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ASKEW v. COMMONWEALTH




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ASKEW

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Hodges

Argued at Chesapeake, Virginia

Record No. 1436-02-1

PHILLIP McCURTIS ASKEW, JR.

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY ROBERT J. HUMPHREYS

NOVEMBER 4, 2003

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

William C. Andrews, III, Judge

Charles E. Haden for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General

(Jerry W. Kilgore, Attorney General, on brief), for appellee.

Phillip McCurtis Askew appeals his convictions, upon a
conditional plea of guilty, for 10

counts of robbery, 10 counts of wearing a mask in public, 10
counts of use of a firearm in the

commission of robbery, one count of use of a firearm in the
commission of abduction, and one

count of abduction.[2]Askew
contends that the trial court erred in denying his motion to suppress

his confession and certain evidence obtained by police from a
trash can located outside the

rooming house in which he lived. Specifically, Askew argues that
police unlawfully continued

to "interview" him, in the absence of counsel, despite
the fact that Askew had "unequivocally

invoked his right to an attorney." Askew further argues
that he possessed an expectation of

privacy in the trash can located outside of the rooming house
and that police unlawfully searched

the trash can. For the reasons that follow, we affirm the
judgment of the trial court.

We first note that, during his arraignment, Askew entered a
guilty plea to each of the

relevant charges, "voluntarily," but "with the
exception of Alford."[3]
Askew agreed that the

Commonwealth possessed sufficient evidence to convict him of the
charges and pled guilty.

When advised that the plea forfeited his right to appeal,
Askew’s trial attorney said "we

have . . . on the record already the objections and exceptions .
. . [concerning] the voluntariness

and propriety of the confession," and the
"admissibility of certain physical evidence that was

recovered by police authorities based on the search of the
dwelling and surroundings." The trial

court accepted Askew’s plea in this regard, and found him guilty
as charged on the relevant

indictments.

Before we address the merits of Askew’s appeal, we must first
address his contention

that, although he used the term "Alford" in entering
his plea of guilty, he intended to enter a

conditional plea of guilty pursuant to Code ? 19.2-254.[4]Askew
claims that both the

Commonwealth and the trial court understood Askew to be entering
a conditional plea of guilty,

rather than an "Alford" plea, and that he therefore,
properly preserved his questions presented on

appeal.

In its brief on appeal, the Commonwealth concedes that Askew
"in fact conditionally

pled guilty pursuant to Code ? 19.2-254, and thus may properly
raise his suppression hearing

issues on appeal." Accordingly, and because the record
arguably supports this position, we

assume, without deciding, that Askew properly preserved the
suppression issues for appeal, and

we proceed to the merits of Askew’s appeal. See McLean v.
Commonwealth, 30 Va. App. 322,

331, 516 S.E.2d 717, 721 (1999) ("’The purpose of Rule
5A:18 is to provide the trial court with

the opportunity to remedy any error so that an appeal is not
necessary.’" (quoting Knight v.

Commonwealth, 18 Va. App. 207, 216, 443 S.E.2d 165, 170
(1994))); see also Campbell v.

Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991)
("It is sufficient, however, if ‘at

the time the ruling or order of the court is made or sought, [a
party] makes known to the court the

action which he desires the court to take or his objections to
the actions of the court and his

grounds therefor.’" (quoting Code ? 8.01-384)).

We begin our analysis by recognizing that on an appeal of a
trial court’s denial of a

motion to suppress:

[T]he burden is on the appellant to show that the trial court’s

decision constituted reversible error. [This Court views] the

evidence in the light most favorable to the prevailing party

granting to it all reasonable inferences deducible therefrom.
[This

Court will] review the trial court’s findings of historical fact
only

for "clear error," but [this Court reviews] de novo
the trial court’s

application of defined legal standards to the particular facts
of a

case, such as determinations of reasonable suspicion and
probable

cause.

Quinn v. Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470,
475-76 (1997).

We do not, however, consider the merits of Askew’s first
argument on appeal, contending

that the trial court erred in denying his motion to suppress his
confession. The record reflects

that Askew’s trial attorney made an oral motion before the trial
court, requesting the trial court to

suppress the confession. At a hearing, Askew produced evidence
concerning the circumstances

surrounding the confession. Nonetheless, Askew failed to raise
below the specific argument he

now raises on appeal. Specifically, the record reflects that
although Askew asked the trial court

to suppress his confession, and although he put on evidence
concerning the circumstances under

which the confession was made, Askew failed to make any argument
to the trial court concerning

the lawfulness of the attendant police actions. Instead, Askew’s
trial attorney merely

"submit" the matter on the evidence and gave no
indication of the violation of law requiring

suppression.

Askew’s bare assertion, in the form of his oral motion to
suppress, that the "alleged

confession given by [Askew] to representatives of the Hampton
Police Department" should be

excluded, is insufficient to preserve the issue for purposes of
appeal. See Rule 5A:18; see also

McLean, 30 Va. App. at 333, 576 S.E.2d at 722 (finding that
"nothing" in a defendant’s mere

assertion that the Commonwealth’s proffered instruction was
"unclear and improper" preserved

an issue for appeal). Indeed, it is fundamental that "[n]o
ruling of the trial court . . . will be

considered as a basis for reversal unless the objection was
stated together with the grounds

therefor at the time of the ruling . . . ." Rule 5A:18.
"’The main purpose of requiring timely

specific objections is to afford the trial court an opportunity
to rule intelligently on the issues

presented, thus avoiding unnecessary appeals and
reversals.’" Ohree v. Commonwealth, 26

Va. App. 299, 307, 494 S.E.2d 484, 488 (1998) (quoting Weidman
v. Babcock, 241 Va. 40, 44,

400 S.E.2d 164, 167 (1991)). When specific objections have not
been made, this Court will not

consider an argument on appeal which was not presented to the
trial court. Ohree, 26 Va. App.

at 308, 494 S.E.2d at 488. This rule applies with equal force to
constitutional claims. Id.

Turning to Askew’s next contention, we recognize that:

The fourth amendment protects individuals against illegal
searches

and seizures by the government. However, the rights guaranteed

under the fourth amendment are personal rights that may not be

vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34

(1978). Also, the fourth amendment "protects people, not
places."

Katz v. United States, 389 U.S. 347, 351 (1967). . . . [T]he

protections of the exclusionary rule are only available to

individuals whose fourth amendment rights have been violated.

Rakas, 439 U.S. at 134; accord United States v. Salvucci, 448
U.S.

83, 85 (1980); McCoy v. Commonwealth, 2 Va. App. 309, 311,

343 S.E.2d 383, 385 (1986). Thus, before affording the

exclusionary rule protections to a defendant, a court must

determine whether, based on the totality of the circumstances,
the

defendant "objectively had a reasonable expectation of
privacy at

the time and place of the disputed search." McCoy, 2 Va.
App. at

311, 343 S.E.2d at 385.

Commonwealth v. Ealy, 12 Va. App. 744, 750-51, 407 S.E.2d 681,
685 (1991). Although

Askew correctly notes that warrantless entries and searches of
dwellings are presumptively

unreasonable and cast upon the prosecution the burden of
justifying such a search, Welsh v.

Wisconsin, 466 U.S. 740, 749-50 (1984), that burden arises
"only if the defendant demonstrates

his Fourth Amendment rights were violated by the challenged
search or seizure." United States

v. Padilla, 508 U.S. 77, 81 (1993) (emphasis in original). Thus,
the person who claims

protection of the Fourth Amendment first bears the burden of
demonstrating a legitimate

expectation of privacy in the place searched. Rawlings v.
Kentucky, 448 U.S. 98, 104 (1980).

The United States Supreme Court has held that the Fourth
Amendment protects the

curtilage of a house. United States v. Dunn, 480 U.S. 294,
300-02 (1987). However, the

Supreme Court has also held that the Fourth Amendment does not
protect a person’s "trash, left

for collection in an area accessible to the public,"
because the person no longer has a reasonable

expectation of privacy in such items. California v. Greenwood,
486 U.S. 35, 41 (1988).

Askew presented no evidence on this issue at the suppression
hearing. Instead, his trial

attorney proffered:

If the Court please, there was one other matter that I feel that
we

can do by stipulation or proffer as opposed to having to put

evidence on and bring officers here from other cities. That
deals

with the question on – and I ask the Commonwealth to jump in
and

correct me if I misstate anything in this proffer.

On March the 8th of 1999, the day before the conversations with

Mr. Askew, with the two detectives who discussed this matter
with

him, and who have appeared in this court today; two detectives

came from Newport News, came to a location known as 1043 28th

Street, in the City of Newport News. Those two detectives were

armed with a search warrant, and approached a lady by the name

of Elsie Whitaker. Ms. Whitaker – they asked about – excuse
me.

(Counsel and [Askew] confer.)

* * * * * * *

I misspoke. If the Court please, there was no search warrant.
Two

detectives came and spoke to Elsie Whitaker who resided at that

address. That address is a rooming house that has three or four

different rooms or apartments in it. That those detectives asked

Ms. Whitaker if they could search the premises, and she gave

consent. It is –

(Counsel and [Askew] confer.)

Okay. Mr. Askew advises me that she did not give consent. That

they proceeded to search a trash can that was located outside of
the

house, beside the house. Not at the street area, but beside the

house. And in that trash can, found a bebe [sic] gun and some

form of mask. And there was no notice or consent requested or

given by Mr. Askew who, prior to his being arrested on the PB-15

the day before, the day or so before, had resided at that
premises.

Mr. Askew’s request is that since he was not asked concerning

consent to search, and since there was no search warrant, would

ask that the bebe [sic] pistol and mask recovered from the trash
can

outside of that premises, on the side of that premises, be

suppressed as not having a proper foundation to be introduced
into

evidence against him.[5]

In response, the Commonwealth refused to concede that consent
was not obtained, and

also took the position that Askew, in any event, possessed no
expectation of privacy in the items

"recovered outside of the residence, discarded trash,
abandoned." Thus, the Commonwealth

contended Askew failed to make the requisite showing of standing
necessary to assert such a

claim.

Askew argues in his brief on appeal that the trash can in which
the contraband was found

was on the curtilage of his rooming house and, thus, was not in
an "area accessible to the public."

Id. In support of this argument, Askew points to his
"unrebutted" proffer to the trial court that

the trash can was located "beside the house."

The Supreme Court of Virginia has recognized that a
"unilateral avowal of counsel, if

unchallenged, or a mutual stipulation of the testimony expected
constitutes a proper proffer, and

that absent such acquiescence or stipulation, this Court will
not consider an error assigned to the

rejection of testimony unless such testimony has been given in
the absence of the jury and made

a part of the record in the manner prescribed by the Rules of
Court." Whittaker v.

Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977).
However, given the response from

the Commonwealth to Askew’s proffer, we do not accept Askew’s
suggestion that his proffer was

unchallenged by the Commonwealth.

We further reject Askew’s contention that his proffer
constituted "evidence," much less

evidence sufficient to carry his burden below. Indeed, a
determination of the extent of curtilage

is generally determined by four factors: "the proximity of
the area claimed to be curtilage to the

home, whether the area is included within an enclosure
surrounding the home, the nature of the

uses to which the area is put, and the steps taken by the
resident to protect the area from

observation by people passing by." Dunn, 480 U.S. at
301-02.

We do not suggest that combining these factors produces a finely

tuned formula that, when mechanically applied, yields a
"correct"

answer to all extent-of-curtilage questions. Rather, these
factors

are useful analytical tools only to the degree that, in any
given

case, they bear upon the centrally relevant consideration —

whether the area in question is so intimately tied to the home
itself

that it should be placed under the home’s "umbrella"
of Fourth

Amendment protection.

Id. Here, although Askew made a general proffer that the trash
can was "beside" the house, he

presented no evidence concerning the proximity of the trash can
to the house, nor the nature of

the area surrounding the trash can. Accordingly, and assuming
without deciding that Askew

would have had an expectation of privacy in the curtilage of the
rooming house, the trial court

was presented with no evidence from which it could make a
determination that the trash can was

within the curtilage of the house.

Based upon the foregoing, we affirm the judgment of the trial
court.

Affirmed

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication. Further,

because this opinion has no precedential value, we recite only
those facts essential to our

holding.

 

[2]Askew was also
charged with several additional offenses which were nol prossed by the

Commonwealth pursuant to a plea agreement. Those charges are not
at issue on this appeal.

 

[3]The so-called
"Alford plea" takes its name from North Carolina v.

Alford, 400 U.S. 25 (1970). An Alford guilty plea is one where

the defendant refuses to admit guilt, or even protests his
innocence,

but, nonetheless, wants to enter a guilty plea. The Supreme
Court

ruled that an admission of guilt is not a constitutional
requisite to

the imposition of a criminal penalty.

Zigta v. Commonwealth, 38 Va. App. 149, 151 n. 1, 562 S.E.2d
347, 348 n. 1 (2002).

 

[4]Code ?
19.2-254 provides that "[w]ith the approval of the court and the consent of
the

Commonwealth, a defendant may enter a conditional plea of guilty
in a felony case, reserving the

right, on appeal from the judgment, to a review of the adverse
determination of any specified

pretrial motion."

 

[5]In response to
questioning by the trial court, Askew proffered that Ms. Whitaker was

not the owner of the rooming house, but merely a
"resident."


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