Valentina Djelebova v. Commonwealth of Virginia ( 2000 )


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  •                   COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Lemons and Senior Judge Cole
    Argued at Richmond, Virginia
    VALENTINA DJELEBOVA
    MEMORANDUM OPINION * BY
    v.   Record No. 1748-98-2                      JUDGE DONALD W. LEMONS
    MARCH 7, 2000
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
    James M. Lumpkin, Judge Designate
    John Kenneth Zwerling (Lisa Bondareff Kemler;
    Zwerling & Kemler, P.C., on briefs), for
    appellant.
    Marla Graff Decker, Assistant Attorney
    General (Mark L. Earley, Attorney General, on
    brief), for appellee.
    Valentina Djelebova appeals her conviction for accessory
    after the fact to robbery.       On appeal, she argues that the trial
    court erred (1) by denying her motion to suppress evidence and
    (2) by instructing the jury that criminal liability for the
    offense of accessory after the fact may exist beyond the
    principal felon's apprehension and arrest.        Finding no
    reversible error, we affirm.
    I.    BACKGROUND
    On September 26, 1998, Dorian Lester met with Albemarle
    County Police Officer Rob Heide at the Albemarle County Police
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    Department.   Lester was accompanied by a woman Officer Heide
    recognized as Lester's girlfriend.       She wore a wide brimmed hat,
    a black and yellow plaid mini-skirt and gloves.      Heide knew
    Lester from their previous work as bodyguards for a wealthy
    Albemarle family.   The family had recently received a telephone
    call from a car rental agency in New York City asking for Lester
    and indicating that he had rented a van that was overdue and
    needed to be returned.   Heide stated that Lester had been acting
    strangely, that he recently purchased a new 9 millimeter pistol,
    and that he claimed to have access to police ammunition.      Heide
    had also seen Lester with a box of Winchester +p+ ammunition
    within the previous two years.    According to Heide, Lester had
    traded antique swords with George Moody, a jewelry dealer in
    Charlottesville.    Heide stated further that on September 26th,
    Lester drove a dark blue or green minivan and that he believed
    Lester carried a weapon in a shoulder holster.
    A number of police officers knew Lester and described him
    as a tall, thin man with dark, neatly groomed hair and a
    distinct nose.   They knew he was trained in the marital arts,
    had a concealed weapons permit and worked as a bodyguard.      A
    number of officers had recently seen Lester with Djelebova.
    Djelebova was described in a manner consistent with the woman
    who accompanied Lester at the police station meeting with Heide.
    On September 27, 1998, between three and five o'clock in
    the afternoon, a neighbor of George Moody observed a dark blue
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    minivan drive up and down the street five or six times.
    Although she did not see anyone exit the van, she saw a man and
    woman walk down the street to Moody's residence and knock on his
    front door.   The man was Caucasian, tall, thin, in his forties
    with neatly groomed gray hair, wore a gray suit and had a
    pointed nose.   The woman was Caucasian, approximately five feet
    tall and wore a yellow and black, plaid mini-skirt with black
    pantyhose and long black gloves.
    Moody met with a customer around 5:30 that evening and
    showed her two emerald cut diamonds that he intended to sell to
    another customer in San Francisco, California.   At approximately
    6:00 p.m., an Albemarle County police officer observed a dark
    blue or green minivan parked several houses down from Moody's
    bearing North Carolina license plates with damage to the front
    passenger side.   The vehicle was gone at 7:00 p.m. when the
    officer left the area.
    At 6:35 p.m., Moody's fiancée telephoned him and became
    concerned when neither Moody nor his answering machine picked up
    her call.   She drove to his house and, shortly after 8:00 p.m.,
    found his body in his basement where he made, repaired and sold
    jewelry.    Moody's safes were open, and a number of jewels and
    other stones were scattered around the area.   Empty jewelry
    trays were found on his workbench and near his body on the
    floor.   The emerald cut diamonds that Moody was to sell to a
    customer in California were missing.    There were no signs of
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    forced entry.   Charlottesville police later found a single shell
    casing near the body that was consistent with a bullet fired
    from a Glock 9 millimeter, semi-automatic pistol.   The casing
    also indicated that the ammunition was +p+, a type normally used
    by police officers.   An autopsy later revealed that Moody died
    as a result of a single bullet wound to the head.
    On the morning of October 1st, the police contacted Jamie
    Sacco, the owner of Snooky's pawnshop in Charlottesville and a
    known associate of Lester.   The police ascertained from Sacco
    that Lester had recently driven a dark colored minivan with
    damage to its front end, that Lester recently returned the van
    to the Richmond International Airport, and that Lester borrowed
    Sacco's car on September 29th so that he could obtain another
    rental vehicle.   According to Sacco, Lester also indicated that
    he had acquired police ammunition and had recently bought a
    Glock 9 millimeter, semi-automatic pistol that he kept on his
    person.    Sacco's wife told the police that Djelebova was known
    to carry a "Barett" pistol in her purse.   Sacco indicated that
    Lester had recently inquired where he could sell or trade
    diamonds and where he could purchase rubies.   The detective
    learned that Lester had arranged to meet with Sacco at the
    pawnshop at 10:30 a.m. on October 1st to redeem certain pawned
    items and to pick up a package.   Lester had indicated to Sacco
    that he was leaving the United States "for good" and going to
    England.
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    Between 6:00 a.m. and 7:00 a.m. on October 1st, police
    contacted personnel at the Richmond International Airport
    concerning the minivan that Lester had rented.     It was confirmed
    that there was a minivan, described as dark purple, in the lot
    with visible damage to its front passenger side and bearing
    North Carolina license plates.    National Car Rental company
    personnel confirmed that this was the minivan which had been
    rented to Lester in New York and had been returned to the
    airport facility on September 28th.      Lester was also found to be
    booked on an October 1st, 7:15 p.m. flight from Dulles Airport
    to London.
    Suspecting Lester and Djelebova in the murder and robbery
    of Moody, police assembled the information and began the
    paperwork necessary to obtain search warrants for Lester's
    person, the rental minivan and the residence in Fluvanna County
    where Lester was reported to have been living.     Based on
    Lester's background in security and surveillance, the nature of
    the "execution" style murder, the knowledge that both Lester and
    Djelebova might be carrying weapons and information that the
    couple was leaving the United States for England that day,
    police decided to intercept Lester and Djelebova in the basement
    of the pawnshop during their planned meeting with Sacco.      A SWAT
    team was assembled and was directed to neither question nor
    search the suspects other than a pat-down for weapons.
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    Around noon on October 1st, Lester and Djelebova entered
    the pawnshop basement.      The SWAT team immediately detained them
    and placed them in handcuffs.      Police conducted a pat-down
    search of Djelebova for weapons and found that she held a small
    purse containing a hard object that the officer believed to be a
    gun.       The officer opened the purse and found a semi-automatic
    Baretta pistol.      A pat-down search of Lester produced a Glock 9
    millimeter pistol.
    Lester and Djelebova were taken to the police station, and
    both were advised of their Miranda rights.       They were held in
    separate interrogation rooms.      Djelebova was informed that the
    police were conducting an investigation of a murder and a
    robbery.      According to Djelebova's statement, she and Lester
    rented a car that was parked several blocks from the pawnshop.
    They were scheduled to depart from Dulles Airport that evening
    for England.      She also said that Lester had given her some
    precious gems that were stored in one of her suitcases located
    in the vehicle. 1     At 4:05 p.m., Djelebova was served with an
    arrest warrant for carrying a concealed weapon.
    Djelebova was tried on indictments charging her with first
    degree murder, robbery and use of a firearm. 2     During
    1
    A search warrant was later obtained for the rental car.
    It was executed later that evening after the car was towed to
    the police station.
    2
    Djelebova was initially charged in four separate
    indictments with the following offenses: (1) first degree
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    deliberations at trial, the jury sent a question to the court
    about the crime of accessory after the fact.   The jurors
    inquired whether liability for that offense continues between
    the time of the commission of the offense and the arrest of the
    primary criminal agent, or between the commission of the offense
    and the trial of the primary criminal agent.   Both defense
    counsel advised the court that criminal liability for the
    accessory begins "[a]fter the offense."   The court instructed
    the jury that, "[t]he offense of accessory after the fact does
    cover the time period after the crime, period.   After the
    crime."
    The foreman asked the question again and was informed by
    the court that "accessory after the fact means accessory after
    the crime."   A juror then asked if there were "no limits" to
    that, and the court responded again, "[i]t would be anytime
    after the crime."   With no further questions, and no remarks
    from counsel, the jury returned to the jury room to deliberate.
    After the jury returned to their deliberations, defense
    counsel asserted that an accessory's criminal liability exists
    murder, in violation of Code § 18.2-32; (2) robbery, in
    violation of Code § 18.2-58; (3) use of a firearm during the
    commission of a felony, in violation of Code § 18.2-53.1; and
    (4) grand larceny. Prior to trial, the court granted
    Djelebova's motion to require the Commonwealth to elect whether
    to try her on the murder, robbery and use of a firearm
    indictments or on the grand larceny indictment. The
    Commonwealth elected to go to trial on the murder, robbery and
    use of a firearm indictments.
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    only until the primary perpetrator is arrested.   Djelebova was
    acquitted of first degree murder, robbery and use of a firearm
    during the commission of a felony, and was convicted of being an
    accessory after the fact to robbery.
    II.   MOTION TO SUPPRESS
    When reviewing the trial court's denial of a defendant's
    motion to suppress evidence, "the burden is upon the defendant
    to show that the ruling, when the evidence is considered most
    favorably to the Commonwealth, constituted reversible error."
    McGee v. Commonwealth, 
    25 Va. App. 193
    , 197, 
    487 S.E.2d 259
    , 261
    (1997) (en banc) (citation omitted).   This Court, however, is
    "bound by the trial court's findings of historical fact unless
    plainly wrong or without evidence to support them" and due
    weight is given "to the inferences drawn from those facts by
    resident judges and local law enforcement officers."     McGee, 
    25 Va. App. at 198
    , 
    487 S.E.2d at 261
     (citation omitted).
    Specifically, Djelebova claims that she was arrested
    without probable cause and, consequently, any evidence obtained
    during her detention should have been suppressed.   We disagree
    and hold that police engaged in a proper investigatory stop
    based on information linking Djelebova to the murder and robbery
    of Moody, conducted a proper pat-down based on information that
    Djelebova was armed and dangerous and, as a result of that
    pat-down, acquired probable cause to detain and arrest Djelebova
    for carrying a concealed weapon.
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    A police officer may approach a person to investigate
    possible criminal activity even though there is no probable
    cause to arrest if the police officer can "point to specific and
    articulable facts which, taken together with rational inferences
    from those facts reasonably warrant that intrusion."       Terry v.
    Ohio, 
    392 U.S. 1
    , 21 (1968).    A court examining an officer's
    "articulable reasons for stopping a person" looks to the
    objective reasonableness of the officer's behavior.    Riley v.
    Commonwealth, 
    13 Va. App. 494
    , 497, 
    412 S.E.2d 724
    , 725 (1992);
    see Terry, 
    392 U.S. at 21-22
    .    "'Ultimate questions of
    reasonable suspicion and probable cause to make a warrantless
    search' involve questions of both law and fact and are reviewed
    de novo on appeal."   McGee, 
    25 Va. App. at 197-98
    , 
    487 S.E.2d at 261
     (quoting Ornelas v. United States, 
    517 U.S. 690
    , 691
    (1996)).
    When the suspects were detained at Snooky's pawnshop, the
    police knew that Djelebova and Lester were companions.      The day
    before the murder, the couple had been seen together at the
    Albemarle police station driving a vehicle consistent with the
    vehicle seen near Moody's house around the time of the murder.
    Furthermore, the couple that Moody's neighbor described knocking
    on Moody's door the evening of the murder matched Officer
    Heide's description of the clothing worn by the woman he
    recognized as Lester's girlfriend on September 26th and the
    description that was given of Lester by other police officers
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    who knew him.   Lester had dealt with the victim previously and
    was known to carry the same model weapon and specialized
    ammunition that was used in the murder.   Additionally, Lester
    was reportedly looking for somewhere to sell diamonds and, on
    October 1st at 7:15 p.m., was leaving from Dulles Airport "for
    good" to go to England with Djelebova.    Based upon all of the
    information available to them at the time of the seizure, we
    hold that the officers' decision to conduct an investigatory
    stop was reasonable.
    Subsequent to the investigatory stop, both suspects were
    subjected to a "patdown" for weapons.    Based upon the
    information known by the police, Djelebova was traveling with
    Lester, was believed to be armed and was implicated along with
    Lester in the murder and robbery of Moody.   According to the
    police officer who conducted the pat-down of Djelebova, he felt
    a hard object that was "exactly what the shape of a small
    handgun would feel like."   It was located in the precise place
    where Sacco's wife said Djelebova carried her weapon.     Once the
    police officer felt what he believed to be a weapon during his
    pat-down of Djelebova, he was permitted to remove the weapon
    from the purse in which she carried it.    See Phillips v.
    Commonwealth, 
    17 Va. App. 27
    , 31, 
    434 S.E.2d 918
    , 920-21 (1993).
    Considering all of the information known to police, it was
    reasonable for them to engage in a pat-down of Djelebova in the
    interest of safety.    See United States v. Hensley, 
    469 U.S. 221
    ,
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    235 (1985); Servis v. Commonwealth, 
    6 Va. App. 507
    , 519, 
    371 S.E.2d 156
    , 162 (1988).
    Following the pat-down search, police had probable cause to
    arrest Djelebova for carrying a concealed weapon.   Police knew
    that the stated reason for the visit to Snooky's pawnshop was
    for Lester to redeem certain pawned items and to recover a
    package.   Additionally, police knew that Djelebova and Lester
    had airplane tickets to England that evening and had expressed
    intentions not to return to the United States.
    [P]robable cause is a flexible, common-sense
    standard. It merely requires that the facts
    available to the officer would "warrant a
    man of reasonable caution in the belief,"
    Carroll v. United States, 
    267 U.S. 132
    , 162
    (1925), that certain items may be contraband
    or stolen property or useful as evidence of
    a crime; it does not demand any showing that
    such a belief be correct or more likely true
    than false. A "practical, nontechnical"
    probability that incriminating evidence is
    involved is all that is required. Brinegar
    v. United States, 
    338 U.S. 160
    , 176 (1949).
    Moreover, [the Supreme Court of the United
    States'] observation in United States v.
    Cortez, 
    449 U.S. 411
    , 418 (1981), regarding
    "particularized suspicion," is equally
    applicable to the probable-cause
    requirement:
    "The process does not deal with
    hard certainties, but with
    probabilities. Long before the
    law of probabilities was
    articulated as such, practical
    people formulated certain
    common-sense conclusions about
    human behavior; jurors as
    factfinders are permitted to do
    the same-and so are law
    enforcement officers. Finally,
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    the evidence thus collected must
    be seen and weighed not in terms
    of library analysis by scholars,
    but as understood by those versed
    in the field of law enforcement."
    Texas v. Brown, 
    460 U.S. 730
    , 742 (1983).
    After voluntarily accompanying the police to the station to
    answer questions, Djelebova told police that she and Lester had
    parked a rental car several blocks from the pawnshop, and she
    confirmed that the couple was scheduled to depart from Dulles
    Airport that evening for England.   Also, she told police that
    Lester had given her some precious gems that were stored in one
    of her suitcases located in the vehicle.    She gave no indication
    of intent to sell a firearm nor to have one repaired.
    Accordingly, we hold that the investigatory stop was based
    on reasonable, articulable suspicion that Djelebova was involved
    in the murder and robbery of Moody, that the pat-down was
    conducted in the interest of safety since Djelebova was known to
    be armed and possibly dangerous and, as a result of that
    pat-down, police acquired probable cause to detain and arrest
    Djelebova for the offense of carrying a concealed weapon.
    The trial court did not err in denying Djelebova's motion
    to suppress evidence.
    III.   THE JURY INSTRUCTION
    Djelebova next contends that the trial court erred by
    failing to instruct the jury that liability for the offense of
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    accessory after the fact ends at the time the person suspected
    of committing the felony is arrested and charged.
    After the jury retired to deliberate, it informed the court
    that it was having difficulty understanding the instruction on
    accessory after the fact.   Specifically, the jury's question
    pondered the duration of the existence of criminal liability.
    When the trial court was advised that the jury had a question,
    it explained the question to counsel and gave counsel an
    opportunity to respond.   Defense counsel told the court that
    criminal liability exists for an accessory "after the offense,"
    and, "after the offense, not after the arrest."   The trial court
    agreed.   The jury was brought back into the courtroom and told
    by the trial court that accessory after the fact "does cover the
    period of time after the crime, period.   After the crime."
    The defense counsel was informed of the jury's question,
    participated in defining the answer, and sat silently while an
    answer virtually identical to the one he initially proposed to
    the trial court was given to the jury.    Defense counsel did not
    object until after the jury left to deliberate further.
    Consequently, the objection came too late.    See Quesinberry v.
    Commonwealth, 
    241 Va. 364
    , 380, 
    402 S.E.2d 218
    , 228 (1991)
    (objection to trial court's response to jury question made after
    the jury returns to the jury room to deliberate came too late
    and barred consideration of the issue on appeal); Newton v.
    Commonwealth, 
    29 Va. App. 433
    , 459-60, 
    512 S.E.2d 846
    , 858-59
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    (1999) (objection to trial court's response to jury question
    coming after jury retired to deliberate was barred).   The matter
    has not been preserved for appeal, and we are barred from its
    consideration.   See Rule 5A:18.
    IV.   CONCLUSION
    Finding no reversible error, Djelebova's conviction is
    affirmed.
    Affirmed.
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