Frank Bradford Tibbett, Jr. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued by Teleconference
FRANK BRADFORD TIBBITT, JR.
MEMORANDUM OPINION * BY
v. Record No. 0168-96-1 JUDGE NELSON T. OVERTON
MARCH 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
James O. Broccoletti (J. F. Hoen; Zoby &
Broccoletti, P.C., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Frank Bradford Tibbitt, Jr., was convicted by a jury of
possession of cocaine with the intent to distribute and
conspiracy to possess cocaine with the intent to distribute. He
appeals, arguing (1) that the evidence was obtained in an illegal
search; (2) that a hearsay statement was improperly admitted; (3)
that the hearsay statement was improperly mentioned in closing
argument; and (4) that the trial judge erroneously refused one of
the defendant's jury instructions. We disagree on each point,
and affirm Tibbitt's convictions.
Tibbitt first contends that the search of his person was
illegal. He claims that, although the police were justified in
stopping his vehicle, they were not justified in arresting him
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and searching him incident to that arrest. Contrary to this
assertion, the police did have probable cause to arrest Tibbitt
after they stopped his vehicle. "'[P]robable cause exists when
the facts and circumstances within the officer's knowledge, and
of which he has reasonably trustworthy information, alone are
sufficient to warrant a person of reasonable caution to believe
that an offense has been or is being committed.'" Jones v.
Commonwealth, 18 Va. App. 229, 231, 443 S.E.2d 189, 190 (1994)
(quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d
833, 836 (1981)). "To establish probable cause, the Commonwealth
must show 'a probability or substantial chance of criminal
activity, not an actual showing of such activity.'" Ford v. City
of Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851
(1996) (quoting Boyd v. Commonwealth, 12 Va. App. 179, 188-89,
402 S.E.2d 914, 920 (1991)).
In this case, the police were told by Ignatius Moore that a
man named Frank in a blue Renault would be involved in a drug
deal. After observing Moore participate in a drug transaction,
the police saw Moore immediately picked up by a blue Renault
driven by Tibbitt. Upon stopping Tibbitt’s car, the police
arrested Moore, but found that he had already transferred some of
the marked "buy money." The knowledge and observations of the
police at that time provided probable cause to believe that
Tibbitt was not an innocent bystander, but was an accomplice to
the drug transaction. The arrest and search of Tibbitt were
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therefore lawful, and the evidence found on Tibbitt was properly
admitted.
Tibbitt next argues that the statement made by Moore about a
man named Frank in a blue Renault was hearsay and should not have
been admitted at trial. Moore's statement, however, was an
exception to the hearsay rule as a statement made by a
co-conspirator. "The admissibility of a co-conspirator's
declarations made in furtherance of the conspiracy, but outside
of the presence of a defendant, is a long established exception
to the hearsay rule in Virginia." Rabiero v. Commonwealth, 10
Va. App. 61, 63, 389 S.E.2d 731, 732 (1990). "[A] prima facie
case of conspiracy must be established by evidence independent of
the declarations themselves." Id.
The evidence presented by the Commonwealth meets this test.
Tibbitt was waiting across the street from the drug transaction,
even though Moore had changed the location at the last minute.
Once Moore was finished, Tibbitt immediately pulled out to pick
him up without any signal from Moore. When Tibbitt was searched
shortly thereafter, some of the buy money was found on him,
apparently given to him directly after picking up Moore. At the
time of his arrest, Tibbitt told the police that he knew that
some of what was sold to the police was soap. This evidence,
taken as a whole, is sufficient to establish a prima facie case
that an agreement existed between Tibbitt and Moore for the sale
of drugs. A conspiracy having been established, Moore’s
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statement to the police about a man named Frank in a blue Renault
was admissible.
By extension, Tibbitt's claim of error as to the closing
argument also fails. If the statement was properly admitted, the
Commonwealth was free to refer to it as evidence that the jury
could consider.
Lastly, Tibbitt claims that the trial judge erred in
refusing a jury instruction as to an accessory after the fact.
We find no error. "An instruction that is not supported by the
evidence . . . is properly refused." Frye v. Commonwealth, 231
Va. 370, 388, 345 S.E.2d 267, 280 (1986). More than a "mere
scintilla of evidence" must be present to support the
instruction. Boone v. Commonwealth, 14 Va. App. 130, 132, 415
S.E.2d 250, 251 (1992). In order to have been an accessory after
the fact, a felony must have been completed, Tibbitt must have
known that Moore was guilty, and Tibbitt must have received,
relieved, comforted or assisted him. See Manley v. Commonwealth,
222 Va. 642, 645, 283 S.E.2d 207, 208 (1981). The evidence
viewed in a light most favorable to the defendant does not
satisfy these requirements. Tibbitt told the police that he had
no contact with Moore before the transaction and merely gave
Moore a ride without any intention of assisting him with a crime.
This evidence may tend to prove Tibbitt's innocence of any
offense, but it does not support a charge of accessory after the
fact. The instruction was properly refused.
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Accordingly, we affirm Tibbitt's convictions.
Affirmed.
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