Opinion
Record No. 1899-92-1
Decided: July 5, 1994
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Edward W. Hanson, Jr., Judge
Affirmed.
Thomas L. Watkins for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton, and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Guy D. DeSantis was indicted on eight counts of burglary and eight counts of grand larceny. After the offenses were severed for trial, DeSantis was tried by a jury on one charge of burglary and one charge of grand larceny, both of which involved the Tarantino home. The jury convicted DeSantis of feloniously receiving stolen property. On this appeal, DeSantis contends that the trial judge erred (1) in refusing to suppress evidence obtained pursuant to a search warrant, (2) in admitting in evidence items found in DeSantis's house unrelated to the Tarantino burglary, and (3) in allowing the Commonwealth to reopen its case after both parties completed their proof. For the reasons that follow, we affirm the conviction.
Motion to Suppress Evidence
Detective A.C. Simpkins obtained a search warrant for 1121 Snowbird Lane, Virginia Beach. The affidavit that he signed in support of the warrant reads as follows:
On 120491, a burglary was committed at 3732 Snowdrift Circle in Virginia Beach, Dr. #91-233576. The following property was stolen from 3732 Snowdrift Circle: one Afton High School Class ring — Class of 1974 (initials RLS engraved inside the ring), also stolen was a Pioneer Compact Disc player, RCA VCR, Ruger .25 caliber pistol, 2 mens wedding bands and 20 various compact discs. On 120591 this affiant arrested Guy DeSantis for unrelated burglary and grand larceny charges. DeSantis committed the burglary on 092191 and pawned stolen jewelry from 1709 Willwood Court, Virginia Beach at Sidney's Loans, 801 High Street, Portsmouth, Virginia on 102591. When DeSantis was arrested, he had on his person a gold 1974 Afton Class ring. This affiant vouchered the Afton ring along with other jewelry that was confiscated from DeSantis at the time of his arrest. On 120591, at 2030 hours, Detective Dugan contacted Ronald Stout, victim of burglary on 3732 Snowdrift Circle, Virginia Beach. Ronald Stout supplied additional stolen property list from burglary to include a 1974 Afton Class ring. Detective Dugan informed this affiant the location of the owner of the 1974 Afton Class ring. This affiant contacted Mr. Stout and had Mr. Stout respond to the Fourth Precinct, to identify the ring. At 2100 hours on 120591, Mr. Stout positively identified the ring as belonging to him. DeSantis advised Sgt. Moyers that he resides at 1121 Snowbird Lane, Virginia Beach. DMV and a CP cross directory checks revealed that DeSantis resides at 1121 Snowbird Lane, Virginia Beach. This affiant feels additional stolen property will be recovered from 1121 Snowbird Lane, Va. Beach due to the recentness of the burglary at 3732 Snowdrift Circle, Va. Beach and the fact that DeSantis has history of keeping stolen property for delayed periods of time.
This affiant arrested Guy DeSantis on 120591 at 1045 hours for burglary and grand larceny charges. DeSantis had in his possession a 1974 Afton Class ring that was stolen from a burglary on 120491. That burglary occurred at 3732 Snowdrift Circle, Virginia Beach, VA. DeSantis has stated that he resides at 1121 Snowbird Lane, Virginia Beach, Virginia. This affiant has been a police officer for 2 years and have (sic) been a detective for 10 months investigating burglary crimes. This affiant has arrested numerous individuals for burglary and grand larceny charges and have successfully prosecuted these individuals.
The police executed the search warrant and seized several items including a grocery bag and a blue shoe box, both of which contained jewelry. Following the seizures, DeSantis was indicted on seven counts each of statutory burglary and grand larceny. Before trial on any count, DeSantis moved to suppress the evidence discovered during execution of the search warrant.
At the hearing on the motion to suppress, DeSantis testified that the high school ring was not on his person when he was arrested. He admitted that he was sitting on the front passenger seat and that he knew sandpaper was in the automobile. He also testified that he lived at 1121 Snowbird Lane the day of his arrest and that he so informed the detective.
Detective Simpkins testified that on December 5, 1991, the police stopped an automobile in which DeSantis was a passenger. At the time of the traffic stop, the police had outstanding arrest warrants for both DeSantis and Susan O'Miller, who was the passenger on the automobile's rear seat. The police arrested them both on the warrants charging burglary and grand larceny.
Incident to that arrest, the detective searched the automobile and discovered under the front passenger seat, where DeSantis was sitting, a 1974 Afton High School class ring and a few pieces of sandpaper. Simpkins testified that the driver, Kelly Gould, and O'Miller both told him that DeSantis had been using the sandpaper to remove the initials inside the class ring and that DeSantis had put both the sandpaper and the ring under his seat when the police stopped the car. The detective testified that he asserted in the affidavit that DeSantis had the ring on his person because O'Miller and Gould told him that DeSantis had been sanding the initials off of the ring immediately prior to the stop.
The detective also testified that DeSantis gave his address as 1121 Snowbird Lane in Virginia Beach. He further testified that the records of the Division of Motor Vehicles recited that two cars in DeSantis's name were registered at the Snowbird Lane address. The detective admitted that the police radio dispatcher had given him information that a telephone company directory contained a listing for DeSantis at 1121 Snowbird Lane.
The detective testified that when he applied for the warrant to search the Snowbird Lane address, he was aware that DeSantis had indicated on various documents that he lived at an address on Red Cedar Court. He explained that he did not include that information on his affidavit because he believed DeSantis had no reason to lie about residing at 1121 Snowbird Lane. The detective also conceded that at one place on the affidavit he incorrectly identified objects as being stolen from 3732 Snowbird Lane, and not 3732 Snowdrift Circle. Finally, the detective admitted that although he stated in the affidavit that DeSantis's red house was a beige color, he only saw the house at night under poor lighting conditions and as he was driving by the house.
DeSantis argued that the evidence proved that the detective misrepresented facts in the search warrant affidavit and, in so doing, caused the magistrate to improperly issue a search warrant. Finding no "evidence of false statements, knowingly, intentionally made or with reckless disregard for the truth," the trial judge denied the motion to suppress.
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court of the United States held:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
Id. at 155-56.
The discrepancies of which DeSantis complains were not sufficient to constitute a Franks violation. Although the officer knew that DeSantis had on other occasions listed his address as Red Cedar Court, DeSantis conceded at the hearing that when he was arrested he lived on Snowbird Lane and, further, that he informed the officer that he lived on Snowbird Lane. Moreover, the officer verified that DeSantis had a connection to the Snowbird Lane residence.
That the detective incorrectly stated in one portion of the affidavit that the burglary occurred at Snowbird Lane and may have misstated the color of DeSantis's residence are misstatements of no moment. "Allegations [by the accused] of negligence or innocent mistake [in the affidavit] are insufficient" to establish a Franks violation. 438 U.S. at 171.
Although the officer incorrectly asserted that DeSantis had the ring on his person when he was arrested, he gave an explanation for the misstatement that was not incredible. Based upon the evidence in the record, we cannot conclude that the trial judge erred in finding that the misstatement was neither knowingly and intentionally made nor made with reckless disregard for the truth. Moreover, upon our review of the record, we hold that the evidence proved "that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
We also find no error in the trial judge's refusal on the morning of trial to hold a further hearing to reconsider the previous ruling denying the motion to suppress. DeSantis's counsel proffered to the trial judge that the two women who were in the automobile when it was stopped had informed him that they made no statements to the police concerning DeSantis possession of the ring. The trial judge ruled that those witnesses were known to DeSantis and available to be called at the initial hearing on the motion to suppress. We find no error in that ruling.
Evidence of Other Crimes
Prior to trial, DeSantis moved to sever the trials of each set of burglary and related grand larceny charges. The judge granted the motion. At the trial below, which involved the burglary and grand larceny charges arising from the Tarantino residence, the owners of that residence testified that someone entered their residence, ransacked their belongings, and removed several distinctive pieces of jewelry.
The detective testified that during the search of DeSantis's residence he found a bag stuffed with jewelry and other assorted items under DeSantis's bed and a shoe box of jewelry under a bureau in the same room. Simpkins testified that when he saw a watch with the name "Tarantino" engraved on the back he invited the Tarantinos to view the contents of the bag and box. He further testified that the Tarantinos identified several pieces as jewelry as property taken from their residence.
During the detective's testimony, the Commonwealth displayed the items found in the bag and shoe box. However, at no time did the Commonwealth or any of its witnesses identify the remaining items as products of other burglaries or larcenies. We find no merit to the claim that the mere display of the items constituted proof of other unrelated crimes.
Reopening of the Commonwealth's Case-in-chief
At the conclusion of all the evidence and after each party had rested, the trial judge granted the Commonwealth's motion to prove additional facts concerning the value of an item of property. This Court has held that:
[w]hen all of the testimony has been concluded — and all of the witnesses excused — if the trial judge exercises its discretion and permits the introduction of other testimony, the record must affirmatively show that the trial court abused its discretion if the appellate court is to reverse based on the trial court's ruling.
Christman v. Commonwealth, 3 Va. App. 371, 376, 349 S.E.2d 899, 902 (1986). This record contains no evidence that proves an abuse of discretion.
Accordingly, the judgment of conviction is affirmed.
Affirmed.