Blevins v. Com., Record No. 3170-01-3.

Docket NºRecord No. 3170-01-3.
Citation40 Va. App. 412, 579 S.E.2d 658
Case DateApril 29, 2003
CourtCourt of Appeals of Virginia

579 S.E.2d 658
40 Va.
App. 412

Lawrence Kevin BLEVINS
v.
COMMONWEALTH of Virginia

Record No. 3170-01-3.

Court of Appeals of Virginia, Salem.

April 29, 2003.


579 S.E.2d 661
Robert D. Finch, Jr. (Office of the Public Defender, on brief), for appellant

Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER, J., and HODGES, Senior Judge.

ELDER, Judge.

Lawrence Kevin Blevins (appellant) appeals from his jury trial convictions for malicious wounding, abduction with intent to defile and object sexual penetration. On appeal, he contends the trial court erroneously denied his motion to suppress (a) the pre-trial and in-court identifications of appellant as the assailant and (b) the evidence obtained as a result of his encounter with a police officer near the scene of the crime. He also argues the trial court erroneously denied his motion for mistrial, made after the jury had completed its service but before the trial court imposed sentence, based on the failure of a juror accurately to respond to voir dire questioning regarding whether she or any member of her immediate family had "ever been the victim of a serious crime." We hold the trial court did not err in denying appellant's motions to suppress or his motion for a mistrial, and we affirm the challenged convictions.

I.

BACKGROUND

The victim was attacked in a parking garage by an unknown assailant as she approached her car at about 7:20 p.m. on January 16, 2001. The assailant overpowered her and pushed her into her car. She struggled with her attacker and honked her horn, but the assailant "beat[ ][her] continuously," and she was unable to attract the attention of any passersby. The victim was bleeding and in pain and asked the attacker to stop beating her. Based on the assailant's superior strength and the extent of her injuries, she concluded that she would "just ... have to cooperate with hi[m]."

Shortly thereafter, the victim saw a car coming down the ramp in the parking garage, and she renewed her efforts to sound the horn and escape. When the approaching car slowed down and its driver "jammed on the horn," the assailant was distracted, and the bloodied victim was able to get out of her car and run to the approaching vehicle. The assailant's attack on the victim lasted about twenty-five minutes.

Keith Weltens, the driver of the approaching car, stopped ten to fifteen feet from the victim's car and opened his passenger door for the victim. Weltens saw the assailant step out of the driver's side of the victim's car, stand beneath a light in the parking garage, and stare directly at him before the assailant jumped back into the victim's car. Weltens then drove the victim to a nearby hospital emergency room where he reported the crime to the police and described the attacker.

Based on a dispatch reporting the location of the attack and the description of the attacker, Christopher Atkins, a uniformed patrol officer, apprehended appellant in a nearby park less than an hour after the attack had ceased. Other officers photographed appellant and took the photo to the hospital. Appellant was arrested after both Weltens and the victim positively identified the person in the photograph as the victim's assailant.

Appellant was charged with the instant offenses. Prior to trial, he moved to suppress

579 S.E.2d 662
the fruits of his detention as the product of an unreasonable seizure. He also moved to suppress the single-photo pre-trial identifications as unduly suggestive and any subsequent in-court identifications as tainted. The court denied both motions

After a jury trial in which appellant was convicted for the instant offenses, appellant moved the court for a mistrial. He alleged a juror failed to answer a question on voir dire honestly and that this failure prejudiced him by depriving him of a fair trial. Appellant represented that the basis for the motion was the failure of a female juror to admit that she herself had been the victim of a robbery and that this failure was brought to counsel's attention only after the jury had returned its verdict and been discharged.

The trial court conducted a post-trial hearing at which the juror was questioned about her experience, the reason for her failure to disclose it during voir dire, and its impact on her ability to be impartial in appellant's trial. She testified her nondisclosure was unintentional and that the experience did not affect her ability to be impartial. The trial court found her testimony credible and denied the motion for mistrial.

II.

MOTION TO SUPPRESS

On appeal of the denial of a motion to suppress, we consider the evidence adduced at both the suppression hearing and the trial, DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987), and we view it in the light most favorable to the Commonwealth, Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). However, we review de novo the trial court's application of legal standards such as reasonable suspicion to the particular facts of the case. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). We also review de novo the question whether a person has been seized in violation of the Fourth Amendment. Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).

A.

SEIZURE

"Fourth Amendment jurisprudence recognizes three categories of police-citizen [contacts]: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions based upon specific, articulable facts, commonly referred to as Terry stops, and (3) highly intrusive arrests and searches founded on probable cause." Wechsler v. Commonwealth, 20 Va.App. 162, 169, 455 S.E.2d 744, 747 (1995) (citation omitted).

Consensual encounters "`need not be predicated on any suspicion of the person's involvement in wrongdoing,' and remain consensual `as long as the citizen voluntarily cooperates with the police.'" Payne v. Commonwealth, 14 Va.App. 86, 88, 414 S.E.2d 869, 870 (1992) (quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir.1991)). "As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980).

"A seizure occurs when an individual is either physically restrained or has submitted to a show of authority." McGee, 25 Va.App. at 199, 487 S.E.2d at 262. "Whether a seizure has occurred ... depends upon whether, under the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave." Id. at 199-200, 487 S.E.2d at 262. Relevant factors under the "totality of the circumstances" analysis include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be

579 S.E.2d 663
compelled." Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877

"[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information." Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985). In reviewing whether an officer had reasonable suspicion to justify the seizure, we must consider the "totality of the circumstances and view those facts objectively through the eyes of a reasonable police officer with the knowledge, training, and experience of the investigating officer." Murphy v. Commonwealth, 9 Va.App. 139, 144, 384 S.E.2d 125, 128 (1989).

Here, the evidence supported the trial court's implicit finding that Officer Christopher Atkins' initial encounter with appellant in the park was consensual. Atkins approached appellant on foot "at a walking pace" at a time when Atkins was the only police officer in the park. Although Atkins was in uniform, he greeted appellant by saying, in a normal tone of voice, "How are you doing?" and Atkins described his encounter with appellant as "very casual contact." In the same normal tone of voice, Atkins said to appellant, "Do you mind taking off your stocking cap for me?" Appellant complied with Officer Atkins' request. The totality of the circumstances support the trial court's implicit finding that this portion of appellant's encounter with Officer Atkins was consensual.

Once appellant complied with Officer Atkins' request to remove his hat, Officer Atkins could see that appellant had a "real short, buzz type haircut." At that time, Atkins had confirmed that appellant met the general description he had received from witness Weltens of the victim's attacker—a white male of a certain approximate height and weight, with "facial hair that appeared to be two to three days growth," "a buzz type haircut," and...

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52 practice notes
  • Jones v. Com., Record No. 1069-07-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • August 26, 2008
    ...272, 597 S.E.2d 242, 246 (2004). We review the evidence, both adduced at the hearing on the motion and at trial. Blevins v. Commonwealth, 40 Va.App. 412, 420, 579 S.E.2d 658, 662 (2003), aff'd on other grounds, 267 Va. 291, 590 S.E.2d 365 (2004). We consider that evidence in the light most ......
  • Walker v. Commonwealth, Record No. 1211-20-4
    • United States
    • Virginia Court of Appeals of Virginia
    • April 5, 2022
    ...; Townes , 234 Va. 307, 362 S.E.2d 650 ; Cuffee v. Commonwealth , 61 Va. App. 353, 735 S.E.2d 693 (2013) ; Blevins v. Commonwealth , 40 Va. App. 412, 579 S.E.2d 658 (2003), aff'd , 267 Va. 291, 590 S.E.2d 365 (2004).31 The shortcomings with the Biggers factors are well-catalogued in Justice......
  • Walker v. Commonwealth, 1211-20-4
    • United States
    • Virginia Court of Appeals of Virginia
    • April 5, 2022
    ...Satcher v. Commonwealth, 244 Va. 220 (1992); Townes, 234 Va. 307; Cuffee v. Commonwealth, 61 Va.App. 353 (2013); Blevins v. Commonwealth, 40 Va.App. 412 (2003), aff'd, 267 Va. 291 (2004). [31] The shortcomings with the Biggers factors are well-catalogued in Justice Appel's dissent in Doolin......
  • Beasley v. Commonwealth, Record No. 1534–11–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 17, 2012
    ...as the party that prevailed below. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991).” Blevins v. Commonwealth, 40 Va.App. 412, 420, 579 S.E.2d 658, 662 (2003), aff'd on other grounds,267 Va. 291, 590 S.E.2d 365 (2004). 2. Lawson, the driver of the minivan, briefly ......
  • Request a trial to view additional results
49 cases
  • Jones v. Com., Record No. 1069-07-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • August 26, 2008
    ...272, 597 S.E.2d 242, 246 (2004). We review the evidence, both adduced at the hearing on the motion and at trial. Blevins v. Commonwealth, 40 Va.App. 412, 420, 579 S.E.2d 658, 662 (2003), aff'd on other grounds, 267 Va. 291, 590 S.E.2d 365 (2004). We consider that evidence in the light most ......
  • Walker v. Commonwealth, Record No. 1211-20-4
    • United States
    • Virginia Court of Appeals of Virginia
    • April 5, 2022
    ...; Townes , 234 Va. 307, 362 S.E.2d 650 ; Cuffee v. Commonwealth , 61 Va. App. 353, 735 S.E.2d 693 (2013) ; Blevins v. Commonwealth , 40 Va. App. 412, 579 S.E.2d 658 (2003), aff'd , 267 Va. 291, 590 S.E.2d 365 (2004).31 The shortcomings with the Biggers factors are well-catalogued in Justice......
  • Walker v. Commonwealth, 1211-20-4
    • United States
    • Virginia Court of Appeals of Virginia
    • April 5, 2022
    ...Satcher v. Commonwealth, 244 Va. 220 (1992); Townes, 234 Va. 307; Cuffee v. Commonwealth, 61 Va.App. 353 (2013); Blevins v. Commonwealth, 40 Va.App. 412 (2003), aff'd, 267 Va. 291 (2004). [31] The shortcomings with the Biggers factors are well-catalogued in Justice Appel's dissent in Doolin......
  • Beasley v. Commonwealth, Record No. 1534–11–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 17, 2012
    ...as the party that prevailed below. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991).” Blevins v. Commonwealth, 40 Va.App. 412, 420, 579 S.E.2d 658, 662 (2003), aff'd on other grounds,267 Va. 291, 590 S.E.2d 365 (2004). 2. Lawson, the driver of the minivan, briefly ......
  • Request a trial to view additional results

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