Davis v. Commonwealth

• Decision Date: 24 November 2015
• Docket Number: Record No. 0693–14–1.
• Citation: 778 S.E.2d 557,65 Va.App. 485
• Parties: Claude DAVIS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

65 Va.App. 485

778 S.E.2d 557

Claude DAVIS

v.COMMONWEALTH of Virginia.

Record No. 0693–14–1.

Court of Appeals of Virginia, Norfolk.

Nov. 24, 2015.

Charles E. Haden, Hampton, for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Opinion

BEALES, Judge.

Claude Davis (appellant) was convicted after a jury trial of one count of burglary with intent to commit larceny under Code § 18.2–91, one count of grand larceny under Code § 18.2–95, one count of attempted arson under Code §§ 18.2–77and 18.2–26, and one count of violation of a protective order under Code § 16.1–253.2. Appellant argues on appeal that the circuit court erred in denying appellant's motion to have a Frankshearing; in admitting testimony from the Commonwealth's rebuttal witness, Michael Rice; and in finding that the evidence was sufficient to convict appellant of the above offenses.²For the reasons below, we affirm the circuit court.

I. Background

We consider the evidence on appeal “in the light most favorable to the Commonwealth as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth,60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012)(quoting Riner v. Commonwealth,268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)).

So viewed, the evidence established that Stephanie Tam–Davis (Tam–Davis)—the victim in this matter—married appellant on August 8, 2008. They lived together in her house at 1420 24th Street in Newport News, Virginia. Appellant was aware of the working security system in the house. The system was located in the closet in Tam–Davis's bedroom, and monitored by ADT Security Services. The couple eventually separated. On April 26, 2011, Tam–Davis was awarded a protective order against appellant. The protective order also awarded Tam–Davis possession of the 1420 24th Street residence, and barred appellant from the property. Appellant was ordered to have no further contact with Tam–Davis or her two children. Tam–Davis subsequently changed all of the locks on her home with the exception of the lock on the storage shed, which was attached to the home. Tam–Davis also changed the code to the alarm at the house.

May 21, 2011 Incident

On May 21, 2011, Tam–Davis received a phone call from ADT Security Services, notifying her that the alarm in her home had been triggered (she and her children had been out all day). Tam–Davis went home immediately, arrived “between 6:20 and 6:30,” and when she went inside, “noticed there was a light or something coming from the kitchen and as I got closer, I heard a ticking sound.” She soon realized that the light was a lit candle sitting directly next to the stove, and the ticking sound was the sound of the stove before the pilot light ignited. She observed that one burner had been taken apart, and its knob had been turned on. She had left the stove intact and off that morning. The now-lit candle by the stove had been in her bedroom on the dresser near her jewelry box when she left that morning. While in the kitchen, Tam–Davis heard her daughter scream “Mommy”! When she ran to her daughter's bedroom, she saw a big hole in the bedroom wall, leading into the storage shed. The hole was in the location of an old window that had been plastered over and boarded up. Tam–Davis then noticed that some of her jewelry had been stolen from her own bedroom. When she left the house that morning, her jewelry box was “closed up.” However, when she returned that evening, “[i]t was kind of ajar” and some of its contents were missing.

Joshua Bennett (Bennett), an installation manager at ADT Security Services, testified that on May 21, 2011, the alarm system at Tam–Davis's house sent multiple “siren supervisory trouble” signals to ADT Security. Bennett described siren supervisory trouble as a signal the security system at the house sends ADT Security Services when the system has lost contact with the siren. The siren normally can be triggered to make a loud noise when the system has an alarm event. However, ADT received the first signal indicating that the siren had been disconnected from the system on May 21 at 6:20 p.m. Disconnecting the siren would have caused the alarm to go off without sound. At 6:23 p.m., ADT Security received another signal from Tam–Davis's house, this time indicating that the interior motion detector detected movement. Bennett testified that once an ADT alarm system goes into “alarm”—as it did here when the siren was disconnected—the system looks for movement in the house. At 6:26:02 p.m., six minutes after ADT received notice that the alarm was disconnected, ADT received a signal indicating that a door had been tripped.

Officer Charles Griffith (Officer Griffith), a police officer from the Newport News Police Department, arrived at Tam–Davis's house at 6:52 p.m. Upon being led into the house, Officer Griffith immediately detected a strong odor of gas that became stronger as he moved to the kitchen. Officer Griffith observed a lit candle sitting on the counter next to the gas stove in the kitchen, which he blew out. Tam–Davis also testified that she thought she may have been the one to blow the candle out. Either way, there is no testimony to suggest that the candle was not lit at the time Tam–Davis arrived at her home. One of the burners had been taken off of the stove. Officer Griffith noticed that the storage shed was unlocked and testified that the words “you're next” had been scratched into the side. Officer Griffith observed that all doors and windows were secured on the exterior of the house and that the only sign of forced entry was the hole from the storage shed into the bedroom. Captain John Marr, Jr. (Captain Marr), the Deputy Fire Marshal for Newport News, testified, “[The lit candle and turned on gas] was set up to be an explosive device. The gas was cut on to free-flow, a flame-producing device, meaning the candle had been lit and placed in-between the area next to the gas, right-front burner.” Captain Marr said that free-flowing natural gas like that was a very flammable accelerant.

On May 23, 2011—just two days after the incident—appellant went to Mr. EZ Pawn in Chesapeake to pawn four ladies' rings. Leigh Perry (Perry), the General Manager of EZ Pawn, took and retained a picture of appellant for the store records. At trial, Perry identified appellant as the man in the picture. Tam–Davis gave a description of each of the four stolen rings later recovered from the pawnshop, and testified to their value, which totaled more than $200 in the aggregate.

On June 9, 2011, appellant was arrested and a search of the safe in his hotel room revealed three of appellant's identification cards, a pawn ticket from Mr. EZ Pawn, jewelry, a camera, and a cell phone. Some of the jewelry recovered from the safe was the same jewelry that had gone missing from the victim's jewelry box.

Troy Fields (Fields), the only defense witness, testified that he met appellant around February of 2011 at work. They both worked at Metro Machine. Fields testified that on May 21, 2011, they had decided to go play pool after work and that it was the only time he had “hung out together” with appellant. He recalled that he was sure it was a Friday and that he had worked with appellant earlier that same day. Fields testified that he arrived at Long Shots bar sometime between 5:45 p.m. and 6:15 p.m. to find appellant already there. He said they did not leave until 11:00 p.m. or 11:30 p.m.

Michael Rice (Rice), the CFO of a staffing agency for shipyard workers, staffed workers with Metro Machine in 2011. As part of his staffing duties, Rice handled payroll for his employees. Rice would take work logs that Metro Machine sent to him, and then pay each worker based on his or her work logged. Rice testified that he had an independent recollection of appellant. After looking at a work log from Metro Machine, Rice also recalled that he did not pay appellant for working on May 21, 2011 and that May 21, 2011 was a Saturday. On cross-examination, Rice confirmed that the only reason he remembered not paying appellant was because he used the work log to refresh his memory. Appellant's counsel made a motion to strike Rice's testimony, and argued that Rice testified that the only reason he remembered not paying appellant for May 21 was that he looked at the work log record, which should not be admitted because Rice was not the custodian of the record and it was not authenticated. However, the Commonwealth did not attempt to admit the record at this stage. The circuit court overruled appellant's objection and said, “I think that goes to credibility but not admissibility of his testimony.” The circuit court did not admit the work log as evidence at trial.

Motion to Suppress

On December 7, 2012, the circuit court held a hearing on appellant's statutory double jeopardy motion, appellant's motion to suppress evidence obtained as a result of an invalid search warrant, and appellant's motion to suppress his statement that was obtained after he invoked his right to counsel. Pertinent to this appeal, appellant's first trial counsel questioned Detective Senter about an affidavit Detective Senter swore out on July 9, 2011 in front of a magistrate to obtain the search warrant for appellant's hotel room. Appellant's counsel questioned Detective Senter about his decision to reference in the affidavit appellant's previous arson charge stemming from an incident that happened in Illinois in 2001. Appellant had been charged, but was not convicted. Detective Senter testified that he knew the charge had been dismissed, but that he never informed the magistrate. Detective Senter said he mentioned the facts in the police report from the Illinois incident to add to the grounds for probable cause.

In addition to the alleged arson in Illinois, the affidavit first lists facts about another incident involving arson that took place at Tam–Davis's house on June 5, 2011. Detective Senter wrote that police...