Martinez v. Com.

• Decision Date: 23 December 2003
• Docket Number: Record No. 0051-03-1.
• Citation: 42 Va. App. 9,590 S.E.2d 57
• Court: Virginia Court of Appeals
• Parties: Ruben E. MARTINEZ v. COMMONWEALTH of Virginia.

590 S.E.2d 57

42 Va. App. 9

Ruben E. MARTINEZ v. COMMONWEALTH of Virginia.

Record No. 0051-03-1.

Court of Appeals of Virginia, Chesapeake.

December 23, 2003.

Charles E. Haden, for appellant.

Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ANNUNZIATA, BUMGARDNER and FRANK, JJ.

ROBERT P. FRANK, Judge.

Ruben E. Martinez (appellant) was convicted in a jury trial of first-degree murder, in violation of Code § 18.2-32, aggravated malicious wounding, in violation of Code § 18.2-51.2, and two counts of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. On appeal, he contends the trial court erred (1) in denying his motion to suppress statements given to police, based on a violation of the Vienna Convention of Consular Relations; (2) in rejecting his Batson challenge to the Commonwealth's peremptory strike of the only African-American male on the jury panel; (3) in failing to reduce the murder charge to voluntary manslaughter; (4) in failing to reduce the aggravated malicious wounding charge to "simple" maiming; and (5) in denying his motion for a mistrial based on the Commonwealth's failure to timely disclose its intent to impeach the testimony of appellant's witness. For the reasons stated, we affirm the convictions.

BACKGROUND

During a crack cocaine party at the home of Vickie McGillis and David Lee Perry, appellant gave Perry a rock of crack cocaine to sell for him. Appellant told Perry to give him the proceeds of the sale by noon the following day. Perry apparently agreed to this arrangement.

The next morning, at McGillis's home, appellant asked her if she and Gretchen Norris would buy a $20 rock of crack cocaine for him. Norris and McGillis left the house and picked up Vincent Edward Johnson while they were trying to find a drug dealer. Johnson eventually found someone from whom to buy drugs, and the three returned to McGillis's residence with the cocaine.

Appellant and Perry, among others, were at the residence. McGillis gave appellant the rock of crack cocaine she had purchased. Appellant expressed his dissatisfaction with the size of the rock and demanded that McGillis refund his money. At first, McGillis told appellant that she could not return the money, but then said she would pay appellant twenty dollars for the rock. Appellant told McGillis that he wanted the money by noon. He then turned to Perry and informed him that he also wanted the ten dollars Perry owed him by noon. Appellant indicated that, if either one of them did not pay him, he was "going to come in here and take—" Perry interrupted appellant and said that he was "not going to disrespect [his] home and come in and take anything." As Perry finished this statement, appellant "reached in the back of his britches and pulled out a gun and shot [Perry] in the head."

Norris testified, "they didn't argue." While appellant was loud, Perry "just sat on the couch and had his hands on his knees." Prior to the shooting, appellant stood five to six feet from Perry. Once he pulled the gun, he leaned forward. At that point, the gun was three to four feet from Perry.

McGillis testified she went to the restroom after appellant set the deadline for re-payment of his money. While in the bathroom, she heard "arguing going on." She then heard "a loud pop" and "feet running." Once it "got real quiet," she opened the door and saw appellant standing in front of Perry. Perry's head was slumped over. McGillis said, "Oh, my God, what happened?" Appellant, who was standing there, did not respond. McGillis then felt the gun on her upper left arm. She pleaded, "Don't shoot me. . . ." Appellant then shot her.

After appellant shot Perry, Norris testified she left the house and went to her car. As she attempted to unlock her car door, she saw appellant leaving the residence. Norris then heard McGillis say, "Oh, my God, you shot him." Appellant re-entered the house, saying, "I'll shoot them up." Norris then heard several more gunshots. As she began to back her car out of the driveway, appellant left the house again and entered Norris's car with a gun in his hand.¹ Appellant asked Norris to drive him to a bank. Norris drove to the corner of the street and then told appellant she could not drive, suggesting he take the car. Appellant then got out of the car and ran.

Johnson testified that, after he assisted Norton and McGillis purchase the crack cocaine, they had returned to McGillis's residence. Johnson testified that, after appellant said the rock was too small, appellant and Perry were "having words back and forth." "They wasn't [sic] yelling, but it wasn't a quiet talk either." Suddenly, Johnson noticed appellant "went in his back pocket and pulled out a gun." He then heard a gunshot. Johnson saw smoke come from the gun and saw Perry slumped over on the couch. Johnson then ran out of the house. He heard a second shot as he was fleeing down an alley.

McGillis was taken to the hospital and underwent surgery for the wounds she sustained. Two years after the surgery, she still had not regained the full use of her left arm.² Specifically, because she had not regained full, normal use of her left thumb and left index finger, she was unable to hold anything with "a real good grip." Three of her fingers did not "bend down all the way." Due to this continuing condition, she had difficulty picking up money, buttoning clothes, and doing "anything tedious." While McGillis noted she had made some improvement, she characterized her loss of use of her left hand as "significant."

Around July 11, 2001, appellant was apprehended in Cape May, New Jersey. Detective Thurman Clark of the Hampton Police Department interviewed appellant in Cape May. Clark was told appellant might feign an inability to speak English. The detective read appellant his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights and confronted appellant about a feigned language barrier. Detective Clark told appellant that he believed appellant "could understand and speak English very well." Clark and appellant then communicated in English and "had no problems communicating whatsoever."

In response to Clark's questions, appellant acknowledged he knew Perry was killed, that Perry owed him "about a thousand dollars," and that he was present when Perry was killed. He denied shooting Perry. He then invoked his right to counsel, and the interview ceased.

During the course of selecting the jury panel, the Commonwealth exercised a peremptory strike of Leslie Bailey, the sole African-American male on the panel. Appellant challenged the strike. In response, the Commonwealth explained:

While recognizing the fact that [Bailey's] civil rights have been restored, ... he has a prior record of serious felonies, for which he was convicted, serious, violent felonies. It causes some concern to the Commonwealth about maybe some attitudes that he may have towards the Commonwealth or towards law enforcement, and based upon those reasons, the Commonwealth elected to strike him.

Appellant did not argue that this explanation was pretextual. The trial court denied appellant's Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion, finding "it's a race neutral strike."

ANALYSIS

I. VIENNA CONVENTION OF CONSULAR RELATIONS

Appellant contends the trial court erred in denying his motion to suppress his statement to the police. He argues the police were obligated to advise him of certain rights under the Vienna Convention on Consular Relations because he is a foreign national. Since he was not advised of those rights, appellant reasons his statement should have been suppressed.

Article 36 of the Vienna Convention on Consular Relations, 21 U.S.T.S. 77, provides in subsection (1)(b):

competent authorities . . . shall, without delay, inform the consular post of the sending State, if . . . a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph . . . .

See also Bell v. Commonwealth, 264 Va. 172, 187, 563 S.E.2d 695, 706 (2002), cert. denied, 537 U.S. 1123, 123 S.Ct. 860, 154 L.Ed.2d 805 (2003). This provision of the Vienna Convention only applies to nationals when they are in a foreign country. Id.

The record here does not establish that appellant is a foreign national in the United States and, thereby, entitled to any application of the Vienna Convention. Apparently, the trial court held a separate hearing on the motion to suppress appellant's statement. On appeal, the transcript of that hearing was not timely filed, in violation of Rule 5A:8. By a previous order of this Court, appellant was allowed to proceed with the appeal, but admonished to "make no reference to any issue which relies on the transcript of the April 17, 2002 hearing." Martinez v. Commonwealth, Rec. No. 0051-03-1 (May 7, 2003). No evidence in the remaining record establishes appellant's nationality.

Appellant has failed to provide an adequate record to consider his argument on appeal. "If an insufficient record is furnished, the judgment appealed from will be affirmed." White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995). As appellant provides us no basis in the record upon which to consider his allegation of error, we find no error in the trial court's denial of his motion to suppress.

Additionally, appellant's argument would not prevail if the record had established that appellant is a foreign national. Appellant presumes, if the police do not comply with the provisions of Article 36 or inform him of its provisions, then the exclusionary rule would prohibit use of his...