Holt v. City of Richmond , 204 Va. 364 ( 1963 )

Eggleston, C. J.,

delivered the opinion of the court.

John James Holt,, hereinafter called the defendant, was convicted by a jury on a warrant charging him with operating an automobile while under the influence of intoxicants, in violation of an ordinance of the City of Richmond, he having been convicted of a like offense on November 15, 1960, in Henrico county court. The trial court entered judgment on the verdict and we granted the defendant a writ of error.

On appeal the defendant contends that (1) the verdict is contrary to the law and the evidence, and (2) the conviction lacks the required due process of law in that the conduct of the arresting and detaining officers deprived him of his constitutional right to call for evidence in his favor. Constitution of Virginia, Article I, § 8.

The evidence on behalf of the prosecution, accepted by the jury, shows that on May 10, 1962, at approximately 12:30 A. M., the defendant drove his automobile into the rear of a bus which had stopped for a red traffic light at the intersection of Broad street and the Boulevard in the city of Richmond. He gave no explanation or excuse for the collision. Despite the obviously serious damage to the front of his car, and against the advice of the driver of the bus, the defendant persisted in his unsuccessful attempts to start his car. Asked whether he noticed anything “unusual about the condition of the defendant,” the bus driver replied that his eyes appeared to be “weak and bloodshot.”

Within a few minutes F. J. Trexler, Jr., a police officer, arrived on the scene. The defendant first told this officer that “some girl was operating his car;” then he stated that “a man was the operator,” and finally stated that “he was loaded and did not know who was operating” it. The defendant made the same statements to Sergeant B. W. Hughes who arrived on the scene about thirty minutes after the collision.

Both police officers testified that there was a strong odor of alcohol on the defendant’s breath. The defendant consented to a co-ordination test which officer-Hughes said he was unable to perform satisfactorily; that with his eyes closed he was unable to bring his finger to the tip of his nose, and that he fumbled when trying to pick up a coin.' Thereupon the defendant was placed under arrest by Officer Trexler on the charge of operating a motor vehicle while under the influence of intoxicants. The defendant insisted that he was not intoxicated and was told by the officers of the right, under Code, § 18.1-55, to a chemical analysis to determine the amount of alcohol in his blood. He made no request for such a test.

After taking the defendant to the city lockup Officer Trexler procured and served on him a warrant charging him with the offense of which he was subsequently convicted. Trexler admitted that he did not take the defendant before the justice of the peace from whom he secured the warrant, or before any other judicial officer. He said that “presumably that was done by the lockup personnel,” but there is no evidence that this was done. The defendant testified that it was not done.

Since the defendant’s own testimony is the main basis for his contention that the conduct of the officers after he was taken to the lockup deprived him of his constitutional right to call for evidence in his favor, it is important to note just what he said with reference to this phase of the case. According to the evidence which is before us in narrative form, he testified “that at the lockup he saw only two persons, both police officers whose names were unknown to him; that he was asked some questions by one and then fingerprinted by the other; that he was never taken before the justice of the peace, whom he found out, subsequent to his ultimate release on bail, was in the same building; that he told the officer he wanted to get out and was permitted to make one telephone call about 2:00 A. M., and that he called his mother to get him out but that she stated she was afraid to come out alone at that time of night; that from his previous arrest in Henrico county he knew he was entitled to bond and thought it would be in the amount of $500; that he was not allowed to make another telephone call, being told that the rule was only one telephone call allowed a prisoner; that without requesting or insisting on making another telephone call he was placed in a cell without protest and slept for about four hours—until 6:00 o’clock A. M.,. when he again asked if he could get out and he was told by the police officer that it would be after 9:00 o’clock A. M. before he could get out; that shortly after 9:00 o’clock A. M. he was taken before the justice of the peace and bailed for his appearance in traffic court; that when arrested he had over $100 cash in his pocket and the bail was set at $300 and the bail fee was only $21; that the bondsman’s office was next door to the lockup.”

As to the defendant’s first contention, we find the evidence quite sufficient to sustain the jury’s finding that he was driving his car while under the influence of intoxicants, in violation of the city ordinance. To summarize: without any stated explanation or excuse he drove his car into the rear of the standing bus; despite the obvious damage to the front of his car and against the advice of the driver of the bus, he continued to attempt to start his car; he denied that he was driving the car at the time of the accident, made conflicting statements as to who was the operator, and finally admitted that he was “loaded” and did not know who the operator was; there was a strong odor of alcohol on his breath and his eyes appeared to be “weak and bloodshot.”

We agree with the defendant that subsequent to his arrest his rights were violated in that he was not, as required by law, brought with reasonable promptness and without unnecessary delay before an officer authorized to issue criminal warrants so that that officer might determine whether a warrant should be issued for his arrest, or whether he should be released, admitted to bail, or committed to jail. Code, §§ 52-20, as amended, 19.1-98, 19.1-110; Winston v. Commonwealth, 188 Va. 386, 393, 394, 49 S. E. 2d 611, 614, 615; McHone v. Commonwealth, 190 Va. 435, 441, 57 S. E. 2d 109, 112, 113. He was not brought for this purpose before the justice of the peace who issued the warrant or another such officer who was then on duty in his office in the same building with the lockup.

Despite the fact that the defendant told the officers at the lockup, at 2:00 A. M. and again at 6:00 A. M. on the day of his arrest, that he wanted to “get out,” which clearly indicated that he wanted to be released on bail, and although a bondsman’s office was next door to the lockup and the defendant had on his person sufficient cash to pay the “bail fee,” he was denied access to a justice of the peace for the purpose of procuring bail until after 9:00 A. M. on that day. The officers gave no reason or excuse for their failure to perform the duties imposed on them by law in dealing with the defendant subsequent to his arrest. It is clear, then, that their actions in this respect were arbitrary and illegal. Winston v. Commonwealth, supra, 188 Va., at page 395, 49 S. E. 2d, at page 615; McHone v. Commonwealth, supra, 190 Va., at pages 441, 442, 57 S. E. 2d, at pages 112, H3.

But, as we said in the Winston case, the mere fact that an arresting officer fails to perform his duty of bringing an arrested person before a judicial officer, or that an opportunity for applying for bail was improperly denied him, “does not necessarily invalidate his subsequent conviction.” 188 Va., at page 396, 49 S. E. 2d, at page 616. See also, McHone v. Commonwealth, supra, 190 Va., at page 442, 57 S. E. 2d, at page 113; Durrette v. Commonwealth, 201 Va. 735, 742, 113 S. E. 2d 842, 847.

We held that under the circumstances shown in the Winston case, the effect of the failure of the arresting officer and the custodian of the arrested person to perform their duty was to deprive the defendant of his constitutional right to call for evidence in his favor and that accordingly his subsequent conviction lacked the required due process of law which could not be remedied at a new trial. There the defendant, both at the time of his arrest and on the trip to jail, protested to the arresting officer that he was not intoxicated and that he had not taken any intoxicant during the day. He insisted at the time of his arrest, during the trip to jail, and after his arrival there that he be taken to a physician for an examination in order that it might be medically determined that he was not intoxicated. Soon after his arrival at the jail a friend requested that he be allowed to post bond for the defendant. All requests for bail were denied and at the direction of the arresting officer the defendant was held in jail from 4:30 P. M. until 9:00 P. M. before he was taken before a judicial officer and admitted to bail. There was medical testimony that it could have been determined by tests whether the defendant was under the influence of intoxicants but that such tests could not be relied on more than three hours after the alleged drinking. We said that the testimony tended to show that the evidence of the defendant’s sobriety, which he desired to produce, was in fact procurable and would have been procured had he been dealt with according to law.

In the McHone case we held that while the defendant had been illegally detained there was no showing that such detention had deprived him of his constitutional right to call for evidence in his favor. There, at the time of his arrest and on the way to jail and in jail, the defendant freely admitted his guilt and expressed the desire to be allowed to pay his fine and go home. He did not ask for bail or indicate that if admitted to bail he would be able to procure evidence to show his innocence. We there pointed out that the officer’s wrongful act “should not deprive the Commonwealth of its right to enforce its penal laws unless it is made reasonably clear that such wrongful act has in fact invaded the defendant’s constitutional rights and deprived him of evidence material to his defense which he would otherwise have obtained.” 190 Va., at page 444, 57 S. E. 2d, at page 114. See also, Durrette v. Commonwealth, supra, 201 Va., at page 742, 113 S. E. 2d, at page 847.

In a case of this character whether the illegal detention of the defendant has deprived him of evidence material to his defense, or the opportunity of obtaining such evidence, is usually a question of fact depending upon the particular circumstances. In the present case this issue was submitted to the jury in an instruction to which no objection was made and decided adversely to the defendant. The pertinent part of the instruction reads thus: “If the jury believes from the evidence that the defendant was not brought before a magistrate within a reasonable time after his arrest and given the opportunity to obtain bail and that such failure prevented him from having the opportunity of obtaining evidence in his behalf then the jury should acquit the defendant.”

Under the evidence before them the verdict of the jury was plainly right. Indeed, they could properly have reached no other conclusion. There is no showing that if the defendant had been promptly admitted to bail he could probably have secured evidence material to his defense or tending to show his innocence. He made no claim to the arresting officer, or to any of those who later detained him, that such evidence was procurable. When told of the charge on which he was arrested and his right to medical evidence to show his lack of intoxication he made no request for the opportunity to secure such evidence. He did not then, or at any time later, ask the privilege of calling a physician. He made no such request in his telephone conversation with his mother. While testifying in his own behalf at the trial he made no claim that had he been released earlier he could have procured evidence favorable to his defense. In short, there is an entire lack of showing that by reason of the illegal conduct of the officers the defendant was deprived of any evidence or the opportunity of obtaining any evidence in his behalf.

Thus we see the circumstances of this defendant’s case are quite unlike those in the Winston case, upon which he relies. Similar to the circumstances in the McHone case, it does not appear that his illegal detention invaded his constitutional rights and deprived him of any material evidence in his favor. Hence, his conviction does not lack the required due process of law.

We find that the verdict of the jury is amply supported by the evidence and accordingly the judgment is

Affirmed.