposed to the portions which were
inconsistent with his trial testimony. Mr. Bynum also contends
that if the statement had been properly suppressed, the remaining
evidence was insufficient to support his convictions. We
disagree with each of his contentions and affirm.
BACKGROUND
On May 17, 1996, in the early evening hours, Katherine
Bynum, the victim, was shot by her husband, Robbin A. Bynum,
appellant, while she was seated in Mr. Bynum's truck in the
driveway of their home. Following a disagreement between them,
Mr. Bynum fired a bullet through the windshield hitting Mrs.
Bynum. She left the scene immediately after the shooting. The
evidence reveals that Mr. Bynum did not know his wife had been
hit by the bullet.
The following morning, Mr. Bynum came to the Portsmouth
Police Department for questioning. While there, he made a
statement regarding the incidents of the previous evening. Prior
to trial, the trial judge ruled that the statement was made in
violation of Miranda v. Arizona, 384 U.S. 436 (1966), and granted
Mr. Bynum's motion to suppress. At the trial, however, counsel
for Mr. Bynum referred to a portion of the suppressed statement
in his opening statement to the jury. Counsel acknowledged that
Mr. Bynum had fabricated a story for the police during his
initial questioning and stated that Mr. Bynum would address his
statement in his trial testimony. The Commonwealth's attorney
made no objection during counsel's statement.
After Mr. Bynum's counsel completed his opening statement,
the Commonwealth's attorney sought a ruling from the court
regarding whether opposing counsel's reference to the suppressed
statement allowed the Commonwealth to introduce the statement for
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either impeachment or substantive purposes. Because defense
counsel had told the jury about the statement, the trial judge
ruled that the Commonwealth could introduce the statement in its
case-in-chief or for impeachment of the defendant. The
Commonwealth later introduced Mr. Bynum's entire statement into
evidence as a part of its case-in-chief.
Mrs. Bynum testified at trial that she arrived at the home
she shared with Mr. Bynum at approximately 4:30 p.m. on May 17,
1996. She stated that they spent several hours together and that
they shared a liter of rum. Some time later that evening, Mrs.
Bynum stated that she entered Mr. Bynum's truck to go buy
cigarettes before they went to a local festival. She testified
that a disagreement ensued between the couple when she found a
bottle of vodka hidden in the truck that Mr. Bynum had allegedly
consumed before she arrived home that afternoon. Mrs. Bynum
testified that the two argued through the closed window of the
truck. Mrs. Bynum stated that as she backed the truck out of the
driveway, she did not see a gun in her husband's hand, nor did
she see him shoot, although she heard the shot and felt the
bullet as it entered her shoulder.
Detective Leroy Saunders, Jr., of the Portsmouth Police
Department, testified that he took a statement from Mr. Bynum on
the morning of May 18, 1996. The audiotape of the statement was
played for the jury. In the statement, Mr. Bynum said that an
altercation had occurred between himself and his wife on the
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previous evening. Mr. Bynum stated that his wife left their home
in his truck to purchase cigarettes and that an argument ensued
when she returned. Mr. Bynum stated that his wife suspected him
of seeing an old girlfriend and that Mrs. Bynum retrieved his gun
from their bedroom and threatened to go to the house of the woman
to kill her. In this statement, Mr. Bynum described a "tussling
contest" between himself and his wife which took place outside
the house and in front of the truck when he tried to remove the
gun from his wife's hands. Mr. Bynum told Detective Saunders
that during the struggle, a bullet was discharged which entered
the windshield of the truck. Mr. Bynum stated that after the gun
went off, he was able to remove the gun from her hands, and he
began to walk back to the house. He stated that his wife then
entered the truck and began yelling at him until he went into the
house. Mr. Bynum stated that his wife then drove away in the
truck. In his statement to Detective Saunders, Mr. Bynum also
stated that he had thought about killing his wife, although he
had not had such thoughts the previous evening.
Mr. Bynum testified on his own behalf that on the evening of
the shooting, he was carrying a large sum of money on his person,
as well as a gun for protection. He stated that he and his wife
had an argument when she found out he had been drinking earlier
that afternoon. He testified that his wife was in the truck
while they argued. He stated that he removed his gun from his
pocket and displayed it to scare his wife. He stated that he
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accidentally shot the windshield of the truck when he lost his
balance and fell into a flowerbed on the way back to the house.
Mr. Bynum further stated that because his wife drove the truck
out of the driveway, he did not realize she had been shot and he
continued into the house.
ADMISSION OF THE STATEMENT
Mr. Bynum contends the trial court erred when it allowed the
Commonwealth to introduce a statement during its case-in-chief
that had been previously suppressed. For the reasons that
follow, we hold that the introduction of the statement was not
reversible error.
The court's initial suppression of the statement was
erroneous. In determining whether a suspect is in custody for
purposes of Miranda, "the only relevant inquiry is how a
reasonable man in the suspect's shoes would have understood his
situation." Berkemer v. McCarty, 468 U.S. 420, 442 (1984). The
"totality of the circumstances" considered in this inquiry
includes "whether a suspect is questioned in neutral or familiar
surroundings, the number of officers present, the degree of
physical restraint, and the duration and character of the
interrogation." Lanier v. Commonwealth, 10 Va. App. 541, 554,
394 S.E.2d 495, 503 (1990). A police officer's subjective view
that the individual being questioned is a suspect, if
undisclosed, does not bear upon the question of whether the
individual is in custody for Miranda purposes. Stansbury v.
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California, 511 U.S. 318 (1994). The officers' beliefs are
relevant only to the extent that "potential culpability of the
individual [is] manifested to the individual." Harris v.
Commonwealth, 27 Va. App. 554, 565, 500 S.E.2d 257, 262 (1998).
At the hearing held on the motion to suppress Mr. Bynum's
statement, Sergeant Timothy J. Stenger of the Portsmouth Police
Department testified that on May 18, 1996, at approximately 8:00
a.m., he arrived at the Bynum home to speak with Mr. Bynum.
Sergeant Stenger stated that Mr. Bynum volunteered to accompany
the officers to the police station. Mr. Bynum was given the
option of driving himself to the station, but he chose to ride
with the officers. Mr. Bynum was continually assured that he was
free to leave and that he was not under arrest. Mr. Bynum was
never handcuffed.
Detective Leroy Saunders, also of the Portsmouth Police
Department, testified about his interview with Mr. Bynum. The
detective stated that he did not give Mr. Bynum his Miranda
warnings because, although he believed Mr. Bynum was the only
suspect throughout the interview, he did not consider him to be
in custody at that time. Mr. Bynum returned home after making
his statement. Under these circumstances, Mr. Bynum was not in
custody at the time of his interview.
Mr. Bynum argues that the trial court erred by allowing the
previously suppressed statement to be introduced in the
Commonwealth's case-in-chief. In addition, Mr. Bynum argues that
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only those portions that were inconsistent with his trial
testimony should have been admitted. He suggests that admission
of his statement should have been limited during
cross-examination or rebuttal to those specific portions that
would impeach his testimony.
The trial court initially suppressed Mr. Bynum's statement.
"A trial court is empowered to change a legal determination as
long as it retains jurisdiction over the proceedings before it."
Turner v. Wexler, 244 Va. 124, 128, 418 S.E.2d 886, 888 (1992).
Therefore, the trial court could reverse its previous decision
to suppress the statement.
In addition, an appellate court may affirm the judgment of a
trial court when it has reached the "right result for the wrong
reason." Driscoll v. Commonwealth, 14 Va. App. 449, 451, 417
S.E.2d 312, 313 (1992). Following Mr. Bynum's counsel's use of
the statement in his opening statement, the court stated that
counsel had "opened the door" to its use and allowed the
Commonwealth to introduce it during its case-in-chief. However,
statements made during an opening statement are not evidence;
therefore, opening statements may not "open the door" to
otherwise inadmissible evidence. Fields v. Commonwealth, 2 Va.
App. 300, 307, 343 S.E.2d 379, 382-83 (1986). We hold that
although the trial court's reason for allowing the previously
suppressed statement to be introduced was incorrect, because the
initial suppression was in error, the right result was reached.
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A statement made by a defendant constitutes a party admission,
admissible not only for impeachment, but also as substantive
evidence. Satcher v. Commonwealth, 244 Va. 220, 256, 421 S.E.2d
821, 843 (1992).
Additionally, Mr. Bynum testified on his own behalf.
"[W]here an accused unsuccessfully objects to evidence which he
considers improper and then on his own behalf introduces
testimony of the same character, he thereby waives his objection,
and we cannot reverse for alleged error." Hubbard v.
Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992); see also
Snead v. Commonwealth, 138 Va. 787, 801-02, 121 S.E. 82, 86
(1924); Culbertson v. Commonwealth, 137 Va. 752, 757, 119 S.E.
87, 88 (1923); Hutchinson v. Commonwealth, 133 Va. 710, 716-17,
112 S.E. 624, 626 (1922); Snarr v. Commonwealth, 131 Va. 814,
818, 109 S.E. 590, 592 (1921). Having testified about the
substance of his previously suppressed statement, Mr. Bynum
rendered harmless any error that may have occurred from the
introduction of the statement in the Commonwealth's
case-in-chief.
When the sufficiency of the evidence is an issue on appeal,
an appellate court must view the evidence and all reasonable
inferences fairly deducible therefrom in the light most favorable
to the Commonwealth. Cheng v. Commonwealth, 240 Va. 26, 42, 393
S.E.2d 599, 608 (1990).
Apart from Mr. Bynum's statement at the police station,
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testimony also included Mrs. Bynum's testimony regarding the
details of the shooting. She described the events leading up to
the shooting, stating, "[h]e shot me." In addition, Mr. Bynum
admitted he lied to the police when he gave his initial
statement. Furthermore, Mr. Bynum admitted he shot his wife.
The evidence was sufficient to support Mr. Bynum's convictions.
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Accordingly, the convictions are affirmed.
Affirmed.
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Benton, J., concurring.
I believe the majority's use of the "right for the wrong
reason" principle is inappropriate under the circumstances of
this case.
First, the Commonwealth does not argue that the principle is
applicable to this case. Indeed, the Commonwealth concedes on
brief that the trial judge's pretrial suppression ruling,
although "wrong . . . [, it] has, however, become the law of the
case." The Commonwealth's brief does not urge this Court to
apply the "right for the wrong reason" analysis the majority
invokes.
Second, the trial judge's ruling suppressing the statement
was a pretrial ruling that the Commonwealth could have appealed,
see Code § 19.2-398, and elected not to do so. When the
Commonwealth failed to appeal that ruling pursuant to Code
§ 19.2-398, it was barred from seeking a reversal of that
decision. "[T]he legislature has narrowly limited the
Commonwealth's right to appeal suppression orders." Commonwealth
v. Ragland, 7 Va. App. 452, 453, 374 S.E.2d 183, 183 (1988).
Thus, we have no authority "in this appeal [to] permit the
Commonwealth to accomplish indirectly what it cannot do directly,
and we [should] therefore reject the alternative ground advanced
for the admissibility of [the] confession." Hart v.
Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 811 (1980).
Because we must strictly construe the limitation on the
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Commonwealth's right to appeal the trial judge's pretrial ruling,
see Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5
(1990), we cannot now review the pretrial suppression ruling
under the rubric of applying the "right for the wrong reason"
doctrine. The sole argument the Commonwealth advances for
affirming the trial judge's ruling is that the admission of
Bynum's statement was harmless error because the statement "was
nevertheless admissible to impeach Bynum's trial testimony that
he shot his wife accidentally." I would affirm the conviction
for that reason.
After the trial judge's pretrial ruling suppressing Bynum's
statement because it was taken in violation of Bynum's Miranda
rights, Bynum's counsel informed the jury in his opening remarks
that Bynum would testify and would tell the jury that Bynum gave
a statement to the police and lied while giving that statement.
Bynum's counsel then detailed certain events that Bynum related
to the police when he gave his statement. Bynum did, in fact,
testify in his defense. He related to the jury the events that
led to his interrogation by the police and testified concerning
statements he made to the police.
Pursuant to Harris v. New York, 401 U.S. 222 (1971), Bynum's
statement could have been used by the Commonwealth in
cross-examination or in rebuttal to impeach Bynum's trial
testimony. Id. at 226. See also Oregon v. Hass, 420 U.S. 714,
722 (1975). Furthermore, the record makes abundantly clear that
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Bynum's decision to testify about the statements he made to the
police was independent of the Commonwealth's use of his statement
in its case-in-chief. Bynum's counsel signalled that decision
before the Commonwealth put on its evidence. I believe these
circumstances render the earlier admission of Bynum's statement
to the police harmless error.
At trial, Bynum argued that the evidence was insufficient to
convict him because the evidence failed to prove he had the
requisite specific intent. Bynum abandons that argument on
appeal and argues, instead, that in the absence of his statement
to the police the evidence was insufficient to prove he shot the
gun. Bynum's testimony at trial proved he shot the gun. Thus, I
would hold that the evidence was sufficient to prove beyond a
reasonable doubt that Bynum was guilty of the offense of
aggravated malicious wounding.
For these reasons, I would also affirm the convictions.
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