Saunders v. Com., 760819

• Citation: 218 Va. 294,237 S.E.2d 150
• Decision Date: 01 September 1977
• Docket Number: No. 760819,760819
• Parties: Keith Angelo SAUNDERS v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 150

237 S.E.2d 150

218 Va. 294

Keith Angelo SAUNDERS v. COMMONWEALTH of Virginia.

Record No. 760819.

Supreme Court of Virginia.

Sept. 1, 1977.

Robert P. Geary, Richmond (Harvey Latney, Jr., McGrath & Geary, Richmond, on brief), for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

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

HARMAN, Justice.

Keith Angelo Saunders (Saunders or defendant) was convicted by a jury of the first degree murder of Alexander S. Mottley (Mottley or victim). The jury fixed Saunders' punishment at imprisonment for life. We granted a writ of error on limited grounds to the trial court's order sentencing the defendant on the verdict.

Under the writ we will consider only two issues raised by the defendant, namely, (1) whether the trial court erred in sustaining the validity of search warrants authorizing a search of the defendant's automobile and residence, and (2) whether the trial court erred when it denied the defendant's motion for a mistrial after the Commonwealth's Attorney, on cross-examination of the defendant, improperly revealed to the jury that one of the veniremen, on voir dire examination, stated that he had seen the defendant working on the victim's delivery truck.

On January 28, 1975, two search warrants were issued by the General District Court of Buckingham County on affidavits sworn to by Garnett A. Shumaker, Jr., Sheriff of Buckingham County. One of the search warrants authorized search of a 1971 Ford Maverick sedan and the other a search of the defendant's residence in Buckingham County. Prior to his trial in the court below, the defendant filed motions to suppress the evidence seized under the search warrants on the ground that neither of the affidavits stated sufficient probable cause to authorize the issuance of the warrant. The trial court, after a hearing on the defendant's motions, held the affidavits sufficient to authorize the search warrants and denied the motions to suppress.

Both affidavits recited that the crime under investigation was the abduction, robbery and murder of Mottley. The first affidavit, as probable cause to obtain a search warrant for the automobile, stated:

"(1) That the said vehicle matches the description of the vehicle seen in the driveway of the residence of the said Alec Mottley at the time of his alleged abduction.

"(2) That the said vehicle was observed by State Trooper G. R. Cyrus stuck in a ditch on Virginia Secondary Highway No. 608 within fifty feet of the location of the spot at which were found blood, drag marks, spent 22-cal. cartridges and personal effects of the said Alec Mottley, including Alec Mottley's daily sales tickets of January 27, 1975, the date of the alleged abduction, robbery and murder, within approximately one hour of the alleged abduction.

"(3) That there were stains appearing to be blood on the seats, windows, the exterior sides of said vehicle; that there are pine needles and mud similar to that of the terrain of the location hereinabove described; and that there are handprints and fingerprints on the interior of the windows of said vehicle, all of the above described items being visible to the eye upon plain view from the exterior of said vehicle in said parking lot."

The facts constituting probable cause for search of Saunders' residence recited in the second affidavit were:

"(1) That said dwelling and outbuildings are the residence of one Keith Angelo Saunders as admitted by said Keith Angelo Saunders on January 28, 1975, to the affiant.

"(2) That said Keith Angelo Saunders was seen by Trooper G. R. Cyrus at a location within fifty feet of the spot at which were found blood, drag marks, spent 22 cal. cartridges and the personal and business effects of said Alec Mottley including Alec Mottley's daily sales tickets of January 27, 1975; said Alec Mottley having been abducted, robbed and murdered on January 27, 1975, at approximately 7:30-8:30 p. m.; said Keith Angelo Saunders having been seen by the said Trooper G. R. Cyrus at the hereinabove described location at approximately 8:15 p. m. on January 27, 1975, within one hour of the alleged abduction.

"(3) That said Keith Angelo Saunders having told the affiant that he was in the vicinity of Alec Mottley's dwelling at the approximate time of the alleged abduction; that he was driving a certain 1971 cream colored, 4-door Ford Maverick sedan, Virginia license no. CMF-591, in the vicinity of the hereinabove described location and that said vehicle did become stuck in a ditch at the above described location; that said vehicle has been impounded as evidence in this investigation because it appears to contain blood and other evidence."

The defendant first argues that both affidavits are insufficient because the facts recited in them are largely hearsay. Recognizing that hearsay in an affidavit may properly be considered by a magistrate so long as the affidavit also shows a substantial basis for crediting it, Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the defendant argues that Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) requires, before the hearsay may be considered in finding probable cause, that the affidavit also show underlying circumstances from which a neutral and detached magistrate can determine either the credibility of the person supplying the information or the reliability of the information itself.

The defendant then proceeds to dissect each paragraph of the affidavits in an effort to demonstrate that it contains hearsay unsupported by a showing of reliability or credibility. For example, the defendant says that the facts contained in paragraph (1) of the first affidavit are clearly hearsay and conclusory, and, since the affidavit fails to set forth the underlying circumstances buttressing reliability, this information should not have been considered by the magistrate in determining probable cause. As another example, the defendant points to paragraph (2) of the first affidavit and argues that the conclusion that the defendant was seen by Trooper Cyrus within one hour of the alleged abduction near the point where blood, drag marks, spent cartridges and some of the personal effects of the murder victim were subsequently discovered should not have been considered by the magistrate because no facts are contained in the affidavit supporting the conclusion that this incident did, in fact, occur within one hour of the alleged abduction. Saunders says that a further fatal defect in paragraph (2) of the affidavit is that it is hearsay and the affidavit does not indicate how the affiant, Sheriff Shumaker, received information about the blood, drag marks, etc., so there is nothing in the affidavit to show either the credibility of the informant or the reliability of the information.

While Aguilar and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), stand for the proposition that a search warrant based on information received from an underworld figure or professional informer must also provide the magistrate with underlying facts or circumstances buttressing the credibility of the informer and reliability of the information, this rule does not apply to information which comes from the victim of or eyewitness to a crime. United States v. Miley, 513 F.2d 1191, 1204 (2nd Cir.) cert. denied, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975); United States v. Burke, 517 F.2d 377, 380 (2nd Cir. 1975); United States v. Bell, 457 F.2d 1231, 1238-39 (5th Cir. 1972); United States v. Unger, 469 F.2d 1283, 1287 n. 4 (7th Cir. 1972) cert. denied, 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313 (1973); McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.) cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969); Cundiff v. United States, 501 F.2d 188, 189-90 (8th Cir. 1974); United States v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir.) cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); United States v. McCoy, 478 F.2d 176, 179 (10th Cir.) cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); Brown v. State, 534 S.W.2d 213, 216 (Ark.1976); United States v. Walker, 294 A.2d 376, 377-78 (D.C.Ct.App.1972); People v. Glaubman, 175 Colo. 41, 485 P.2d 711, 717 (1971); State v. Paszek, 50 Wis.2d 619, 629-31, 184 N.W.2d 836, 842-43 (1971).

While not overruling the Aguilar-Spinelli rule, these decisions have dispensed with the necessity of specific allegations of credibility or past reliable contact with the witness on grounds that credibility may be inferred from their status as an eyewitness or victim. The rationale underpinning these holdings is that the concomitant danger of self-interest does not inure to a victim or eyewitness to a crime as easily as it would to a professional informant. This rationale is well stated in United States v. Bell, supra, where the Court said:

". . . (A) specter has arisen in this case that deserves to be laid to rest. It is now a well-settled and familiar concept, as enunciated by Aguilar and Spinelli, that supporting affidavits in an application for a search warrant must attest to the credibility of an informant and the reliability of his information. . . . We have discovered no case that extends this requirement to the identified bystander or victim-eyewitness to a crime, and we now hold that no such requirement need be met. . . . Such observers are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it. A 'neutral and detached magistrate' could adequately assess the probative value of an eyewitness's information because, if it is reasonable and accepted as true, the magistrate must believe that it is based upon first hand knowledge. Thus we conclude that Aguilar...