Opinion
Record No. 1697-99-2
September 26, 2000
Appeal from the Circuit Court of Chesterfield County, Ernest P. Gates, Judge Designate
Robert J. Wagner (Wagner Wagner, on briefs), for appellant.
Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Benton, Bray and Bumgardner
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
Mykal Rashad was convicted after a bench trial of robbery, conspiracy to commit robbery, and use of a firearm in the commission of the robbery. On appeal, he argues the trial court erred (1) in denying his motion to suppress, (2) in applying the business records exception to a witness' testimony, (3) in considering his failure to testify as evidence of guilt, and (4) in finding the evidence sufficient to convict. He further argues the Commonwealth failed to disclose exculpatory evidence as required under Brady v. Maryland, 373 U.S. 83 (1963). For the following reasons, we affirm.
The defendant worked at the Breez-In convenience store located on the corner of Jefferson Davis Highway and Dundas Road. His shift began at 2:00 p.m., and at approximately 1:25 p.m. on April 27, 1998, a Breez-In employee saw the defendant turning his small green car from Jefferson Davis Highway onto Dundas Road. Ten minutes later, the manager left the store to make a bank deposit carrying the store's bank bag, which contained $6,100 cash, checks, and deposit slips. As he entered his car, Melvin Jones came up with a gun and demanded the bank bag. The manager turned over the bank bag, but Jones fled on foot when a store employee saw the robbery in progress and screamed.
The manager first ran in the store and told someone to call 911, then he returned to his car and pursued the robber, who had headed down Jefferson Davis Highway. The manager did not see anyone on the street until he reached the first side street, Sherbourne Road, only a block from the store. He spotted a car pulling from the curb as the passenger door was closing. The manager turned and chased the car as it sped off. He recorded the car's license plate number and description, but lost sight of it when it ran through a stop sign at an intersection.
The police, acting on the description and license number furnished by the store manager, stopped that vehicle between ten and twenty-five minutes after the robbery. The defendant was the driver and said that no one else had used his car that day. The police stopped him on Dundas Road, in the vicinity where the manager had chased the car and approximately one-half mile from the defendant's apartment. The officer found $2,647 cash in the defendant's possession and described him as extremely nervous and upset. The defendant said he had been paying bills, but gave conflicting statements of where he had been.
Three days after the robbery, the bank bag containing deposits slips from the store and a gun were found in a little wooden ravine at the end of the state maintained portion of Gravel Brook Drive by a land surveyor. Two days later the police returned to that area to investigate further after a resident reported finding a sweatshirt and a pen. As the officer was preparing to leave, another resident reported observing suspicious activity by a small green car. The car had been driving down Gravel Brook Drive toward its dead end, but upon coming in view of the police vehicle parked there, it quickly turned around and left the area. The officer drove out Gravel Brook Drive to investigate the report and encountered a small green car parked on the side of the road again headed toward the dead end. The officer proceeded past the car, observed the defendant was the driver, and began turning around. By the time the officer returned, the defendant had turned into and parked in a driveway. The officer stopped behind the defendant and turned on his blue lights.
The defendant had no driver's license or identification. He told the officer his name was Mykal MacWilliams and he lived at 4109 North Avenue. He furnished a date of birth and social security number, but a record check indicated that no driver's license had been issued to that name and date of birth. The defendant told the officer that he was looking for Sherry Williams who lived at 3409 Meadowdale Blvd. By then the officer used the social security number to identify the defendant as Mykal Rashad with an address of 3118 Meadowdale Blvd. The defendant explained that he had taken a Muslim name and that Sherry now resided on Gravel Brook Drive in a brick house, though he did not know which house was hers. The defendant's record address was across town from the one he gave the officer.
The defendant contends the trial court erred in admitting his statements to the police when stopped on Gravel Brook Drive. He argues the officer illegally detained him. A defendant, whose car was blocked in a driveway by a state trooper, was not in custody,see Stroud v. Commonwealth, 6 Va. App. 633, 637-38, 370 S.E.2d 721, 723-24 (1988), but reasonable suspicion was necessary to approach him. See Wallace v. Commonwealth, 32 Va. App. 497, 504, 528 S.E.2d 739, 742 (2000). "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146 (1972).
Whether a stop is justified depends on "whether 'the facts available to the officer at the moment of the [stop] . . . [would] warrant a man of reasonable caution in the belief that the action was appropriate.'" Wallace, 32 Va. App. at 504, 528 S.E.2d at 742 (quoting Quigley v. Commonwealth, 14 Va. App. 28, 32, 414 S.E.2d 851, 854 (1992)). A citizen reported suspicious activity by a car, matching the description of the get-away vehicle. The vehicle went down Gravel Brook Drive, but reversed direction upon coming in view of a police vehicle. The officer was continuing an investigation begun when the stolen bank bag and a gun were found in the area. He considered the area a crime scene. The defendant reversed direction a second time, parked, but turned into a driveway after the officer cruised past and then began to return. "[E]vasive behavior in the presence of police is a pertinent factor in determining reasonable suspicion." Id. (citations omitted). "Evasive action is a factor which can support an inference of a consciousness of guilt." Illinois v. Wardlow, 120 S.Ct. 673, 676 (2000) ("[F]light . . . is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.").
In Bass v. Commonwealth, 259 Va. 470, 525 S.E.2d 921 (2000), and Murphy v. Commonwealth, 9 Va. App. 139, 384 S.E.2d 125 (1989), a driver had turned away from a police checkpoint before reaching it. Such evasive action at a considerable distance from the checkpoint did not rise to reasonable suspicion. In this case suspicious activity was greater: a car drove to the end of a dead end road where police were investigating evidence found abandoned after a robbery; the car turned and left the area once it came within sight of the police vehicle; the car returned and parked at the curb; after the police officer drove by, it turned into a driveway and stopped. The defendant's suspicious behavior at this remote crime scene created a reasonable suspicion that permitted the officer to investigate further.
Next, the defendant contends the trial court erred when it permitted a Department of Corrections employee to present data from the Department's computer records. He argues the data was hearsay and inadmissible. The records revealed that the defendant and Melvin Jones, the actual robber, were imprisoned at the same institution in 1991 and again in 1994.
Under the modern shopbook rule, someone other than the maker may introduce business records so long as "the records are kept in the normal course of business and are relied upon in the transaction of the business by the entity for which they are kept." Sparks v. Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69, 71 (1997) (citation omitted). The mundane routine of the rote procedure of government agencies entering records into their computer data files provides the guarantee of reliability always required by the business records exception to the hearsay rule. "'The trustworthiness or reliability of the records is guaranteed by the regularity of their preparation and the fact that the records are relied upon in the . . . business by the person[s] . . . for [whom] they are kept.'" Marefield Meadows, Inc. v. Lorenz, 245 Va. 255, 264, 427 S.E.2d 363, 368 (1993) (quoting "Automatic" Sprinkler Corp. v. Coley Petersen, Inc., 219 Va. 781, 793, 250 S.E.2d 765, 773 (1979)). See Frye v. Commonwealth, 231 Va. 370, 387, 345 S.E.2d 267, 279-80 (1986) (dispatcher permitted to testify as to NCIC records, which qualify as business records). "Unusual reliability is regarded as furnished by the fact that in practice regularly kept records have a high degree of accuracy."McCormick on Evidence § 306, at 872 (Edward W. Cleary ed., 3rd ed. 1984).
Sandra Crenshaw was the inmate records manager for the Baskerville Correctional Unit and had access to all the Department of Corrections' computer records known as the Offender Base State Corrections Information System (OBSCIS). Crenshaw testified about the authenticity of those records and her reliance upon them in her employment. The Commonwealth introduced this information to show that the defendant and codefendant had an opportunity to know one another because they had been inmates at the same facility at the same time. The trial court did not err in admitting the computer data as an exception to the hearsay rule.
Next, the defendant contends that the trial court improperly considered his failure to testify as evidence of guilt. While explaining its reasoning for denying the motion to strike, the trial court remarked, "[a]nd there's no explanation where he got the $2,600. He had the opportunity to testify to that, which he didn't do." The defendant raised no objection to the statement when made, but new counsel relied on it in a post-trial motion seeking reconsideration of the conviction.
At the post-trial hearing, the trial judge explained his earlier comment. "I was left with the fact that when [the defendant] was stopped, he had $2,600, blank. . . . That is circumstantial evidence and may be the fruit of the crime. . . . He had an opportunity to explain it. He didn't. . . . That doesn't mean that I'm requiring him to testify or to incriminate him [sic], but if he wants to prove a point, somehow he's got to do that. . . . He elected not to do that and as a result of that, he has the $2,600 sitting out there that is unexplained."
The trial court's clarification stated that it did not require the defendant to testify. The court was referring to the state of the evidence after evaluating the inferences that it would draw. That evidence showed the defendant was in possession of a large sum of money shortly after the robbery from which his car was seen fleeing. When stopped shortly thereafter, the defendant told the police he was paying bills. His explanation was evidence, but the fact finder did not have to believe it, and if the explanation was not believed, the fact finder could infer that the defendant was lying to conceal his guilt. See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). The trial court's remark explained that it did not believe the explanation supplied by the evidence, which leaves the defendant in unexplained possession of a large amount of cash shortly after the robbery. That state of the evidence permitted the elementary inference that the person in possession stole the property.
We conclude that the trial court's clarification of its earlier remark removed any suggestion that it used the defendant's right not to testify as evidence of guilt. "A judge . . . is uniquely suited by training, experience and judicial discipline to disregard potentially prejudicial comments and to separate, during the mental process of adjudication, the admissible from the inadmissible, even though he has heard both." Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981) (citations omitted). "[I]n a bench trial, the trial judge is presumed to disregard prejudicial or inadmissible evidence, and this presumption will control in the absence of clear evidence to the contrary." Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992) (citation omitted).
The defendant argues that the evidence is not sufficient to permit a finding of guilt. When a defendant challenges the sufficiency of the evidence, we examine the evidence that tends to support the conviction and allow it to stand unless it is plainly wrong or unsupported by the evidence. See Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998). In so doing, we discard the evidence of the accused that conflicts with that of the Commonwealth. See Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).
The defendant worked at the convenience store and drove by minutes before the robbery. An armed robber took a bank bag containing $6,100 cash at gunpoint and fled. The store manager pursued the robber moments later and within a block saw the defendant's car pulling from the curb as the passenger door closed. The car sped through a stop sign and got away, but police stopped it within a half-hour. The defendant was the driver and owner of the vehicle, which no one else had driven that day. Evidence of flight, along with the defendant's other acts or conduct, may tend to show "consciousness of guilt." Hope v. Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833-34 (1990) (en banc).
When stopped, the defendant possessed $2,647 in cash and was extremely nervous. He said he had the cash to pay bills but gave conflicting statements as to where he had been. Five days after the robbery, the defendant was seen on Gravel Brook Drive where the stolen bank bag and an abandoned gun had been found. The defendant drove suspiciously, and he gave false and evasive answers to the officer's investigative questions of why he was there. When drawing reasonable inferences from the facts, the fact finder "was entitled to weigh the defendant's contradictory statements," Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213 (1949), and to infer that he was attempting to conceal his guilt. See Black, 222 Va. at 842, 284 S.E.2d at 610. Based on the totality of the circumstances, we find the evidence sufficient to support the defendant's convictions.
Finally, the defendant contends the Commonwealth failed to disclose exculpatory evidence. The Commonwealth did not disclose to the defense that the store manager, the robbery victim, did not identify Melvin Jones, the actual robber, when first showed a photographic lineup. The store manager later did identify Jones as his assailant and testified at trial that Jones robbed him. While that evidence clearly was exculpatory in the trial of Melvin Jones, the codefendant who actually robbed the store manager, it was collateral evidence in the trial of the defendant who was prosecuted as a principal in the second degree and a co-conspirator. The identity of the specific person who robbed the manager was not an element to be proved. The fact that someone robbed the manager was sufficient, and no contest was made of that fact. However, for purposes of this appeal, we will assume, without deciding, that the evidence was exculpatory.
This evidence was used at the codefendant's trial, and he was acquitted.
The defendant has not shown "'a reasonable probability' that the result of the trial would have been different if the suppressed [evidence] had been disclosed to [him]." Strickler v. Greene, 527 U.S. 263, 289 (1999) (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995)). "The question is whether 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Id. at 290 (quoting Kyles, 514 U.S. at 435).
The Commonwealth maintained that the defendant had the opportunity to plan the crime because he worked at the store and was the driver of the getaway car. The suppressed evidence related solely to the victim's identification of the robber. The Commonwealth was only required to prove that the defendant conspired with another individual and drove the getaway car after the robbery. In this case, the Commonwealth was not required to prove the precise identity of the gunman, and no evidence suggested the robbery did not occur.
Under Brady, 373 U.S. at 87, the defendant must establish that the Commonwealth suppressed evidence favorable to him and he was prejudiced by its failure to disclose. "Such evidence is material [only] 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In this case, the failure to disclose did not prejudice the defendant's case because the evidence did not relate to any issue in dispute.
For the reasons stated, we affirm the convictions.
Affirmed.
Benton, J., dissenting.
I.
"It is well established that an investigatory stop may be initiated only when an officer has 'a reasonable suspicion, based on objective facts, that an individual is involved in criminal activity.'" Riley v. Commonwealth, 13 Va. App. 494, 496, 412 S.E.2d 724, 725 (1992) (citation omitted). "[S]topping an automobile and detaining its occupants [for an investigative stop] constitutes a 'seizure' within the meaning of [the Fourth Amendment] even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653 (1979). Recently, our Supreme Court again explained these well established principles.
A reasonable suspicion is more than an "unparticularized suspicion or 'hunch.'" Reasonable suspicion, while requiring less of a showing than probable cause, requires at least a minimal level of objective justification for making the stop. Accordingly, the stop of an automobile and the resulting detention of the driver is unreasonable under the Fourth Amendment absent a reasonable, articulable suspicion that the driver is unlicensed or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law.
Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923-24 (2000) (citations omitted).
As in this case, when the police stop a driver without the authority of a warrant, the Commonwealth has the burden of proving the stop was lawful. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989). That proof must establish the objective reasonableness of the officer's conduct rather than the officer's subjective belief that the behavior of the detained person indicates criminal activity. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
The officer testified that he stopped Rashad because he had received information from an unidentified person "that there was a suspicious vehicle in the area." Based solely upon that information, the officer drove to the place on the street where he saw Rashad's car lawfully stopped. After Rashad turned into a driveway, the officer detained him and demanded his identification. The officer saw no unlawful conduct or violation of any traffic law. He had received no information that Rashad had engaged in unlawful conduct or violated any traffic laws. The unadorned report of "a suspicious vehicle," which caused the officer to stop Rashad, does not constitute anything more than an "inchoate and unparticularized suspicion or 'hunch.'" Terry, 392 U.S. at 27. Moreover, the "reasons for which a driver may reverse direction [or turn into a driveway] . . . are legion in number" and add nothing to an objective assessment of the driver's conduct. Bass, 259 Va. at 477-78, 525 S.E.2d at 925.
If a hunch is not enough for a police officer to effectuate a stop, it follows that the hunch of an unnamed informant . . . is also not sufficient. The fact that the informant's hunch is conveyed to the police officer does not raise the hunch to the level of reasonable suspicion. "Manifestly, this conduct falls below activity necessary to justify a reasonable suspicion that a violation of law had occurred or was occurring."
Beckner v. Commonwealth, 15 Va. App. 533, 537, 425 S.E.2d 530, 533 (1993) (quoting Zimmerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 710 (1988)).
The evidence utterly failed to establish a sufficient basis for the officer to stop Rashad. Thus, I would hold that the trial judge erred in refusing to suppress the evidence obtained as a result of that seizure. See Beckner, 15 Va. App. at 539, 425 S.E.2d at 534.
II.
Sandra Crenshaw testified that she was "the inmate records manager at Baskerville [Correctional Unit]." Over Rashad's objection, the trial judge permitted Crenshaw to testify that the Department of Corrections' records indicated that Rashad and Melvin Jones were incarcerated at Pocahontas Correctional Unit at the same time between June 1994 and August 1994. Crenshaw was not the records manager for either the Department of Corrections or the Pocahontas Correctional Unit.
Crenshaw merely testified that she was "inmate records manager at Baskerville, that she "[has] access to all OBSCIS records," and that she is able to use the computer to "get the location where different inmates are kept throughout the system." That testimony is insufficient to establish a foundation for the admission of the Department's records as an exception to the hearsay rule. See Ford Motor Co. v. Phelps, 239 Va. 272, 275-76, 389 S.E.2d 454, 457 (1990).
III.
At trial, a police officer testified that on April 27, "when the traffic stop was initiated" on Rashad, the officer was speaking to Rashad's wife at her home. She told the officer "that Rashad had the car and [that] she thought he was out paying bills . . . [and] had cash with him." The officer then went several blocks away to speak to Rashad. Rashad "stated . . . that he had been out paying bills, that the cash he had with him was to pay bills."
At the conclusion of all the evidence, the trial judge denied the motion to strike and commented that "there's no explanation where he got the $2,600. "He had the opportunity to testify to that, which he didn't do." I would hold that this remark was an impermissible comment upon Rashad's exercise of his Fifth Amendment right not to testify, see Griffin v. California, 380 U.S. 609, 614-15 (1975), and reflects that the trial judge, as the trier of fact, imposed a penalty for Rashad's exercise of that right.
IV.
The majority assumes without deciding that the evidence the Commonwealth failed to disclose was exculpatory, see Brady v. Maryland, 373 U.S. 83, 87 (1963), but holds that Rashad has not shown that the outcome would have been different if the evidence had been disclosed to him. I disagree.
The United States Supreme Court recently articulated inStrickler v. Greene, 527 U.S. 263 (1999), the standard for establishing prejudice for a Brady claim. The prejudice question turns on whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 290. Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 280; see also Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
Noting that Rashad did not challenge the premise that the store manager was robbed, the majority maintains that the Commonwealth's failure to disclose the exculpatory evidence did not prejudice Rashad because the evidence did not relate to any fact in dispute. It is reasonably probable, however, that if the Commonwealth had divulged the exculpatory evidence, Rashad would have challenged that premise. Indeed, if Rashad had known that the store owner was initially unable to identify Melvin Jones as the robber and that Jones was acquitted of the robbery, he certainly would have objected to evidence that he and Jones, the alleged robber, had been incarcerated together as being irrelevant. Crenshaw's testimony was prejudicial because it made Rashad's conviction more likely than if she had not testified. A reasonable probability exists that her testimony changed the outcome of the trial. The Commonwealth would have been unable to argue that Rashad knew the person the Commonwealth alleged to be the robber. This would have significantly undermined the Commonwealth's theory that Rashad and the alleged robber were co-conspirators.
Moreover, if the trial judge had known that Jones, Rashad's alleged codefendant, had been acquitted, he may have been more likely to believe that Rashad had $2,600 in cash to pay bills as his wife had indicated, rather than as a result of the robbery.
Rashad is not required to prove beyond all doubt that disclosure of Brady material would have changed the outcome of the trial.
He must convince us that "there is a reasonable probability" that the result of the trial would have been different if the suppressed documents had been disclosed to the defense. As [the Supreme Court] stressed in Kyles, [ 514 U.S. at 434]: "[T]he adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."
Strickler, 527 U.S. at 289-90.
The Commonwealth's failure to provide Rashad with this evidence violated his fundamental right to a fair trial. Thus, for this additional reason, I would reverse the convictions.
V.
Rashad was convicted of robbery, conspiracy to commit robbery, and use of a firearm in the commission of robbery. No evidence proved that Rashad robbed the store manager. Indeed, the manager identified another man as the robber. Furthermore, no evidence proved Rashad conspired with anyone to rob the manager or aided anyone in committing the robbery.
Fundamental principles applicable here should be reviewed. To justify conviction of a crime, it is insufficient to create a suspicion or probability of guilt. Rather the burden is upon the Commonwealth to prove every essential element of the offense beyond a reasonable doubt. "The evidence must exclude very reasonable hypothesis of innocence and be consistent only with the guilt of the accused."
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997) (citations omitted).
"Conviction of a crime is not justified if the evidence creates only a suspicion or probability of guilt." Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994). Because the evidence raises only a suspicion of guilt and does not rise to the level of guilt beyond a reasonable doubt, I would reverse the convictions.
I dissent.