Gilluly v. Com., 790871

• Decision Date: 06 June 1980
• Docket Number: No. 790871,790871
• Parties: Christopher W. GILLULY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 105

267 S.E.2d 105

221 Va. 38

Christopher W. GILLULY v. COMMONWEALTH of Virginia.

Record No. 790871.

Supreme Court of Virginia.

June 6, 1980.

Allen H. Sachsel, Falls Church (Stephen A. Armstrong, G. James Frick, Armstrong & Frick, Falls Church, on briefs), for appellant.

Vera S. Warthen, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

CARRICO, Justice.

The defendant, Christopher W. Gilluly, was indicted for rape, sodomy, abduction, and assault and battery. Prior to trial, he moved to suppress certain evidence seized from his apartment pursuant to a search warrant issued by a special magistrate. The defendant contended that the seizure was illegal because the warrant failed to state the offense in relation to which the search was to be conducted. After argument, the trial court granted the defendant's motion and ordered the disputed evidence suppressed. Upon the Commonwealth's motion for reconsideration, however, the court reversed itself and denied the defendant's motion to suppress.

In a subsequent jury trial at which the items seized under the search warrant were introduced into evidence, the defendant was convicted of abduction and assault and battery, but was acquitted of the other charges. Upon each conviction, the jury fixed the defendant's punishment at six months in jail and a fine of $1,000. The trial court imposed the punishment fixed by the jury, but suspended both the jail sentence and the fine on the assault and battery conviction.

The record shows that on the evening of July 7, 1978, on their second date, the defendant, a naval officer, and the victim attended a formal military dinner and afterward visited in the home of the defendant's commanding officer until approximately 2:30 a. m. Upon the defendant's invitation, the victim accompanied him to his apartment "to learn disco." After dancing approximately 45 minutes, she asked to be taken home. He refused and, according to the victim, he took her to the bedroom and there raped and sodomized her. During the course of the attack, he beat her with a riding crop and a "fraternity" paddle.

Clad only in a bathrobe, the victim managed to escape from the apartment when the defendant entered the bathroom. Later in the day, she reported the attack to the police. The next day, July 9, Investigator Ann Melchior of the Alexandria Police Department appeared before a special magistrate and made an affidavit for a warrant to search the defendant's apartment. The affidavit stated that the "offense in relation to which the search is to be made is: Rape." The magistrate issued the warrant, but he left blank the space provided in the search warrant form for insertion of the name of the offense in relation to which the search was to be conducted.

Investigator Melchior and other officers executed the search warrant and seized from the defendant's apartment the various items which were later introduced into evidence at the defendant's trial. The items seized included a riding crop and a "fraternity" paddle.

On appeal, the sole question for decision is whether the items seized pursuant to the search warrant were inadmissible into evidence because of the failure of the warrant to state the offense in relation to which the search was to be conducted. The items were inadmissible, the defendant contends, because, without a recital of the offense, the warrant became a general warrant forbidden by both the Fourth Amendment to the Constitution of the United States ¹ and Article I, Section 10 of the Constitution of Virginia. ² Furthermore, the defendant asserts, Code § 19.2-56 requires that every search warrant shall "recite the offense in relation to which the search is to be made" and Rule 3A:27(c) contains an identical requirement.

On the other hand, the Attorney General contends that the disputed items were admissible into evidence. The Attorney General argues first that the affidavit made by Investigator Melchior recited rape as the offense in relation to which the search was to be conducted and because, under Code § 19.2-56, the affidavit becomes a part of the warrant when the two are attached, the recital of the offense in the affidavit sufficed to supply the deficiency in the warrant. The ready answer to this argument, however, is that, although the affidavit and the search warrant are stapled together as they appear in the record on appeal, the evidence below established conclusively that the two documents were not attached until after the search warrant had been executed and the disputed items seized.

The...