Ray Milton Pennington, III v. Town of Front Royal ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
RAY MILTON PENNINGTON, III
MEMORANDUM OPINION * BY
v. Record No. 0559-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 29, 2000
TOWN OF FRONT ROYAL
FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge
Franklin B. Reynolds, Jr., for appellant.
John B. Arledge (Smith and Davenport, on
brief), for appellee.
Ray Milton Pennington, III, (appellant) was convicted in a
jury trial of driving under the influence of alcohol, third
offense, in violation of Front Royal Town Ordinance 156-8. On
appeal, he contends that: (1) the certificate of blood alcohol
analysis was inadmissible; (2) evidence of his two prior
convictions of driving under the influence of alcohol violated
due process; (3) the evidence was insufficient to support the
conviction; (4) his post-trial request for two subpoenas duces
tecum should have been granted; and (5) the enhanced punishment
for a third offense was constitutionally impermissible. For the
following reasons, we affirm.
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Town of Front
Royal (Town), the prevailing party below, granting to it all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on October 10, 1997, at
approximately 2:00 a.m., Officer Charles Robinson (Robinson) was
conducting a business check at the Grapevine Restaurant in the
Town of Front Royal. While standing in the front parking lot of
the restaurant, Robinson saw a truck turn into the lot, pass by
him, and strike one of the supports on the building. Although
the officer did not see the driver of the truck as it entered
the parking lot, he immediately approached the vehicle and
discovered appellant behind the wheel. Robinson testified: "As
I approached the vehicle, on the driver's side coming up from
the rear, I observed [appellant] sitting behind the driver's
seat." The officer did not see anyone else get out of the truck
or any other vehicles in the parking lot.
Robinson asked appellant to get out of the truck, and he
"immediately detected a strong odor of an alcohol beverage
coming from [appellant's] breath." The officer administered a
preliminary breath test and asked appellant to perform various
field sobriety tests, which appellant failed to complete
satisfactorily. After being advised of the implied consent law
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and Miranda rights, appellant agreed to take a breathalyzer
test, which indicated a blood alcohol concentration of 0.19. At
no time during the investigation did appellant state that
another person was driving the truck.
At trial, the Town presented the testimony of Officer
Robinson, Kirk Kensy (Kensy) and Robert Bird (Bird). Kensy and
Bird, who lived in the apartment above the Grapevine Restaurant,
heard the truck strike the support post on the building. Bird
immediately called 911, but when he saw Officer Robinson outside
he told the dispatcher "that there was a police officer on the
scene" and hung up the telephone. Neither Kensy nor Bird
witnessed any person other than appellant in the truck.
In his defense, appellant called witnesses, including Bruce
Hartz (Hartz) and Shawn Hamrick (Hamrick), who testified that
Hamrick was driving appellant's truck. Hartz, Hamrick and
appellant were drinking at the Mightyfine Restaurant on October
10, 1997. According to Hartz, when the three left the
restaurant at approximately 2:00 a.m., "[Hamrick] got behind the
driver's seat. [Appellant] got in the passenger's seat of his
vehicle. I got into the driver's seat of my vehicle." Hartz
watched as Hamrick drove appellant's truck towards the Grapevine
Restaurant. Both Hamrick and appellant testified that Hamrick
was driving the truck when it entered the parking lot at the
Grapevine Restaurant and struck the support post of the
building.
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To support the enhanced punished for a third offense, the
Town introduced evidence that on September 27, 1991, appellant
was convicted of driving under the influence of alcohol, in
violation of Code § 18.2-266. Additionally, on December 23,
1993, appellant was charged with driving under the influence of
alcohol, second offense, in violation of Code § 18.2-266. That
charge was reduced, and appellant was convicted on May 20, 1994
of driving under the influence of alcohol, first offense. 1
The jury accepted the Town's evidence and rejected
appellant's testimony. Appellant was found guilty of driving
under the influence of alcohol, third offense, in violation of
Front Royal Town Ordinance 156-8. In a post-trial motion to set
aside the jury's verdict, appellant argued that his 1994
conviction could not be used as one of the predicate offenses
because the conviction was based upon an invalid ordinance.
Additionally, appellant requested the trial court to issue two
subpoenas duces tecum, seeking from the sheriff and police
department records of 911 calls and radio transmissions. 2 The
1
In his post-trial motions and in his brief on appeal,
appellant argued that the May 1994 conviction was based upon a
violation of Town of Warrenton Ordinance 1993-9 and that the
conviction was constitutionally void subject to collateral attack.
Throughout the proceedings, the parties mistakenly believed the
May 1994 conviction was for a violation of the local ordinance;
however, the record before us demonstrates that appellant was
convicted for a violation of Code § 18.2-266, a state statute.
2
Appellant did not include in the Appendix a transcript of
the post-trial hearings and, therefore, we are unable to determine
what arguments were made at that time.
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trial court denied appellant's post-trial motion to set aside
the verdict and granted the Town's motion to quash the request
for subpoenas.
II. Certificate of Analysis
At trial, appellant objected to the admission of the
certificate of analysis because the officer did not witness
appellant operating a motor vehicle "upon a highway." See Code
§ 46.2-100. He contends that Officer Robinson's "testimony
could not form a credible basis for . . . finding that Appellant
actually operated a motor vehicle at any time . . . ." He
asserts that because no credible evidence established that
appellant operated a motor vehicle "upon a highway," the
certificate of analysis was inadmissible. We disagree.
Code § 46.2-100 defines "highway" as:
[T]he entire width between the boundary
lines of every way or place open to the use
of the public for purposes of vehicular
travel in the Commonwealth, including the
streets and alleys, and for law enforcement
purposes, the entire width between the
boundary lines of all private roads or
private streets which have been designated
"highways" by an ordinance adopted by the
governing body of the county, city, or town
in which such private roads or streets are
located.
"[T]he test for determining whether a way is a 'highway' depends
upon the degree to which the way is open to public use for
vehicular traffic." Roberts v. Commonwealth, 28 Va. App. 401,
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403, 504 S.E.2d 890, 891 (1998) (quoting Furman v. Call, 234 Va.
437, 439, 362 S.E.2d 709, 710 (1987)).
We have previously held that a private parking lot of a
business is not a "highway" within the meaning of Code
§ 46.2-100 because "the parking lots were not open to the public
at all times, but instead 'were open to the public upon . . .
invitation.'" Flinchman v. Commonwealth, 24 Va. App. 734, 737,
485 S.E.2d 630, 631 (1997); see also Roberts, 28 Va. App. at
406, 504 S.E.2d at 892 (holding that a convenience store parking
lot was privately owned property and, thus, not a "highway" as
defined by Code § 46.2-100).
In the instant case, we do not reach the question whether
the Grapevine Restaurant parking lot was a "highway" under Code
§ 46.2-100. Officer Robinson testified that he witnessed
appellant's truck being driven on a public roadway before entry
into the parking lot. Shortly thereafter, he approached the
truck where he found appellant, the only occupant, sitting in
the driver's seat. From this evidence, the trial court
concluded that appellant was the person operating the motor
vehicle "upon a highway" when the officer saw it travelling on
the public road and, thus, the certificate of analysis was
properly admitted.
III. Prior Convictions
Appellant next contends that the trial court erred in
admitting his two prior convictions as predicate offenses to the
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instant charge. He argues that our holding in Farmer v.
Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990), was
erroneously decided and that the introduction of the predicate
offenses violated his right to due process. At trial, appellant
did not object to the admission of the two prior convictions and
only did so in his post-trial motion.
"In order to be considered on appeal, an objection must be
timely made and the grounds stated with specificity." McLean v.
Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720 (1999)
(en banc). "To be timely, an objection must be made when the
occasion arises -- at the time the evidence is offered or the
statement made." Id. Because the objection was not timely
made, Rule 5A:18 bars our consideration of this issue on appeal.
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exception to Rule 5A:18.
IV. Sufficiency of the Evidence
Appellant next contends the evidence was insufficient to
support his conviction. He argues that the Town's evidence was
"internally conflicting as to the amount of time that passed,
the location of the police Officer at the time of the crash, and
the knowledge of the police Officer of [sic] as to how the
incident occurred."
Viewed in the light most favorable to the Town, as the
prevailing party below, the evidence established that Officer
Robinson saw appellant's truck turn off a public roadway into
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the parking lot where he was standing. Although the truck's
headlights temporarily blinded him as it passed by, Robinson
heard the truck strike a support post of the building. After
the truck stopped, and within a matter of "twenty/thirty
seconds," Robinson approached and found appellant sitting in the
driver's seat. Robinson did not see any other vehicles in the
parking lot or any other person exit appellant's truck.
Additionally, two other independent witnesses, Kensy and Bird,
saw no one but appellant in or exiting appellant's truck. The
Town's witnesses were unanimous in their testimony that
appellant was the truck's sole occupant.
The jury believed the Town's evidence and rejected
appellant's evidence that Hamrick had been driving the truck.
See Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d
352, 353 (1980) (per curiam) ("[E]ven if the defendant's story
was not inherently incredible, the trier of fact need not have
believed the explanation."); Marable v. Commonwealth, 27 Va.
App. 505, 509-10, 500 S.E.2d 233, 235 (1998) ("In its role of
judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt."). The
Town's evidence was competent, was not inherently incredible,
and was sufficient to prove beyond a reasonable doubt that
appellant was driving the truck.
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V. Subpoenas Duces Tecum
Appellant next contends the trial court erred in granting
the Town's motion to quash his post-trial request for two
subpoenas duces tecum. Approximately three months after trial,
appellant filed two requests to be served upon the Sheriff of
Warren County and the Front Royal Chief of Police, seeking
records of any 911 calls made regarding appellant's arrest.
Appellant also sought records regarding radio transmissions to
and from the sheriff and police department. In its letter
opinion, the trial court considered appellant's requests as an
attempt to secure new evidence, stating the following:
It appears to me that the Defendant is
seeking to set aside the verdict on grounds
of after-discovered evidence. The evidence
sought certainly could have been discovered
before trial. One of the rules governing
the use of after-discovered evidence as a
basis for setting aside a jury verdict
requires that the evidence "be such as could
not, by the exercise of diligence, have been
discovered before the trial terminated."
Pauley v. Commonwealth, 151 Va. 510 at
517-518 (1928). . . .
The trial court concluded appellant had not shown why the
evidence could not have been secured prior to trial and,
therefore, granted the Town's motion to quash the requests for
the subpoenas.
When a defendant seeks to challenge a verdict with
"after-discovered" evidence, the decision to set aside the
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verdict and grant a new trial is left within the sound
discretion of the trial judge.
The [defendant] bears the burden to
establish that the evidence (1) appears to
have been discovered subsequent to the
trial; (2) could not have been secured for
use at the trial in the exercise of
reasonable diligence by the movant; (3) is
not merely cumulative, corroborative or
collateral; and (4) is material, and such as
should produce opposite results on the
merits at another trial.
Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387
(1984), cert. denied, 469 U.S. 873 (1984). Additionally, when
seeking exculpatory evidence, a defendant "cannot simply allege
the presence of favorable material and win reversal of his
conviction. Rather, a defendant must prove the favorable
character of evidence he claims has been improperly suppressed.
Speculative allegations are not adequate." Hughes v.
Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461 (1994)
(en banc) (citations omitted).
In the instant case, appellant failed to establish why he
did not secure the requested evidence prior to trial. While the
Town was obligated to provide appellant with exculpatory
evidence known to it under Brady v. Maryland, 373 U.S. 83(1963), appellant has not alleged that the Town withheld any
such evidence. Finally, appellant did not show that the
requested evidence was material to the proceedings. "A subpoena
duces tecum should not be used when it is not intended to
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produce evidentiary materials but is intended as a 'fishing
expedition' in the hope of uncovering information material to
the defendant's case." Farish v. Commonwealth, 2 Va. App. 627,
630, 346 S.E.2d 736, 738 (1986). Accordingly, the trial court
did not abuse its discretion in granting the Town's motion to
quash.
VI. Void Conviction
Finally, appellant contends that the enhanced punishment,
as a third offense, was invalid because it was based upon a
prior conviction of driving while intoxicated in violation of
Town of Warrenton Ordinance 1993-9, an ordinance that he argues
is void. See Town of Madison, Inc. v. Ford, 255 Va. 429, 498
S.E.2d 235 (1998); Pound v. Town of Front Royal, Record No.
2148-96-4 (May 5, 1998) (unpublished). However, the record
clearly establishes that appellant was convicted of a state
statute and not a local ordinance. The warrant of arrest
provides: "[O]n or about DEC. 23, 1993 [appellant] did
unlawfully in violation of Section 18.2-266, . . . OPERATE A
MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL. SECOND
OFFENSE IN THE PAST FIVE YEARS." (Emphasis added). Although the
warrant was amended to a violation of driving under the
influence of alcohol, first offense, there was no amendment
regarding the charged violation. Because appellant was
convicted of Code § 18.2-266, his constitutional challenge to
the Town of Warrenton's local ordinance is without merit.
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Nonetheless, appellant contends that to attain the "ends of
justice," we should consider "the May 20, 1994 conviction as a
conviction under the Town of Warrenton local ordinance." He
argues that the Town of Warrenton was the prosecuting party,
both parties involved believed the warrant charged a violation
of the local ordinance, and appellant's driving record indicated
that the 1994 conviction was based upon a local ordinance
violation. Accordingly, appellant concludes, we should "make a
determination that the May 20, 1994 conviction was a conviction
under the local Warrenton Ordinance, and therefore Appellant's
arguments regarding the voidness of that Ordinance may be
considered." Appellant cites no cases in support of this
proposition.
Although appellant's driving record indicates that the 1994
conviction was based upon a violation for "LOCAL ORDINANCE:
WARRENTON," the order of conviction clearly establishes that
appellant was charged and convicted for a violation of the
Virginia Code. "When a court not of record tries a defendant on
a criminal charge, it is required to memorialize its judgment by
setting forth '[the defendant's] plea, [the court's] verdict or
findings and the adjudication and sentence." McBride v.
Commonwealth, 24 Va. App. 30, 34-35, 480 S.E.2d 126, 128 (1997)
(quoting Code § 19.2-307) (other citations omitted) (alterations
in original). "A court speaks through its orders and those
orders are presumed to accurately reflect what transpired." Id.
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at 35, 480 S.E.2d at 128 (citations omitted). Because the
record reflects that appellant was found guilty of violating
Code § 18.2-266, and at no time was the warrant amended to
reflect a violation of the local ordinance, appellant has no
basis to challenge that local ordinance. 3
For the foregoing reasons, appellant's conviction is
affirmed.
Affirmed.
3
Assuming, without deciding, that an "ends of justice"
exception applies to this situation, we find no reason to invoke
it. "The defendant, having agreed upon the action taken by the
trial court [in the May 1994 proceedings], should not be allowed
to assume an inconsistent position." Manns v. Commonwealth, 13
Va. App. 677, 679-80, 414 S.E.2d 613, 615 (1992).
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