Belmer v. Com.

• Decision Date: 02 October 2001
• Docket Number: Record No. 2344-00-1.
• Citation: 553 S.E.2d 123,36 Va. App. 448
• Court: Virginia Court of Appeals
• Parties: Akeim Elijah BELMER v. COMMONWEALTH of Virginia.

553 S.E.2d 123

36 Va. App. 448

Akeim Elijah BELMER v. COMMONWEALTH of Virginia.

Record No. 2344-00-1.

Court of Appeals of Virginia, Chesapeake.

October 2, 2001.

Michael F. Fasanaro, Jr., Abrons, Fasanaro & Sceviour, P.L.L.C., Norfolk, on brief, for appellant.

Mark L. Earley, Attorney General; Leah A. Darron, Assistant Attorney General, on brief, for appellee.

Present: ELDER and FRANK, JJ., and HODGES, Senior Judge.

FRANK, Judge.

Akeim Elijah Belmer (appellant) was convicted by a jury of robbery, in violation of Code § 18.2-58, use of a firearm during the commission of a felony, in violation of Code § 18.2-53.1, and conspiracy to commit robbery, in violation of Code § 18.2-22. On appeal, appellant contends the trial court erred in denying his motion to suppress a statement he made to his mother in the police interrogation room. For the reasons that follow, we affirm the convictions.

I. BACKGROUND

In November 1999, Jason Bonelli and appellant were students at Tallwood High School in the City of Virginia Beach. Bonelli told appellant he wanted to purchase stereo equipment for his car.

On November 16, 1999, appellant told Bonelli that appellant's brother, Shaheed Williams, had a compact disc player for sale. Appellant arranged with Bonelli to meet at Brandon Middle School at 6:00 p.m. that evening, where Williams would sell Bonelli the stereo. Appellant told Bonelli to bring "around $200.00."

Bonelli drove to the school, where he met appellant and Demetrius Norman, appellant's friend. A "masked man" approached Bonelli, and when appellant attempted to intervene, the assailant ran after appellant, chasing him behind some dumpsters. Norman drove away, and as Bonelli attempted to do the same, the assailant entered Bonelli's vehicle, shoved a gun in Bonelli's ribs, and said, "I'm going to spray you." The assailant then took $214 from Bonelli's pants pocket and fled.

Appellant came from behind the dumpsters after the assailant left and asked Bonelli what had happened. Appellant appeared "not very scared." Bonelli believed he had been set up. He told appellant he knew appellant was involved in the robbery and that he would contact the police. Appellant told Bonelli to "drop it." Bonelli asked appellant "where his brother was." Appellant did not give him an answer. Appellant then said, "Oh, well, he's at home."

Norman testified that he picked appellant up at appellant's house and drove him to Brandon Middle School where appellant planned to rob Bonelli, but Norman admitted telling the police at least two or three different versions of the incident. Appellant, a juvenile, was arrested and taken to police headquarters. Appellant entered through the rear door of the detective bureau.

Detective J.L. Gandy met appellant's mother and her boyfriend in the lobby where a posted sign stated that the interview rooms were "electronically monitored and may be recorded." The sign is six to twelve inches in size. The interview room is permanently equipped with a glass window through which interviews can be heard and observed.

It is uncontroverted that appellant did not pass the notice sign, although his mother and her boyfriend passed through the lobby to enter the interview room. The wall on which the notice sign was posted also contained a telephone, a large mural, and other posted items. The detective did not point out the sign to appellant's mother or her boyfriend. The interview room contained no signs warning of any monitoring.

In the interview room, the detective read appellant his Miranda rights. The mother's boyfriend, who identified himself as appellant's stepfather, indicated appellant would make no statements until he consulted with an attorney. Detective Gandy "felt it would be best if [appellant] consulted a lawyer before anything was said." The detective then left the interview room and went to the "monitoring room," which contained equipment that allowed him to overhear conversations in the interview room. The detective testified he allowed appellant, his mother and the mother's boyfriend to remain in the interview room because the detective had "some paperwork to complete" and he wanted to see if they would talk to each other.

Detective Gandy then electronically overheard a "whispered" conversation between appellant and his mother's boyfriend. The detective testified he overheard appellant say that "their other son may be involved also." Appellant whispered that "he didn't know how the police found out." He said, "Demetrius must have told them." Detective Gandy indicated it appeared appellant was trying to "hide" the conversation.

Appellant filed a motion to suppress the statements "overheard" by Detective Gandy. The trial court denied the motion, finding appellant had no reasonable expectation of privacy in a police station, "especially in an interrogation room."

II. ANALYSIS

The Commonwealth contends that the issue on appeal is procedurally defaulted under Rule 5A:18. When the trial court denied appellant's motion to suppress, defense counsel responded, "Yes, sir." The Commonwealth maintains that counsel's response did not preserve appellant's claim on appeal.

"The primary function of [Rule 5A:18] `is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.'" Johnson v. Commonwealth, 20 Va.App. 547, 553, 458 S.E.2d 599, 601 (1995) (en banc) (citation omitted).

In this case, the hearing on the motion to suppress clearly alerted the trial court to the issue. Evidence was presented and arguments were heard. Requiring appellant to "except" to the court's denial of his motion "would, in effect, recreate the requirement of noting an exception to a final adverse ruling of the trial judge." Martin v. Commonwealth, 13 Va.App. 524, 530, 414 S.E.2d 401, 404 (1992) (en banc). "As we stated in Martinez v. Commonwealth, 10 Va.App. 664, 668, 395 S.E.2d 467, 470 (1990), aff'd as modified, 241 Va. 557, 403 S.E.2d 358 (1991), `the requirement for an exception [has been] eliminated.'" Id. We, therefore, conclude this issue is not procedurally defaulted under Rule 5A:18.

While neither appellant nor the Commonwealth directly addressed Code §§ 19.2-61 to 19.2-70.3, Interception of Wire, Electronic or Oral Communications, we find it necessary to address this chapter of the Code.¹

In general, Chapter 6 of Title 19.2 regulates (1) the interception, by any electronic, mechanical, or other device, of certain "wire or oral communications" as defined in the chapter, and (2) the disclosure by any person of the contents of any such wire or oral communication which has been so intercepted. Except as permitted by the terms of the chapter, it is unlawful, constituting a felonious offense, for any person willfully to intercept, or willfully to disclose the contents of, any wire or oral communication. Va.Code § 19.2-62.

Wilks v. Commonwealth, 217 Va. 885, 887, 234 S.E.2d 250, 251 (1977).

Code §§ 19.2-66 and 19.2-68 establish a procedure under which the Attorney General may apply for an order authorizing the interception of a wire or oral communication. In this case, it is not claimed that such an order was entered.

Code § 19.2-65 creates an "exclusionary rule" for any information obtained in violation of the chapter.

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, commission, regulatory body, legislative committee or other agency of this Commonwealth or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

Code § 19.2-65.

Code § 19.2-63.1 requires the Chief of Police to have direct control over any such device which is in the possession of the police department. See Code § 19.2-63.1.

We begin our analysis with the definition of "oral communication" under Code § 19.2-61. Code § 19.2-61 states, "`Oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations but does not include any electronic communication...." "Thus, an oral communication is not protected by Chapter 6 unless (1) the speaker exhibits the expectation that his conversation will not be intercepted, and (2) the circumstances justify the expectation of noninterception." Wilks, 217 Va. at 888, 234 S.E.2d at 252. "[T]he justifiable expectation of noninterception contained in the statutory definition of the term `oral communication' is equivalent to the constitutional expectation of privacy." Id. at 889, 234 S.E.2d at 252.

In a Fourth Amendment context, protection is afforded "if, first, a person has exhibited an actual, subjective expectation of privacy in the subject area and, second, if that expectation is one that society is prepared to recognize as `reasonable.'" Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 237 (1984) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967); United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Patler v. Slayton, 503 F.2d 472 (4th Cir.1974); State v. Brady, 406 So.2d 1093 (Fla.1982), cert. granted sub nom. Florida v. Brady, 456 U.S. 988, 102 S.Ct. 2266, 73 L.Ed.2d 1282 (1982)).

The record clearly establishes that appellant manifested a subjective expectation of privacy in the interview room at the time he made the statements. It was uncontroverted that appellant, a juvenile, entered police headquarters through the rear door of the detective bureau and, thus, did not pass a sign posted in the lobby which indicated that...