Danyell Jamont Greene, s/k/a, etc v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
DANYELL JAMONT GREENE, S/K/A
DANYELL J. GREEN
MEMORANDUM OPINION * BY
v. Record No. 3343-01-2 JUDGE ROBERT P. FRANK
DECEMBER 3, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Harrison Hubard, Jr. (Hubard, Samuels &
Lewane, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Danyell J. Greene (appellant) was convicted of possession of
a firearm by a convicted felon, in violation of Code § 18.2-308.2.
On appeal, he contends the trial court erred in admitting his
statements to the police and erred in finding the evidence was
sufficient to convict. For the reasons stated, we affirm the
judgment of the trial court.
A. The Statements
Appellant argues the trial court should have excluded his
statements, as he did not receive any Miranda warnings prior to
talking to the police. The Commonwealth argues he did not file a
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
motion to suppress as required by Code § 19.2-266.2 and did not
otherwise preserve the issue. We agree.
Code § 19.2-266.2 states, in part:
Defense motions or objections seeking (i)
suppression of evidence on the grounds such
evidence was obtained in violation of the
provisions of the Fourth, Fifth or Sixth
Amendments to the Constitution of the United
States or Article I, Section 8, 10 or 11 of
the Constitution of Virginia proscribing
illegal searches and seizures and protecting
rights against self-incrimination . . .
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
interest of justice, permit the motions or
objections to be raised at a later time.
Appellant did not file a pretrial motion to suppress his
statements to the police. Instead, during the presentation of
the Commonwealth's case, the following exchange took place:
[OFFICER NELSON]: We traced our steps
approximately where he first started
running. I would say approximately thirty
to forty yards from the point where
[appellant] started running, there was a
pager and a revolver laying on the gravel
road there, the gravel alley way.
[PROSECUTOR]: This pager and this revolver,
how far apart were these two items?
[OFFICER NELSON]: Approximately a foot and
a half.
[PROSECUTOR]: And did you ask the defendant
about any of the items?
[OFFICER NELSON]: Yes, we did.
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[PROSECUTOR]: Okay. And what was his
response to you about those items?
[OFFICER NELSON]: After being –
DEFENSE COUNSEL: Judge, I'd impose an
objection on the basis of Miranda at this
point please, Judge.
THE COURT: I don't think Miranda has kicked
in yet. I overrule the objection. 1
Officer Nelson testified appellant admitted the pager was
his. The officer then advised appellant of his Miranda rights.
Thereafter, appellant admitted he handled and picked up the
firearm.
Appellant offered no "good cause" and did not show that
"the interest of justice" required consideration of his
objection. Since appellant failed to meet the notice
requirements of Code § 19.2-266.2, he waived any argument on
appeal regarding the admissibility of his statements concerning
the pager and firearm. See Schmitt v. Commonwealth, 262 Va.
127, 145-46, 547 S.E.2d 186, 199 (2001), cert. denied, 534 U.S.
1094 (2002).
1
The prosecutor did not raise the fact that appellant
violated Code § 19.2-266.2 in response to the trial court's
consideration of appellant's Fifth Amendment objection. The
record clearly indicates the prosecutor had no opportunity to
raise the notice issue prior to or after appellant's Miranda
objection. Once the trial court ruled in the Commonwealth's
favor, such notice became moot. We, therefore, do not consider
whether the Commonwealth waived any violation of Code
§ 19.2-266.2.
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B. Sufficiency
In reviewing the sufficiency of the
evidence, we examine the record in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The judgment of a
trial court will be disturbed only if
plainly wrong or without evidence to support
it. The credibility of a witness, the
weight accorded the testimony, and the
inferences to be drawn from proved facts are
matters to be determined by the fact finder.
Glasco v. Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150,
155 (1998) (citations omitted), aff'd on alt. grounds, 257 Va.
433, 513 S.E.2d 137 (1999).
So viewed, the evidence at trial proved the officers first
observed appellant "stumbling" behind a grocery store at
approximately 2:17 a.m. The officers stopped their car, got
out, approached appellant, and requested to speak with him.
Appellant "took off running." The officers chased him for five
blocks. After his capture, appellant told the officers that he
found the firearm they recovered in the alley. Appellant
admitted he touched and picked up the firearm.
To prove possession, the evidence must support a finding
that appellant either actually or constructively possessed the
item and that appellant "'intentionally and consciously
possessed it with knowledge of its nature and character.'"
Buono v. Commonwealth, 213 Va. 475, 476, 193 S.E.2d 798, 799
(1973) (per curiam) (quoting Ritter v. Commonwealth, 210 Va.
732, 741, 173 S.E.2d 799, 805 (1970)) (discussing possession of
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illegal drugs). While appellant did not claim ownership of the
firearm, he conceded he was in possession of the firearm. He
exerted dominion and control over the firearm by picking it up.
Further, the trial court was entitled to disbelieve appellant's
assertion that he merely examined the firearm, but did not
intend to possess it. By observing the firearm prior to
touching it, appellant was aware of its nature and character.
Therefore, the trial court could conclude that appellant
illegally possessed the firearm.
"The duration of the possession is immaterial . . . ."
Gillis v. Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771
(1974) (discussing possession of a controlled substance). Here,
the duration of possession, according to appellant's confession,
was short. Nevertheless, appellant admitted picking up the
firearm, thus exercising dominion and control over the firearm.
The amount of time he held the firearm is immaterial.
Additionally, appellant's flight from the officers allowed the
trial court to infer that appellant knew he illegally possessed
the firearm. See Langhorne v. Commonwealth, 13 Va. App. 97,
103, 409 S.E.2d 476, 480 (1991).
Accordingly, the evidence was sufficient to support the
conviction for possession of a firearm by a convicted felon. We
affirm the judgment of the trial court.
Affirmed.
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