Richard Shane Via v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
RICHARD SHANE VIA
v. Record No. 0609-94-3 MEMORANDUM OPINION * BY
JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA, AUGUST 1, 1995
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Stephen R. Wills (William L. Heartwell, III;
William L. Heartwell, III, P.C., on briefs), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Richard Shane Via (Via) appeals his convictions for breaking
and entering and grand larceny pursuant to Code §§ 18.2-91 and
18.2-95, respectively. Via asserts that the trial court erred in
denying two motions to suppress evidence, in denying a motion for
mistrial and in denying a motion to dismiss the indictments. For
the following reasons, we affirm Via's convictions.
We restate only the facts relevant to our holding. Via
moved to suppress inculpatory letters he had written to Trudy
Crowe (Crowe) on the ground that they were obtained in violation
of the Fourth Amendment guarantee against unreasonable searches
and seizures. Via contends that Crowe was coerced into
surrendering the letters to police. Assuming, without deciding,
that Crowe did not voluntarily surrender the letters, we hold
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that Via has no standing to challenge their admission against him
in a criminal trial.
"A person who is aggrieved by an illegal search and seizure
only through the introduction of damaging evidence secured by a
search of a third person's premises or property has not had any
of his Fourth Amendment rights infringed." Rakas v. Illinois,
439 U.S. 128, 135 (1978). In order to challenge the
admissibility of evidence, the accused must establish "that he
himself was the victim of an invasion of privacy." Jones v.
United States, 362 U.S. 257, 261 (1960). Since Via failed at
trial to establish any invasion of his own privacy, the ruling of
the trial court denying the motion to suppress is affirmed.
Via further contends that the letters should have been
excluded because they contained little probative value and were
extremely prejudicial. In the letters, Via instructed Crowe to
testify that the property allegedly taken in the larceny was in
fact hers. He also urged her to "bust out into tears" under
cross-examination. These instructions evince an intent to suborn
perjury. Therefore, the letters were probative of Via's guilty
state of mind and his criminal agency in the burglary. United
States v. Hughes, 716 F.2d 234, 240-41 (4th Cir. 1983); see also
McMillan v. Commonwealth, 188 Va. 429, 432-33, 50 S.E.2d 428, 430
(1948).
Via asserts that any probative value in the letters is
outweighed by unfair prejudice they created. He contends that
the jurors could infer from the content of the letters that he
-2-
was in jail when he wrote them and also that he held a general
contempt for authority. While these are both prejudicial aspects
of the letters, "[t]he responsibility for balancing the competing
considerations of probative value and prejudice rests in the
sound discretion of the trial court. The exercise of that
discretion will not be disturbed in the absence of a clear
abuse." Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609,
617, cert. denied, 498 U.S. 998 (1990). Here, the trial court
properly determined that the probative value of the letters
exceeded any potential harm that might have arisen out of the
inferences that they were written from jail or that Via was
contemptuous of authority.
Via next contends that the trial court erred in denying his
motion for a mistrial for prosecutorial misconduct. During
closing argument, defense counsel attacked the credibility of a
prosecution witness named Patricia Stanley. Mrs. Stanley
immediately left the courtroom in tears. In his closing
argument, the Commonwealth's Attorney made reference to Mrs.
Stanley's reaction. Defense counsel objected, stating that Mrs.
Stanley's conduct was not a part of the trial record. The
prosecutor withdrew this statement, and the court issued a
curative instruction to the jury. The Commonwealth's Attorney
then said, "The point is, ladies and gentlemen, Patricia Stanley
wasn't given an opportunity to respond to any such accusations,
she was sitting right here on her oath . . . ." Defense counsel
again objected and moved for a mistrial. The motion was denied.
-3-
Via contends that the trial court should have issued another
curative instruction after the second statement because the jury
may have misinterpreted it as again referring to the off-record
actions of the witness. This is a matter properly left in the
sound discretion of the trial court:
When a motion for mistrial is made, based upon an
allegedly prejudicial event, the trial court must make
an initial factual determination, in the light of all
the circumstances of the case, whether the defendant's
rights are so "indelibly prejudiced" as to necessitate
a new trial. Unless we can say as a matter of law that
this determination was wrong, it will not be disturbed
on appeal.
LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657
(1983), cert. denied, 464 U.S. 1063 (1984).
The Commonwealth's Attorney's first statement was withdrawn,
and the court issued a proper curative instruction to the jury.
The jury is presumed to have followed the instruction. Id. The
next statement referred only to the fact that Mrs. Stanley had
not been confronted with the allegation of perjury while she was
on the witness stand, when she could have responded. Such a
reference is permissible during closing argument. Therefore, we
cannot say that as a matter of law the trial court's
determination on the issue of indelible prejudice was wrong.
Finally, Via contends that the trial court erred in denying
his motion to dismiss the indictments. At the pretrial hearing,
Via alleged that police misconduct interfered with his Sixth
Amendment right to effective assistance of counsel and his due
process right to call his own witnesses.
-4-
Originally, Via intended to call Crowe as a defense witness
at trial. On January 25, 1994, two police detectives visited
Crowe, and she made a recorded statement inculpating Via.
Defense counsel then visited Crowe and told her that he could no
longer call her as a witness because she had lied to him. At the
pretrial hearing, defense counsel testified that the following
morning he was informed by police that a complaint had been filed
against him for threatening and harassing Crowe. The officer
told him that he would be charged with trespassing if he
attempted to visit Crowe and that he was permitted to speak with
her only through a third party. Crowe testified that she made no
complaint against defense counsel and that he did not threaten or
harass her. Defense counsel did contact Ms. Crowe through a
third party and subsequently contacted her directly. Finally,
Via did call her as a witness for the defense, and she testified
on his behalf.
The police conduct at issue was apparently designed to
intimidate defense counsel and was, therefore, improper.
However, Via offered no evidence that his counsel's performance
was deficient or that the police conduct actually prejudiced his
defense. Absent a showing of prejudice at trial, no remedial
action by the trial court was required. 1 Via and his counsel had
1
We do not address whether dismissal would have been the
appropriate remedy had appellant suffered prejudice. However,
we do not agree with appellant's position that Taylor v.
Commonwealth, 4 Va. App. 45, 47, 354 S.E. 2d. 74, 76 (1987),
mandates that dismissal is the only remedy for prejudice in such
circumstances.
-5-
other avenues of redress for the police misconduct.
Via also claimed the police misconduct interfered with his
right to call his own witnesses, a fundamental element of due
process. Jenkins v. Commonwealth, 244 Va. 445, 459, 423 S.E.2d.
360, 369 (1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1862
(1993). The record indicates that he recalled Crowe to testify
on his behalf and that she did so. The record further indicates
that counsel interviewed Crowe on several occasions after the
police misconduct occurred. Via's ability to prepare and call
his own witnesses was not impaired by the improper conduct of the
police in this case. Accordingly, the trial court properly
denied his motion for dismissal.
For these reasons, we affirm Via's convictions.
Affirmed.
-6-