Dennis (NMN) Graves v. Commonwealth of Virginia ( 1999 )


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  •                       COURT OF APPEALS OF VIRGINIA
    Present: Judges Coleman, Elder and Bumgardner
    Argued at Salem, Virginia
    DENNIS (NMN) GRAVES
    MEMORANDUM OPINION * BY
    v.   Record No. 1316-98-3                 JUDGE SAM W. COLEMAN III
    JUNE 29, 1999
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
    Mosby G. Perrow, III, Judge
    Thomas S. Leebrick (Thomas S. Leebrick,
    P.C., on brief), for appellant.
    H. Elizabeth Shaffer, Assistant Attorney
    General, (Mark L. Earley, Attorney General,
    on brief), for appellee.
    Dennis Graves was convicted by bench trial for driving after
    having been declared an habitual offender, second offense.   On
    appeal, Graves contends that (1) the trial court erred by refusing
    to consider his motion to suppress a statement allegedly obtained
    in violation of his Fifth Amendment right against
    self-incrimination; (2) the trial court erred by admitting a
    Department of Motor Vehicle (DMV) transcript as proof of his prior
    adjudication as an habitual offender; and (3) the evidence was
    insufficient to support the conviction.   Finding no error, we
    affirm.
    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
    this opinion is not designated for publication.
    BACKGROUND
    Officer Taylor observed Graves' car weave a little bit, spin
    its wheels, and squeal when Graves shifted gears.    After the car
    slid to a stop at a traffic light with its tires again squealing,
    Taylor activated his lights and pursued the vehicle.   Before
    Taylor overtook the vehicle, Graves stopped and fled on foot.
    Graves, who was wearing a blue sweatshirt with green sleeves and a
    black Pittsburgh Steelers cap, ran behind a residence.     Officer
    Taylor lost sight of Graves momentarily but discovered him less
    than two or three minutes later, lying in the fetal position next
    to a wood pile in the backyard of the residence.    As Officer
    Taylor approached, he drew his weapon and requested Graves to come
    out from his hiding area.   Graves replied, "You got me.   I give
    up."
    Officer Taylor placed Graves under arrest and upon return to
    the patrol car asked Graves his name, date of birth, and Social
    Security number.   After Taylor called in Graves' name and date of
    birth, the dispatcher informed Taylor that Graves' license had
    been revoked based upon an habitual offender adjudication.    Taylor
    asked Graves about his driver's license status, to which Graves
    admitted "he was an habitual offender since high school."    Graves
    denies having made this statement and testified at trial that what
    he said in response to Taylor's question was that he was an
    habitual offender "when [he] was in high school."
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    When Officer Taylor testified that Graves admitted he had
    been an habitual offender since high school, defense counsel
    objected on the ground that Taylor had obtained the statement as
    the result of a custodial interrogation without having first
    advised Graves of the Miranda warnings.    Responding to the
    objection, the Commonwealth's attorney pointed out that Graves was
    required to have filed a pretrial motion at least seven days
    before trial in compliance with Code § 19.2-266.2 to suppress the
    statement at issue.   At trial, defense counsel did not state a
    reason for not having filed a pretrial suppression motion and the
    trial court overruled Graves' objection.
    ANALYSIS
    The trial court did not err in refusing to hear Graves'
    objection because Graves neither complied with the pretrial filing
    requirements of Code § 19.2-266.2, nor presented any reason or
    justification to the trial court as to what "good cause" existed
    for his not having the motion timely heard pretrial, or why "in
    the interest of justice," it was necessary to hear the motion at
    trial.   Furthermore, the court did not err by admitting the DMV
    transcript.   Finally, we find the evidence is sufficient to prove
    that Graves had notice of his prior adjudication as an habitual
    offender and is sufficient to support the conviction for driving
    after having been declared an habitual offender, second offense.
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    Code § 19.2-266.2 provides that motions to suppress
    statements obtained in violation of a defendant's Fifth Amendment
    privilege against self-incrimination shall be made prior to trial:
    Defense motions or objections seeking (i)
    suppression of evidence on that grounds that
    such evidence was obtained in violation of
    the provisions of the Fourth, Fifth or Sixth
    Amendments . . . shall be raised by motion
    or objection, in writing, before trial. The
    motions or objections shall be filed and
    notice given to opposing counsel not later
    than seven days before trial. . . . The
    court may, however, for good cause shown and
    in the interests of justice, permit the
    motions or objections to be raised at a
    later time.
    Code § 19.2-266.2; see also Rule 3A:19(d) (stating that "for good
    cause shown," the trial court can hear motions barred by failure
    to file pretrial).
    Graves concedes that Code § 19.2-266.2 applies to his
    motion, but argues that the trial court abused its discretion by
    refusing to consider his motion to suppress for "good cause
    shown and in the interests of justice."   We disagree.     After
    Graves objected to the admissibility of his statement, the
    Commonwealth argued that the objection was not timely.     The
    trial court overruled the objection and refused to hear the
    suppression motion.   Graves offered no explanation for his
    failure to move for the statement's suppression pretrial.      Nor
    did Graves argue that hearing his motion at trial was necessary
    to attain the ends of justice.    Where a defendant moves to
    suppress a statement for the first time at trial, if the
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    defendant offers no "good cause" for hearing the otherwise
    barred motion, nor presents any basis to support a finding that
    the "interests of justice" demand that the motion be heard, a
    trial court does not abuse its discretion by refusing to hear
    the objection.   Although Graves' argument on appeal sets forth
    justification for his failure to raise the motion pretrial, the
    trial court had no opportunity to consider those arguments and
    we decline to consider them here for the first time.    See Rule
    5A:18.   Accordingly, we find that the trial court did not abuse
    its discretion by refusing to hear Graves' untimely motion to
    suppress.
    We find that the trial court did not err in admitting Graves'
    DMV transcript indicating he had been declared to be an habitual
    offender on June 10, 1997.   See Smoot v. Commonwealth, 
    18 Va. App. 562
    , 564-65, 
    445 S.E.2d 688
    , 690 (1994).   However, the transcript
    indicated that the order adjudicating Graves an habitual offender
    was "not accepted by addressee."   Therefore, the transcript,
    although admissible, was insufficient to prove Graves had the
    requisite notice that he had been declared to be an habitual
    offender on June 10, 1997.   See Reed v. Commonwealth, 
    15 Va. App. 467
    , 472-73, 
    424 S.E.2d 718
    , 720-21 (1992) (requiring defendant
    have actual knowledge of having been declared an habitual offender
    to convict for driving after having been adjudicated an habitual
    offender); Bibb v. Commonwealth, 
    212 Va. 249
    , 250, 
    183 S.E.2d 732
    ,
    733 (1971) (finding that where notice of suspension was sent to
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    defendant's last known address but returned unopened, Commonwealth
    cannot rely on statutory presumption that defendant had notice of
    suspension).
    Despite the inadequacy of the DMV transcript, we find that
    the evidence was sufficient to support Graves' conviction.      When a
    defendant challenges the sufficiency of the evidence, we review
    the facts in the light most favorable to the prevailing party,
    granting to that party all reasonable inferences fairly deducible
    therefrom.   See Higginbotham v. Commonwealth, 
    216 Va. 349
    , 352,
    
    218 S.E.2d 534
    , 537 (1975).   During his arrest, Graves admitted to
    Officer Taylor that he "had been an habitual offender since high
    school."   His statement is proof of actual notice that he was an
    habitual offender.   Thus, our finding that the DMV transcript was
    not proof of actual notice does not render the evidence
    insufficient to support his conviction.
    Finally, Officer Taylor's testimony was sufficient to prove
    that Graves was the operator of the vehicle.    The driver wore a
    Pittsburgh Steelers hat and fled behind a residence.    Minutes
    later, Taylor discovered Graves hiding behind the residence
    wearing a Pittsburgh Steelers hat.     On being discovered, Graves
    exclaimed, "You got me.   I give up."    We find the evidence
    sufficient to prove Graves' identity as the operator of the
    vehicle.
    In conclusion, the trial court did not err by admitting the
    DMV transcript, but the transcript did not prove Graves had notice
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    of having been declared an habitual offender.   Additionally, the
    trial court did not err by admitting Graves' inculpatory statement
    which proved actual notice.   Therefore, because the Commonwealth's
    evidence was sufficient to prove Graves' identity and guilty
    knowledge, the evidence was sufficient to support the conviction.
    Accordingly, we affirm the conviction.
    Affirmed.
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Document Info

Docket Number: 1316983

Filed Date: 6/29/1999

Precedential Status: Non-Precedential

Modified Date: 10/30/2014