Thomas v. Com.

• Decision Date: 03 August 1993
• Docket Number: No. 0420-91-1,0420-91-1
• Citation: 434 S.E.2d 319,16 Va.App. 851
• Parties: Demetris THOMAS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 319

434 S.E.2d 319

16 Va.App. 851

Demetris THOMAS v. COMMONWEALTH of Virginia.

Record No. 0420-91-1.

Court of Appeals of Virginia.

Aug. 3, 1993.

Rehearing En Banc Granted Sept. 13, 1993.

James B. Covington, Norfolk (Breeden, MacMillan & Green, on briefs), for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, KOONTZ ^* and BRAY, JJ.

BRAY, Judge.

Demetris Thomas (defendant) was convicted of statutory burglary, attempted rape, malicious wounding and aggravated sexual battery and was sentenced in accordance with the jury's recommendation to thirty-five years imprisonment. On appeal, defendant complains that he was unlawfully arrested and that the trial court erred in admitting certain impeachment evidence, his statement to police and a "tainted" identification. For the reason stated below, we reverse and remand.

Upon appeal from a trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991); Reynolds v. Commonwealth, 9 Va.App. 430, 436, 388 S.E.2d 659, 663 (1990). The findings of the trial court will not be disturbed unless "plainly wrong," Grimstead, 12 Va.App. at 1067, 407 S.E.2d at 48, and the burden is upon the appellant to show reversible error. Reynolds, 9 Va.App. at 436, 388 S.E.2d at 663.

The evidence disclosed that, on February 20, 1990, Sandra Harris (Harris) was awakened in her home between 4:00 and 5:00 a.m. by "somebody touching [her] chest ... inside [her] shirt." When she realized that a "guy ... with a porcelain face mask on" was "leaning on top of [her]," holding "a knife to [her] throat," Harris "started fighting him" and "he cut [her]" hand. She then promised not to "scream," and the intruder "put the mask on top of his head," allowing Harris to "look directly into his face ... about a minute." In an effort to escape, Harris "ran to the front door," and the assailant "jumped out of the window and took off."

Shortly thereafter, Officer Thomas Scotting (Scotting) "received a call to assist another unit" in response to a "stabbing" at a nearby "location." A description of the "suspect" was transmitted to Scotting and, "while checking the area," he observed defendant "come from around the back side ... of [a] motel." Scotting viewed this conduct as "suspicious" because there were "no rooms back there" or "anything leading to that area of the motel." He also noted that defendant "matched" the description of the suspect and was alone on the street. Scotting entered the motel office, followed by defendant, who requested a cab and "walked out." When Scotting turned to follow, defendant had "disappeared."

Scotting continued to patrol the area and saw defendant "coming out of the shadows" as a taxi approached. Defendant walked in the direction of the patrol car and Scotting "asked him to come over ... a foot or two" to his "unit." He advised defendant that police were searching for a person of his description, "frisked" him for weapons and inquired "if he would voluntarily go to a showup at a particular location." Defendant agreed, after Scotting assured him that the police would return him "to catch his cab," provided "nothing transpired." Although Scotting testified that defendant was not under arrest, he was handcuffed and transported in the rear seat of the vehicle "about a quarter of a block" to Harris' residence.

On arrival, Harris "walk[ed] out to the police car," "looked at [defendant's] face," and "told [police] that it was him." However, she "wanted to make sure [she] wasn't falsely accusing somebody" and "asked to see him standing up," to "look at his body size." Defendant, still handcuffed, was then "walked ... up ... [the] sidewalk" by a police officer, and Harris confirmed that she was "absolutely sure," "positive that it was him." She again identified the defendant at the preliminary hearing, the suppression hearing and trial.

Following Harris' initial identification, defendant was arrested and taken into custody and, after being "advised of his legal rights," was interviewed by Officers Dunn (Dunn) and Dickerson (Dickerson). During this questioning, defendant admitted that he had entered Harris' home, taken "a knife out of her drawer" and "thought about ... raping her but ... didn't." Dickerson recalled that the interview ended at 2:30 p.m., when defendant indicated that he wished to speak with an attorney.

Defendant was continuously in custody from his arrest on February 20, 1990, until trial on October 31, 1990. A preliminary hearing on the charges was conducted on March 14, 1990, and defendant was indicted on April 4, 1990. Trial was originally scheduled for May 21, 1990, but continued, on defendant's motion, until August 22, 1990.

Defendant testified at trial and denied involvement in the offenses. When the Commonwealth attempted to impeach him with evidence of two prior felony convictions, defense counsel objected, arguing that these convictions were not "final" because defendant "ha[d] not yet been sentenced." The trial court overruled the objection and this evidence was presented to the jury.

I. IMPEACHMENT

Defendant first contends that he was improperly impeached "through the use of ... guilty verdicts prior to sentencing." This Court concluded in Dowell v. Commonwealth, 12 Va.App. 1145, 1149, 408 S.E.2d 263, 265 (1991), aff'd en banc, 14 Va.App. 58, 414 S.E.2d 440 (1992), that a finding of guilty, following a plea of not guilty, does not constitute a conviction for impeachment purposes until memorialized by final order of the trial court. We also found that the admission of such evidence was not harmless because a defendant's credibility becomes "crucial" once he elects to testify. Id. at 1149, 408 S.E.2d at 265-66. "If the jury had believed his testimony, there could have been no conviction." Id. Defendant was, therefore, improperly impeached with evidence of still pending prosecutions, and we must reverse and remand for a new trial. ¹

II. THE SEIZURE

"A 'seizure' for purposes of the fourth amendment occurs when the 'circumstances ... amount to a show of official authority such that a reasonable person would have believed that he was not free to leave.' " Moss v. Commonwealth, 7 Va.App. 305, 307, 373 S.E.2d 170, 171-72 (1988) (quoting Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983)). Under this test, Scotting's detention of defendant clearly constituted a seizure. However, "[t]he Fourth Amendment does not proscribe all seizures, only those that are 'unreasonable.' " Bethea v. Commonwealth, 14 Va.App. 474, 476, 419 S.E.2d 249, 250 (1992) (citing Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968)). To justify the seizure in this instance, Scotting must have possessed "a reasonable and articulable suspicion of criminal activity on the part of the defendant," Commonwealth v. Holloway, 9 Va.App. 11, 15, 384 S.E.2d 99, 101 (1989), based upon "the totality of the circumstances." Wells v. Commonwealth, 6 Va.App. 541, 551, 371 S.E.2d 19, 24 (1988) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

When Scotting observed defendant, he was aware that a serious and violent crime had just occurred in the immediate vicinity. Defendant matched the description of the suspect, was alone on the street less than one block from the crime scene, and was behaving suspiciously. Such circumstances clearly presented sufficient articulable facts to justify Scotting's initial investigatory detention under Terry. See Smith v. Commonwealth, 12 Va.App. 1100, 1103, 407 S.E.2d 49, 51-52 (1991); Wells, 6 Va.App. at 552, 371 S.E.2d at 25.

However, even if this initial encounter was permissible, defendant contends that the ensuing detention, during which he was handcuffed, placed in a patrol car and transported to the victim's home, enlarged the scope of investigative activity into an arrest without probable cause. We disagree.

Although we recognize that " 'police procedures [during a Terry stop] can ... be so intrusive ... as to trigger the full protection of the Fourth and Fourteenth Amendments,' " DePriest v. Commonwealth, 4 Va.App. 577, 586, 359 S.E.2d 540, 544 (1987) (quoting Hayes v. Florida, 470 U.S. 811, 815-16, 105 S.Ct. 1643, 1646, 84 L.Ed.2d 705 (1985)), cert. denied, 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988), there is no " 'litmus-paper test for distinguishing ... when a seizure exceeds the bounds of an investigative stop.' " Id. (quoting Royer, 460 U.S. at 506, 103 S.Ct. at 1329). The Supreme Court has instructed that, in " 'evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.' " Id. (quoting United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)). While the "investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time," the "scope of the intrusion permitted will vary [with each case]." Royer, 460 U.S. at 500, 103 S.Ct. at 1325.

In this instance, the transportation of defendant less than one block for an immediate showup did not transform the initial detention into an arrest. Transportation of a suspect a short distance for possible identification has consistently been found reasonable and consonant with Fourth Amendment safeguards. See State v. Mitchell, 204 Conn. 187, 527 A.2d 1168, 1172-74 (Conn.), cert. denied, 484 U.S. 927, 108 S.Ct. 293, 98 L.Ed.2d 252 (1987); Buckingham v. State, 482 A.2d 327, 334 (Del.1984); Wilkerson v. United States, 427 A.2d 923, 925-26 (D.C.), cert. denied, 454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981); People v. Lippert, 89 Ill.2d 171, 59...