Detore T. Brown, s/k/a, etc. v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
DETORE T. BROWN, S/K/A
DETORE TWION BROWN
MEMORANDUM OPINION * BY
v. Record No. 1438-00-1 JUDGE ROBERT J. HUMPRHEYS
JUNE 12, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Detore T. Brown appeals his convictions, following a bench
trial, of two counts of robbery, two counts of use of a firearm in
the commission of a felony, and three counts of possession of a
firearm by a felon. 1 Brown contends that the trial court erred in
overruling his motion to suppress evidence, which he alleges was
obtained as a result of an illegal search. Brown also contends
that the evidence was insufficient as a matter of law to support
the convictions. Because this opinion has no precedential value
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Brown and Nickkinba Braswell were jointly tried for these
offenses.
and because the parties are conversant with the facts, we do not
recite them in detail here.
On appeal, Brown first complains that he was unlawfully
seized by police, requiring suppression of all evidence
subsequently obtained, including his confessions. It is well
settled that
"[u]ltimate questions of reasonable
suspicion and probable cause to make a
warrantless . . . seizure involve issues of
both law and fact and are reviewed de novo
on appeal." However, "[i]n performing such
analysis, we are bound by the trial court's
findings of historical fact unless plainly
wrong or without evidence to support them
and we give due weight to the inferences
drawn from those facts by resident judges
and local law enforcement officers." "In
reviewing a trial court's denial of a motion
to suppress, 'the burden is upon appellant
to show that this ruling, when the evidence
is considered most favorably to the
Commonwealth, constituted reversible
error.'"
Christian v. Commonwealth, 33 Va. App. 704, 709-10, 536 S.E.2d
477, 480 (2000) (citations omitted).
Brown and Braswell were detained because their female
companion matched the description of the "teen bandit," a woman
who had committed several armed robberies in the Portsmouth and
Virginia Beach areas. Brown argues that Officer I.E. McNett
unlawfully detained him because he had no reasonable suspicion
that Brown had been engaged in unlawful activity. Indeed,
McNett testified that he had no information that Brown had
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committed any crime before he detained him for the purpose of
performing a "pat-down" search for weapons.
"Ordinarily, in the absence of consent, even a brief
detention must be based on at least a reasonable, articulable
suspicion the person seized is engaged in criminal activity."
Welshman v. Commonwealth, 28 Va. App. 20, 30, 502 S.E.2d 122,
127 (1998) (en banc) (citation omitted). "However, as the
United States Supreme Court has held, the absence of probable
cause or reasonable suspicion of criminal activity does not
necessarily render a detention unlawful." Id. (citing Maryland
v. Wilson, 519 U.S. 408, 414-15 (1997); Michigan v. Summers, 452
U.S. 692, 705 (1981); and United States v. Martinez-Fuerte, 428
U.S. 543, 556-62 (1976) (upholding border patrol stops of
vehicles at fixed checkpoint in absence of reasonable suspicion
that vehicle contained illegal aliens)).
In Welshman, we noted the Summers Court held "a warrant to
search for contraband founded on probable cause implicitly
carries with it the limited authority to detain the occupants of
the premises while a proper search is conducted." Id. We also
recognized that "[a]lthough the Court stressed the importance of
the existence of the search warrant to justify the detention in
that case, it also noted its holding did not 'preclude the
possibility that comparable police conduct may be justified by
exigent circumstances in the absence of a warrant.'" Id. at 31,
502 S.E.2d at 127 (citations omitted). In Wilson, "the Court
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extended Pennsylvania v. Mimms, 434 U.S. 106 (1977), to hold
that a police officer making a routine traffic stop may order a
passenger out of the car for safety reasons, even if the officer
has no reason to suspect the passenger of criminal behavior."
Welshman, 28 Va. App. at 31, 502 S.E.2d at 127.
Based on the reasoning in these cases, as well as society's
interest in protecting the safety of officers and potential
bystanders, we held that the officers in Welshman were justified
in detaining bystanders, in addition to the targeted subjects,
even though they lacked reasonable suspicion or probable cause
to believe that the bystanders were engaged in criminal
activity. In so holding, we recognized the peculiar facts of
that case. Namely, that the officers had probable cause to
believe the two target individuals were then engaged in selling
cocaine, that the officers had previously received numerous
"shots fired" complaints from that area, which had a reputation
for violence, that when the officers approached the scene the
two target individuals had retreated to the sidewalk into a
group of about eight people, that the group outnumbered the
police officers by a ratio of two to one, that other people,
including children, were in close proximity, and that the nature
of the crime for which the officers sought to apprehend the
target subjects held some inherent danger. Id. at 32-33, 502
S.E.2d at 128.
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Our analysis in Welshman applies equally here. Officer
McNett was attempting to stop and detain the target individual,
the female. McNett had at least reasonable suspicion to believe
at that time that she had been involved in several robberies,
which are by their nature, violent crimes. In addition, when
McNett approached the three individuals, he was outnumbered by
three to one. Brown's suspicious actions of refusing to remove
his hands from his pockets and apparently attempting to distance
himself from Officer McNett, in conjunction with these other
factors, leads to the conclusion that Officer McNett's brief
detention of Brown for purposes of performing a "pat-down"
search for weapons in order to secure his own safety, when
viewed in the light most favorable to the Commonwealth, was
limited and reasonable under all the circumstances and therefore
did not violate Brown's rights under the United States or
Virginia Constitutions.
In so holding, we do not go so far as to adopt an
"automatic companion" rule. 2 We simply find that under the
particular facts of this case, the officer's brief detention of
Brown was reasonable. Accordingly, we find no error in the
trial court's decision to overrule Brown's motion to suppress.
2
During oral argument, the Commonwealth did not press it's
argument on brief with respect to the "automatic companion
rule," which has been adopted by several of our sister states.
Accordingly, we do not address the issue further.
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Brown next argues that the evidence was insufficient to
support his convictions. He first contends that he cannot be
convicted of robbery and/or of possessing a firearm on December
4. Brown claims that "[t]he worst that can be made of [his]
statement regarding the December 4 robbery is that he was
present," but that the facts do not establish that he
participated "in any way." However, Brown, by his own
confession, states "I robbed the Sentry [at Portsmouth
Boulevard] with a nine-millimeter at gunpoint." Viewing the
evidence in the light we must, we do not find that the trial
court was plainly wrong in finding the evidence sufficient to
support Brown's conviction for this offense.
Brown also contends that he cannot be convicted of
possession of a firearm for his possession of the .9mm on that
date. Brown contends that since he was convicted for possession
of the .9mm on December 8, the date he was arrested, he cannot
be convicted for possessing the same firearm on two occasions.
Code § 18.2-308.2 provides, in relevant part:
A. It shall be unlawful for (i) any person
who has been convicted of a felony or (ii)
any person under the age of twenty-nine who
was found guilty as a juvenile fourteen
years of age or older at the time of the
offense of a delinquent act which would be a
felony if committed by an adult, whether
such conviction or adjudication occurred
under the laws of this Commonwealth, or any
other state, the District of Columbia, the
United States or any territory thereof, to
knowingly and intentionally possess or
transport any firearm or to knowingly and
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intentionally carry about his person, hidden
from common observation, any weapon
described in § 18.2-308 A.
In construing this statute, we have held that "[u]pon
consideration of the purposes of Code § 18.2-308.2 and being
mindful that penal statutes must be strictly construed against
the Commonwealth and applied only in those cases clearly falling
within the language of the statute . . . when [a] defendant
possesse[s] [three firearms], he commit[s] a single offense
under Code § 18.2-308.2, not three." Acey v. Commonwealth, 29
Va. App. 240, 251, 511 S.E.2d 429, 434 (1999). We based our
holding on the "gravamen of the offense," which we found to be
"the possession of a firearm by a felon." Id. at 250, 511
S.E.2d at 433. Under this reasoning, the unit of prosecution
for this offense becomes the number of occasions on which a
defendant "possesses" one or more weapons. Because the evidence
establishes that Brown exercised dominion and control over the
firearm on two separate occasions, it is clear that Brown
committed two distinct violations of a single criminal
proscription. Thus, the trial court did not err in convicting
Brown of these two separate offenses.
As an alternative to this argument, Brown contends that
because he also made the statement in his confession that the
gun used during that particular robbery "could have been the 380
or the nine," he might have had the shotgun on that occasion.
Brown extrapolates from this statement and argues that since the
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evidence does not demonstrate that the shotgun ejected the
casing when test-fired, it was not operable, and therefore, he
cannot be convicted of possession of the firearm.
"[I]n determining whether an item is a 'firearm,' the
Commonwealth must prove two discrete elements: (1) that the
weapon is designed or intended to expel projectiles by the
discharge or explosion of gunpowder, and (2) that it is capable
of doing so." Gregory v. Commonwealth, 28 Va. App. 393, 400,
504 S.E.2d 886, 889 (1998). Here, even assuming Brown's
uncertainty of which weapon he used extends to the shotgun,
there is no dispute that the shotgun was designed or intended to
expel projectiles by the discharge or explosion of gunpowder.
Instead, Brown claims that it was not capable of doing so.
However, the evidence established that when test-fired, the gun
made a loud booming noise and discharged smoke. Although
shotgun pellets were not expelled from the weapon, the evidence
demonstrated that this was because the officer had removed the
pellets from the casing before test-firing the shotgun. Once
again, viewing the evidence in the light we must, we do not find
that the trial court was plainly wrong in finding this evidence
sufficient to establish that the shotgun was nonetheless capable
of expelling one or more projectiles by the explosion of
gunpowder and thus, was operable.
Brown finally argues that the evidence was insufficient to
establish that he was involved with the robbery on December 2.
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Brown contends that because witness Virginia Smith testified
that Braswell was the individual who actually held the gun, and
because she was not able to identify Brown in a photo lineup
after the incident, the evidence against Brown was unreliable
and insufficient to support the conviction. However, Brown's
own confession stated "I robbed Sentry at [that location] at
gunpoint with a sawed-off shotgun." Brown even provided
information to the police enabling them to locate the shotgun.
In light of this, and again, viewing the evidence as we must, we
do not find that the trial court was plainly wrong in finding
the evidence sufficient to convict Brown of this offense. 3
For the reasons set forth above, the judgment of the trial
court is affirmed.
Affirmed.
3
In light of our discussion concerning the operability of
the shotgun, we do not address Brown's argument that the shotgun
used on December 2 was inoperable, therefore barring his
conviction for possession of a firearm on that date.
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