Bay v. Commonwealth

Citation60 Va.App. 520,729 S.E.2d 768
Decision Date07 August 2012
Docket NumberRecord No. 0585–11–1.
PartiesPhillip C. BAY, s/k/a Philip C. Bay v. COMMONWEALTH of Virginia.
CourtCourt of Appeals of Virginia

OPINION TEXT STARTS HERE

From the Circuit Court of the City of Virginia Beach, William R. O'Brien, Judge.1

James O. Broccoletti (Zoby, Broccoletti & Normile, P.C., Norfolk, on brief), for appellant.

Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

FRANK, Judge.

Phillip C. Bay, appellant, was convicted of eleven counts of manufacturing or possession of a fire bomb or explosive device with intent to manufacture, in violation of Code § 18.2–85, possession of a weapon of terrorism with intent to terrorize, in violation of Code § 18.2–46.6, two counts of acts of terrorism, in violation of Code § 18.2–46.5, two counts of soliciting or recruiting another for acts of terrorism, in violation of Code § 18.2–46.5, and two counts of possession or use of a sawed-off shotgun or rifle, in violation of Code § 18.2–300. On appeal, he contends the trial court erred in denying his motion for a change of venue, because all the citizens of Virginia Beach, as the victims of the alleged crimes, were presumptively prejudiced and incapable of serving as impartial jurors. He also alleged the trial court erred in denying his motion to suppress, because police lacked valid consent to search his residence, and because the affidavit was insufficient to justify a second, more expansive search of the residence. For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

On April 5, 2009, Investigator Donald Moss of the Virginia Beach Fire Department received information that appellant was making pipe bombs at his home and was planning a Columbine-type attack on a local high school.2 Based on that information, Moss went to appellant's home in Virginia Beach, joining several police officers already at the scene. Moss met appellant's mother and told her why he was at the home. Moss asked Mrs. Bay if officers could interview her son, who was seventeen at the time. She gave permission, and the officers went inside the home with her.

Moss, Mrs. Bay, and appellant went into the kitchen/dining room area. Moss questioned appellant about the alleged pipe bombs, and appellant admitted that he had made some pipe bombs. Appellant also said he had been doing some experimentation and blew up some pipe bombs in the woods near his home. Later in the interview, Moss asked if there were “any other things” in the house. Appellant stated that he had a container of sulphur and possibly red cannon fuse in his room.

After this discussion, Moss asked Mrs. Bay if he could search appellant's room for these items and retrieve these items, and to determine if there was anything else that would be dangerous. Appellant interjected, “Mom, just say no.” When Mrs. Bay asked why, appellant responded that he would tell her later. The two continued in a loud and heated exchange. Moss told Mrs. Bay that he at least wanted to retrieve the two items appellant mentioned. Mrs. Bay told Moss to do what he had to do, as long as the areas he searched were agreeable to appellant.

Appellant then agreed and said to Moss, “come on up to my room and I will give you the sulphur and fuse.” For safety reasons, Moss accompanied appellant to his room, along with Officers Martinez and Binder. The officers recovered the red cannon fuse from appellant's closet. The sulphur container was on top of a piano in appellant's room. As Moss recovered the sulphur, he looked down and saw a plastic case under appellant's bed. Moss was not sure if it was a gun case. He asked appellant what was in the case. Appellant then quickly flipped up his mattress, revealing a six-inch pipe. Appellant said he forgot it was there. Moss retrieved the pipe. As Moss turned to leave the room, he saw three or four clear plastic, stackable drawers. In one of the drawers, Moss could see two nipples and a container marked Pyrodex.3 Moss asked appellant about it, and appellant said it was his “stuff” with which he experimented. Moss observed other containers labeled shot shrapnel, shredded glass, and BBs. There was also a bag containing a white substance. Appellant said it was soap, which Moss knew could be used to make napalm.

The officers and appellant took the drawer downstairs. Moss asked Mrs. Bay if he could take the drawer outside for safety reasons. Mrs. Bay consented but said she wanted her drawer back. Moss took the drawer to his car, put the contents in his trunk, and returned the drawer to Mrs. Bay.4 Moss told Mrs. Bay he would get back to her later. At that point, Moss wanted to get a second opinion on the items he had taken from the house.

Moss called Investigator Newton to review the items recovered from appellant's house. Newton is highly trained in the subject of pipe bombs and other explosives. Moss and Newton met the next morning, and Newton determined that there was enough to charge appellant with manufacturing and possession of explosive devices.

Also that morning, Newton learned from Virginia Beach Police Detective Frederick that an informant reported appellanthad eighteen additional pipe bombs hidden in his attic. Newton executed an affidavit and received a search warrant for appellant's house. Newton executed the search warrant that day and found more fire bombs and explosive devices. When questioned, appellant admitted that he had constructed the devices. Appellant also stated that he and another juvenile were planning an attack on Landstown High School and that they were going to use the devices to kill large numbers of people.

This appeal follows.

ANALYSIS
Change of Venue

Appellant contends the trial court erred in denying his motion for a change of venue. The Commonwealth initially alleges that appellant has failed to provide an adequate record. We disagree with the Commonwealth.

On appeal, we presume the judgment of the trial court is correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the trial court has erred in the respect alleged by appellant. Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256 (1961). If appellant fails to do so, the judgment will be affirmed. Id. Rule 5A:8 provides that the transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of the final judgment. In lieu of or to supplement a transcript, a party may submit a written statement of facts that has been presented to and signed by the trial judge and filed by the clerk of the trial court in accordance with Rule 5A:8(c).

If ... the transcript [or statement of facts] is indispensable to the determination of the case, then the requirements for making the transcript [or statement of facts] a part of the record on appeal must be strictly adhered to. This Court has no authority to make exceptions to the filing requirements set out in the Rules.

Turner v. Commonwealth, 2 Va.App. 96, 99, 341 S.E.2d 400, 402 (1986); see Anderson v. Commonwealth, 13 Va.App. 506, 508–09, 413 S.E.2d 75, 77 (1992) (addressing statements of facts in lieu of a transcript).

“When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered.” Rule 5A:8(b)(4)(ii). Whether the record is sufficiently complete to permit our review on appeal is a question of law subject to our de novo review. See Turner, 2 Va.App. at 99, 341 S.E.2d at 402 (“If we determine that the transcript [or statement of facts] is indispensable ..., we must [conclude] that the record on appeal is insufficient to fairly and accurately determine the issues presented.” (emphases added)).

In this case, appellant timely filed the transcript from the January 6, 2010 pretrial hearing, at which he argued his motion to suppress and for a change of venue. Appellant did not file a transcript or written statement of facts from the trial of November 22, 2010.

From the record available to us, it is evident that at the pretrial hearing, the trial court denied appellant's motion to suppress. However, the trial court did not rule on appellant's motion for a change of venue. Rather, the trial court found the motion premature, concluding that [w]hoever tries the case—whichever judge tries the case will have to determine after voir dire whether or not it's possible for both sides to get a fair and impartial trial in this city.” The trial court clearly acted within its discretion, as [a] court may refuse to summon a jury from another county until an ineffectual effort has been made to obtain an impartial jury from the county in which the trial is to take place.’ Ascher v. Commonwealth, 12 Va.App. 1105, 1114, 408 S.E.2d 906, 912 (1991) (quoting Coppola v. Commonwealth, 220 Va. 243, 248, 257 S.E.2d 797, 801 (1979)).

However, we find the transcript of the November 22, 2010 trial is not indispensable to resolving this issue. Appellant argued below, as he does now, that all residents of Virginia Beach are disqualified per se to sit on the jury, thus entitling him to a change in venue. Thus, the voir dire conducted on November 22, 2010 is not relevant to a per se disqualification. 5 It is evident from the record that the trial court did not change venue nor find every Virginia Beach resident to be disqualified. Therefore, we will address the merits of this issue.

“An accused has a fundamental right to a trial by an impartial jury. U.S. Const. amends. VI and XIV; Va. Const. Art. I, § 8.” Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d 729, 732 (1985); see also Martin v. Commonwealth, 221 Va. 436, 444, 271 S.E.2d 123, 128 (1980). It is the trial judge's duty to empanel jurors who are free from bias and prejudice...

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