Opinion
Record No. 0003-04-1.
January 11, 2005.
Appeal from the Circuit Court of the City of Portsmouth, Johnny E. Morrison, Judge.
William Roots, Jr., for appellant.
Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Elder, Clements and Senior Judge Overton.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Willie James Wilson, Jr., was convicted in a bench trial of possession of cocaine with intent to distribute, in violation of Code § 18.2-248, and possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4. On appeal, Wilson contends the trial court erred in denying his motion to suppress his statements to the police following his unlawful detention and all evidence flowing from those statements, including the cocaine and firearm found by police in his home. Finding appellate review procedurally barred, we affirm Wilson's convictions.
As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
I. BACKGROUND
On September 17, 2002, Sergeant Michael Wright of the Portsmouth Police Department secured a warrant to search for cocaine at Wilson's residence. The name on the search warrant obtained by Wright was "James" Wilson. While Wright was securing the search warrant, Detective R.M. Holley, who was conducting surveillance of Wilson's home, observed Wilson leave the residence and drive off. Upon Wright's instruction, Holley followed Wilson and stopped him once he was away from the residence, "in case someone related to the target would have seen it and thwarted [the police's] efforts." Holley stopped Wilson approximately three miles from Wilson's home and, thereafter, Wright joined them. After being advised of his Miranda rights, Wilson informed the officers that he used the name James and that there were drugs and a firearm in his house. Upon executing the search warrant, the officers found 7.2 grams of crack cocaine in the kitchen and 7.8 grams of crack cocaine in the bedroom of the residence. They also found a fully loaded .38 caliber Smith Wesson revolver underneath the living room couch cushion.
At trial, Wilson moved to suppress his statements to the police and any evidence flowing from them on the grounds that Sergeant Wright did not have the search warrant at the time Wilson was detained and the search warrant incorrectly identified the occupant of the home to be searched as James Wilson, rather than Willie Wilson. In response, the Commonwealth argued that Sergeant Wright testified he obtained the search warrant before Detective Holley detained Wilson and that the defect in the warrant was inconsequential because the search warrant otherwise sufficiently described Wilson as the occupant of the house to be searched. The trial court denied the motion to suppress.
II. ANALYSIS
On appeal, Wilson contends the trial court erred in denying his motion to suppress. In support of that contention, Wilson argues solely that his detention in connection with the search warrant was unlawful because it was effected outside the curtilage of his home. Relying on Whitaker v. Commonwealth, 37 Va. App. 21, 553 S.E.2d 539 (2001), and Michigan v. Summers, 452 U.S. 692 (1981), Wilson maintains that the police could properly detain him pursuant to the search warrant only if he was within the curtilage of his home, the place to be searched. The Commonwealth contends that Wilson's argument, having been raised for the first time on appeal, is procedurally barred by Rule 5A:18. We agree with the Commonwealth.
Rule 5A:18 provides in pertinent part:
No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling. . . . A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.
(Emphasis added).
Pursuant to Rule 5A:18, we "will not consider an argument on appeal [that] was not presented to the trial court." Ohree v. Commonwealth, 25 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). "Rule 5A:18 applies to bar even constitutional claims." Id.
Under this rule, a specific argument must be made to the trial court at the appropriate time, or the allegation of error will not be considered on appeal. A general argument or an abstract reference to the law is not sufficient to preserve an issue. Making one specific argument on an issue does not preserve a separate legal point on the same issue for review.
Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc), aff'd, No. 040019 (Va.Sup.Ct. Order of 10/15/04). Thus, "though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court." West Alexandria Properties, Inc. v. First Va. Mortgage Real Estate Inv. Trust, 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980). In short, we will not consider an argument on appeal that is different from the specific argument presented to the trial court, even if it relates to the same issue. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994) (holding that appellant's failure to raise the same specific arguments "before the trial court precludes him from raising them for the first time on appeal"). The main purpose of this rule is to ensure that the trial court and opposing party are given the opportunity to intelligently address, examine, and resolve issues in the trial court, thus avoiding unnecessary appeals and reversals. Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 739 (1991) (en banc); Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).
Moreover, a party "will not be permitted to approbate and reprobate, ascribing error to an act by the trial court that comported with his representations." Asgari v. Asgari, 33 Va. App. 393, 403, 533 S.E.2d 643, 648 (2000); see also Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988) ("No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate — to invite error . . . and then to take advantage of the situation created by his own wrong.").
In accordance with established principles, we review the record on appeal in the light most favorable to the prevailing party below, the Commonwealth in this case. See Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). At trial, Wilson contested the legality of his detention under the Fourth Amendment and moved to suppress his statements to the police and any information flowing from them. In support of his motion, he argued primarily that the search warrant had not yet been issued when he was stopped and that the search warrant did not correctly name him as the occupant of the house. While Wilson pointed out below that he was not stopped within "the curtilage of the home," he did not specifically argue, as he does on appeal, that his detention was illegal under the Fourth Amendment because he was not detained until after he had left the curtilage of his home. Indeed, Wilson's counsel specifically told the trial court that it did not "have to worry about that" particular aspect of the case. "If [the police] issued a search warrant, they can stop him, but they haven't issued the warrant . . .," Wilson's counsel informed the trial court. Thus, the argument Wilson raises on appeal was not specifically raised by Wilson at trial and the trial court, assured by Wilson that it was not an issue before the court, did not consider or address it. We hold, therefore, that Wilson is barred by Rule 5A:18 from raising the argument for the first time on appeal.
Accordingly, we affirm Wilson's convictions.
Affirmed.