Tharp v. Com., 791535

Decision Date10 October 1980
Docket NumberNo. 791535,791535
Citation221 Va. 487,270 S.E.2d 752
PartiesBruce THARP v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

C. Jerry Franklin, Hampton (Hansen & Franklin, Hampton, on brief), for appellant.

Robert E. Bradenham, II, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

COMPTON, Justice.

Convicted in a jury trial of rape and sodomy, defendant Bruce Tharp was sentenced in accordance with the verdict to the penitentiary for ten years and fives years, respectively. The dispositive question on appeal is whether an inculpatory statement made by defendant should have been excluded from evidence because it was obtained incident to an alleged unlawful arrest.

The offenses occurred in the City of Hampton near midnight on Friday, May 4, 1979. Valid arrest warrants for defendant were issued the next day by a Hampton magistrate. The rape warrant was subsequently executed by Hampton detective Brent N. Barrett in nearby Virginia Beach about one hour after he had obtained the warrants. Accompanied by a Virginia Beach police officer and another Hampton officer, Barrett arrested defendant at about 1:00 p. m. on May 5 at defendant's home. Defendant was immediately transported to Hampton by the two Hampton officers and brought before a Hampton magistrate. The accused was not brought before a judicial officer authorized to grant bail in the City of Virginia Beach.

En route to Hampton, defendant made the statement in issue after having been advised of his rights according to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Upon arrival in Hampton one hour after the arrest, Barrett recorded in writing defendant's oral confession, which was subsequently received in evidence over defendant's objection during the June 1979 trial.

At the beginning of the trial, and after defendant had been arraigned and the jury impanelled, defendant moved to dismiss the arrest warrant as being improperly executed and to exclude the confession as a fruit of the unlawful arrest. The trial court refused to decide the merits of the motion, holding it was untimely, and thus overruled it. The court relied on Rule 3A:12(c)(1) which provides, in part, that defenses and objections "based on defects in the institution of the prosecution" must be raised by motion made at least 7 days before the day fixed for trial.

Defendant argues that an invalid arrest is not a defect "in the institution of the prosecution" within the contemplation of the Rule. He contends that only objections to the written charge upon which the accused is to be tried, that is, the indictment, information, warrant or summons, should be subject to the Rule's seven-day time limitation.

Addressing the merits of the motion, defendant maintains the trial court erred in refusing to rule on the admissibility of his confession and in receiving the confession into evidence. He points out that the power of a policeman to make an arrest by virtue of his office is subject to well-recognized territorial limits. He contends that the execution of the instant warrant by a Hampton officer in the City of Virginia Beach, beyond the corporate limits of the City of Hampton plus one mile, was invalid.

Additionally, defendant argues that even if Barrett had the power to arrest him in Virginia Beach, the officer violated the following provisions of Code § 19.2-76 in effect at the time of the arrest:

Whenever a person is arrested upon a warrant in a county or corporation other than that in which the charge ought to be tried, the officer making the arrest shall bring the accused before a judicial officer authorized to grant bail in the county or corporation in which the accused is arrested. Such official shall either commit the accused to the custody of an officer for transfer forthwith to the county or corporation where the charge ought to be tried, or admit the accused to bail or commit him to jail for transfer as soon as possible; and such official shall endorse on the warrant the action taken thereon. (Emphasis added.)

Defendant urges that Barrett acted unlawfully by not taking defendant before a magistrate in Virginia Beach...

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12 cases
  • Magruder v. Com.
    • United States
    • Supreme Court of Virginia
    • February 29, 2008
  • State v. Horn
    • United States
    • Supreme Court of West Virginia
    • September 26, 2013
    ...actually been committed and he had reasonable grounds for believing the person arrested had committed the crime.” Tharp v. Commonwealth, 221 Va. 487, 270 S.E.2d 752 (1980). Accord Hall v. Commonwealth, 12 Va.App. 559, 389 S.E.2d 921 (1990). Based on the foregoing, we adopt the reasoning set......
  • Frye v. Com.
    • United States
    • Supreme Court of Virginia
    • June 13, 1986
    ...as required by Code § 19.2-82 is a mere procedural violation where it involves no constitutional error. See Tharp v. Commonwealth, 221 Va. 487, 490, 270 S.E.2d 752, 754-55 (1980) (Code § 19.2-76, requiring presentation before a magistrate of a certain territorial jurisdiction, is procedural......
  • People v. Clendenin, 2-07-0359.
    • United States
    • United States Appellate Court of Illinois
    • August 18, 2009
  • Request a trial to view additional results

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