Derr v. Com.

• Citation: 242 Va. 413,410 S.E.2d 662
• Decision Date: 08 November 1991
• Docket Number: No. 910441,910441
• Parties: Norman Bruce DERR v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 662

410 S.E.2d 662

242 Va. 413

Norman Bruce DERR v. COMMONWEALTH of Virginia.

Record No. 910441.

Supreme Court of Virginia.

Nov. 8, 1991.

H. Glenn Goodpasture, Fredericksburg (Goodpasture & Nuckols, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., and COMPTON, STEPHENSON, WHITING, LACY and HASSELL, JJ.

HASSELL, Justice.

Norman Bruce Derr was tried by a jury and convicted of burglary of a dwelling house while armed with a deadly weapon, rape, forcible sodomy, and abduction. He was sentenced in accordance with the jury's verdicts to life imprisonment on the burglary conviction, to life imprisonment on the rape conviction, to life imprisonment on the sodomy conviction, and to ten years imprisonment on the abduction conviction.

On appeal, Derr challenges the validity of certain searches executed pursuant to search warrants and the sufficiency of the evidence to sustain the convictions.

I.

The victim, a 56-year-old woman, lived alone in her home at 403 Confederate Boulevard in Fredericksburg. On June 1, 1988, about 10:00 p.m., she locked the doors, turned off the lights downstairs, and went upstairs to her bedroom. While she was in bed watching television, a white male wearing a nylon stocking over his face walked into her bedroom. He was armed with a curved blade knife.

The intruder placed a blindfold over the victim's eyes so that she could not see. He pushed her onto the bed, removed her underwear, and committed an act of cunnilingus. He then pushed her onto the floor and raped her. Next, he committed an act of anal sodomy. Then he raped her again.

The man ordered the victim to get off the floor. He led her blindfolded to the bathroom, placed her hands on the cold water shower faucet, and ordered her to adjust the water temperature, and to wash herself with soap. He instructed her to remain in the shower for ten minutes. He took $27 from her purse while she was in the shower. The victim stayed in the shower until she had determined her attacker had left her home. Then, she called the police.

When the police arrived, they discovered that the rapist entered the victim's home by tearing a screen and climbing through a closed but unlocked ground floor window. He departed by opening a door which the victim had previously locked.

Approximately 11:05 p.m., a police tracking dog found a track which began outside the victim's home near the ground floor window which was the point of entry and extended along a chain link fence to a business parking lot owned by Clayton Boutchyard. The tracking dog found a second track which extended from the rear of the victim's home into a wooded area behind her home. The second track also led to Boutchyard's parking lot.

Virginia Brown was sitting on the back porch of her home on the evening of June 1, 1988. Her home is adjacent to Boutchyard's parking lot and is located approximately 325 feet from the victim's home.

Approximately 9:40 p.m., Brown saw a small car enter the parking lot. She saw a man get out of the car and walk along a chain link fence which separated Brown's yard from the parking lot. The fence extends from the rear of the parking lot to the side of the victim's home. The man walked in the direction of the victim's home and disappeared from Brown's sight as he approached a wooded area between Brown's home and the victim's home.

Mr. Boutchyard arrived at his business approximately 10:20 p.m. that night. He drove to the rear of his parking lot where he saw an unoccupied car, parked in a manner hiding it from view. Boutchyard identified the car as a Datsun.

Fearing that the operator of the car was burglarizing his building, Boutchyard memorized the car's license plate number. Finding that the car's doors were unlocked, he opened a door, went into the glove compartment and removed some papers, including the automobile registration. Norman Derr's name appeared on the registration. Boutchyard called the police about 10:50 p.m. and reported the presence of the car on his property and the car's license number.

The police dispatcher learned from the Division of Motor Vehicles that the car was registered to Norman B. Derr, a 33-year-old white male, six feet tall, weighing 173 pounds, with blond hair and blue eyes, and whose registered address was 1511 Perryville Drive, in the Mechanicsville area of Hanover County.

Charles Derr, Norman Derr's father, testified at trial that he and his wife returned to their home at 1511 Perryville Drive in the evening on June 1, 1988. Neither Norman Derr, who customarily drove the Datsun, nor the Datsun, was there when they returned. Norman Derr arrived home after 11:00 p.m. that night and Charles Derr noticed the Datsun parked in the driveway about 12:15 a.m. when he opened a door to let his dog go outside.

The police obtained and executed search warrants on June 2, 1988 to search Norman Derr's person, his home in Hanover County, and his Datsun. When the police arrived at Derr's residence to conduct their search, Charles Derr identified the bedroom that Norman Derr occupied. During the search, the police seized numerous items, including brown leather work boots located on the floor near Norman Derr's bed.

It was later determined by a forensic fibers expert that carpet fibers which were attached to the sole of Derr's left work boot matched, in physical, chemical, and optical properties, carpet fiber samples taken from two different locations in the victim's home. The carpet fibers on the left work boot matched fibers taken from a faded blue carpet in excess of 30 years old, which was on the floor in the room where the rapist entered the victim's home. Another fiber on the work boot matched fibers taken from a small "goldish brown" industrial carpet which was located on the floor near the back door where the rapist left the victim's home.

In August 1988, the police executed a second search warrant of Derr's home to secure carpet fibers for comparison. The police also collected carpet fibers from all known sites where Derr had worked. None of these fibers matched, in physical, chemical, or optical properties, the carpet fibers found on Derr's left work boot.

II.

Derr filed a motion to suppress certain evidence and a memorandum in support of his motion in the trial court. The motion was granted. The Commonwealth appealed that order pursuant to Code § 19.2-398 and the Court of Appeals reversed, holding, in an unpublished opinion, that there was probable cause to support the warrants and alternatively, that the evidence was admissible because of the "good faith" exception to the warrant requirement.

On the evening of June 2, 1988, Detective Musselman of the Fredericksburg Police Department, who was assigned to investigate these crimes, prepared three search warrant affidavits and presented them contemporaneously to a magistrate in Hanover County. The affidavits were filed to procure search warrants for Derr, the residence of Beverly and Charles Derr, and Derr's car. The following facts are contained in all three warrant affidavits:

On 6-1-88 at approximately 10:30 p.m. a rape was occurring at 403 Confederate Blvd., Fredericksburg, Va. Just prior to this time Mr. Clayton Boutchyard arrived at his place of employment located at 2300 Jeff Davis Hwy, Fredericksburg, Va. The two addresses are adjacent to each other. Upon arrival Mr. Boutchyard noticed a vehicle parked behind his business and made a note of the license number of SHC-824. After going into the business to get a flashlight the vehicle was gone upon his return. At 9:35 a.m. on 6-2-88, an anonymous crime solver call was received in which the caller stated that they observed a vehicle park (in the same location as stated by Mr. Boutchyard), a tall white male exit the vehicle, and walk along the fence line behind the lot toward the victim's house. The registered owner of the car, Norman B. Derr, has been charged several times since 1976 with like offenses in which the method of operation was very similar.

The affidavit for the search warrant of the Perryville Drive residence states in part:

The place, person, or thing to be searched is described as follows: The residence of Beverly and Charles Derr located at 1511 Perryville Dr., Mechanicsville, Va. The house is further described as being located approximately one mile north of Rt. 360 at the intersection of Perryville Dr. and Perryville Terrace. The house is a modern design home, cedarwood appearing siding, beige colored garage door, sky lights on front and back, and deck on rear of house.

The affidavit for the search of Derr's person states in part:

The place, person, or thing to be searched was described as follows: A white male named Norman B. Derr whose last known address is 1511 Perryville Dr., Mechanicsville, Va. Derr is further described as 6'0"' tall, 173 pounds, blond hair, blue eyes, and 33 years of age having been born on 12-6-54.

The affidavits for the searches of Derr's person, car, and home state in part:

A search is requested in relation to an offense substantially described as follows: The breaking and entering of the residence located at 403 Confederate Blvd., Fredericksburg, Va. on 6-1-88 and the rape that occurred within that residence of ... [the victim], a white female, 56 years of age.

The affidavits for the search warrants identified as the items to be searched for: a "[p]air of women's pantyhose, a curved blade knife, and trace evidence consistent with the offense of rape such as hair, fibers, and body fluid."

Derr argues that the affidavit in support of the search warrant for the house does not comply with Code § 19.2-54. ¹ Derr asserts that the affidavit fails to state any connection between the house in Hanover County and the crimes which occurred in Fredericksburg and that the magistrate should not have considered facts contained in the affidavits for the searches of Derr's person and ...