Petition for Writ of Certiorari — Berkeley v. Virginia

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Supreme Court, u.8,

FILED

JUL 11 1995,

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1995

STANLEY JUSTIN BERKELEY,

Petitioner

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

VIRGINIA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

JUDAH BEST, ESQ.*

DEBEVOISE & PLIMPTON

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-8060

STEPHEN A. SALTZBURG, ESQ.

GEORGE WASHINGTON NATIONAL

LAW CENTER

720 20th St., N.W.

Washington, D.C. 20052

(202) 994-7089

STANLEY E. SACKS, ESQ.

SACKS, SACKS & IMPREVENTO

150 Boush Street

Norfolk, Virginia 23514

(804) 623-2753

*Counsel of Counsel for

Record Petitioner

ITHre

on neal cp nema

QUESTIONS PRESENTED

Was petitioner denied due

process when the court of appeals found

sufficient evidence to support a felony

murder conviction with abduction as the

underlying felony notwithstanding the

fact that: (1) the jury was instructed it

could convict only if it found that the

murder had occurred during the commission

of a rape; and (2) there was no evidence

to support the jury’s guilty verdict?

as Was petitioner denied due

process when the trial judge denied him

the right to introduce evidence that a

codefendant had pleaded guilty and

admitted committing a capita] murder, and

petitioner’s jury was permitted to infer

that petitioner committed the murder

despite the prosecution conceding outside

the jury’s presence that the codefendant

had committed the crime?

3. Was petitioner’s Fifth and

Fourteenth Amendment privilege against

self-incrimination violated when

statements made by petitioner during

booking were admitted even though

petitioner, having previously been given

Miranda warnings, specifically invoked

his right to counsel, petitioner

indicated after several sentences that he

assumed any statements were confidential

as part of the booking process, and the

Commonwealth presented no evidence that

petitioner had knowingly and

intelligently waived his right to have

counsel present before talking about the

crimes charged?

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TABLE OF CONTENTS

QUESTIONS PRESENTED .

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE .

ISSUES RAISED BELOW...

REASONS FOR GRANTING THE WRIT .

ARGUMENT IN SUPPORT OF GRANTING

THE WRIT ASE 9 sa et Se

CONCLUSION

APPENDIX

iii

TABLE OF AUTHORITIES

CASES

, 19 Va. App.

-y, i ee ee ar eee

, 245 Va. 327, 427

5.8.26 376 teeeel. eee | iS;

Cole v. Arkansas, 333 U.S. 196

See eee Baca go

, 451 U.S. 477

(5983) ss 82 32, 35, FF, 39, 44, 42

Essex v. Commonwealth, 18 Va. APP- bs

442 S.E.2d 707 (1994) ... Ae

, 442 U.S. 95

Sees. 5S See PS ea ee a

James _v. Commonwealth, 18 Va. _— 746,

442 S.E.2d 900 ... 24, 25

McCommack v._United States. 500 U.S.

967° 8998) 5 a are

Q’Dell_v. Commonwealth, 234 Va. 672, 364

S.E.2d 491 (1988), Sark. danied, 488

U.S. 871 (1988) .. 24

Oregon v. Bradshaw, 462 U.S. 1039

(i903) ea: A ee, eee: Mee

Ortiz v. Dubois, 19 F.3d 708 (1st Cir.

1994), cert. denied, _ U.S. __, 115

S, Gh. Sa ee aw 8 Se ee ee |

Penosyiyania_y. Muniz. 496 U.S. 582

eee? Ses ac £2, 2. Be

i aieeeeneiiia aati

, 713 F.2d 1447 (9th Cir.

Perry v. Rushen

1983), Saxk.danied, 469 U.S. 838

(3963) SOA ‘

915 F.2d 280 (7th Cir. 1990) .. 30,

Sheldelbower v. Estelle, 885 F.2d 570

(9th Cir. 1989), Saxk.dspied, 498

U.S. 1092 (1991) ‘

, 845 F.2d 165 (8th

Turner v. Armontrout

Cir. 1988), cart. denied, 488 U.S.

928 (1988) sore

, 717 F.2d 1020

United States v. Avery

(6th Cir. 1983), cext.—danied. 466

U.S. 905(1984) .. Take | Me

, 848 F.2d

1110 (10th Cir. 1988) ae

’

738 F.2d 378 (10th Cir. 1984), cert.

denied,469 U.S. 1076 (1984) ‘

United States v. Montgomery, 714 F.2d

201 (lst Cir. 1983) ;

United States v. Morrow, 731 F.2d 233

(4th Cir. 1984), cert. denied, 467

U.S. 1230 (1984) . Saahpy ee eee

» 799 F.2d 126

(4th Cir. 1986), Serk.densed,— 479 U.S.

1093 (1987)

Maanengton-Y.TRmae, 388 U.S. 14

(1967) ; ty

Williams v. Commonwealth, 213 Va. 45,

189 S.E.2d 378 (1972)

CONSTITUTIONS,

U.S. Const., Amend.

Va. Const. Article

Section 8 and 11

28 U.S.C. § 1257

Va. Code Ann. § 18

Sup. Ce. BR. 23-23

STATUTES AND RULES

XIV:

CS in ae ee

ee ee ee Te ee

Pe Se eee

yy | > oe oO. Ss

atta ts

OPINIONS BELOW

The unreported decision of the

Virginia Court of Appeals denying a

petition for review on the second and

third questions presented in this

petition was entered on May 14, 1993. It

is set forth in the Appendix at A-42.

The 2-1 decision of the Virginia Court of

Appeals finding sufficient evidence to

support a murder conviction was entered

on November 29, 1994. It is set forth in

the Appendix at A-2, and is reported at

19 Va. App. 279, 451 S.E.2d 41. The

unreported decision of the Virginia

Supreme Court denying review was entered

April 17, 1995. It is set forth in the

Appendix at A-1.

JURISDICTION

This Court has jurisdiction to

entertain this petition for certiorari

pursuant to 28 U.S.C. § 1257. The

petition is filed in a timely manner

under Rule 13.1 of the Rules of the

Supreme Court.

CONSTITUTIONAL PROVISIONS

Petitioner relies upon the following

constitutional provisions:

U.S. Constitution, Amendment V:

[NJor shall any person .. . be

compelled in any criminal case to be a

witness against himself

U.S. Constitution, Amendment XIV:

[N]or shall any State deprive any

person of life, liberty, or property,

without due process of law.

STATEMENT OF THE CASE

Petitioner accepts as accurate the

statement of facts by the Virginia Court

of Appeals in its November 29, 1994

opinion, set forth in the Appendix at

A-2. Petitioner’s statement of the case

summarizes the key facts set forth by the

Virginia Court of Appeals.

On July 9, 1991, Melissa Harrington

(the victim) was abducted in the early

morning from the parking lot of the

apartment complex where she resided. No

one actually witnessed the abduction, and

no witnesses could identify the abductor.

The police, having reason to suspect

Andrew Chabrol of the abduction, went to

Chabrol’s house, were admitted, and found

both Chabrol and petitioner present. For

several hours the police stayed on the

premises and sporadically questioned

Chabrol and petitioner. In response to

police questioning, Chabrol and

petitioner gave conflicting versions of

their activities. After Chabrol refused

a police request for permission to search

the house, police obtained a search

warrant. They searched the house and

found the victim’s nude, dead body on the

floor of the master bedroom. She had

been killed by Chabrol.

Upon discovery of the body, the

police arrested both Chabrol and

petitioner. Petitioner was given Miranda

warnings, and clearly and unmistakably

invoked his right to counsel.

Thereafter, while being booked,

petitioner stated to the officer

conducting the booking that he "was a

victim of circumstances," and, according

to the officer, petitioner added the

following:

He stated he was only here

on vacation. He stated

during the abduction he

could only drive the car

in which they picked her

up due to his limited

ability. He said he

f----- her but on the

second time he could not

bring himself to do it.'

bi Page 280 of the trial transcript, which is

also page 150 of the Joint Appendix filed in

the Virginia Court of Appeals.

Petitioner made additional statements which

the trial judge suppressed. Transcript of

hearing on motion to suppress dated March 12,

1992, page 3.

Vaginal swabs were taken from the

victim and were subjected to analysis.

DNA testing of sperm found in the victim

was consistent with petitioner’s DNA and

inconsistent with that of Chabrol and the

victim’s husband. The likelihood that

the DNA came from a male other than

petitioner was small.

. Petitioner was originally charged

| with capital murder under Virginia Code

Section 18.2-31. The original indictment

alleged that the killing occurred "during

the commission of, or subsequent to,

rape." The Commonwealth moved, however,

prior to trial that the indictment be

amended to charge a violation of Virginia

Code Section 18.2-32 and to delete the

quoted words. Thus, as the Commonwealth

presented its evidence, the indictment

simply charged petitioner with murder.

At the close of the Commonwealth’s

case, petitioner moved to strike the

evidence as insufficient. At that time,

the Commonwealth again moved to amend the

indictment, this time to add the phrase

"in the commission of rape or abduction."

(See App. A-10) Petitioner consented to

this amendment when the Commonwealth

agreed that it would "give up any claim

to concert of action."

The indictment, following the second

amendment, read as follows:

The Grand Jury charges that:

On or about July 9,

1991, in the City of

Chesapeake, Virginia, the

accused, STANLEY JUSTIN

BERKELEY, did maliciously

kill and murder Melissa

Harrington, in the

commission of rape or

abduction, in violation of

Section 18.2-32 of the

Virginia Code.

The two amendments to the indictment

followed the guilty plea of Chabrol to

capital murder. Chabrol was sentenced to

death. See Chabrol v. Commonwealth, 245

Va. 327, 427 S.E. 2d 374 (1993). He has

since been executed.

As part of the defense case at

trial, petitioner sought to offer into

evidence Chabrol’s guilty plea to show

that Chabrol had admitted that he killed

the victim and that the Commonwealth had

accepted his admission as accurate.” The

trial judge -- the same trial judge who

took the plea from Chabrol -- excluded

the evidence.3

The jury found petitioner guilty of

abduction with intent to defile, rape,

and first degree murder. The trial

2: This evidence was enormously important after

the Commonwealth moved for the second

amendment to the indictment and stipulated

that it would not rely upon a concert of

action theory to convict petitioner. The

Commonwealth’s stipulation required that it

prove guilt by showing petitioner

affirmatively acted, and not by showing that

petitioner was tangentially guilty because the

joint actor Chabrol committed the murder.

ai The Virginia Court of Appeals recognized that,

without the guilty plea of Chabrol, the record

in petitioner’s trial would not have permitted

any trier of fact or a reviewing court to know

whether the murder was committed by peti-

tioner, Chabrol or both men. See App. A-12

n.4.

judge, relying upon the jury’s

recommended sentences, imposed three life

sentences on petitioner. The Virginia

Court of Appeals affirmed, 2-1, with one

judge arguing in dissent that the

Commonwealth, as a result of its

stipulation that it would not rely upon a

concert of action theory, had no evidence

to prove that petitioner was guilty of

murder. The Virginia Supreme Court

denied review.

ISSUES RAISED BELOW

Petitioner sought to strike the

evidence as insufficient at the close of

the Commonwealth’s evidence, renewed the

motion at the close of all the evidence,

filed a post-trial motion in the trial

court, and consistently urged on appeal

that there was no evidence to support the

jury’s verdict. Petitioner objected at

trial and on appeal to the exclusion of

Chabrol’s guilty plea. Petitioner moved

prior to trial to suppress the statement

he made during booking, and challenged

the admissibility of the statement on

appeal.‘

4. Prior to trial, petitioner filed a motion to

Suppress a number of evidentiary items.

Paragraph 4 of the motions set forth the

following allegation:

4. That [in] violation of

the Fifth, Sixth, Bighth and

Fourteenth Amendments of the

United States Constitution

and Article I, Section 8 and

11 of the Virginia

Constitution, agents of the

Commonwealth questioned

Defendant in contravention

of his rights under Miranda

and the Constitution and

failed to honor the

Defendant’s request for his

attorney prior to

questioning.

The trial judge conducted a suppression

hearing prior to trial. As a result of that

hearing, petitioner’s counsel persuaded the

judge to suppress the statements that

petitioner made during booking after he asked

whether his statements would be in strict

confidence and was assured that they would.

Petitioner’s counsel successfully urged that,

following this assurance, petitioner was

effectively being interrogated without having

been warned of his rights. In admitting the

statements petitioner made before asking for

assurance about confidentiality, the judge did

not rule on petitioner’s claim that the

Commonwealth "failed to honor the Defendant’s

request for his attorney." Although defense

counsel did not raise the issue artfully, he

attempted to articulate the point that

petitioner never waived his right to counsel

at any time.

REASONS FOR GRANTING THE WRIT

1. Petitioner was denied due

process when the court of appeals found

sufficient evidence to support a felony

murder conviction with abduction as the

underlying felony notwithstanding the

fact that: (1) the jury was instructed

it could convict only if it found that

the murder occurred during the commission

of a rape; and (2) there was no evidence

to support the jury’s guilty verdict.

The Virginia Court of Appeals departed

from the long line of cases decided by

this Court that deny an appellate court

the authority to affirm a conviction ona

legal theory that was never presented to

the jury.

2. Petitioner was denied due

process when the trial judge denied him

the right to introduce evidence that a

codefendant had pleaded guilty and

admitted committing a capital murder, and

petitioner’s jury was permitted to infer

that petitioner committed the murder

despite the fact that the prosecution

conceded outside the jury’s presence that

the codefendant had committed the crime.

The Virginia Court of Appeals ignored

this Court’s decision in Green v.

Georgia, 442 U.S. 95 (1979), and its

decision is in conflict with the

decisions of several federal circuits

that have decided similar issues.

3. Petitioner’s Fifth and

Fourteenth Amendment privilege against

self-incrimination was violated when

Statements made by petitioner during

booking were admitted even though

petitioner, having previously been given

Miranda warnings, specifically invoked

his right to counsel, petitioner

indicated after several sentences that he

assumed any statements were confidential

as part of the booking process, and the

Commonwealth presented no evidence that

petitioner had knowingly and

intelligently waived his right to have

counsel present before talking about the

crimes for which he was charged. As

indicated by the facts of this case,

there is confusion about the relationship

of this Court’s bright-line rule of

Edwards v. Arizona, 451 U.S. 477 (1981),

and its progeny, and the "booking .

exception" to the privilege against self-

incrimination recognized by a plurality

of the Court in Pennsylvania v. Muniz,

496 U.S. 582 (1990). Moreover, there is

conflict among lower courts as to whether

the prosecution must show that a suspect

who has invoked his right to counsel

after being given Miranda warnings has

waived his rights when a statement is

made to police before the suspect has

been provided counsel.

ARGUMENT IN SUPPORT OF GRANTING THE WRIT

1. The record in this case is

absolutely clear that the jury was

instructed by the trial judge on the

elements of felony murder as follows:

The Court instructs the

jury that the defendant is

charged with the crime of

first degree murder. The

. Commonwealth must prove

beyond a reasonable doubt

each of the following

elements of that crime.

; One, that Melissa

Harrington was killed,

two, that the killing was

. malicious, and, three,

that the killing occurred

in the commission of rape

in which the defendant

participated. (Emphasis

added) °

No objection was made to this

instruction, and it is the only jury

ee ee ee

instruction which specifies the elements

of first degree murder. The prosecutor

made no reference in argument to the jury

about the murder occurring in the course

s. The instruction is found at page 371 of the

trial transcript, which is also page 220 of

the Joint Appendix filed in the Virginia Court a

of Appeals.

of abduction; he argued only about murder

in the course of rape. At no time did

the prosecutor ask the judge to modify

the instruction quoted above.

Thus, it is indisputable, as the

dissenting judge in the Virginia Court of

Appeals specifically observed, that the

jury was restricted in its deliberations

concerning murder to deciding whether the

murder occurred during the course of a

rape. The dissenting judge also noted

that the majority’s holding "that

victim’s murder stemmed from the

commission of the felony of abduction"

violated due process because "([t]his

reasoning improperly premises Berkeley’s

criminal liability upon a theory that was

not submitted to the jury."®

The record does not reveal why the

trial judge limited the jury’s

consideration to rape rather than to

6. Dissenting Opinion of Judge Benton, App. A-29.

abduction or rape. During a hearing on

the post-trial motion to set aside the

convictions, the trial judge was reminded

that the jury had been told that it had

to find that the murder occurred in the

commission of a rape and offered no

explanation for his instruction.’ The

judge may have deemed the abduction to be

too remote in time, or he may have

decided that the murder was not part of

the abduction. Whatever his reasoning,

the trial judge never instructed the jury

on the legal theory which served as the

basis of the majority opinion in the

Virginia Court of Appeals.®

¥; See Joint Appendix in Virginia Court of

Appeals, at 260.

: 8. The trial judge might well have made a last

minute. decision to limit the jury’s

consideration to murder committed in the

course of rape. He defined for the jury the

7 term "in the course of abduction" as well as

3 "in the course of rape," but clearly limited

the felony murder instruction to rape. In

view of the prosecutor’s closing argument, the

prosecutor appears to have abandoned any

reliance on murder in the course of abduction.

This abandonment may have become clear to the

trial judge late in the trial.

The dissenting judge in the Virginia

Court of Appeals was correct. The

holding below violates a long line of

cases decided by this Court. See, e.g.,

Cole v. Arkansas, 333 U.S. 196, 201-202

(1948) (violation of due process when

defendant’s convictions were affirmed on

grounds other than those charged to and

tried before jury); McCormick v. United

States, 500 U.S. 257, 270 n.8 (1991)

("This Court has never held that the

right to a jury trial is satisfied when

an appellate court retries a case on

appeal under different instructions and

on a different theory than was ever

presented to the jury."). See also Ortiz

v. Dubois, 19 F.3d 708, 716 (1st Cir.

1994) ("...if the prosecution decides to

submit a case to the jury on one of two

equally valid legal theories, and the

jury convicts despite insufficient

evidence, on appeal the court cannot

resurrect the conviction by ruling that

there was sufficient evidence to convict

on the alternative theory."), cert.

dended.: .. U.@.- 5.448 B. CO. 799

(1995).

Given the jury instructions

administered by the trial court, the

Commonwealth was obliged to establish

that the victim had been killed during

"the Commission of rape in which the

defendant participated."’ Having

abandoned a concert of action theory, the

Commonwealth could produce no such

evidence. The victim was not killed in

the commission of a rape by petitioner;

the victim was killed by Andrew Chabrol,

who confessed his crime to the

Commonwealth and to the court." Hence,

7 The instruction is found at page 371 of the

trial transcript, which is also page 220 of

the Joint Appendix filed in the Virginia Court

of Appeals.

10. In Chabrol_v. Commonwealth, 245 Va. 327, 331

(1993), the Virginia Supreme Court noted that

(continued...)

the Virginia Court of Appeals could not

affirm petitioner’s murder conviction on

the ground submitted to the jury and

instead affirmed on an entirely different

theory, that the victim had been killed

"within the res gestae of the

abduction. ""

Moreover, if the murder conviction

is set aside, petitioner has a strong

argument for a new sentencing hearing.

The jury that returned a recommendation

of three life sentences was treating

petitioner as a convicted murderer. As

the trial judge instructed the jury, it

had discretion to recommend a sentence

for the rape conviction from five years

to life imprisonment, and for the

abduction conviction from twenty years to

life imprisonment. Since the jury’s

10. (...continued)

after killing the victim, Chabrol "ran out of

the room and told [petitioner] that he had

killed Harrington."

a3 App. A-13. See also App. at A-19-21.

recommendations were made after it

erroneously convicted petitioner of

murder, there is every reason to believe

that the murder conviction affected the

sentencing recommendation on the other

crimes.

2. Prior to petitioner’s trial,

Chabrol pleaded guilty to capital murder.

The prosecution was aware of the plea and

Supported it, and the trial judge in

petitioner’s case was the same judge who

had accepted the plea.'’* Thus, both the

prosecution and the trial judge knew that

Chabrol had killed the victim, and that

i2. The record in Chabrol’s case indicates,

"Chabrol pleaded guilty to capital murder in

violation of Code § 18.2-31(5) (murder in the

commission of, or subsequent to, rape). He

also pleaded guilty to rape and abduction with

intent to defile. Before accepting his guilty

pleas, the trial court examined Chabrol and

found that his pleas were made knowingly,

voluntarily, and intelligently. Upon agree-

ment of counsel and Chabrol, the court heard

from the prosecutor a partial recitation of

the Commonwealth’s evidence. Thereafter, the

court found Chabrol guilty of all three offen-

ses, ordered a presentence investigation by

the probation office, and scheduled a hearing

for the penalty phase of the capital murder

proceeding." 245 Va. 327, 328-29 (1993).

she had not been killed by petitioner in

the course of a rape or otherwise.

Notwithstanding this knowledge, and

despite the prosecutor specifically

agreeing not to seek a conviction for

murder on a theory of concert of action,

the prosecutor objected to admission of

Chabrol’s plea and the trial judge

sustained the objection. As a result,

the jury was left with the misleading

impression that petitioner was the

murderer, because his semen was found in

the victim and there was no other

evidence regarding the murder. The

exclusion of evidence regarding Chabrol’s

plea denied petitioner a fair trial on

the murder charge, and accounts for why

the jury convicted him on the only theory

submitted to it: ji.¢e., the murder took

place in the course of a rape.

There is no reasonable basis on

which the guilty plea could have been

excluded. Chabrol was pleading guilty to

capital murder, the Commonwealth was

seeking the death penalty, and both

Chabrol and the Commonwealth maintained

that Chabrol was the killer. Moreover,

the trial judge in petitioner’s case was

intimately familiar with the facts, since

he had accepted Chabrol’s plea.

Petitioner’s trial counsel

reasonably asked the trial judge to take

judicial notice of Chabrol’s plea of

guilty to capital murder. He made this

request after he learned that the Clerk’s

office had not yet completed the order

incorporating the guilty plea into the

Court’s records. Petitioner’s counsel

had requested the order 10 days before

trial. Faced with three readily

available options -- (1) ordering the

Clerk’s office to prepare an order

incorporating the guilty plea so that it

could be offered as an exhibit, (2)

entering an order stating that Chabrol

had pleaded guilty to capital murder, or

(3) taking judicial notice of the guilty

plea which the trial judge himself had

accepted from Chabrol™ -- the trial

judge, without citing any authority for

his ruling, stated the following:

THE COURT: The jury can’t

take judicial notice. It

will have to happen some

other way. It can’t happen

by me taking judicial notice

and a jury can’t take

judicial notice.

Transcript at 346.

Petitioner’s trial counsel

responded: "But the Court can, Judge."

Transcript at 347.

The prosecutor, citing no authority,

argued to the trial judge that he could

not take judicial notice and that

petitioner should be required to call

Chabrol as a witness. The trial judge

5 FE The trial judge stated "I already know it" to

indicate that he was fully aware that Chabrol

had pleaded guilty and admitted the murder.

Trial transcript at 346.

ultimately agreed and concluded that he

could not take judicial notice of the

guilty plea, despite it being an

undisputed fact of which he was

personally aware. The judge said to

petitioner’s counsel, "If I take judicial

notice the jury doesn’t know anything

about it." Transcript at 347.

This remarkable exchange denied

petitioner a fair opportunity to prove

undisputed facts that would have assured

that the jury would not incorrectly

assume he murdered the victim when his

was the only DNA semen evidence found in

her body. In making his ruling that he

could not take judicial notice of

undisputed facts which soon would be

incorporated in official court documents,

the trial judge denied petitioner the

most important evidence of his innocence

of murder.

By refusing to enter an order or

have the Clerk enter an order

incorporating Chabrol’s guilty plea, and

by also refusing to take judicial notice

of the plea and instructing the jury of

Chabrol’s plea, the trial judge denied

petitioner his chance to prove what no

one disputed: Chabrol killed the victim;

petitioner did not.

The authority of a trial judge to

take judicial notice is recognized by

Virginia courts. See, e.g., O’Dell_ v.

Commonwealth, 234 Va. 672, 696 n.7, 364

S.E.2d 491, 505 (1988), cert, denied, 488

U.S. 871 (1988). Trial judges routinely

take judicial notice when prosecutors do

not object, and notice helps them as well

as a defendant. See, e.g., James v.

Commonwealth, 18 Va. App. 746, 442 S.E.2d

900 (1994) (judicial notice taken of a

training manual).

The same Virginia Court of Appeals

that held petitioner’s rights were not

violated when the trial judge refused to

inform his jury that Chabrol had pleaded

guilty to the murder has held that the

preferred way for trial judges to deal

with prosecutorial claims that a

defendant has previously been convicted

of a felony is to admit the record of the

conviction and then take judicial notice

of the punishment that qualifies the

conviction as a felony. See Essex v.

Commonwealth, 18 Va. App. 168, 171-72,

442 S.E.2d 707, 709 (1994). This

procedure was the one petitioner sought

to follow, except that he was faced with

the fact that the Clerk’s office had not

yet prepared an order incorporating

Chabrol’s plea and the trial judge

refused to take judicial notice as to the

nature of the crime which Chabrol

admitted.

In rejecting petitioner’s fairness

Claim, the Virginia Court of Appeals has

sanctioned a one-way street in which

prosecutors are able to have trial judges

take judicial notice of undisputed facts

while defendants are barred from doing

so, even when the trial judge is

personally knowledgeable about the facts

and those facts are unchallenged. This

kind of one-way street is exactly what

this court condemned in Washington v.

Texas, 388 U.S. 14 (1967) (holding the

compulsory process clause binding on the

states and condemning an arbitrary state

rule favoring the state). In

petitioner’s case, when the trial judge

refused to take judicial notice and then

failed to enter an order reflecting

Chabrol’s plea or to require the Clerk’s

office to prepare such an order, he

denied petitioner all reasonable access

to the undeniable fact that Chabrol

pleaded guilty to the murder charged to

petitioner.

It was wholly unfair for the judge

to require that petitioner call Chabrol

as a witness. Neither petitioner nor his

counsel had access to Chabrol, and

petitioner had neither need nor desire to

propound Chabrol and therefore vouch for

Chabrol’s credibility." Petitioner

wanted only to show that Chabrol had

pleaded guilty to capital murder, and

that the Commonwealth of Virginia

supported his plea. The patent

unfairness in excluding the plea from

evidence is underscored by the

prosecutor’s stipulation that he would

not rely upon a concert of action theory

in exchange for petitioner’s accepting a

14. The trial judge assumed that Chabrol would

testify, but the record contains no facts

supporting this assumption. Moreover,

petitioner indicated he had no objection to

the prosecutor or the court attempting to call

Chabrol and to take responsibility for him as

a witness. Trial transcript, page 354.

second amendment of the indictment.

Essentially, the prosecutor stipulated

that petitioner could not be convicted

except as a result of his own actions,

and the trial judge then prevented

petitioner from showing the jury that he

did not kill the victim and that the DNA

evidence did not relate to the identity

of the murderer.

Had the guilty plea been

incorporated in a court record, the

record would have been admissible as a

business record or an official record.

Williams v. Commonwealth, 213 Va. 45, 46-

47, 189 S.E.2d 378, 379-80 (1972). But,

because the Clerk’s office had not yet

created the record, petitioner’s counsel

was forbidden from calling the plea to

the attention of the jury. Implicitly,

the trial judge treated the plea as

inadmissible hearsay until it was

incorporated in a record, and the judge

refused to obviate the hearsay problem by

taking judicial notice. The hearsay

nature of the ruling is demonstrated by

the prosecutor’s and trial judge’s

insistence that Chabrol testify to avoid

the implicit hearsay problem.

The prosecution attempted to argue

that Chabrol’s guilty plea was not

relevant. Such an argument might have

had merit if the prosecutor had not

abandoned his concert of action theory.

Once he abandoned that theory, Chabrol’s

plea was the single most important piece

of evidence concerning who committed the

murder. The prosecutor relied upon

Chabrol’s guilt to obtain the death

penalty that led to Chabrol’s execution.”

There is no reasonable argument that

Chabrol’s admitted guilt and

15. In the statements made by petitioner to the

police, petitioner indicated that Chabrol had

been the sole murderer and that petitioner had

expected Chabrol to release the victim, not

kill her. Transcript of hearing on motion to

suppress, dated March 10, 1992, page 27.

responsibility for murder would not have

exculpated petitioner. By holding that

petitioner could be denied access to this

evidence and could be required to call

Chabrol to the stand, the Virginia Court

of Appeals denied petitioner due process

and rendered a decision that is in

conflict with this Court’s opinion in

Green and with a number of other federal

decisions.

Federal courts consistently have

looked to several factors in determining

the admissibility of hearsay evidence of

third-party guilt at trial. Green, 442

U.S. at 97 (focusing on adversity to

penal interest and reliability); Rivera

v. Director, Dept. of Corrections, 915

F.2d 280, 282 (7th Cir. 1990)

(considering reliability of evidence) ;

Perry v. Rushen, 713 F.2d 1447, 1452-53

(9th Cir. 1983) (requiring evidence to be

highly relevant), cert. denied, 469 U.S.

838 (1983); Turner v. Armontrout, 845

F.2d 165, 169 (8th Cir. 1988) (mandating

that evidence be unambiguously

exculpatory), cert. denied, 488 U.S. 928

(1988). The presence of all these

factors in this case leads directly to

the conclusion that Chabrol’s plea should

have been admitted into evidence.

Denying petitioner the use of both

the guilty plea and Chabrol’s admission

of murder was egregiously unfair under

the circumstances. The prosecutor knew

that Chabrol committed the murder and

that petitioner did not, the prosecutor

had stipulated that petitioner could not

be convicted on the basis of Chabrol’s

actions, and the trial judge instructed

the jury that it had to find that the

murder occurred during a rape to convict

petitioner. Because the DNA evidence

implicated petitioner, not Chabrol, in

rape, and because there was no evidence

as to who committed the murder, the jury

was invited to conclude that petitioner

committed the murder, even though the

prosecutor and the trial judge both knew

this was not the case. This is a

violation of due process.

3. Petitioner unequivocally invoked

his right to counsel after being informed

of his Miranda rights. He thereby

obtained the protections afforded by

Edwards v. Arizona, 451 U.S. 477 (1981),

and its progeny. This Court’s post-

Edwards decisions hold that, once an

arrestee has invoked his right to counsel

under Miranda, statements obtained while

the arrestee is in custody are

inadmissible unless (a) the suspect

initiates any subsequent conversations,

and (b) the prosecution shows that there

is a waiver as to any interrogation that

follows initiation of a conversation by

the arrestee. See, €.g., Oregon v.

Bradshaw, 462 U.S. 1039 (1983).

The record establishes that

petitioner did not initiate any

conversation and did not speak after

invoking his right to counsel until the

booking process began. The record

clearly indicates that petitioner never

gave any indication that he intended to

waive the right to have counsel present

or that he intended to volunteer a

statement that could be used against him.

There is no doubt in this case that

petitioner did not volunteer any

information until he was placed ina

"lock-up" for purposes of booking and

confronted by the booking officer,

Officer Kevin Kight. It was Officer

Kight’s utilization of the

"Classification sheet" that caused

petitioner to speak about his crime.

A plurality of this Court concluded

in Pennsylvania v. Muniz, 496 U.S. 582

(1990) (Brennan, J., joined by O’Connor,

Scalia and Kennedy, JJ.), that Miranda

does not apply to routine booking

questions designed to secure necessary

biographical data or to complete pretrial

services, because routine questions are

not intended to elicit information for

investigatory purposes."© The Muniz

plurality emphasized that, in deciding

whether or not custodial interrogation

occurs, a court must focus on the

perspective of the suspect. In Muniz,

the questions asked were limited to the

arrestee’s name, address, height, weight,

eye color, date of birth and current age.

16. Chief Justice Rehnquist, joined by Justices

White, Blackmun and Stevens, concluded that

Muniz’s responses to the booking questions

were not testimonial and therefore "do not

warrant application of the privilege." The

Chief Justice found it unnecessary to decide

whether the questions asked fell within the

routine booking exception recognized by

Justice Brennan. Jd. at 608.

Id. at 601. Moreover, in Muniz, the

arrestee waived his Miranda rights when

they were read to him. In the instant

case, petitioner specifically invoked his

right to counsel, and the booking officer

used a "classification sheet" to question

petitioner about charges that might be

pending elsewhere and any "mental

illness" he might claim.

The relationship of Edwards and

Muniz has not been developed by this

Court. Petitioner respectfully submits

that Muniz will undermine the protections

which this Court assumed would be

provided by Edwards. . After a suspect

specifically indicates that he does not

want to answer questions and wants the

assistance of counsel, police should not

then be free to use the booking process

as a vehicle for compelling the suspect

into talking after moving him from the

place of arrest to the station house,

especially if the suspect assumes, as

petitioner did, that the "booking"

process is distinct from the

investigatory process and that statements

made therein cannot be used against him."

Petitioner respectfully submits

that, once he specifically invoked his

right to counsel, the Commonwealth should

have been required to show that he

understood that any statements he made

about the crime during the booking

process could be used against him. This

case illustrates how a suspect may be

confused about the way in which the

booking process relates to the invocation

of the right to have counsel present

during any interrogation. It is clear

<A In this case, the prosecutor conceded that "I

think it is a reasonable proposition that

someone who has been advised of his rights and

then makes an inquiry similar to the one Mr.

Berkeley made might think that the advisement

of rights not withstanding [sic] what he is

now telling the sheriff’s deputy will not be

repeated." Transcript of hearing on motion to

suppress dated March 10, 1992, at 46.

that petitioner was alone during the

booking session with Officer Kight;

petitioner stated that he "was a victim

of circumstances," and thereafter

petitioner uttered only three short

sentences before something about the

conversation caused petitioner to seek

assurance that what he was saying was

confidential.

The lower courts are divided on the

extent to which the trial court must

examine whether a defendant who makes a

statement after invoking his right to

counsel and thereby triggering Edwards

has waived the right to counsel. The

Courts of Appeals for both the First

Circuit and the Ninth Circuit

consistently follow the two-prong

analysis of Bradshaw, requiring that

defendant knowingly and voluntarily waive

his right to counsel after initiating

conversation, whether during booking or

not, and even with a specific finding

that no interrogation occurred. See,

e.g., Sheldelbower v. Estelle, 885 F.2d

570, 572-74 (9th Cir. 1989) (considering

the validity of defendant’s waiver of his

right to counsel after finding he was not

subject to interrogation), cert. denied,

498 U.S. 1092 (1991); United States v.

Montgomery, 714 F.2d 201, 202-03 (ist

Cir. 1983) (considering the validity of

defendant’s waiver where he initiated

conversation after booking process).

Contrary to the analysis set forth

in Bradshaw, the Court of Appeals for the

Sixth Circuit concluded that volunteered

statements made during booking are not

the product of interrogation, thereby

eliminating the need to consider whether

the defendant knowingly and intelligently

waived his right to counsel. United

States v. Avery, 717 F.2d 1020, 1024-25

(6th Cir. 1983) (explicitly denying the

application of Bradshaw to the facts of

the case), cert. denied, 466 U.S. 905

(1984).

Moreover, decisions within a single

circuit are in conflict with respect to

whether a trial judge must find waiver

before admitting statements made by a

defendant who has invoked his Edwards

right to counsel. For instance, the

Court of Appeals for the Fourth Circuit

has held that, while booking questions do

not constitute interrogation, an

incriminating response to booking

questions may be admitted without a

showing of waiver. United States v.

Taylor, 799 F.2d 126, 128 (4th Cir.

1986), cert. denied, 479 U.S. 1093

(1987). That court has considered the

validity of a defendant’s waiver,

however, when a defendant volunteers

statements during booking and thus

initiates dialogue with law enforcement

officials after invoking his right to

counsel. United States v. Morrow, 731

F.2d 233, 237 (4th Cir. 1984), cert.

denied, 467 U.S. 1230 (1984).

Likewise, the Court of Appeals for

the Tenth Circuit has developed two

approaches to applying Bradshaw. If a

defendant volunteers statements, that

court holds that no interrogation has

occurred and specifically declines to

analyze whether the defendant has waived

his right to counsel, unless

"reinterrogation" occurs. United States

v. De La Luz Gallegos, 738 F.2d 378, 380-

81 (10th Cir. 1984), cert. denied, 469

U.S. 1076 (1984). If law enforcement

officers engage in some conduct that

requires a judicial determination of who

initiated the dialogue, however, that

court will look to the validity of a

defendant’s waiver of his right to

counsel, even after a finding that he

initiated the contact. United States v.

Comosona, 848 F.2d 1110, 1111-13 (10th

Cir. 1988).

In denying petitioner the right to

appeal the trial judge’s failure to

suppress his statement to Officer Kight,

the Virginia Court of Appeals simply

stated that petitioner "did not raise the

issue that the statements made .. . were

a product of custodial interrogation."

App. A-46. But, petitioner’s trial

counsel did assert in his motion to

suppress that the police "failed to honor

the Defendant’s request for his attorney

prior to questioning." He added at the

suppression hearing that petitioner never

waived the right to counsel that he had

asserted and that, absent waiver, the

right to counsel remained in force.

To clarify the relationship between

Edwards and Muniz and to instruct the

lower courts which are in conflict on the

question whether a trial court must find

a waiver of the right to counsel before

admitting a statement which police obtain

after Edwards is triggered, petitioner

asks this Court to grant certiorari.

Whether or not the questions asked during

the booking process would amount to

interrogation under other circumstances,

petitioner suggests that, once an

arrestee has specifically invoked the ‘

right to counsel, Edwards should be read

to require that statements made during

the booking process should be

inadmissible unless the state can show

that the. arrestee knowingly and

voluntarily waived the right to counsel

at the time the statements were made."

18. If the statement made by petitioner to Officer

Kight is excluded, there is no evidence to

convict petitioner of abduction, and his

conviction of abduction with intent to defile

would have to be vacated. It appears that the

physical evidence, including the DNA evidence,

would remain sufficient to support a rape

conviction, although the state courts would

have to decide whether the erroneous admission

of the statement to Kight was prejudicial with

(continued...)

Petitioner clearly believed that,

having invoked his right to counsel,

nothing he said in response to the

booking process could be used against

him. The prosecutor agreed that this

belief was reasonable under the

circumstances.'? Thus, the statements

made by petitioner during booking should

be excluded as having been obtained in

@ violation of his privilege against self-

incrimination.

18. (...continued)

respect to the rape charge so that a new trial

on that charge is required.

a3. See footnote 9 gupra.

For the reasons set forth herein,

CONCLUSION

petitioner asks this Court to grant

certiorari to review the three questions

presented.

*Counsel of

Record

RESPECTFULLY SUBMITTED,

JUDAH BEST, ESQ.*

DEBEVOISE & PLIMPTON

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-8060

STEPHEN A. SALTZBURG, ESQ.

GEORGE WASHINGTON NATIONAL

LAW CENTER

720 20th St., N.W.

Washington, D.C. 20052

(202) 994-7089

STANLEY E. SACKS, ESQ.

SACKS, SACKS & IMPREVENTO

150 Boush Street ;

Norfolk, Virginia 23514 q

(804) 623-2753 ‘

Counsel for

Petitioner

No. 95-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1995

STANLEY JUSTIN BERKELEY,

Petitioner

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

VIRGINIA SUPREME COURT

APPENDIX

JUDAH BEST, ESQ.*

DEBEVOISE & PLIMPTON

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-8060

STEPHEN A. SALTZBURG, ESQ.

GEORGE WASHINGTON NATIONAL

LAW CENTER

720 20th St., N.W.

Washington, D.C. 20052

(202) 994-7089

eee TT Ce Py

m4 :

STANLEY E. SACKS, ESQ.

SACKS, SACKS & IMPREVENTO

150 Boush Street

Norfolk, Virginia 23514

(804) 623-2753

*Counsel of Counsel for

Record Petitioner

TABLE OF CONTENTS

SUPREME COURT OF VIRGINIA ORDER

DENYING PETITION FOR APPEAL,

COURT OF APPEALS NO. 1680-92-1,

DATED APRIL 27, 2995 oe we ee Al

COURT OF APPEALS OPINION AFFIRMING

JUDGMENT OF CONVICTION, COURT

OF APPEALS NO. 1680-92-1,

DATED NOVEMBER 29, 1994 ...... A-2

COURT OF APPEALS ORDEK GRANTING

IN PART AND DENYING IN PART

PETITION FOR APPEAL, COURT

OF APPEALS NO. 1680-92-1,

DATED MAY 14, 2933's 26 3 ees = =An4Z2

VIRGINIA:

In the Supreme Court of Virginia held

at the Supreme Court Building in the City

of Richmond on Monday the 17th day of April,

1995.

Stanley Justin Berkeley, Appellant,

against Record No. 942226

Court of Appeals. No. 1680-92-1

Commonwealth of Virginia, Appellee.

From the Court of Appeals of Virginia

- Upon review of the record in this

case and consideration of the argument

submitted in support of the granting of

an appeal, the Court refuses the petition

for appeal.

A Copy,

Teste:

David B. Beach, Clerk

By:

Deputy Clerk

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Bray

Argued at Norfolk, Virginia

STANLEY JUSTIN BERKELEY

Vv. Record No. 1680-92-1

COMMONWEALTH OF VIRGINIA

OPINION

BY JUDGE JOSEPH E. BAKER

NOVEMBER 29, 1994

FROM THE CIRCUIT COURT

OF THE CITY OF CHESAPEAKE

Russell I. Townsend, Jr., Judge

Stanley E. Sacks (Sacks, Sacks &

Imprevento, on brief), for

appellant.

Donald R. Curry, Senior

Assistant Attorney General

(Stephen D. Rosenthal, Attorney

General, on brief),

for appellee.

Stanley Justin Berkeley (appellant)

appeals from a judgment of the Circuit

Court of the City of Chesapeake (trial

court) that approved a jury verdict

convicting him of first degree murder.

The same jury convicted appellant of rape

and abduction with intent to defile.

This appeal is limited to the first

degree murder conviction for violation of

Code § 18.2-32.1 The dispositive question

for our determination is whether the

evidence is sufficient to sustain the

first degree felony-murder conviction as

charged in the final amended indictment.

Upon familiar principles, we review the

evidence in the light most favorable to

the Commonwealth, granting to it all

Code § 18.2-32, in effect at the time of these

proceedings, provided as follows: Murder,

other than capital murder, by poison, lying in

wait, imprisonment, starving, or by any

willful, deliberate, and premeditated killing,

or in the commission of, or attempt to commit,

arson, rape, forcible sodomy, inanimate object

sexual penetration, robbery, burglary or

abduction, except as provided in § 18.2-31, is

murder of the first degree, punishable as a

Class 2 felony.

All murder other than capital murder and

murder in the first degree is murder of the

second degree and is punishable as a Class 3

felony.

A-3

reasonable inferences fairly deducible

therefrom. Higginbotham v. Commonwealth,

216 Va. 349, 352, 218 S.E.2d 534, 537

(1975). For the reasons that follow, we

affirm the conviction.

On July 9, 1991, at approximately

6:20 a.m., Melissa Harrington (victim) was

abducted by appellant and Andrew J.

Chabrol (Chabrol) from the parking lot of

the Virginia Beach apartmant complex where

she resided. Appellant told a deputy

sheriff that he drove the car in which

victim was forcibly taken to Chabrol's

house in Chesapeake, where appellant raped

her.

Chabrol had been victim's superior in

the Navy office at which they worked.

Upon information received by persons who

resided in victim's Virginia Beach

apartment complex, that same morning the

police went to Chabrol's house. Upon

A-4

being admitted, the police saw appellant

seated in the den and observed that

Chabrol had fresh lacerations on his chin

and a bandage on his knuckles.

Appellant and Chabrol were separately

questioned by the police. They gave

conflicting statements as to their

activities on the night before and the

morning of the abduction. Initially,

appellant told the police chit be and

Chabrol had gone to bed prior to midnight

on the night before and that neither had

left the house on the morning of July 9.

Chabrol told the police that they had

"stayed up all night playing computer

games" and had left the house that morning

at 7:00 a.m. to purchase beer. When

confronted with Chabrol's statement,

appellant changed his story to conform

with Chabrol's account, except he claimed

that he purchased only juice and Chabrol

A-5

did not purchase anything. When appellant

was told by the police that they were

there only "to find Melissa Harrington,"

appellant denied having seen "any girls in

the house."

The policy request for permission to

search Chabrol's residence was refused. A

search warrant was then obtained. On that

same day at approximately 2:30 p.m., the

police found victim's nude, dead body on

the floor of the master bedroom. Her body

had been wrapped in a blanket, her face

taped from her eyebrows to her chin, her

head covered by a plastic bag and a rope

ligature was tied around her neck.* In

a. Victim also suffered multiple hemorrhages in

the muscles of her neck and throat. Due to

the strangulation, there were "conjunctival"

hemorrhages in the victim’s eyes and abrasions

on her neck consistent with "fingernail

marks." There were abrasions on her wrists

and ankles, consistent with being bound; a

small laceration on her finger; contusions on

the inner surfaces of her lips; small

abrasions on her abdomen, right arm and left

calf; and electrical burns on her upper left

thigh. The ligature around her neck had been

(continued...)

A-6

the kitchen, the police found two garbage

bags, one containing various items

belonging to victim, the other containing

bed linens and a blanket. The bed in the

master bedroom had been made with "fresh

linens."

Vaginal swabs taken from victim were

analyzed and revealed the presence of

seminal fluid and spermatozoa. DNA

testing of the sperm was consistant with

the DNA of appellant and inconsistent with

Chabrol and victim's husband. The

likelihood of any black male other than

appellant being the source of the sperm

was .018 percent, or approximately one in

5,000. If white males were included in

the computation, the likelihood that the

sperm came from anyone, other than

| (...continued)

tied so tightly that it left a "furrow" when

removed. There was also a superficial

laceration on the back of victim’s head.

A-7

appellant, decreased to .0058 percent, or

approximately one in 17,000.

The cause of victim's death was

"complex asphyxia due to suffocation and

strangulation, both ligature and manual."

Upon discovery of victim's body, both

Chabrol and appellant were arrested. At

3:45 a.m. on July 10, 1991, at the local

jail, appellant made inculpatory

statements to Chesapeake Deputy Kevin

Knight (Knight). Knight testified that

appellant stated that he "was a victim of

circumstances," that,

He stated was only here on

vacation. He stated during the

abduction he could only drive

the car in which they picked her

up due to his limited ability.

He said he f----- her but on the

second time he could not bring

himself to do it.

Appellant presented no evidence on

his behalf.?

Appellant was indicted and charged by

the grand jury with having violated Code §

18.2-31 (capital murder). Upon a motion

of the Commonwealth, prior to the trial,

that indictment was amended by deleting

Code § 18.2-31 and substituting Code §

18.2-32 as the offense alleged to have

been committed. Also deleted was the

allegation in the original indictment that

the killing occurred "during the

commission of, or subsequent to, rape."

After the Commonwealth rested its

case, and during appellant's argument in

support of his motion to strike, the

Commonwealth further moved the trial court

to permit the indictment to be amended

3. In a separate trial, Chabrol pleaded guilty to

the capital murder of victim and was sentenced

to death. See Chabrol _v. Commonwealth, 245

Va. 327, 427 S.E.2d 374 (1993).

A-9

again by adding the phrase "in the

commission of rape or abduction." When

the Commonwealth agreed that it would

"give up any claim. . . to concert of

action," appellant consented to the

amendment without objection and the trial

court approved. We have defined "concert

of action" as an “action that has been

planned, arranged, adjusted, agreed on and

settled between the parties acting

together pursuant to some design or

scheme." Rollston v. Commonwealth, 11 Va.

App. 535, 542, 399 S.E.2d 823, 827

(1991) (quoting Black's Law Dictionary 262

(Sth ed. 1979)). All participants in such

planned enterprises may be held

accountable for incidental crimes

committed by another participant during

the enterprise even though not originally

or specifically designed. JId.; see also

A-10

Brown v. Commonwealth, 130 Va. 733, 738,

107 S.E.2d 809, 811 (1921).

The amended indictment provided:

The Grand Jury charges that:

On or about July 9, 1991,

in the City of Chesapeake

Virginia, the accused, STANLEY

JUSTIN BERKELEY, did maliciously

kill and murder Melissa

Harrington, in the commission of

rape or abduction, in violation

of Section 18.2-32 of the

Virginia Code.

Following the trial court's approval of

the amended indictment, appellant

contended that the evidence failed to show

either who killed victim or that appellant

was in any way connected to the killing.

He further argued that, because the

Commonwealth had agreed not to contend

that the murder occurred by "concert of

action,”™ the record must contain evidence

that appellant was either the

A-11

perpetrator,* a principal in the second

5 or an accessory before the fact.®

degree,

Although no evidence identified the

actual perpetrator, direct, uncontradicted

evidence in the record established that at

6:20 a.m., on July 9, 1991, appellant

abducted victim and drove her to Chabrol's

house in Chesapeake. No evidence was

presented that appellant or victim left

that house before the police found her

nude, dead body in the master bedroom of

4. To learn who killed victim, we would have to

consult the record in Chabrol, supra note 3,

published after appallant’s trial.

Ss. Although "[a] principal in the second degree

is equally accountable and is subject to the

same punishment as the actual perpetrator,"

, 2 Va. App. 265, 269,

343 S.EB.2d 465, 468 (1986), no evidence

established that appellant was present at the

time of the killing, aiding and abetting in

the commission of the crime, requirements

necessary to support a principal in the second

degree conviction. Id.

6. The record fails to show directly that

appellant shared the criminal intent of the

killer or that appellant intended to incite or

aid in the commission of the crime,

requirements to support his conviction as an

accessory before the fact.

, 7 Va. App. 292, 298, 373 S.E.2d

164, 167 (1988).

A-12

that same house. Direct evidence

established that, between 6:20 a.m. and

approximately 9:30 a.m. on that same day,

appellant raped victim. Although no

direct evidence proved that appellant

strangled victim or that he applied the

Taser unit, taped her breathing

facilities, or tied the ligature around

her neck, sufficient circumstantial

evidence was presented from which the fact

finder could reasonably infer that the

killing occurred within the res gestae of

the abduction.

No reasonable hypothesis contained in

this record supports even a remote

possibility of appellant's innocence.

"Whether the Commonwealth relies

upon either direct or

circumstantial evidence, it is

not required to disprove every

remote possibility of innocence,

but is, instead, required only

to establish guilt of the

accused to the exclusion of a

reasonable doubt."

A-13

Cantrell _v. Commonwealth, 7 Va. App. 269,

289, 373 S.E.2d 328, 338 (1988) (quoting

Bridgeman v. Commonwealth, 3 Va. App. 523,

526-27, 331 S.E.2d 598, 600 (1986)).

Here, every reasonable hypothesis of

innocence has been excluded. The

abduction, rape, and murder all concurred

to form an unbroken chain that links

appellant to those crimes beyond a

reasonable doubt. See Bishop v.

Commonwealth, 227 Va. 164, 169, 313 S.E.2d

390, 393 (1984); Boothe v. Commonwealth, 4

Va. App. 484, 492, 358 S.E.2d 740, 745

(1987).

We need only to decide whether the

felony-murder elements were proved beyond

a reasonable doubt:

The rule which we adopt,

therefore, consistent with the

weight of authority elsewhere,

is that the felony-murder

statute applies where the

killing is so closely related to

the felony in time, place, and

A-14

causal connection as to make it

a part of the same criminal

enterprise.

Haskell _v. Commonwealth, 218 Va. 1033,

1043-44, 243 S.E.2d 477, 483 (1978). In

Haskell, four defendants unsuccessfully

attempted to rob William M. Kantor

(Kantor). When nothing of value was found

on Kantor, the robbers attempted to

abandon the criminal venture and leave the

scene. Having been assaulted and battered

by one of the robbers, Kantor attempted to

foil their escape and was shot and killed

by one of the participants in the

attempted robbery. Haskell was not the

killer. Haskell unsuccessfully argued

that the felony-murder doctrine could not

be applied because the venture had been

concluded and the robbers were attempting

to leave the crime scene. He contended

that the killing did not occur during the

commission of a felony. The Court

A-15

rejected that argument and found that the

killing was so closely related to the

felony in "time, place and causal

connection" as to make it a part of the

same criminal enterprise, and within the

res gestae so as to support the felony-

murder charge. ld.

In King v. Commonwealth, 6 Va. App.

351, 356, 368 S.E.2d 704, 706 (1988), we

noted that the Haskell Court did not

elaborate upon the deqree of causal

connection required to support a felony-

murder conviction. Based upon the purpose

intended by the legislature when it

adopted the felony-murder doctrine by

statute, we hold that any degree of

causation is sufficient.

The [felony-murder] doctrine was

developed to elevate to murder a

homicide committed during the

course of a felony by imputing

malice to the killing. ...

The justification for imputing

malice was the theory that the

A-16

increased risk of death or

serious harm occasioned by the

commission of a felony

demonstrated the felon's lack of

concern for human life. The

purpose of the doctrine was to

deter inherently dangerous

felonies by holding the felons

responsible for the consequences

of the felony, whether intended

or not. While the range of

felonies which may be a

predicate for the felony-murder

conviction has changed, the

function of the doctrine is

still to elevate to murder a

homicide resulting from a felony

by imputing malice.

Spain v. Commonwealth, 7 Va. App. 385,

393-94, 373 S.E.2d 728, 732-33 (1988)

(citation omitted).

Evidence in this record establishes

appellant's guilt of both the rape and the

abduction beyond a reasonable doubt.

' Abduction is a continuing offense. See

Brown v. Commonwealth, 230 Va. 310, 313,

337 S$.E.2d 711, 7i3s (1985). Sufficient

evidence exists from which the fact finder

could reasonably infer that the abduction

continued to the -time of victim's death.

[W]hen the homicide is within

the res gestae of the initial :

felony and is an emanation ;

thereof, it is committed in the ;

perpetration of that felony. Y

Thus, the felony-murder statue

[sic] applies where the initial

felony and the homicide were

parts of one continuous

transaction, and were closely

related in point of time, place,

and causal connection.

Haskell, 218 Va. at 1041, 243 S.E.2d at

482; see also Talbert v. Commonwealth,

Va. App. ’ , 436 S.E.2d 286,

289-90 (1993). The continuation of events —

"covered by the term res gestae depends

upon the circumstances of each particular

case." Cluverius v. Commonwealth, 81 Va.

787, 805 (1886) (citation omitted). Res

gestae, a principle generally associated

with an exception to the hearsay evidence

rule, pertains not only to what is said

but to what is done as well. See Ward v.

A-18

- Re err ye ECM eR YR nea mA

White 86 i £212, 217, 9 S.E. 1021, 1022-

23 (1889); Williams v. Commonwealth, 85

Va. 607, 613, 8 S.E. 470, 473 (1889). The

res gestae of the underlying crime begins

where an indictable attempt to commit the

felony is reached, see Bizup v. People,

371 P.2d 786, 788 (Colo.), cert. denied,

371 U.S. 873 (1962), and ends where the

chain of events between the attempted

crime or completed felony is broken.

Payne v. State, 406 P.2d 922, 924-25 (Nev.

1965); see also 40 Am. Jur. 2d Homicide §

73 (1994).

Here, appellant began his criminal

venture by abducting victim and enlarged

that venture by raping her. This record

contains evidence from which the fact

finder could reasonably infer that the

abduction continued until victim's death,

and thus, the homicide occurred as a part

of the res gestae of the criminal venture.

A-19

It has been justly said that

the affairs of men consist of a

complication of circumstances so

intimately interwoven as to be

hardly separable from each

other. Each owes its birth to

some preceding circumstance, and

in its turn becomes the prolific

parent of others; and each

during its existence, has its

inseparable attributes and its

kindred facts materially

affecting its character, and

essential to be known in order

to a right understanding of its

nature. These surrounding

circumstances constituting a

part of the res gestae may

always be shown to the jury in

connection with the principal

fact.

Davis v. Franke, 74 Va. (33 Gratt.) 413,

420 (1880).

We hold that victim's murder stemmed

from the commission of the felony of

abduction, was a part of one continuous

transaction, closely related in point of

time, place and causal connection, and

A-20

occurred within the res gestae of the

initial felony. Accordingly, the judgment

of the trial court is affirmed.

Affirmed.

BENTON, J., dissenting.

Although the majority recognized that

the Commonwealth's Attorney agreed at

trial of this case that the Commonwealth

would "give up any claim... to concert

of action," the majority holds that the

Commonwealth was not precluded from

prosecuting Stanley Justin Berkeley for

felony-murder under Code § 18.2-32. I

disagree with the majority's holding.

Because of its stipulation, the

Commonwealth was required to prove that

Berkeley actually committed the murder,

i.e., was the principal in the first

degree. See Johnson v. Commonwealth, 220

Va. 146, 150, 255 8.2.26 325, 527

(1979) ("only the person who is the

immediate perpetrator may be a principal

in the first degree"). The principle

underlying a felon's liability as a

A-22

principal in the second degree under the

felony-murder doctrine is based upon a

concert of action theory. Because the

record is devoid of proof beyond a

reasonable doubt that Berkeley killed the

victim, I would hold that the Commonwealth

failed to prove the stipulated theory upon

which it prosecuted Berkeley, and I would

reverse his conviction.

The grand jury returned a capital

murder indietment cRareing that Berkeley

"willfully, deliberately and with

premeditation kill[ed]) and murder [ed]

Melissa Harrington during the commission

of, or subsequent to, rape in violation of

[Code §]) 18.2-31." At the conclusion of

the Commonwealth's evidence at trial, the

indictment was amended to read that

Berkeley "maliciously kill[ed] and

murder[ed] Melissa Harrington in the

commission of rape or. abduction." In

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amending the indictment to charge felony-

murder, the Commonwealth's Attorney

stipulated that he would not assert that

there was "concert of action" between /

Berkeley and Andrew Chabrol, the co-

defendant.

The jury was not instructed that it

could find Berkeley guilty of murder if

the victim died during the occurrence of

the abduction. Nothing in the record

explains that omission. The jury was

instructed that it could find Berkeley

guilty of murder only if the victim died

during the occurrence of the rape. No

evidence proved, however, that Berkeley

was the person who actually killed the

victim. Indeed, Andrew Chabrol pleaded

guilty to capital murder of the victim.

See Chabrol _v. Commonwealth, 245 Va. 327,

427 S.E.2d 374 (1993).

A-24

A defendant may be "a principal in

the second degree [to a felony-murder]

and, as such, criminally responsible for

the consequences of his conduct ‘as if a

principal in the first degree.'" Heacock

vy. Commonwealth, 228 Va. 397, 403, 323

S.E.2d 90, 94 (1984). A person's

culpability as a principal in the second

degree arises from the concept that "[d]ue

to the concert of action, [the principal

in the second degree] is deemed to have

shared [the principal in the first

degree's] intent." Riddick v.

Commonwealth, 226 Va. 244, 248, 308 S.E.2d

117, 119 (1983). At best, the evidence

proved only that Berkeley was a principal

in the second degree to the act of felony-

murder perpetrated by Chabrol.

On this appeal, the Commonwealth

argued in its brief that "[concert of

action] has nothing to do with felony-

A-25

murder." The Commonwealth also argued

that "under the felony-murder theory,

. . - {proof of) ‘concert of action" and

"shared intent’ [is] not required." The

Commonwealth further asserted that concert

of action is only relevant if the

Commonwealth had been attempting to

convict Berkeley of murder as a principal

in the second degree. Thus, the

Commonwealth asserts that "[t]his appeal,

then, reduces itself to the self-answering

question of whether the evidence was

sufficient to prove that the homicide was

within the res gestae of the predicate

felonies that Berkeley clearly committed."

This argument ignores the absence of

proof that Berkeley acted as a principal

in the first degree to the murder. The

Supreme Court of Virginia has rejected the

"proximate cause theory of liability" as

the basis for criminal responsibility in

A-26

felony murder cases. See Wooden v.

Commonwealth, 222 Va. 758, 763-65, 284

S.E.2d 811, 814-16 (1981). As it argued

unsuccessfully in Wooden, the Commonwealth

again argues in this Court a theory that

would premise an aider and abettor's

liability in a felony-murder case upon

proximate cause.

The majority opinion apparently

adopts the Commonwealth's arguments but

also goes further and "hold[s] that any

degree of causation is sufficient."

(Emphasis added.) That holding is in

direct conflict with Wooden. See id. at

763-65, 284 S.E.2d at 814-16. Moreover,

the majority invokes Berkeley's

participation in the abduction as a

sufficient degree of causation to uphold

this conviction. The record reflects,

however, that the jury was instructed on

felony-murder as follows:

A-27

The Court instructs the

jury that the defendant is

charged with the crime of first

degree murder. The Commonwealth

must prove beyond a reasonable

doubt each of the following

elements of that crime:

(1) That Melissa Harrington was

killed;

(2) That the killing was

malicious; and

(3) That the killing occurred

in the commission of rape in

which the defendant

participated.

If you find from the

evidence that the Commonwealth

has proved beyond a reasonable

doubt each of the above elements

of the offense as charged, then

you shall find the defendant

guilty .

Thus, even though the jury was not

instructed that abduction could be the

predicate offense that would support a

conviction of felony-murder, the majority

finds that the "record contains evidence

from which the fact finder could

reasonably infer that the abduction

A-28

continued until victim's death, and thus,

the homicide occurred as a part of the res

gestae of the criminal venture." This

reasoning improperly premises Berkeley's

criminal liability upon a theory that was

not submitted to the jury. Dunn v. United

States, 442 U.S. 100, 106 (1979) ("To

uphold a conviction on a charge that was

[not] . . . presented to a jury at trial

offends the most basic notions of due

process."). "It is as much a violation of

due process to send an accused to prison

following a conviction of a charge on

which he was never tried as it would be to

convict him upon a charge that was never

made." Cole v, Arkansas, 333 U.S. 196, 201

(1948).

Felony-murder is codified in Virginia

under Code § 18.2-32 and retains the

A-29

common law elements of murder.’ In

Wooden the Virginia Supreme Court defined

felony-murder as follows:

Where a person maliciously

engages in criminal activity,

such as robbery, and homicide of

the victim results, the malice

inherent in the robbery provides

the malice prerequisite to a

finding that the homicide was

murder. And, all of the

criminal participants in the

initial felony may be found

guilty of the felony-murder of

the victim so long as the

homicide was within the res

gestae of the initial felony.

222 Va. at 762, 284 S.E.2d at 814.

Felony-murder was initially developed

as a means to elevate a homicide committed

during the course of a felony to murder.

King v. Commonwealth, 6 Va. App. 351, 354,

368 S.E.2d 704, 705-06 (1988). Murder is

distinguished from other killings by the

7; Felony-murder is also codified under Code §

18.2-33 as the killing of one accidently while

in the prosecution of some felonious act other

than those specified in Code §§ 18.2-31 and

18.2-32.

A-30

presence of malice aforethought. In order

to find a felon guilty for a murder

committed during a felony, it is necessary

that this mens rea is present by the

person who actually causes the death. See

Weeden, 222 Va. at 765, 284 S.E.2d at 816.

Malice is imputed to the felon who causes

a death from his intent to commit the

felony. Jd. at 762, 284 S.E.2d at 814.

If the felon charged with felony-murder is

not the actual parpetrator of the

homicide, malice is imputed from the

perpetrator of the killing to the cofelon

charged with felony-murder. See id.;

Commonwealth ex rel. Smith v. Myers, 261

A.2d 550, 553, 555 (Pa. 1970).

There are several different theories

of felony-murder liability which state

courts have adopted. See John S.

Anooshian, Note, Should Courts Use

Impose Felony-Murder Liability? 19 Rutgers

L.J. 451, 459-62 (1988). The majority

viewpoint, which Virginia follows, is an

agency theory. Under that theory,

liability lies "only where the act of

killing is ‘either actually or

constructively committed’ by a felon ‘or

by someone acting in concert with him or

in furtherance of a common design or

purpose.'" Id. at 461-62 (citation

omitted); Wooden, 222 Va. at 763-65, 284

S.E.2d at 815. See also Commonwealth v.

Redline, 137 A.2d 472, 478-79 (Pa. 1958).

The facts of Wooden illustrate this

idea. Wooden and three other persons

joined to commit a robbery. Wooden's co-

felon shot the victim of the robbery.

Before the victim died, the victim shot

and killed Wooden's co-felon. Wooden was

convicted of two felony-murders. She

appealed from the conviction of felony-

A-32

murder that grew out of the death of her

co-felon. 222 Va. at 760, 284 S.E.2d at

812-13. Citing Pennsylvania's long

history of case decisions on the felony-

murder doctrine and relying upon the

principles developed in those decisions,

the Supreme Court of Virginia reversed

Wooden's conviction and held that a

criminal participant in a felony cannot be

convicted of felony-murder when a co-felon

is killed by the victim of the initial

feiony. .id..-at: 765, 2804.S.B.24 at 816.

The Court reasoned that because no

evidence proved that the victim killed the

co-felon with malice, malice cannot be

imputed to Wooden under the felony-murder

rule.® Id. at 762, 284 S.E.2d at 814.

8. The Court cited both Commonwealth v. Redline,

137 A.2d 472 (Pa. 1958), and Commonwealth ex

rel. Smith v. Myers, 261 A.2d 550 (Pa. 1970),

in its holding that a participant in a felony

may not be convicted of the felony-murder of a

co-felon killed by the victim of the initial

felony. The rational employed in each case is

(continued...)

A-33

For felony-murder prosecutions in

states, such as Virginia, that follow the

agency theory liability turns upon the

intent of the perpetrator of the killing.

To uphold a conviction, "the killing must

have been done by the defendant or an

accomplice or confederate or one acting in

furtherance of the felonious undertaking."

Haskell _v. Commonwealth, 218 Va. 1033,

1042, 243 S.E.2d 477, 482 (1978) (citing

Commonwealth ex rel. Smith v. Myers, 261

A.2d 550, 555 (Pa. 1970)). As a result, a

felon can only be guilty of felony-murder

in Virginia if a death results from the

8. (...continued)

different. Redline’s holding is based on a

justifiable homicide theory. In Redline, a

police officer shot and killed a robber. The

court held that a felon cannot be liable for

the murder of the lawful conduct of another,

since it was justifiable homicide. [Id. at

483. Thus, liability depended upon sta:e of

mind of the victim. Myers, the more recent of

the two cases, reaffirmed an old concep: based

upon an agency theory--liability will only lie

when the killing is done by one acting in

furtherance of the felony. Id. at 555, 559-

60.

A-34

felon's own act or from the act of a

person acting in concert with the felon in

connection with the underlying felony.

A contrary theory, which Virginia has

rejected, is the view that a felon is

guilty of any homicide resulting from the

commission of a felony whenever the

evidence proves that the felony is the

proximate cause of the homicide. See

Wooden, 222 Va. at 764, 284 S.E.2d at 815.

In other words, in Virginia a felon may

not be convicted of felony-murder if the

actual killing was committed by the police

or the victim or by some other person not

acting in concert with the felons. Id.

In disregarding the principle that a

principal in the second degree's liability

for felony-murder is based upon concert of

action, the majority resurrects the

proximate cause rationale. The majority

believes that it is unnecessary to prove

A-35

concert of action for a felony-murder

conviction to stand. The majority's

disregard of Berkeley's argument that

concert of action is inherent in applying

the doctrine of felony-murder to a

principal in the second degree manifests

an erroneous view that malice imputed to

the felon charged with felony-murder need

not flow through the killer but rather

arises solely through the principle of

proximate cause. In that way, a felon may

always be ae the felony-murder of a

killing done by anyone, as long as

proximate cause is found. Wooden has

addressed and rejected that theory.

The issue squarely presented in this

case is whether concert of action is

subsumed within the felony-murder doctrine

when an aider and abetter is prosecuted.

In Virginia, the standard jury instruction

defining concert of action is as follows:

A-36

If there is concert of

action with the resulting crime

one of its incidental probable

consequences, then whether such

crime was originally

contemplated or not, all who

participate in any way in

bringing it about are equally

answerable and bound by the acts

of every other person connected

with the consummation of such

resulting crime.

Rollston v. Commonwealth, 11 Va. App. 535,

943, 399 $.£.2d 823, 827 (1991).

Our cases also hold that transferred

intent occurs "if an accused shoots at

another intending to kill him, and a third

person is killed because of the act, that

same intent follows the bullet and is

transferred to the killing of the third

person, even if such death was accidental

or unintentional." Riddick v.

Commonwealth, 226 Va. 244, 248, 308 S.E.2d

117, 119 (1983). Thus, if two people act

in concert in the commission of a felony,

and one felon shoots a person, that

A-37

felon's intent is transferred and shared

with the other felon as a principal in the

second degree. Id. See also Epps v.

Commonwealth, 216 Va. 150, 156, 216 S.E.2d

64, 69 (1975). It follows, therefore,

that a co-felon who is not the actual

killer may be charged with felony-murder

as a principal in the second degree under

a concert of action theory. Indeed, this

Court has specifically upheld the giving

of a concert of action instruction in a

felony-murder trial where the defendant

was not the actual killer. See Rollston,

11 Va. App. at 543, 399 S.E.2d at 828.

See also People v. Brown, 328 N.W.2d 380,

383 (Mich. Ct. App. 1982) (where there is

evidence of concert of action, an aiding

and abetting jury instruction is proper in

a felony-murder case).

A-38

Code § 18.2-18 is explicit in stating

that "({iJn the case of every felony, every

principal in the second degree and every

accessory before the fact may be indicted,

tried, convicted and punished in all

respects as if a principal in the first

degree; .. . except in the case of a

killing for hire. . a In Heacock v.

Commonwealth, 228 Va. 397, 403-04, 323

S.E.2d 90, 94 (1984), the ‘items Court

affirmed Heacock's conviction for felony- ¥

murder under Code § 18.2-33. The Court

found immaterial Heacock's contention that

the evidence failed to show that he

administered the fatal injection. The

Court ruled that Heacock was a principal

in the second degree because he was aiding

and abetting in the preparation of the

narcotics and, as such, was equally as

guilty as a principal in the first degree.

Id. Relying upon Heacock, this Court in

A-39 |

Hickman v. Commonwealth, 11 Va. App. 369,

373, 398 S.E.2d 698, 700 (1990), aff'd,

242 Va. 263, 410 S.E.2d 88 (1991), held

that the defendant's participation as a

principal in the second degree in the

decedent's ingestion of cocaine was

sufficient to support his conviction under

the felony-murder doctrine. See also

Rollston, 11 Va. App. at 548, 399 S.E.2d

at 830-31.

Because Virginia's law on felony-

murder liability for a felon who was not

the actual killer is based upon a concert

of action theory, I believe the

Commonwealth was barred from convicting

Berkeley under Code § 18.2-32 after it

agreed to forego proceeding under a

concert of action theory. Due process

encompasses "a fundamental sixth amendment

concern that guilt be initially

adjudicated before a jury based on the

A-40

government's case as presented at trial."

Cola v. Reardon, 787 F.2d 681, 697

(lst Cir.), cert. denied, 479 U.S. 930

(1986). Thus, I dissent from the

majority's holding.

In the Court of Appeals of Virginia on

Friday the 14th day of May, 1993.

Stanley Justin Berkeley. Appellant,

against Record No. 1680-92-1

Circuit Court Nos. 91-2309 through

91-2311

Commonwealth of Virginia, Appellee.

From the Circuit Court

of the City of Chesapeake

Before Judge Baker,

Retired Judges Hodges and Godwin*

This petition for appeal is granted

in part and denied in part. And an appeal

is awarded to the petitioner from

judgments of the Circuit Court of the City

of Chesapeake, dated September 8, 1992,

with respect to the following question:

Whether the evidence was sufficient

to convict appeilant of first degree

murder.

A-42

oe ee

Appeal bond or an irrevocable letter

of credit in the amount of $500 shall be

posted as required by Code § 8.01-

676.1(B). The clerk is directed to

certify this action to the trial court and

to all counsel of record.

Pursuant to Rule 5A:25, an appendix

is required in this appeal and shall be

filed by the appellant at the time of the

filing of the opening brief.

The remainder of the petition for

appeal is denied for the following

reasons:

Appellant raises four additional

issues on appeal: (1) whether there was

probable cause to arrest appellant; (2)

whether the trial court erred in admitting

into evidence certain statements

volunteered by appellant (although he had

previously requested an attorney) to a

sheriff’s deputy during the booking

process; (3) whether the trial court erred

A-43

in admitting certain photographs of the

decedent; and (4) whether the trial court

erred in failing to admit into evidence

the co-defendant’s voluntary plea of

guilty to capital murder.

"The fourth amendment permits an

officer who has probable cause to make a

warrantless arrest .. . Accordingly,

probable cause is the standard for testing

the constitutional validity of the arrest

‘"(T])he test of constitutional

validity is whether at the moment of

arrest the arresting officer had knowledge

of sufficient facts and circumstances to

warrant a reasonable man in believing that

an offense has been committed."’" Penn v.

Commonwealth, 13 Va. App. 399, 407-08, 412

S.E.2d 189, 194 (1991) (quoting DePriest

v. Commonwealth, 4 Va. App. 577, 583-84,

359 S.E.2d 540, 543 (1987), cert. denied,

488 U.S. 985 (1988)). In this case, the

police obtained information that the

A-44

decedent was abducted from her home.

Thereafter, the police went to the home of

aman (co-defendant) whom they knew the

decedent had worked for and had fileda

sexual harassment complaint against. The

police found appellant sitting in the co-

defendant’s den. The policy then obtained

conflicting statements from appellant

about his and the co-defendant’s

whereabouts that morning. Furthermore,

after securing a search warrant, they

found decedent’s body in the house which

appellant was occupying. We find this

evidence sufficient to warrant a probable

cause arrest and find that all evidence

derived from the arrest as properly

admitted.

At the suppression hearing appellant

moved to suppress the statements made to

the deputy sheriff after the deputy told

the appellant he would keep those

statements confidential. The trial court

A-45

suppressed those statements. Appellant

did not raise the issue that the

statements made by appellant were a

product of a custodial interrogation.

This Court will not consider issues on

appeal which were not presented to the

trial court for its consideration. Rule

5A:18; Westbrook v. Westbrook, 5 Va. App.

446, 451, 364 S.E.2d 523, 526 (1988).

"'The admission of photographs is a

matter within the sound discretion of a

trial court,’ Gray v. Commonwealth, 233

Va. 313, 342, 356 8:53.20 157, i73 (1967),

and the court’s decision will be upheld

unless an abuse of discretion is shown.

See Lugo v. Joy, 215 Va. 39, 41, 205

S.E.2d 658, 660 (1974)." Cook v.

Commonwealth, 7 Va. App. 225, 231, 372

S.E.2d 780, 784 (1988). We find that the

trial court did not ahuse its discretion

in admitting the photographs.

us i tte

Upon review of the record, we find

that the trial court gave the defense the

opportunity to continue the case so that

they could get the co-defendant into court

to testify. The defense did not take up

the court’s offer. As such, we find no

error in the trial court’s refusal to

admit the co-defendant’s guilty plea.

*Retired Judges William H. Hodges and

James C. Godwin took part in the

consideration of this case by designation

pursuant to Code § 17-116.01.

A Copy,

Teste:

Patricia G. Davis, Clerk

By:

Deputy Clerk

A-47

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.