Kevin Michel Criss v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
KEVIN MICHEL CRISS
MEMORANDUM OPINION * BY
v. Record No. 0364-00-1 JUDGE ROBERT J. HUMPHREYS
JUNE 5, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
James O. Broccoletti (James P. Normile, IV;
Zoby & Broccoletti, P.C., on brief), for
appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kevin Criss appeals his conviction, after a bench trial,
for possession with intent to distribute more than five pounds
of marijuana and conspiracy to distribute more than five pounds
of marijuana. Criss contends that the trial court erred 1) in
admitting his statement, which he alleges was made as a result
of coercion by the arresting officer; and, 2) in admitting
evidence found in the box addressed to 23 Neville Street, which
he alleges was illegally searched without a warrant. Because
this opinion has no precedential value and because the parties are
conversant with the facts, we do not recite them in detail here.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
We first note that "[t]he admission of evidence is within
the broad discretion of the trial court." Pavlick v.
Commonwealth, 27 Va. App. 219, 226, 497 S.E.2d 920, 923 (1998). 1
"[The Supreme Court has] held that a confession may be
involuntary and hence inadmissible when induced by threats to
prosecute members of the confessor's family." Tipton v.
Commonwealth, 224 Va. 256, 262, 295 S.E.2d 880, 883 (1982)
(citation omitted). However, we have not held, as Criss seems
to suggest, that "threats" to prosecute members of the
confessor's family are per se unreasonable. Instead, "the
question in each case is whether the defendant's will was
overborne at the time he confessed. If so, the confession
cannot be deemed 'the product of a rational intellect and a free
will.'" Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (citations
omitted). Thus,
[i]n assessing the voluntariness of a
confession on appeal, we must independently
determine whether, in light of the totality
of the circumstances, including not only the
details of the interrogation, but also the
characteristics of the accused, the
statement was the product of an essentially
free and unconstrained choice by its maker,
or whether the maker's will was overcome and
his capacity for self-determination
critically impaired.
1
Although Criss frames the issues on appeal as pertaining
to "motions to suppress" evidence, Criss made no pretrial motion
to suppress the evidence in this case. Rather, he objected to
the admissibility of certain evidence on state law, as well as
constitutional grounds.
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Novak v. Commonwealth, 20 Va. App. 373, 386-87, 457 S.E.2d 402,
408 (1995) (citations omitted).
Here, Criss argues he inferred coercion from Detective
Franklin Chappell's statements. However, unlike the
circumstances in Hammer v. Commonwealth, 207 Va. 135, 147-48,
148 S.E.2d 878, 885 (1966), Detective Chappell testified at
trial to the statements he made to Criss. The trial court had
the opportunity to evaluate Detective Chappell's credibility
with respect to the statements he made to Criss and their
context. Moreover, since Criss elected to contest their
admissibility at trial rather than seek a pretrial suppression
hearing, the trial court was given no opportunity to evaluate
the coercive effect, if any, these statements had on Criss. We
therefore cannot find that the trial court erred in concluding
that Criss' statement was the product of an essentially free and
unconstrained choice and that his will was not overborne by the
detective's statements. Accordingly, we find no error in the
trial court's admission of Criss' statement.
We note finally that the only Fourth Amendment argument
that Criss raised before the trial court pertained to the
investigation and resulting search that occurred in California.
However, the trial court issued a more exhaustive ruling in
denying Criss' motion and addressed both the California search
and the Virginia search. As a basis for its ruling with regard
to the Virginia search, the trial court concluded that Criss had
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no expectation of privacy in the box prior to its delivery to
his home.
Likewise, we find no merit in Criss' argument that the
search of the box prior to delivery to his home was illegal. On
this record, there is no evidence that "Dennis Barnard," the
individual to whom the package was addressed, was an alter ego
or pseudonym for Criss, nor that Criss ever identified himself
as Barnard. 2 Instead, the evidence merely demonstrates that
Criss accepted delivery and possession of the box and its
contents. Thus, we find no evidence to suggest that prior to
delivery, Criss possessed any expectation of privacy in the box
and/or its contents. In light of this, Criss had no standing to
assert an alleged Fourth Amendment violation based on the
actions of police prior to delivery of the box to his home. See
Rakas v. Illinois, 439 U.S. 128, 143 (1978) ("[The] capacity to
claim the protection of the Fourth Amendment depends not upon a
property right in the invaded [thing] but upon whether the
person who claims the protection of the Amendment has a
legitimate expectation of privacy in the invaded [thing].").
Criss correctly notes that the trial court erroneously
based its conclusion that Criss had no expectation of privacy in
the box on its belief that Criss lost his privacy interest once
2
To the contrary, counsel for Criss objected when the
prosecutor referred to Criss as having identified himself as
Barnard.
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UPS became the "lawful custodian" of the box. See United States
v. Jacobsen, 466 U.S. 109, 114 (1984) (the principle is well
established that individuals retain an expectation of privacy in
letters and sealed packages that have been deposited in the
mail). However, as set forth above, we find that the trial
court reached the correct result in finding that Criss had no
expectation of privacy in the box prior to delivery.
Accordingly, the judgment of the trial court is affirmed. See
Harris v. Commonwealth, 33 Va. App. 325, 332, 533 S.E.2d 18, 21
(2000) (as long as the correct reason, along with a factual
basis to support it, is raised in the trial court, an appellate
court may affirm the judgment of a trial court when it has
reached the right result for the wrong reason).
Affirmed.
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