Corey v. Com.

• Citation: 8 Va.App. 281,381 S.E.2d 19
• Decision Date: 06 June 1989
• Docket Number: No. 1037-86-1,1037-86-1
• Parties: James David Allen COREY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 19

381 S.E.2d 19

8 Va.App. 281

James David Allen COREY v. COMMONWEALTH of Virginia.

Record No. 1037-86-1.

Court of Appeals of Virginia.

June 6, 1989.

W. Alan Maust, Hampton (Maust and Smith, on briefs), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on briefs), for appellee.

Present: BAKER, BARROW and HODGES, JJ.

BARROW, Judge.

This is a criminal appeal in which the defendant contends he was denied a speedy trial contrary to the provisions of Code § 19.2-243 and that his confession to police was inadmissible because it was made while he was being held as a result of an illegal arrest. We conclude that, the defendant's right to a speedy trial was not violated since a portion of the delay was the result of a continuance granted on motion of the Commonwealth to which defense counsel stated that by agreement with the Commonwealth's attorney he had no objection. Furthermore, although the defendant's arrest was not supported by probable cause, it was based upon a warrant issued by a magistrate in good faith; therefore, his later confession was admissible under the good faith exception to the exclusionary rule.

I. Speedy Trial

The defendant asserts that 182 days (six months, two days) passed while he was being held in custody awaiting trial, that none of this time is exempt under Code § 19.2-243, which requires him to be tried within five months, and that, therefore, he was deprived of a speedy trial. The Commonwealth concedes that the period from August 15, 1985 through October 1, 1985 (seventy-seven days) was "chargeable to the Commonwealth."

The next period of delay, from December 10, 1985, until February 3, 1986 (fifty-five days) is critical and occurred as a result of a continuance granted on motion of the Commonwealth. When the motion was made, the defendant was present in court with his attorney. The attorney for the Commonwealth told the court: "by agreement, we would make the motion to continue this matter to the next docket call." The defense attorney responded, "yes, sir, we have no objection...." When the court asked if it was a joint motion, the defense attorney responded, "It's the Commonwealth's motion ... but we have no objection."

This fifty-five day time period should be excluded from consideration under Code § 19.2-243(4) if the continuance was "granted on the motion of the accused, or by his concurrence in such motion by the attorney for the Commonwealth ..." (emphasis added). The defendant relies on the principle that the "silence of the accused, or his failure to object to a continuance of his case" does not prevent him from asserting the benefits of the statute. See Howell v. Commonwealth, 186 Va. 894, 896, 45 S.E.2d 165, 166 (1947); Flanary v. Commonwealth, 184 Va. 204, 211, 35 S.E.2d 135, 138 (1945). However, the authority the defendant relies on does not address the language of the current statutory provisions. It is true that in Flanary the Supreme Court held that where an accused and his attorney "remained passive," neither agreeing nor objecting to a Commonwealth's motion for a continuance, the delay resulting from the continuance is not excluded from the statutory mandate for a speedy trial. Flanary, 184 Va. at 210, 35 S.E.2d at 137. But, the statute in effect at that time exempted only delay resulting from a "continuance granted on the motion of the accused." It did not include the language in the current provision, "or by his concurrence in such motion by the attorney for the Commonwealth." Compare Flanary, 184 Va. at 206, 35 S.E.2d at 136, with Code § 19.2-243(4). The opinion two years later in Howell also was premised on the former version of the statute, see Howell, 186 Va. at 896, 45 S.E.2d at 166; Howell, therefore, does not modify the limited scope of the Flanary opinion.

Furthermore, unlike the attorneys in Flanary, the defense attorney in this case did not simply remain passive. He expressly affirmed the Commonwealth's attorney's assertion to the court that the motion was "by agreement," and twice affirmatively stated, "we have no objection."

A "concurrence" is "a meeting or coming together; agreement or union in action; meeting of minds; union and design; consent." Blacks Law Dictionary, (5th ed. 1979). The defense attorney's acknowledgement to the trial court that the Commonwealth's motion for a continuance was "by agreement" and was without objection by the defendant represented a "concurrence" in the motion of the Commonwealth's attorney. Therefore, this period of fifty-five days is not chargeable against the Commonwealth since it falls within the exception provided by Code § 19.2-243(4). Upon exclusion of that period of time, the delay in bringing the defendant to trial was only 127 days, less than the maximum statutory time limitation. Consequently, it is not necessary that we address the remaining period of delay, and we hold that the court did not err in refusing to discharge the defendant from custody for lack of a speedy trial.

II. Probable Cause for Arrest

The defendant's arrest was precipitated by the receipt of information from an unidentified person. The detective investigating the crime, upon receipt of a telephone call from a person saying she had information regarding the case, immediately drove to the person's location, picked her up and returned to the police station where he interviewed her and took a written statement from her before returning her home. The detective had not known this person prior to her phone call and described her as a "citizen" rather than an "informant." She told him of a conversation she said she had overheard and which the detective said was the "one thing that linked the defendant to the crime." The detective testified that the citizen said she had overheard the defendant "discussing the robbery attempt and the subsequent shootings at the market and the fact that ... [defendant] had went up there to rob the market but had no intention of shooting anybody."

Based solely on the statement obtained from the citizen informant, the detective obtained a warrant for the defendant's arrest. The citizen's identity was never revealed to the magistrate who issued the warrant nor was her written statement proffered for evaluation. The detective simply related to the magistrate the information obtained from the citizen and provided no additional information linking the defendant to the crime.

The defendant argues that the detective failed to show probable cause for issuance of an arrest warrant and, therefore, the defendant's subsequent confession following his arrest was inadmissible. The Commonwealth contends that there was sufficient probable cause and states that this was a "disinterested citizen" who was even more reliable than a "professional informant." The Commonwealth also asserts that even if there was an inadequate showing of probable cause, the arrest should be upheld under the good faith exception to the exclusionary rule created by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). ¹

Whether a warrant is supported by probable cause is determined from the "totality-of-the-circumstances." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983). An issuing magistrate need only make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The duty of a reviewing court is to ensure that the magistrate had a "substantial basis" for concluding that probable cause existed. Id. at 239, 103 S.Ct. at 2332. A probable cause determination breaks down into "the informant's veracity or reliability and his basis of knowledge." Id. at 233, 103 S.Ct. at 2329. Moreover, the Supreme Court has specifically rejected "after-the-fact de novo scrutiny." Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984), citing, Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. at 2331. Accordingly, we review the totality of the circumstances within the parameters set forth by the controlling precedents.

We begin with the question of a citizen-informant's "veracity" or "reliability." This question is tested against a different standard than that against which other informants are measured. Citizen-informants do not carry the same presumption of reliability as police officers, but less evidence is required to establish their veracity than that of criminal informants. United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir.1986); see also Guzewicz v. Commonwealth, 212 Va. 730, 735-36, 187 S.E.2d 144, 148 (1972). A citizen-informant's veracity may be established by the absence of an apparent motive to falsify or independent police corroboration of the details provided by the informant. Id. Where a citizen-informant reports a crime committed in his presence, but in which he was not involved, or one in which he was a victim, police officers may act upon such a report if the reliability of the report is enhanced by a police interview with the victim or other corroborating information. See United States v. Easter, 552 F.2d 230, 233 (8th Cir.), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Lewis v. United States, 417 F.2d 755, 758-59 (D.C.1969), cert. denied, 397 U.S. 1058, 90 S.Ct. 1404, 25 L.Ed.2d 676 (1970); People v. Lewis, 240 Cal.App.2d 546, 549, 49 Cal.Rptr. 579, 582 (1966); Carey v. United States, 377 A.2d 40, 51 (D.C.App.1977); People v. Hester, 39 Ill.2d 489, 514, 237 N.E.2d 466, 481 (1968); Commonwealth v. Ayers, 239 Pa.Super. 263, 269, 361 A.2d 405, 408 (1976); Commonwealth v. Hawkins, 240 Pa.Super. 56, 60, 362 A.2d 374, 376 (1976).

If, however, the basis of the informant's knowledge is not personal...