Lebedun v. Com.

• Citation: 501 S.E.2d 427,27 Va. App. 697
• Decision Date: 07 July 1998
• Docket Number: Record No. 0250-97-4.
• Parties: Allen Abraham LEBEDUN v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

501 S.E.2d 427

27 Va. App. 697

Allen Abraham LEBEDUN v. COMMONWEALTH of Virginia.

Record No. 0250-97-4.

Court of Appeals of Virginia, Alexandria.

July 7, 1998.

Crystal A. Meleen, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., COLEMAN, J., and DUFF, Senior Judge.

COLEMAN, Judge.

Allen Abraham Lebedun appeals his jury trial convictions for abduction, robbery, and use of a firearm in the commission of robbery. Lebedun contends the convictions should be reversed because (1) the search warrant was not supported by probable cause and failed to recite the offense for which the search was being conducted; (2) the general district court erred in refusing to grant a continuance in order to obtain a court reporter for the preliminary hearing; (3) the circuit court judge erred by sua sponte noting the failure of the Commonwealth's evidence to make an in-court identification of the defendant and by allowing the Commonwealth to reopen its evidence to prove the defendant's identity; (4) the circuit court erred by refusing to instruct the jury that Virginia has abolished parole eligibility in non-capital cases; (5) the Commonwealth failed to comply with the statutory notice and copy requirements for introducing prior convictions evidence at sentencing; and (6) the evidence is insufficient to support the robbery conviction. For the reasons that follow, we affirm the convictions.

I. BACKGROUND

Two men wearing masks, wigs, and gloves entered the Medicine Chest Pharmacy in Fairfax County. The taller of the two men went to the pharmacy counter, pointed a firearm at Norman Friedlander, the store manager, and Raza Alborz, the pharmacy technician, and announced that "it was a hold up" and "no one would get hurt if [they didn't] do anything silly." He ordered Alborz and Friedlander to step away from the pharmacy counter. As Friedlander complied, he noticed that the shorter assailant was holding a knife on Jerry Danoff, the pharmacist, and Patrice Lyons, a customer.

Upon learning that Danoff was the pharmacist, the gunman approached Danoff and demanded methadone. Danoff opened the narcotics cabinet and the gunman "started grabbing and filling up [bags]" with packets of narcotics. The gunman then ordered Danoff to lie on the floor and attempted to bind his feet and hands with tape. As Danoff lay on the floor, he heard someone open the cash register. During this time, the shorter assailant, who had been holding a knife on Friedlander, Alborz, Lyons, and customer Helen Gray, ordered them into a storage room, where he bound them with tape.

Upon hearing the assailants leave the store, the victims freed themselves. Alborz ran outside and observed the assailants entering an automobile. Alborz saw the shorter, knife-wielding assailant remove his mask. Alborz later identified the unmasked assailant from a photo line-up as Worth Myers. After the robbery, Friedlander determined that narcotics and a small amount of cash were missing from the drug cabinet. Danoff testified that the cash register was "completely empty, missing approximately $400 that was in the register earlier that day." Although appellant was charged with having robbed Friedlander, appellant notes that Friedlander was in the storage area when the robbers took the drugs and money and no money or property was taken from him personally.

Approximately two weeks after the robbery, Fairfax County Police Detective James Agnew executed a search warrant for Worth Myers' home. In Myers' bedroom, Agnew found pieces of tape similar to a ball of tape that he had found behind the pharmacy counter and similar to a roll of tape found in the pharmacy parking lot after the robbery. Agnew also found two Halloween masks. Alborz testified that he recognized both masks as having been worn by the robbers. Friedlander and Lyons testified that they recognized one of the masks as having been worn by the tall gunman.

While Agnew searched Myers' home, Fairfax County Police Detective Jack Kirk executed a search warrant at Lebedun's apartment. Kirk recovered several bags of prescription drugs, a gun, ammunition, and gloves from Lebedun's bedroom. Kirk testified that one bottle of pills was labeled with a Medicine Chest price sticker. Friedlander testified that some of the drugs recovered from Lebedun's home were the same type as those taken by the robbers. Friedlander, Lyons, and Alborz positively identified the gun found in Lebedun's bedroom as the gun used by the taller assailant.

Robert Russell, an acquaintance of Lebedun, testified that during the three months preceding the robbery Lebedun asked Russell to get him a gun. Russell recounted that Lebedun said he and Myers had "something staked out." Lauran Ipsan, another acquaintance, testified that on the day of or the day after the robbery Lebedun said he and Myers had "done a robbery," that Myers had taken off his mask, and that one of the pharmacy employees had seen Myers.

Lebedun was indicted and convicted for robbery of Friedlander, use of a firearm in the commission of robbing Friedlander, and abducting Lyons and Gray.

II. THE SEARCH WARRANT

A. Probable Cause

The Fourth Amendment provides that a search warrant shall issue only upon a showing of probable cause supported by oath or affirmation. See Gwinn v. Commonwealth, 16 Va.App. 972, 974, 434 S.E.2d 901, 903 (1993)

. Whether probable cause exists to support the issuance of a warrant is to be determined from the "totality of the circumstances" that are presented to the magistrate. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

The task of the issuing magistrate is simply to make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and the 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." And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... concluding" that probable cause existed.

* * * * * *

[A]n after-the-fact review of a magistrate's decision should not be made de novo[,] ... great deference should be given to the magistrate's finding of probable cause.

Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332).

In the present case, Detective Agnew's affidavit in support of his request for a warrant to search Lebedun's home stated that a fatal drug overdose had occurred at Myers' apartment, that an informant had purchased prescription drugs from Myers, and that Worth Myers had told the informant how he and Lebedun, while wearing masks, committed a series of armed robberies of pharmacies in Maryland and Virginia. The affidavit further stated that the informant had on other occasions provided the police with information regarding controlled drug purchases and had been found to be reliable. The affidavit also stated that a victim of one robbery could identify Myers as one of the robbers after having observed Myers when he removed his mask as he left the scene. The affidavit further stated that "Myers gave statements [after his arrest] as to his involvement in the armed robberies of several pharmacies in Maryland and Virginia, against his penal interest. In his statement [Myers] implicated one Allen Lebedun as the second subject in the robberies." Accordingly, the magistrate issued a warrant to search Lebedun's apartment.

Lebedun contends the magistrate lacked probable cause to issue the search warrant because the magistrate's decision was based solely upon the unreliable assertions made by Worth Myers. Lebedun reasons that Myers' assertions were unreliable because he admitted to using and distributing drugs. We find no merit in the argument. The reliability of hearsay statements in an affidavit "may be established by showing that ... the [declarant] has made a declaration against his penal interest."¹ Polston v. Commonwealth, 24 Va.App. 738, 745, 485 S.E.2d 632, 634 (1997), aff'd on other grounds, 255 Va. 500, 498 S.E.2d 924 (1998). Myers' admission that he and Lebedun committed the robberies was a statement against his penal interest and, as such, constituted reliable information upon which the magistrate could find probable cause to issue a warrant. Based on the totality of circumstances presented in the affidavit, the magistrate had a "substantial basis for concluding" that Lebedun committed the robberies with Myers and that evidence relating to the robberies could be found at Lebedun's home. Accordingly, issuance of the search warrant was supported by probable cause.

B. Recitation of Offense Pertaining to Search Warrant

Both the Fourth Amendment and Code § 19.2-56 require that a search warrant "recite the offense in relation to which the search is to be made." Code § 19.2-56; Gilluly v. Commonwealth, 221 Va. 38, 41, 267 S.E.2d 105, 106-07 (1980). The failure of a warrant to state the related offense renders the warrant "fatally defective" and the evidence seized in the execution of the warrant inadmissible. Id.

Code § 19.2-56 further provides: "The judge, magistrate, or other official authorized to issue criminal warrants shall attach a copy of the affidavit required by Code § 19.2-54, which shall become part of the search warrant and served therewith." (Emphasis added). Although a search warrant should recite on its face the offense being investigated, an attached affidavit which recites the offense provides the necessary notice because the affidavit "become[s] part of the search warrant." A search warrant sufficiently "recites the offense" if the affidavit attached to it specifies the offense to which the warrant pertains. However, a search warrant...