Opinion
Record No. 0288-92-4
March 9, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY MICHAEL P. MCWEENY, JUDGE
Louise M. DiMatteo, Senior Assistant Public Defender, for appellant.
Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Barrow and Moon
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellant, Ralph C. McGinnis, appeals his convictions of statutory burglary and grand larceny. He contends (1) the trial court erred in denying his motion to suppress the evidence obtained during the period of his illegal detention; and (2) the trial court erred in admitting a statement that was the subject of a discovery order. For the following reasons, we affirm.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc) (citations omitted).
On June 5, 1991 at 2:30 a.m., King George County Deputy Stocks was patrolling the area of Route 3 in the county. Stocks was aware that there recently had been a number of "smash and grab" larcenies at stores and restaurants along Route 3. At approximately 2:30 a.m., Stocks observed the headlights of appellant's car behind the public library. The library was closed and Stocks suspected that the appellant's car was involved in a trespass or burglary of some type. A Radio Shack store was located 200 yards from the library.
Stocks testified that appellant's car was moving very slowly at a "crawl" behind the library. Stocks described that the road appellant was on is a one lane access road, similar to an alley, at the back of the library, and that there was no room to turn around on this road. Appellant also testified that the road was a "one lane driveway" around the library.
Appellant was moving so slowly behind the library that Stocks saw appellant twice. As Stocks drove by, he saw appellant's headlights. After making a u-turn to return to the library moments later, Stocks again saw appellant's car, this time with the brake lights on, still moving slowly behind the library on the access road.
After the car exited the access road, Stocks stopped the appellant. Stocks asked appellant for his license and registration and observed a bag sticking halfway out from underneath the driver's seat. When Stocks asked appellant what he was doing behind the library, appellant stated that he was looking for a place to sleep.
Appellant consented to a search of the vehicle. Stocks seized a bag of drug paraphernalia from under the seat and a cash box from the Fairfax Video Gallery Store, which had been burglarized three days earlier on June 2, 1991. When Stocks asked the appellant why he had the box, appellant stated that the store's owner was his friend and had given the box to him.
On the morning of trial, appellant made a motion to exclude his statement to Stocks concerning the reason why appellant had the cash box. This statement was provided to appellant's counsel the morning of trial. The prosecutor had not learned of the statement until the morning of trial. Under the circumstances, the trial court offered appellant a continuance, which he refused. Appellant's motion to exclude the statement was denied and the trial began.
I.
"An investigative stop of an automobile 'must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.' United States v. Cortez, 449 U.S. 411, 417 (1981), cert. denied, 455 U.S. 923 (1982) (footnote omitted). The law enforcement officer conducting the stop must be able to 'point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant' stopping a person to conduct further investigation."
Lowery v. Commonwealth, 9 Va. App. 314, 317, 388 S.E.2d 265, 266 (1990) (citations omitted).
This Court in Smith v. Commonwealth, 12 Va. App. 1110, 407 S.E.2d 49 (1991) stated that when determining whether a reasonable, articulable suspicion exists to conduct an investigatory stop of an individual, "'[t[he circumstances to be considered in connection with this issue are the "characteristics of the area" where the stop occurs, the time of the stop, whether late at night or not, as well as suspicious conduct of the person. . .'" 12 Va. App. at 1103, 407 S.E.2d at 51 (quotations omitted). "Proximity to the scene of a recently committed crime is another factor that the police may consider in determining whether to engage in a Terry stop." Wells v. Commonwealth, 6 Va. App. 541, 552, 371 S.E.2d 19, 25 (1988).
Here, at approximately 2:30 a.m., Deputy Stocks saw appellant driving slowly behind the closed public library in the same area near Route 3 where a number of "smash and grab" larcenies had recently occurred. The officer could reasonably have believed based on the totality of the actual circumstances that appellant was about to be, or was engaged in criminal activity, such as a burglary. The officer had reasonable suspicion to stop appellant.
Therefore, we hold that the trial court did not commit error when denying appellant's motion to suppress the evidence discovered as a result of the stop.
II.
Appellant contends that the trial court erred by admitting the statement, "I'm friends with the video store owner and he let me have it," made by appellant to Deputy Stocks.
The Commonwealth was ordered to disclose any relevant material to appellant "which is known to the attorney of the commonwealth. . . ." Rule 3A:11(b)(i). Here, the prosecutor disclosed the statement the morning of the trial, the time at which he learned of the statement.
Even "[when there is] no indication of an intentional discovery violation by the Commonwealth which necessitated a continuance . . . , [the] only ground for reversal is based upon prejudice to the fairness of [appellant's] trial due to deprivation of favorable or exculpatory evidence." Snyder v. Commonwealth, 10 Va. App. 67, 72, 389 S.E.2d 727, 730 (1990) (citations omitted).
Here, unlike Snyder, the trial court offered a continuance to alleviate any harm that the recent disclosure of the statement may have caused appellant. However, appellant refused the continuance. Under the circumstances, we hold that the trial court did not abuse its discretion in admitting the statement.See Blain v. Commonwealth, 7 Va. App. 10, 371 S.E.2d 838 (1988).
Affirmed.