Opinion
Record No. 2120-91-2
November 9, 1993
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG BENJAMIN A. WILLIAMS, JR., JUDGE.
Paul C. Bland for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton, and Coleman.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Bernard Singleton was convicted of three counts of robbery, three counts of using a gun in the commission of a robbery, four counts of abduction, four counts of using a gun in the commission of an abduction, one count of attempted robbery, and one count of use of a gun in an attempted robbery. The sentences for these sixteen crimes were fixed to run consecutively, for a total sentence of 70 years in the penitentiary. He appeals his convictions on the grounds that (1) the trial judge committed error by admitting into evidence a stolen combination video cassette recorder and television unit which police allegedly discovered when they entered his apartment without a warrant, and (2) the evidence was insufficient to prove the offenses beyond a reasonable doubt. We disagree and affirm the convictions.
I.
We view the evidence at the suppression hearing in the light most favorable to the Commonwealth. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). When so viewed, the evidence proved that the City of Petersburg police received a fugitive warrant from another jurisdiction for Singleton's arrest. Several police officers saw Singleton leave his apartment on the morning of April 27, 1991, and later stopped Singleton's automobile on the highway. The police arrested Singleton and detained a woman companion who was driving the automobile. During a search of Singleton's automobile, the officers found a gun that had been taken during a robbery of a gun shop three weeks earlier. After discovering the gun, the officers decided that they would apply for a search warrant to search Singleton's apartment for other guns that were taken during that robbery. Three officers went directly to Singleton's apartment to "secure the premises" in anticipation of obtaining a search warrant.
Singleton was then taken to the police station. His companion was also taken to the police station; however, she was later released. After Singleton's companion was released, one of the officer's observed that she made a telephone call from the police station.
When the three officers were admitted to Singleton's apartment to secure it, Singleton's nephew and a woman who was his acquaintance were in the apartment. One of them opened the door. The officers allowed Singleton's nephew to put on clothing and then confined both of the occupants to the living room. The officers testified that they did not search the apartment or enter Singleton's bedroom. Another officer later entered the apartment and questioned Singleton's nephew in the bathroom.
The woman who was in the apartment testified that one of the three officers who originally entered the apartment looked in the rooms when they first arrived and returned to the living room. She said the fourth officer who questioned Singleton's nephew also went into Singleton's bedroom.
Approximately one hour after the last officer entered the apartment, Detective Kelleher arrived at the apartment with Singleton and the search warrant. During the search of the apartment, Kelleher, who had been investigating several recent armed robberies, recognized the combination video cassette recorder and television unit in Singleton's bedroom. Kelleher testified that it matched the make and model description of the video unit that had been taken in a robbery of a food store. After he recognized the video unit, he questioned Singleton about it.
The trial judge denied the suppression motion. Singleton was then tried for offenses that arose during the robbery of the food store. All of Singleton's convictions that are the subject of this appeal arise from the food store robbery. Singleton contends that the video unit should not have been introduced in evidence at the robbery trial because it was discovered during an unlawful entry that occurred prior to the warrant-authorized entry. He asserts that "it is most reasonable to assume, taking into account the totality of the circumstances, that it was identified before the warrant arrived and as a result of a nonexigent entry."
II.
We need not reach the question whether the initial entry to the apartment was illegal. Even if the initial warrantless entry was illegal, the evidence proved that the video unit was not identified until after Detective Kelleher arrived at the apartment with the search warrant and began searching for the guns, the subject of the search warrant. No challenge is made to the validity of the search warrant.
None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners' apartment; the information came from sources wholly unconnected with the entry and was known to the agents well before the initial entry. No information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant. It is therefore beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged. This evidence was discovered . . . following the entry, during the search conducted under a valid warrant; it was the product of that search, wholly unrelated to the prior entry. The valid warrant search was a "means sufficiently distinguishable" to purge the evidence of any "taint" arising from the entry. Had police never entered the apartment, but instead conducted a perimeter stakeout to prevent anyone from entering the apartment and destroying evidence, the contraband now challenged would have been discovered and seized precisely as it was here. The legality of the initial entry is, thus, wholly irrelevant. . . .
Segura v. United States, 468 U.S. 796, 814 (1984) (citations and footnote omitted).
We conclude, therefore, that the trial judge did not err in refusing to suppress the video unit.
III.
At trial, the evidence proved that shortly after midnight on April 3, 1991, four employees of a food store in the City of Petersburg were finishing various tasks after the store had closed and were preparing to leave. Two armed men forced two of the workers who were leaving the store to return. When the armed men entered the store, they forced the four workers to the floor. One of the armed men took the store manager to the office while the other stood guard over the three people on the floor.
After the store manager was unable to open the safe, the robbers moved the four workers to the back room of the store and again forced them to the floor. The robbers took wallets from the workers, herded them into a restroom, and barricaded the restroom door. The robbers then removed money from the wallets, merchandise from the store, and a combination video cassette recorder and television unit from the store. The police made no arrests until the video unit was discovered in Singleton's apartment.
All four of the workers testified and identified Singleton as being one of the two robbers. In addition, Detective Kelleher testified that all four of the workers made out-of-court identifications of Singleton from a police photospread. Singleton contends that conflicts in the evidence rendered the identifications suspect.
Although there were some conflicts in the evidence, "[t]he identity of the accused and the conflicts in the evidence were questions for the jury." Booth v. Commonwealth, 165 Va. 794, 798, 183 S.E. 257, 259 (1936). Likewise, "it was for the jury to consider [Singleton's] alibi evidence along with the other evidence in the case." Lewis v. Commonwealth, 209 Va. 602, 606, 166 S.E.2d 248, 251 (1969). The jury determined that the four workers were more credible than Singleton's alibi witnesses. We cannot say that determination was plainly wrong. Accordingly, we conclude that the jury could have found beyond a reasonable doubt that Singleton was the perpetrator of the offenses.
Affirmed.