345 S.E.2d 267 (Va. 1986), 850793, Frye v. Commonwealth

Docket Nº:850793, 850794.
Citation:345 S.E.2d 267, 231 Va. 370
Opinion Judge:[11] Cochran
Party Name:Gregory David FRYE v. COMMONWEALTH of Virginia.
Attorney:[7] J. Chris Alderson; Edward K. Stein (St. Clair, Alderson & Stein, on brief), for appellant.
Case Date:June 13, 1986
Court:Supreme Court of Virginia

Page 267

345 S.E.2d 267 (Va. 1986)

231 Va. 370

Gregory David FRYE



Nos. 850793, 850794.

Supreme Court of Virginia.

June 13, 1986.

Page 268

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[231 Va. 372] J. Chris Alderson, Edward K. Stein (St. Clair, Alderson & Stein, Covington, on brief), for appellant.

James William Osborne, Lexington, for appellant, on ineffective assistance of counsel claim.

Robert B. Condon, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on briefs), for appellee.

[231 Va. 370] Present: All the Justices.

[231 Va. 372] COCHRAN, Justice.

A jury found Gregory David Frye guilty of the capital murder of James LeRoy Biggs, a law enforcement officer, Code § 18.2-31(f), and use of a firearm in the commission of a felony, Code [231 Va. 373] § 18.2-53.1. The jury fixed Frye's punishment for use of a firearm at two years' imprisonment. In the second phase of the bifurcated trial, the jury heard evidence of aggravating and mitigating circumstances and, finding a probability that Frye would commit criminal

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acts of violence that would constitute a continuing threat to society, fixed his punishment for capital murder at death. Code §§ 19.2-264.2 to -264.4. After consideration of the post-sentence report required by Code § 19.2-264.5, the trial court by order entered July 3, 1985, sentenced Frye in accordance with the jury verdicts.

Frye noted his appeal of the non-capital conviction to the Court of Appeals. Code § 17-116.05:1. We certified that appeal (Record No. 850794) to this Court under the provisions of Code § 17-116.06 for consolidation with the appeal of the capital murder conviction and the sentence review mandated by Code § 17-110.1 (Record No. 850793).

  1. FACTS

    James LeRoy Biggs, a Virginia State Police sergeant, was shot in the chest and killed on December 18, 1984, in the course of a routine stop of an automobile driven by Frye. James Henderson Price, Frye's passenger, testified Frye fired the fatal shots. Frye, however, testified it was Price who killed Sergeant Biggs.

    Frye had escaped from the West Virginia prison system in July 1984 and, by his own admission, had embarked on a crime spree in November and December to support himself and Price and to sustain their drug use. Bound for West Virginia on Interstate 64 in a stolen car, the two were stopped by Sergeant Biggs for speeding about 2:30 p.m. in Alleghany County two miles east of the West Virginia line. Sergeant Biggs walked toward the driver's side of the vehicle. Two shots, fired from a handgun in the car, struck the officer, who fell mortally wounded, and the vehicle sped away. Driving into West Virginia, Frye was stopped on Route 60 by a West Virginia State Police trooper, who fired into the car five shots from a shotgun, seriously wounding Price. Again driving away at high speed, Frye soon collided with another vehicle. Leaving Price in the wrecked car, Frye fled into the woods on foot but was captured about 2:15 a.m. the next morning and taken to the Rupert, West Virginia, fire station, where in the course of interrogation he confessed that he had shot the officer. Over Frye's objection, this confession and other inculpatory statements he made [231 Va. 374] during his pretrial incarceration were introduced into evidence at trial.

    A .44-caliber magnum pistol was found in the wreckage of the automobile driven by Frye. Forensic analysis revealed that this weapon fired the shots that killed Sergeant Biggs.


    1. Motion to Suppress.

      Frye moved unsuccessfully before trial to suppress his confession. On appeal, he challenges its admissibility, as he did below, on three separate grounds: first, that an unreasonable period elapsed before he was presented to the magistrate; second, that he was not properly advised of his constitutional rights; and, third, that his confession was coerced.

      The evidence showed that when Frye arrived at the Rupert fire station, numerous police officers, news reporters, and cameramen were assembled. Frye was taken into an office for questioning. Three officers were present during the interrogation, Tex Chapman, a Virginia State Police investigator, J. R. Ruhland, Chapman's supervisor, and R. B. Bright, a West Virginia State Police officer.

      According to Chapman, it had rained "on and off" during the night and early morning hours before Frye's arrest. Frye's hair was wet, his clothes wet and muddy, but he did not appear to Chapman to be nervous, upset, or tired. He was given an opportunity to eat, drink, or use the bathroom, but he declined. Prior to the interview Frye said he was cold, but he did not request a coat or blanket. The room in which he was questioned was warm. When Frye asked for a cigarette, he was told he would be given one later.

      Chapman said he and Frye talked about five minutes before he began recording their interview. During that time, he read

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      Frye a statement of his constitutional rights from a standard police form. Frye indicated he understood his rights and was willing to talk to Chapman. For 19 minutes the interrogation was recorded. During this time, Frye denied any participation in or knowledge of the crime. The recorder was then turned off; Frye was offered a cigarette and his handcuffs were removed. His hands had been cuffed behind his back, but the handcuffs were reapplied with his hands in front of his body. The recorder remained off approximately 12 [231 Va. 375] minutes. During this period, Ruhland talked to Frye, stating facts of the shooting known to the police. The recorder was again turned on and Frye confessed; he was then immediately presented to a magistrate and formally charged. Frye's motion to suppress this confession was overruled and the confession was admitted into evidence at the guilt phase of the trial.

      Frye contends that he was not taken before a magistrate without unnecessary delay as required by West Virginia Code § 62-1-5 (1984). 1 Assuming, without deciding, West Virginia law to be applicable, the trial court found there was no "unnecessary delay" in presenting Frye. Frye urges that the West Virginia law governing prompt presentment should apply, not Virginia law, and that, under decisions interpreting the Code provision, 2 his detention violated § 62-1-5 and required exclusion of any statements elicited as a result of the delay in taking him before a magistrate.

      The Commonwealth responds that it would be an "absurdity" for us to apply West Virginia's statute governing delay in presentment in the case of a crime committed in Virginia and the ensuing apprehension and interrogation of a suspect in West Virginia when, faced with the inverse of this situation, the West Virginia Supreme Court did not apply Virginia's statute on this issue. 3 This argument, however, is not persuasive. While rules of comity rest in part on the principle of reciprocity, courts should refuse to make reciprocity the test for recognition of rights acquired under foreign law. Generally, comity does not require that courts of the forum state give effect to similar rights arising under the law of [231 Va. 376] the foreign state. McFarland v. McFarland, 179 Va. 418, 432, 19 S.E.2d 77, 84 (1942); State of Maryland v. Coard, 175 Va. 571, 579-80, 9 S.E.2d 454, 457-58 (1940).

      In cases involving choice-of-law questions, Virginia adheres to the use of traditional rules applicable to conflicts of laws. See McMillan v. McMillan, 219 Va. 1127, 1129-31, 253 S.E.2d 662, 663-64 (1979) (rejecting the "most significant relationship" analysis adopted by the Restatement (Second) of Conflict of Laws). Under such rules, questions of substantive law are governed by the law of the place of the transaction or the place where the right is acquired (lex loci ), while questions of procedure and remedy are governed by the law of the place where the action is brought (lex fori ). Willard v. Aetna, 213 Va. 481, 483, 193 S.E.2d 776, 778 (1973); Vicars v.

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      Discount Company, 205 Va. 934, 937-38, 140 S.E.2d 667, 670 (1965); Coard, 175 Va. at 580-81, 9 S.E.2d at 458; Baise v. Warren, 158 Va. 505, 508, 164 S.E. 655, 656 (1932). We must determine whether the issue to be resolved is one of procedure or substance, and this determination is made in accordance with forum law. Willard, 213 Va. at 483, 193 S.E.2d at 778.

      Under Virginia law, an arresting officer must take an accused before a judicial officer with reasonable promptness and without unreasonable delay. Code § 19.2-82; Holt v. City of Richmond, 204 Va. 364, 367, 131 S.E.2d 394, 396 (1963), cert. denied, 376 U.S. 917, 84 S.Ct. 672, 11 L.Ed.2d 613 (1964). Violation of this requirement reaches constitutional dimension only if it results in the defendant's loss of exculpatory evidence. Horne v. Commonwealth, 230 Va. 512, 519, 339 S.E.2d 186, 191 (1986); 4 Winston v. Commonwealth, 188 Va. 386, 394, 49 S.E.2d 611, 615 (1948). Failure promptly to present a defendant 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, not rising [231 Va. 377] to constitutional dimension and not requiring application of exclusionary rule). Frye alleges no such error in this case.

      Holding as we do that the prompt presentment requirement is procedural, we will apply the Virginia law on this issue. Assuming, without deciding, that the arresting officers failed to present Frye to the magistrate before an unreasonable period of time had elapsed, thereby violating Code § 19.2-82, we hold that this violation does not result in exclusion of the confession obtained from Frye in the interim interrogation. Campbell v. Commonwealth, 194 Va. 825, 831, 75 S.E.2d 468, 472 (1953) (confession...

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