Nickkinba M. Braswell v. Commonwealth of Virginia ( 2001 )


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  •                         COURT OF APPEALS OF VIRGINIA
    Present: Judges Willis, Humphreys and Senior Judge Overton
    Argued at Chesapeake, Virginia
    NICKKINBA M. BRASWELL
    MEMORANDUM OPINION * BY
    v.   Record No. 1639-00-1                  JUDGE NELSON T. OVERTON
    JUNE 12, 2001
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
    Dean W. Sword, Jr., Judge
    Stephen B. Plott (Cannon, Collins & Plott,
    PLC, on brief), for appellant.
    Leah A. Darron, Assistant Attorney General
    (Mark L. Earley, Attorney General, on brief),
    for appellee.
    Nickkinba M. Braswell appeals his conviction after a bench
    trial of two counts of robbery and two counts of use of a firearm
    in the commission of a robbery.    He argues that the trial court
    erred in (1) failing to suppress evidence as fruit of an illegal
    seizure, (2) failing to suppress his confession as involuntarily
    given, and (3) overruling his motion to strike the evidence.    For
    the reasons that follow, we disagree and affirm his convictions.
    BACKGROUND
    Viewed in the light most favorable to the Commonwealth,
    Commonwealth v. Grimstead, 
    12 Va. App. 1066
    , 1067, 
    407 S.E.2d 47
    ,
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    48 (1991), the evidence proved that around 8:30 p.m. on December
    8, 1999, Officer Ian McNett received a radio dispatch that a woman
    matching the description of the "teen bandit" had been seen in a
    specified neighborhood.    The "teen bandit" was a young woman
    wanted for committing several armed robberies.      The dispatch
    indicated that the woman was seen in the company of a black male.
    Shortly after receiving the dispatch, McNett saw a woman
    matching the description of the "teen bandit" walking in the named
    area with two black males, one of whom was Braswell.     McNett
    exited his vehicle and approached the trio.      He displayed his
    badge and asked to speak with them.      Braswell and the young woman
    stopped, but the other man, Detore Brown, started edging away,
    with his hands in his pockets.    McNett testified that, because the
    woman was a possible armed robbery suspect, he was concerned that
    Brown was concealing his hands.    Brown refused several requests
    from McNett to show his hands, even after McNett and Officer
    Martin Deaver drew their weapons.    McNett stated that Brown's
    failure to comply caused him to fear that Brown might be armed.
    McNett ordered Braswell and the woman to the ground.   Brown
    refused to show his hands until Braswell said, "Just do what they
    say."    Brown then removed his hands from his pockets and got on
    the ground.    Deaver conducted a pat-down search of Brown and
    recovered a black semiautomatic pistol from Brown's pocket.
    Braswell's command, and Brown's reaction, caused the officers to
    believe that Braswell and Brown were together and that Braswell
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    exerted a certain amount of control over Brown.   When other
    officers, who had been investigating recent robberies in the area,
    arrived at the scene they stated that Brown and Braswell matched
    the physical descriptions of two black males who had committed two
    recent grocery store robberies.    The officers handcuffed all three
    suspects and transported them to the police station in order to
    investigate their suspicions.
    The officers contacted Detective D.S. Dempsey, who had been
    investigating the grocery store robberies.    Dempsey arrived at the
    station and recognized Braswell as one of the two men caught on
    videotape during one of the robberies.    Dempsey first interviewed
    Brown.    After Brown had been read and waived his Miranda rights,
    he gave a verbal and a written confession implicating himself and
    Braswell in the grocery store robberies.    Dempsey then interviewed
    Braswell, who also waived his Miranda rights, verbally and in
    writing.    He subsequently confessed to robbing the two grocery
    stores.
    At trial, Virginia Smith identified Braswell as one of the
    two men who robbed her.   Smith testified that on the evening of
    December 2, 1999, she was working as a cashier at a grocery
    store when two men entered.     One of the men, who Smith
    identified as Brown, placed a candy bar on her counter as if to
    purchase the item.    When Smith opened the cash register, the man
    reached into the cash drawer and started grabbing money.
    Brown's companion, who Smith described as the taller of the two
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    and identified in court as Braswell, produced a shotgun, which
    he pointed at Smith.
    Oneta McClellan testified that she was working as a cashier
    at a grocery store on the night of December 4, 1999, when a man
    approached her counter, pointed a handgun at her, and began
    taking cash from the drawer of her register.    She stated that
    the robber had a male companion but she could not identify
    either man, except to say that they were black males.
    Brown and Braswell are black males, and Dempsey testified
    that Braswell is taller than Brown.
    I.
    In appropriate circumstances, an officer,
    lacking probable cause to arrest, may
    nevertheless approach a person he or she
    suspects of being engaged in criminal
    activity to investigate such activity. An
    officer may detain a person in a "Terry
    stop" if the officer possesses articulable
    facts supporting a reasonable suspicion that
    a person has committed a criminal offense,
    is engaging in one, or is about to engage in
    one. In determining whether an officer had
    a particularized and objective basis for
    suspecting a person of criminal activity, a
    court must consider the totality of the
    circumstances.
    Clarke v. Commonwealth, 
    32 Va. App. 286
    , 294-95, 
    527 S.E.2d 484
    ,
    488-89 (2000).    McNett had received information that the "teen
    bandit" had just been seen in the area in the company of a black
    male.    The "teen bandit" was suspected of committing several
    armed robberies and was wanted by the police.    The woman matched
    the description of the "teen bandit," providing McNett with
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    reasonable suspicion to stop the group to investigate further.
    Because the "teen bandit" was known to be armed, McNett asked
    the trio to show their hands.     Brown began edging away as soon
    as McNett approached.     By refusing to display his hands, Brown
    caused McNett to suspect that he was armed and trying to conceal
    criminal activity.     "[E]vasive behavior in the presence of the
    police is a pertinent factor in determining reasonable
    suspicion."     Wallace v. Commonwealth, 
    32 Va. App. 497
    , 504, 
    528 S.E.2d 739
    , 742 (2000).     When McNett drew his weapon and ordered
    everyone to the ground, Brown still refused to take his hands
    from his pockets.     Not until Braswell commanded Brown to comply
    with the officer's request did Brown show his hands and get on
    the ground.     The interaction between Brown and Braswell caused
    McNett to believe that the two men were associated with each
    other and that Braswell exerted authority over his companion.
    Additionally, other officers arrived at the scene and identified
    Brown and Braswell as matching the descriptions of two black
    males wanted for committing two recent armed robberies in the
    area.
    "Although the authority to conduct a pat-down search does
    not follow automatically from the authority to effect an
    investigative stop, '[w]here the officer can "point to
    particular facts from which he reasonably inferred that the
    individual was armed and dangerous" [he is] justified in
    searching for weapons.'"     Harris v. Commonwealth, 33 Va. App.
    - 5 -
    325, 334, 
    533 S.E.2d 18
    , 22 (2000) (citation omitted).       After
    Brown submitted to McNett's authority, the officers performed a
    pat-down search for weapons.    The search revealed that Brown was
    carrying a handgun in his coat pocket.
    The officers then possessed probable cause to arrest
    Braswell.    "[P]robable cause is a flexible, common-sense
    standard."    Texas v. Brown, 
    460 U.S. 730
    , 742 (1983).   "[A]n
    investigating officer does not have to 'deal with hard
    certainties, but with probabilities,' and is permitted to make
    'common-sense conclusions about human behavior' in assessing a
    situation."    Carson v. Commonwealth, 
    12 Va. App. 497
    , 502, 
    404 S.E.2d 919
    , 922 (citation omitted), aff'd on reh'g en banc, 
    13 Va. App. 280
    , 
    410 S.E.2d 412
    (1991), aff'd, 
    244 Va. 293
    , 
    421 S.E.2d 415
    (1992).    In determining the existence of probable
    cause, we look to the totality of the circumstances involved.
    See Miles v. Commonwealth, 
    13 Va. App. 64
    , 68, 
    408 S.E.2d 602
    ,
    604 (1991), aff'd on reh'g en banc, 
    14 Va. App. 82
    , 
    414 S.E.2d 619
    (1992).    Braswell was in the company of a suspected armed
    robber, he appeared to exert control over his armed companion,
    indicating that the two were working together, and the officers
    recognized Braswell and Brown as matching the descriptions of
    the perpetrators of two recent armed robberies.    Given the
    totality of the circumstances, combined with the officers'
    reasonable suspicions, McNett possessed probable cause to detain
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    Braswell.   Accordingly, the trial court did not err in denying
    Braswell's motion to suppress.
    II.
    Braswell argues that the trial court should have suppressed
    his confession as involuntary because he was unlawfully detained
    and because the police exerted undue pressure upon him.    After
    the officers transported Braswell and Brown to the station,
    Dempsey first interviewed Brown and secured a confession to the
    two robberies.   Dempsey then met with Braswell.   Dempsey read
    him his Miranda rights from a preprinted form which Braswell
    signed, acknowledging that he understood them.     Dempsey then
    asked appellant if he would speak to him.   Appellant agreed and
    approximately forty minutes later signed two written
    confessions.
    "In order for a confession given during a custodial
    interrogation to be admissible at trial, the Commonwealth must
    show that the accused was apprised of his right to remain silent
    and that he knowingly, intelligently, and voluntarily elected to
    waive that right."   Roberts v. Commonwealth, 
    18 Va. App. 554
    ,
    557, 
    445 S.E.2d 709
    , 711 (1994).    As stated above, Braswell was
    legally detained at the time of his questioning.    Dempsey
    explained to Braswell his constitutional rights.    Braswell
    acknowledged that he understood his rights and he voluntarily
    waived them.   After speaking with Dempsey for less than an hour,
    Braswell confessed to robbing the grocery stores with Brown.
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    The record does not reflect any untoward behavior on the part of
    the police officers or that Braswell was not acting of his own
    free will.    The trial court did not err by refusing to suppress
    Braswell's confession.
    III.
    Finally, Braswell argues that the evidence adduced at trial
    was insufficient to prove beyond a reasonable doubt that he was
    guilty of armed robbery.    In a signed statement he provided to
    the police, appellant admitted robbing the two grocery stores
    with Brown.
    In Virginia an extrajudicial confession of
    an accused that he committed the offense
    with which he is charged is not, alone and
    uncorroborated, adequate proof of the corpus
    delicti. "The purpose of the corroboration
    rule is to reduce the possibility of
    punishing a person for a crime which was
    never, in fact, committed."
    Jefferson v. Commonwealth, 
    6 Va. App. 421
    , 424, 
    369 S.E.2d 212
    ,
    214 (1988) (citations omitted).    But "[w]here 'the commission of
    the crime has been fully confessed by the accused, only slight
    corroborative evidence is necessary to establish the corpus
    delicti.'"     
    Id. (citation omitted). Appellant
    admitted committing the December 2 and December 4
    robberies, and admitted that these robberies were committed at
    gunpoint.    The victims' testimony sufficiently corroborated
    appellant's confession.    The Commonwealth's evidence was
    competent, was not inherently incredible, and was sufficient to
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    prove beyond a reasonable doubt that appellant was guilty of
    robbery and use of a firearm in the commission of a robbery.
    Accordingly, the decision of the circuit court is affirmed.
    Affirmed.
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