Opinion
Record No. 2575-92-1
Decided: July 26, 1994
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE, Russell I. Townsend, Jr., Judge
Affirmed.
William P. Robinson, Jr. (Robinson, Madison, Fulton Anderson, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Roosevelt Riddick, Jr., (appellant) was convicted in a bench trial of possession of a firearm by a felon. See Code Sec. 18.2-308.2. On appeal, he argues that the evidence was insufficient to sustain his conviction, and that the firearm seized from his vehicle was obtained as a result of an unlawful stop and arrest and should have been suppressed. We hold that Rule 5A:18 bars our consideration of the sufficiency issue, as it was not raised at trial, and that appellant's motion to suppress was properly denied. Accordingly, we affirm appellant's conviction.
BACKGROUND
On December 13, 1987, in response to a call for assistance, Officer Jeffrey Newcomb of the Chesapeake Police Department was dispatched to the residence of appellant's former wife and son, Vivian and Reginald Riddick. They told Officer Newcomb that appellant, after retrieving a .38 revolver from his vehicle, attempted to break and enter the residence, threatened to kill Reginald, and then left in his vehicle. Both Reginald and Vivian informed Officer Newcomb of appellant's two prior felony convictions involving the use of firearms. Officer Newcomb broadcast this information, as well as a description of appellant and his vehicle, over the police radio.
Approximately one-half hour later, in response to Reginald's second call for assistance, Officer David Phillips arrived at Reginald Riddick's residence. As appellant drove away, Reginald pointed out appellant's car to Officer Phillips. Officer Phillips followed the vehicle a short distance before stopping it, and advised Officer Newcomb by radio that he had located and stopped appellant's vehicle.
After stopping the car, Officer Phillips looked into the passenger compartment and under the seat. Appellant was out of the vehicle when Officer Newcomb arrived. In response to Officer Newcomb's request to search the vehicle, appellant nodded affirmatively and gave Officer Newcomb the keys to the vehicle. Officer Newcomb found a .38 caliber revolver inside the trunk.
SUFFICIENCY OF THE EVIDENCE
On appeal, a ruling of a trial court cannot be a basis for reversal unless an objection is stated "together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Rule 5A:18. An appeal of an issue of sufficiency of evidence is barred under this rule if not raised at trial.
Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc); Code Sec. 8.01-384. Appellant failed to preserve the issue of sufficiency of the evidence for appeal. Accordingly, Rule 5A:18 bars our consideration of this question on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
The "ends of justice" exception to Rule 5A:18 applies only where the record shows that application of the procedural bar would result in a clear miscarriage of justice. See Jimenez v. Commonwealth, 241 Va. 244, 249, 402 S.E.2d 678, 680 (1991); Brown v. Commonwealth, 8 Va. App. 126, 131-32, 380 S.E.2d 8, 10 (1989); Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). The record does not support appellant's claim that application of Rule 5A:18 creates "clear, substantial and material" error resulting in a miscarriage of justice. Brown, 8 Va. App. at 132, 380 S.E.2d at 11.
SUPPRESSION OF EVIDENCE
"On appeal, the burden is on appellant to show that the trial court's denial of a suppression motion, when the evidence is viewed in the light most favorable to the Commonwealth, constitutes reversible error." Patterson v. Commonwealth, ___ Va. App. ___, ___, 440 S.E.2d 412, 414 (1994) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980)). See also Baldwin v. Commonwealth, 243 Va. 191, 193, 413 S.E.2d 645, 646 (1992).
Appellant argues that because Officer Phillips did not observe him commit the felony, there was no basis to stop or arrest appellant. Therefore, the gun seized during a consensual search of the trunk of his vehicle was illegally obtained and should have been suppressed.
It is well settled that a police officer has the legal right to arrest an accused without a warrant, where the officer has "reasonable cause to believe [the accused has] committed a felony." Hammer v. Commonwealth, 207 Va. 135, 145, 148 S.E.2d 878, 884 (1966).
Reginald Riddick told both officers that appellant attempted to break into the residence, threatened to kill him, possessed a loaded firearm, and had two prior convictions for crimes involving the use of a firearm, including the murder of his uncle and the shooting of another man. This clearly established probable cause for Officer Phillips to stop and detain appellant.
Notwithstanding the existence of probable cause, the information given to the police by Reginald clearly created reasonable suspicion that appellant had or was about to commit a crime. In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court held that limited intrusions are permissible when the police reasonably suspect criminal activity. Moreover, Virginia police officers have statutory authority to conduct investigative stops pursuant to Code Sec. 19.2-83, which provides in part:
We have held that " Terry established that police officers may approach a person for the purpose of investigating possible criminal behavior even though no probable cause exists for arrest." Quigley v. Commonwealth, 14 Va. App. 28, 32, 414 S.E.2d 851, 853 (1992) (citations omitted). Further, "[t]he Terry principles apply equally to an automobile stop." Id.
Any police officer may detain a person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or possesses a concealed weapon in violation of Sec. 18.2-308, and may require of such person his name and address.
The information provided by Reginald was sufficient to create a reasonable suspicion to allow Officer Phillips to stop appellant.
"In reviewing the propriety of an investigative stop the court must view the whole picture." Patterson, ___ Va. App. at ___, 440 S.E.2d at 414 (quoting Castaneda v. Commonwealth, 7 Va. App. 574, 581, 376 S.E.2d 82, 85 (1989) (en banc)). Here, the officers received pertinent information directly from the victim regarding appellant's actions and criminal history. This information, taken as a whole, provided a sufficient basis to stop appellant's vehicle. Appellant then consented to the search of his vehicle. Having found a valid stop and search of appellant's vehicle, we find no error in the trial court's denial of appellant's motion to suppress the evidence. Accordingly, we affirm the judgment of the trial court.
Appellant does not challenge the consensual nature of the search. Rather, he stipulated that his basis for appeal was the officer's initial stop of his vehicle.
Affirmed.