jnthe snpretne court of virginia - washington and lee

JNTHE

Snpretne Court of Virginia AT RICHMOND

RECORD NO • . 770009

ANORA EUGENE RICKS,

. ,, ...• Appell ant

v.

COMMONWEALTH OF VIRGINIA,

J!.PPENDIX

Stanley G. Barr, .Jr .~ t:.sq. CANOLES, MAST RACCO, MARTONE p,

BARR & RUSS ELL 1.710 Vi rginia Nationa'l Bank Bldg. Norfolk, Vi rginia 2351 0

Counsel fo r Appe U ant

..... Appellee

fRE D R . SU R F ACE. & ASSOC . INC. , HERI T.AGEBUILDING , RICHMOND !;VA . (804) 643-7789

TABLE OF CONTENTS

1. INDICTMENT •••••••••••••••••••••••••••••••••••••••••••••••••

EXCERPTS FROM TRIAL TRANSCRIPT

APPENDIX PAGES

1

2. DISCUSSION BETWEEN COURT AND COUNSEL ••••••••••••••••••••••• 2-3

3. TESTIMONY OF F. C. McDERMOTT ••••••••••••••••••••••••••••••• 4-21 ·

4. TESTIMONY OF JERRY EDWARDS • • • • • • • • • • • • • • • • • • • • • • • • • • • • • .. • • 22-32

5. TESTIMONY OF H. R. SCOTT ••••••••••••••••••••••••••••••••••• 33

6. TESTIMONY OF L. C. MELCHER • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 34-41

7. TESTIMONY OF DEBORAH SMITH •••••••••••••••••••••••••••••••• 42-57

8. DISCUSSIION BETWEEN COURT AND COUNSEL • • • • • • • • • • • • • • • • • • • • • • 58

9. TESTIMONY OF H. M. SHOWALTER •••••••••••••••••••••••••••••• 59-62

10. MOTION TO STRIKE AND DISCUSSION BETWEEN COURT AND COUNSEL •• 63-73

11. TESTIMONY OF A. E. RICKS ••••••••••••••••••••••••••••••••••• 74-77

12. DISCUSSION BY COURT •••••••••••••••••••••••••••••••••••••••• 78

13. JUDGMENT ORDER •••••••.•...•.•.••.••.•••.•••••••••..•••..••• 79-80

14. NOTICE OF APPEAL AND ASSIGNMENTS OF ERROR •••••••••••••••••• 81

- i -

VIRGINII\:

Commonwealth of Virginia

vs. ft1Jl)f<4 MiDRi3 EUGENE RICKS ·

) ) ) ) )

Indictment for: STATUTORY BURGLARY

and GRAND LARCENY

July 7, 1976 Date

The Grand Jury charges that: On or about May 14, 1976, in f.}IJDflA

the City of Norfolk, .PdiD:a£ EUGENE RICKS did br.eak and enter, in the

daytime, the dwelling of Debra A. Smith, with intent to commit larceny.

Va. Code Sect.ion 18. 2-91

SECOND COUNT:

The Grand Jury charges that: On or about May 14, 1976, in fiJJ~A

the City of Norfolk, AN~~ EUGENE RICKS did steal property, namely:

two bedspreads, eight stereo albums, one jewelry box, containing

assorted beads and je~elry, one jar containing United States currency,

one piggy bank containing United States curren'?y, one stereo component

system and one cassett tape recorder, haying a value of $100.00 or more,

belonging to Debra A. Smith.

Va. Code Section 18.2-95

t>litness: Inv. F.C. McDermott - D.B.

)

3 THE CLERK1 Commonweal~n 02: V1rg1n1.a versus

2 Andra Eugene Ricks.

3 Is the Commonwealth ready?

4 MR. LAWLESS 1 Ready.

5 THE CLERKa Defense ready?

6 MR. BARRa Yea, sir.

7 THE CLERK1 If you will stand.

8 Andm Eugene Ricks, you stand indicted for

9 Grand Larceny and Unauthorized Use on Indictment

10 Number one as followsa Virginia, in t~e Circuit court

II of the City of aorfolk, July 7, 1976, the Grand Jury

12 charges that on or about January 19, 1976, in the City

13 of Norfolk, Andra Eugene Ricks did steal property,

14 namely a 1964 Chevrolet, having a value of $100 ar more,

IS belonging to Leroy Williams, in violation of Virginia

16 Code Section 18.2-95.

17 On the second count the Grand Jury charges that

18 on or about January 19, 1976, in the City of Rorfolk,

19 Andra Eugene Ricks did have a 1964 Chevrolet having a

20 value of ~100 or more, belonging to Leroy williams,

21 without his consent and with the intent to temporarily

22 deprive htm of his possession, in violation of Virginia

23 Code Section 18.2-102.

24 'rthat say you, guilty or not guilty?

25 'l'HE lfl'l'NESS 1 Not guilty.

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA

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4 THE CLERK: And on Indictment Number TWO for

Statutory Burglary and Grand Larceny as followaa

Virginia, in the Circuit Court of the City of Norfolk,

July 7, 1976, the Grand Jury charges that on or about

May 14, 1976, in the City of Norfolk, Andra Eugene

Ricks did break and enter in the daytime a dwelling of

Deborah A. Smith with intent to commit larceny, in

violation of Virginia Code Section 18.2-91.

On the second count, the Grand Jury charges

that on or about May 14, 1976, in the City of aorfolk,

Andra Eugene Ricks did steal property, namely two

bedspreads, a stereo album, one jewelry box containing

assorted beads and jewelry, one jar containing United

States currency, one piggy bank containing United States

currency, one stereo component system and one cassette

tape recorder, having the value of $100 or more,

belonging to Deborah A. Smith, in violation of Virginia

Code Section 18.2-95.

what say you, guilty or not guilty?

'l'HE WI'l'NESS: Not guilty.

THE CLERX: You wish ·to be tried by a judge or

by a jury?

THE WITNESS 1 Judge •

'1'BE CLERK a Does the Commonwea 1 th concur in

waiving trial bv jury?


3

10 FRED C, Mci)ERMQTT. called as a witness,

2 having been first duly sworn, was examined and

3 testified as followsa

4

5 DIRECT EXAMIIIA'l'IOJI

6 BY MR. LAWLESS 1

7 Q would you tell us your name, occupation and

8 duty assignment ..

9 A My name is Fred c. McDermott.. I am presently

IO assigned to t.be Norfolk Burglary Squad,

II THE COURT: Could I get. your name again, please?

12

13 BY MR, LAWLESS:

14 Q Spell it for the record,

IS A M-c-D-e-r-m-o-t.-t.

16 0 And in the performance of that empla,ment did

11 you have occasion to investigate a reported break-in that

18 occurred in the daylight hours of May 14th, 1976, at 308 West

19 29th Street in the City of Norfolk?

20 A Yes, sir, I did.

21 Q And did your investigation indicate that that

22 was a dwelling place?

23 A Yes, sir, it did,

24 MR. BARRa Your Honor, I realize we are moving

25 things along b Mr. Lawless lead in the witness but ASSOCIATED COURT REPORTERS

· • • •• .NORJ;OLK, VIRGINIA

h , 4 . . ... . -

F. c. McDermott - Direct 10 I would appreciate it if he would ask the questions and

2 let the witness answer.

3 THE COURT: Objection sustained.

4

s BY MR. LAWLESS:

6 Q would you tell us whether or not there is a

1 structure at that address?

8 A Yes, sir. There is.

9 0 Did you have occasion to go by and look at the

10 structure itself?

II A Yes, sir, I did.

12 Q Did you have sufficient exper_ience in the field

13 to determine the nature of that structure from its appearance?

14 A Yes, sir.

IS Q .could you tell us whether or not.that appeared

16 to be a dwelling house?

17 A Yes, sir, it did.

18 Q Did you have occasion to go inside the building?


20 Q And did that later help you to form an opinion

21 on whether or not it was a dwelling bouse?

22 A Yes, sir.

23 Q And in your opinion what was it?

24 A It was a dwelling bouse.

25 0 All right. And did you investigation indicate


~ , . ·- 5

F. c. MCDermott - Direct ll who occupied that dwelling house?

2 A Yes, sir. It was Deborah A. Smith.

3 Q And is she present in Court today?

4 A She is in the witness room.

5 Q And in the performance of your investigation

6 will you tell us whether or not at any time you had occasion

7 to come into contact with the Defendant, Andra Eugene Ricks,

8 seated at Counsel's left?


10 0 Prior to any questioning of the Defendant,

II would you tell us whether or not you had occasion to advise

12 him of his constitutional rights as set forth in detail on PD

13 Form M381?

14 Yes, sir.

IS Q Is this form commonly referred to as a Miranda

16 Rights Form?

17 A Yes, sir.

18 Q Did he appear to be alert, intelligent --

19 MR.· BARR: Objection. Calling for a concl&~sion

20 as to this Defendant's state of mind.

21 THE COURT: The question doesn't call for a

22 conclusion. The question calls for what his appearance

23 was to the witness. Objection overruled.

24 THE WITNESS: He appeared to be intelligent and

25 aware of what was going on.

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA ........ - _.. .....

t .... ~. 6'

F. c. MCDeriQOtt - Direct 12

2 Q Did you or~~ police officer in your

3 presence make any threat or promise to the Defendant in effect

4 to induce him to make a . atat.ement?

5 A No.

6 Q After questioning the Defendant of his

7 constitutional rights, did he •ke any reference to you with

8 reference to the knowledge of a break-in that occurred on M*y

9 14th, 1976, at 308 west 29th Street?

10 A · Yes, sir. Be told me he had never been in the

11 house and wouldn • t go into any further detail about the particulaz::

12 break-in.

13 0 You were the investigator assigned to tbia case,

14 were you not?

IS A Yes,· sir.

16 Q Did you have the crime scene processed?


18 Q Would you explain in narrative form what that

19 entails?

20 A -rbat entails one of OUr process units, in this

21 case Officer Edwards --

22 0 Is.that Officer J.P. Edwards?.

23 A Be went out to the home and a~tempted to lift

24 fingerprints a~d take photoqraphs of the home and the articles

25 that were touched during the burglary~

ASSOCIATED COURT REPORTERS o . • • .l'f.ORFOLK, VIRGINIA .. ~ 7

F. c. McDermott - Direct 13 Q What are any fingerprints that would be found

2 at the crime scene called?

3 A Latent prints.

4 Q Did Officer Edwards process the crime scene at

s your direction?

6 A Yes, air, he did.

7 Q Based on your investigation was the premises

8 at 308 \\'est 29th Street in the City of Norfolk? I

9 A Yes, sir.

10 0 Is that in the City of »orfolk?

II A Yes, sir.

12 Q In processing the Defendant, did he give you an

13 address where he resided?

14 A Yes, sir. He said he was staying with his mother

IS at 306 Aest 28th Street.

16 0 Are you familiar with the numbering pattern used

11 by the streets in the City of Norfolk?

18 A Yes, sir, I am.

19 Q Do you know the approximate distance between

20 308 west 29th Street and 306 West 28th Street?

21 A Approximately between two and three hundred

22 yards.

23 Q And are they bothlocated within the City of

24 Norfolk?

25 A Yes, sir.


8

P. c. MCDermott - Direct, cross 14 Q What general. area or tne c:l.ty1

2 A It's up in the Park Place section of the city.

3 Q That was the extent of your investigation, is

4 that correct?

5 A Yea, sir.

6 MR. LAWLESS c Answer counsel' a queatioaa.

7

8 CROSS-EXAMINATIOH

9 BY MR. BARRa

10 0 When you spoke to the Defendant, Ricks, dicl

11 you have him sign a waiver form?

12 A A waiver form?

13 0 Yes, sir, with respect to any statement, that

14 any statement he was making was being made voluntarily.

IS A Yes, sir.

16 MR. ~WLESS a Be may be re ferr inq to the PD FOrm

17 .M381.

18 'l'HE WITNESS a Yea, air.

19

20 BY MR. BARRa

21 Q And do you have a copy of that form?

22 A Yea, sir.

23 Q And he executed it?

24 A Yes, sir.

25 Q .May I see it, please?

ASSOCIATED COURT REPORTERS : ~ .· NORgLK, VIRGINIA

F. c. MCDermott - Cross 15 MR. LAWLESS: I would ask it be marked for

?

3 'l"iill COURT: M:t. Barr, let the exhibit be marked

4 for identification as D-1 at this time.

5 How does Counsel wish it designated?

6 MR. LAWLESS: I would think D-1, since be's

7 the one that's inquired into it, Your Honor.

8 MR. BARR: I inquired it, but I'm not necessarily

9 the one offering it.

10 MR. LAWLESS& It hasn't been offered. It's

II been marked for identification.

12 HR. BARRa I don't think it really makes any

13 difference how it's identified, Your Honor, whether

14 it's c-1 or D-1.

IS 'l'HE COURT a It • s brought into . evidence upon

16 inquiry of the defense counsel. It will be marked

17 D-1 at this time. It's not offered into evidenoe, marked

18 for identification only.

19 MR. BARR: Thank you, Judge.

20 (Whereupon, the aforementioned

21 PD Rights Form Ml8l was marked

22 for identification.)

23

24 MR. BARR: Go ahead and offer it, Judge, for

25 ·v~hatever. se it mi ht serVe. ASSOCIATED COURT REPORTERS

~ NORFOLK, VIRGINIA

.. 10

F. c. McDermott - Cross 16 THE COURT: Defendant offers the exhibit into

2 evidence. Is there any abjection?

3 .MR • LAWLESS: J!1o, sir •

4 THE COUlit.Ta without objection, Defendant's

5 EXhibit One received in evidence.

6 (Whereupon, the aforemantianed

7 PD Rights I'Orm M381 was

8 received into evidence.)

9

10 BY MR. BARRa

II Q You stated, Officer McDermott, you receive4

12 a report of the break-in, is that corzect?

13 A That's correct.

14 Q And on what date wae that report received?

IS A The report was initially received by the

16 Police Department on the 14th of May.

17 Q At what time?

18 A The call was dispatched at 7a26 p.a., and the

19 report was recorded at our Processing Center at 8:03 p.m. It

20 was typed the following morning at 6:40 a.m., and I received

21 the report at approximately 8:00 a.m. the next morning.

22 Q That would have been on the 15th?


24 0 And do you have a copy of a writing whereby the

25 report came in at 8a03 p.m.? ASSOCIATED COURT REPORTERS

NORFOLK, VIRGINIA

:11

F. c. MCDermott - Cross 17 A At what time, sir? Yes, sir.

2 Q 1 think you said 8:03 p.m.

3 A Right.

4 Q May I see that, please?

5 A Yes, sir.

6 MR. LAWLESSa was this an offense report?

7 THE WITNESS: Yes, sir.

8 MR. LAWLESS: Would you give us the nwaber for

9 the report, please?

10 THE WIT.RESS: 58-592.

II MR • LAWLESS: Thank you •

12

13 BY MR. BARR:

14 Q Now, on this report --

IS MR. BARR: I will ask that this be marked as

16 D-2, if Your Honor please.

17 THE COURT: Are you offering· it in evidence?

18 MR. BARR: No, sir.


20 offense report was marked as

21 D-2 for identification.)

22

23 BY MR.. BA:Rlt :

24 Q Detective McDermott, there were other suspects

25 to this charge, were there not, other than Ricks? ASSOCIATED COURT REPORTERS

NORFOLK, VIRGINIA

12

P. c. McDermott - Cross 18 A yea, s:a.r. ::tt'"a posau.a.e o1;0e:r s~a-..--...:t;e -""!'

2 Q And did you take any of the other suspects i~&to

3 custody?

4 A .Ho, s1r, Z did not.

5 Q You did not.. And the other suapec:rta also live

6 in tbe same Park Place area, do they not.?

7 Yea, air, they do.

8 Q And the other suspects are known to you?

9 A By reputation, yea.

10 Q By_ reputation. Bllt you did not choose to take

11 them into custody or questian thea?

12 A Ko, air, z did not.

13 Q ADd what are the Aa•s of the other suspects?

14 A At this ttme there are no other auspeota that

1s I know of.

16 Q '!'here • s a notation on the offeAse report in your

11 handwriting with respect to &Qspeota.

18 MR~ LAWLBSSa ObjectiOn to what's in his

19 h~ndwriting. Be can ask him if it's in his handwriting.

20

21 BY MR. BARRa

22 Q Is it in yo~~r handwriting?

23 A I •de the notes, ye·s, air.

24 Q It is your bandwritift9?

25 A Yes, slr.

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA ..... 13

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ermott - cross 19 Q the names of the suspects as noted by

A Andra Ricks, Andra Brickhouse and Crawley

Q crawley Foreman?

A Yea, sir.

MR. BARR a I have no otber questions of the

detective, Your Honor.

MR. LAWLESS 1 Your Honor, I would ask that the

offense report be marked and admitted. was it. marked?

THE COURTa It has been marked. It has not

been offered.

MR. BARRa It has not been marked. I would

object, Your Honor, because there are acae hearsay

statements that are contained in the report not relevant

to Detective McDermott •a t.eatiaony. I think !or that

reason the document itself is inadmissible. If other

witnesses come in t.o testify, then to that extent it may

be, testimony with respect to the content in the report,

it may be admissible. But the fact that the report was

made incident to the investigation does not necessarily

make it a document admissible for these purpoaes.

MR. LAWLESSa There are 26 exceptions to the

hearsay rule, Your Honor. One of them ia a record

I'

ordinaril rticular business or ofesaion


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F. c. McDermott - Redirect 20 1: oeL1eve me oz:x:1cer certa1su.y nas been cross-examJ.nea

2 on when the report was made, which· technically ia

3 hearsay.

4 THE COURTa Who auade the report, Mr. Lawless?

5 .MR. LAWLESS 1 I assume --

6

1 REDIRECT EXAMINATION

a BY MR,. LAWLESS 1

9 Q Do you know who made the report?

10 A The victim initially ~de the report.

II 0 No, this piece of paper. The offense report

12 is filled in by a po~ice empl~ee?

13 A Yes, sir. It • s typed and put on tape, called

,4 in; put on tape and is type<i from the tape.

IS THE COURT a Where does the officer who does that

16 obtain his information?

17 THE li'ITNESS: From the victim, Your Boaor, Miss

18 Deborah Smith.

19 . THE COURT: In other wOrds, upon inquiry of the

20 Defendant. where the Defendant is present, certain

21 information is gathered and typed on this form by acme

22 member of the 8olice Department, is that correct?

23

24 BY MR. LAWLESS :

25 0 By w~rd Processing?


l5

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F. c. McDermott - Redirect 21 A Yes, sir.

2 Q Explain to the Court what Word P·rocessing is.

3 A Occasionally an officer will go to the viet~

4 and take a rough draft. He will call in on the telephone to a

· s tape system. The people in word Processing, the girls· in there I

6 listen to this tape1. T,hey type it. 'l'hey type up the report

1 according to what the officer has called in. Fram there.the

s report is assigned to whatever squad is handling the report.

9 Q Is this done with reference to every reported

10 felony?

II THE COURT a In the process of developing this

12 piece of paper, you didn't play any of those roles, is

13 that correct?

14 THE WITNESS 1 No, sir.

IS THE COURTa I don't know yet what's contained

16 in this report, Mr. Lawless, but there can be no evidence

17 through Officer MCDermott as to whether any information

18 obtained from the Defendant and reproduced on this

19 report was before or after his execution of the M381,

20 could there?

21 MR. LAWLESS: Yes, sir. I believe M38l is in

22 evidence. It shows the date. subsequent to the offense.

23 This shows a report date of 5-15-76, and I believe on

24 cross-examination he identified certain of the items on

25 there as in his handwriting. So the basis for its ASSOCIATED COURT REPORTERS

N«jRFOLK, VIRGINIA

]6

P. c. MCDermott - Redirect 22 introduction is that it is a record that is normally

2 kept in the performance of the police investigation of

3 every reported felony in the City of Norfolk, so it

4 would be a shop book exception as our basis for its

5 admission.

6 THE COURT• Well, the shop book rule would ODly

7 act as an exception to the hearsay rule to the extent

8 that the matters contained in the doeument were purely

9 ministerial, would they not?

10 MR. BARR: And if they could not be proved by

II any other means, Your Honor.

12 MR. LAWI..BSSa No, sir. I believe that the

13 report is a record that they would normally keep. In

14 fact, they keep, I believe --

IS

16 BY MR. LAWLESS:

17 Q Officer, are they kept in every felony repcct

18 in the Norfolk area?

19 A Yes, sir. I m.ight add that I went by and saw

20 the victim the next day and reviewed tbe report.

21 Q I am. just talking about this piece of paper,

22 and that's all.

23 A Right.

24 0 ~e offense repart is a document that you fill

25 in normallv in all felonies, is that correct? ASSOCIATED COURT REPORTERS

• • • NORFOLK, VIRGINIA

J7

F.. c. McDermott - Redirect 23 A Yes, sir.

2 THE COURT 1 I don't know how I could pass on

3 this without reading the report, which I will do. The

4 point that concerns me, Mr. Lawless, is that, for

5 instance, you raise the same question as to a hospital

6 report that might be admitted into evidence, kept in

7 the normal course of business. The fact that the

8 hospital report indicates that a certain pe;son was,

9 indeed, admitted on a certain day, was treated by a

10 certain doctor, all those things, of course, would be

II purely ministerial and would come into evidence on that

12 report.

13 on the other hand, if there were nurse's notes

14 on this saying she discussed suah-and-such a thing or

IS in her opinion the victim was in pain or aomethinw like

16 that, that•s not admissible.

17 MR. LAWLESS a That is correct.

18 THE COURT 1 So part of the content of the report

19 might be admissible under the shop book rule, and part

20 of it might not. That being the case, it's been offered,

21 and there is objection to it. I believe I will have to

22 read the report to pass on it.

23 MR. LAWLESS 1 All right. If you will take it

24 back there. He has gone into parts of it on

25 cross-examination, Your Honor. On redirect I think I


.18

P. c. MCDermott - Redirect 24 can get back into certain items on it, then.

2

3 BY MR. LAWLESS 1

4 0 Mr. Barr asked you when the report waa made.

s That information you do not know of yow: own knowledge, is

6 that correct?

7 A That's correct, sir.

8 Q was that information, the answers, supplied by

9 reference to the offense report?

10 A Yes, sir.

II Q And I believe he indicated when the offense was,

12 is that correct?

13 A Yes, air.

14 Q And was that information also supplied by

ts reference to the offense report?

16 A Yes, sir, it was.

17 Q And he also indicated what you had written on

IS the case report or offense report, is that correct?


20 They were the names of three suspects?

21 A Yes, sir.

22 Q And that was written by you based on your own

23 knowledge?

24 A Yes, sir.

25 Q Knowledge of the neighborhood?


1:9

F. c. McDermott - Redirect 25. A Yes, sir.

2 Q I also see another notation above the suspect.

3 What is that notation? Is that in you.r handwriting?

4 A That • s the stamped signature of the captain of

s the Detective Bureau, John L. Andrews, I believe.

6 Q And that's also a rubber stamp, is that correct?

7 A Yes, sir.

8 Q As far as you know, John Andrews never read this

9 particular offense report?

10 A To my knowledge he probably didn't.

II Q And also on the offense report is an inventory

12 of the property that was reported taken?.

13 A Yes, sir, there is.

14 0 And that was supplied by the victim?

IS THE COURT a An inventory of what?

16 MR. LAWLESS a The property that was taken.

17 THE COOR'l':c Taken?

18 MR. LAWLESS: Stolen, or reported stolen.

19 THE COURT: From the particular residence?

20 MR. LAWLESS& Yes, sir.

21 THE COURT: I'm sorry.

22 MR. BARR: That's information supplied by the

23 victim, Your Honor.

24 THE COURT 1 This is information supplied by the

25 victim?


20

F. c. McDermott - Rudirect 26 MR. LAWLESS 1 Yes, sir •

2 THE COURT: As to what was missing?

3 MR. LAWLESS : Yes, sir.

4 THE COURT a All right, sir.

5

6 BY MR. LAWLESS 1

7 Q If you had more than one felony, how many

s offense reports would you fill in? If you had a break-in and

9 malicious wounding, how many reports would you fill in?

10 A Just one.

II 0 Because it's one transaction?

12 A Yea, sir.

13 MR. LAWLESS: I have no further questions of

14 this officer.

15 MR. BARR a I have nothing further.

16 MR. LAWLESS a May he be excused?

17 Are you on days?

18 THE WITHESS 1 Yes, sir.

19 THE COURTa May he be excused?

20 You do not renew your offer to introduce this

21 document?

22 MR. LAWLESS: Your Honor, I can introduce the

23 same evidence by other witnesses. It was just an effort

24 to --

25 'l'HE COURT a All right, sir. Anything further ASSOCIATED COURT REPORTERS

NORFOLK, VIRGINIA

21"

27 0

2 MR. LAWLESS: Not by this witness.

3 THE COURT: You may be excused, then.

4 (Witness excused.)

5

6 ... ----oOo ... --...

7

8 JERRY EQWAgpS, called as a witness, having

9 been first duly sworn, was examined and testified

10 as follows:

I I

12 DIRECT EXAMINATION

13 BY MR. LAWLESS;

14 Q State your name, occupation and duty assignment,

t5 please.

16 A Investigator Jerry Edwards, Identification

17 Division, Norfolk Police Department.

18 ·THE COURT: Will you suspend just one minute.

19 Counsel for the Defendant, is the Court to

20 understand that you consider you may have a need to call

21 Officer McDermott as a witness?

22 MR • BARR 1 There is some chance, Judge. I know

23 what's on the back of that report, and I don't know for

24 certain what the testimony of the viet~ ia going to be.

25 MR. LAWLESS: well, if be's objecting to that


22

28 report as hearsay, Your Honor, .1 aon 't oEu.:a.eve ne·s

2 going to be able to get it in.

3 THE COtJRTz Just a minute, Mr. Lawless. The

4 point the court is addressing now is simply the question

5 of the officer who expressed a desire to re~in in the

6 Court is properly excluded. It would be only if he were

1 to be called as a witneas 1 otherwise he's entitled to

8 stay here.

9 MR. BARR: That • s correct.

10 THE COURT• The Court's question is do you have

II a reasonable basis to anticipating a necessity for

12 recalling him to the stand?

13 MR. BARRa I doubt the Defendant will have any

14 reason to recall him to the stand. However, not being

IS certain what the victim is going to testify to, I am not

16 certain the commonwealth is not going to want to call him

17 to the stand.

18 'l'HE COURT 1 That • s tbe commonwealth • s decision.

19 If the Commonwealth wants biB to remain here, he will

20 not be permitted to recall h~.

21 MR. BARRa Yes, sir.

22 THE COURT• My question is if he is intended to

23 be recalled, he will not be permitted to stay in the

24 courtroom.

25 MR. BARRa Just a minute, Your Honor. I will ask

ASSOCIATED COURT REPORTERS .~ORFO~irVIRGINIA

#. ~1

2

3

4

5

6

7

8

9

10

II

12

13

14

IS

16

17

18

19

20

21

22

23

24

25

29 the Defendant one question.

I don't think so, Your Honor. I don't think

that there will be a need for me to call Officer McDermot1

back, because I think what I need to get in, I can 9et

in through another witness.

THE COURT: All right, sir. I don't want you

to make a quick judgment on it. If: either counsel baa

even a thought that you might want to use htm as a

witness, you would be eltminatin9 that possibility by

allowing him to remain in the courtroom, but if you don • t 4

then it's impx-oper to direct the officer or any other

person that they cannot stay in the courtroom. It's

really the function of the Court and not Counsel to

direct who can and who cannot stay in the courtroom,

and I am a little concerned that the officer baa left,

having been told he cannot when there's apparently no

appropriate basis for it.

Perhaps this witness when he's excused, if the

officer is in that ball or in the court, could find him

and advise him. Whatever his interest is in observing

the rest of the trial, he's not excluded from the

courtroom. If be does come in and listens to the

testimony of others, he will not be permitted to testify.

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA. ·

24

J. Edwards - Direct 30 BY JU(. -· I

2 0 You testified earlier your name is Officer J. P.

3 Edwards. You work .for the Identification Division of the

4 Horfolk Police Department?

5 A Yes, air.

6 Q What do you operate?

7 A A MObile Crime Scene UDit.

8 0 Did you in the performance of your employment

9 have ~caaion to process a crime scene located at 308 west 29th

10 Street in the City of Horfolk?

II A Yea, sir, I did.

12 Q would you explain to the court what the process

13 involved in processing the crime scene there?

14 A I responded to 308 west 29th Street on May 14th

15 at approximately 10 p.m. It's my duty to perform a crime scene

search for any physical evidence or any collectible evidence 16

17 which could be used in a court.

18 0 What did you do at that particular ·loaatioa?

19 A At that location when I got there, I examinee!

20 the scene and first toOk pictures, photographs of the entire

21 scene which was relevant, and I subsequently investigated the

22 scene for any latent fingerprints.

23 0 Did you, in fact, lift any fingerprints?

24 A Yea, sir, I did.

25 Q w-ell, explain what procedure you followed t.o

ASSOCIATED COURT REPORTERS .NORF0251RGINIA

J. Edwards - Direct 31 lift a latent print.

2 A I used a black powder aluminum graphite. I

3 searched the point of entry, which was the front door located

4 on the south side of the building on the main street side on

s 29th Street, Your Honor. I found nwaerous smudges, et c:eeera

6 around the door location, but none of any comparable nature.

1 Subsequently, I moved into the living room

a examining for fingerprints there. I found none of any useful

9 quality~ Upon going into the bedroom, the victim, Deborah

I o smith, directed my attention to an applesauce jar. 'Ibis jar

11 had contained money. It was

12 MR. BARR: Objection, Your Honor,. please, with

13 respect to whet statements were made to him by the

14 victim.

IS

16 BY MR • LA\VLESS 1

17 Q Based on information supplied to you by a person

18 you believe to be the victim., did there come a time when you

19 processed an applesauce jar or some sort of jar?

20 A Yes, sir, I did. I developed a fingerprint on

21 the jar •

22 Q ~nd that's a latent fingerprint?

23 A Yes, sir.

24 Q was the victtm present at the time you were doing

25 this?

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA -. 26

J. Edwards - Direct 3·2 A Yes, sir. Sh1:! was right with me.

2 Q Okay. what did you do with the latent print

3 you lifted from the bedroom?

·4

5

6

7

8

9

10

II

12

13

14

IS

16

17

A I have it right here. I·transpoaed 1~~

MR. LAWLESS 1 could we have that •rke4 for

identification, I assume, c-l?

Let me show it to COWlsel.

.THE WIT.RESS1 That card is ·filled out by myself

at the scene i.Mediately after sticking the print onto

the tape.

MR. LAWLESS1 Your Honor, I would ask ~hat this

latent fingerprint card be marked for identification as

commonwealth's Exhibit c-1.

(WhereupOn, the aforementioned

latent fingerprint card'was

marked as c-1 for identifieatioa.)

18 BY MR. LAWLESS 1

19 Q what do you do with the latent fingerprint card

20 once you have left the crime scene?

21 A It remains in my possession until my tour of

22 duty, so to speak, on the street upon which my return to the

23 office I place it -- after lowing it in appropriate ledgers,

24 I put it in a lock box. Investigator Melcher then recovers the

25 fingerprints of the previous --


. 27

J. Edwards - Direct 33 o ae·s a fingerpr1nt expert w1.tll tne I4ent1t1.Catl.on

2 Section?

3 A That's correct.

4 Q I ask you to examine the document marked for

5 identification as Commonwealth's Exhibit c-1. Is that the latent

6 fingerprint you lifted at the crime scene?

7 A Yes, sir, it is.

8 Q It was later turned over to Detective Melcher?

9 A Yes, sir. There's the original envelope.

10 Q Do you have the pictures of the crime scene,

11 or would the investigating detective --

12 A The investigating detective.

13 MR. LAWLESS: I move to admit C-l.

14 THE COURT: Any objection?

IS MR. BARR: No objection.

16 THE COURT: Admitted, C-1.


18 latent fingerprint card was

19 admitted into evidence.)

20

21 MR. LAWLESS: Answer Counsel's questions,

22 please.

23

24

. 25

ASSOCIATED COURT REPORTERS .. ~ORFOLK, VIRGINIA

28

2 BY MR. BARR:

3 Q

J. Edwards - Cross CRO!i!l--=tr.=x=-A-.,N.,.,l=-N~A-=T=l,..,Oii=--

How many lifts do you lift at the scene,

4 Officer Edwards?

5· A Comparable prints? Just one •.

6 Q Just this one?

7 A Yes, sir.

8 Q And how many attempts did you make to lift

9 comparable prints?

34

10 A Comparable prints? Around the doorway, I believe

11 there were several, several attempts. Once I try to recover it

12 off a surface onto the tape and transpose it onto the back of

13 one of those cards, through my past experience I can determine

14 if it would be of any comparable value at all. Any that I deem

IS are not of any value, which are smudged, what have you, I then

16 discard on the scene.

17 Q And the same was true in the living room?

18 A Yes, sir. I examined-a T.V. stand, which had

19 not been evidently touched. The television had been picked up

20 off of it, and subsequently the plug pulled from the wall. Of

21 course, there was no latent fingerprints on· the wall itself, or

22 what have ~u.

23 Q Did you make any attempts in the living room to

24 pick up any comparable prints?

25 A Yes, sir.

ASSOCIATED COURT REPORTERS .• I'IORFOLK, VIRGINIA

29

J .. Edwards - cross 35 {) ~nd th~n none of those were stuccessful fll!ith•r,

2 huh?

3 }\ correct.

4 Q Now. in the bedroom, was that the next room you

5 went into?

6 A Yes, sir.

7 Q Did you go into any rooms other than the living

8 room and the bedroom?

9 A A dininq room. You had to pass through the

10 dining room.

II Q Did you try to pick up any comparable prints

12 in the dining room?

13 Nothinq had been moved to her knowledge.

14 Q How about in the kitchen or any of the other

15 rooms?

16 A Nothing had been moved in the other rooms.

17 Q So it was just in the living room and the bedroom4

18 Living room and the bedroom is correct.

19 Q And how many tests did you make to pick up

20 comparable prints in the bedroom?

21 .A To my knowledge, just the one right there off

22 the applesauce jar.

23 Now, the notation -- there's a notation on the

24 back of Commonwealth • s Number l of Andr a Rick$ • name. Is that

25 vour handwriting?

ASSOCIATED COURT REPORTERS I'IORFOLK, VIRGINIA

3()

J. Edwards - Cross 36 A No, sir. That's Investigator Melcher's.

1 I n I

3 there?

4 A Once he makes a comparison, he makes his

s notation and puts his initials on the card.

6 Q And those are his initials under the date of

7 5-17-76?

8

9

10

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16

17

18

19

20

21

22

23

24

25

A Yes, sir. I have seen them in the past.

MR. BARR: That•s all I ·have of this witness,

Your Honor.

MR. LAWLll:SSa May he be excused, Your Honor?

I have no further questions.

THE COURT: What's the date indicate on this

card here?

THE WITNESS: 5-14-76, Your Honor?

THE COURT: Yes, sir. what does that relate

to?

THE WITNESS a That's the day that I was there,

the datfit .and the time I lifted that fingerprint. The

offense was reported by Deborah Smith on the 14th, and

evidently when they typed up the report, it appears

they might have put the 15th an the complaint shwet.

The sheet was typed on the 14th. The offense was reported

on the 14th.

THE COURT: Is that what the indictment reads? ASSOCIATED COURT REPORTERS

· NORFOJ..~ VIRGINIA

\)J_

J. Edwards - 37 On or a out January --

2 MR. LA•t~LESS: No, sir. we are going with the

3 breaking and entering first, I believe. The January

4 19th is the grand larceny of an automobile. I advised

5 the court we were going to proceed with the breaking

6 and entering first.

7 THE COURT: All right, gentlemen. You may

8 proceed. Do you have any further questions of this

9 witness?

10 MR. LAWLESS: No, sir, I don't.

II MR. BARR: Just one further, Judge, to clear up

12 the point that you made.

13

14 BY MR. BARR:

IS Q The date of May 14, and I will show you the

16 Commonwealth's Exhibit one more time, the date, May 14, and the

11 time, 10:15 p.m., your name, location and lifted from, is the

18 reference to the date and the time that you --

19 A Personally was at the scene.

20 Q And the date and time on which you lifted this

21 print?

22 A 'l'hat's correct.

23 MR. BARR: Okay. Thank you, Judge.

24 Thank you, Officer Edwards.

25 THE COURT: May the witness be excused?


a2


2 THE COURT:a Thank you, Officer.


4

5 THE COURT 1 Who • s your next witness?

6 MR. LAWLESSa Officer B. R, Scott,

7

8 ---..... ooo----

9

10 H. a. §CQTT, called as a witness, having

II been first duly sworn, was examined and testified

12 as followsa

13


IS BY MR, LAWLESS I·

16 Q State your name, occupation and duty assignment.

17 A H. R. Scott, Police Officer, Norfolk Police

.18 Department, First Precinct.

19 Q And in the performance of your employment are

20 you required from t~e to time to take the fingerprints, known

21 fingerprints of persons being processed by the police?

22 A Yea, air.

23 MR, LAWLESS: Your Honor, I have asked that this

24 be marked c-2. I would later ask that we give a Zerox

25 copy, so the original could be returned to the Police


33

3

4

5

6

7

8

9

10

II

12

13

14

L. c. Melchor - Direct 41 L, C 1 MEJ&ftER, ca

,. ... • ~. ¥'" I . •' • . ... ' 'tl 'C I ~. ··' ,.., ~. ' •

THE COURT: All rig-ht, sir. May I have your

name, please?

THE WI"l'NESS 1 Investigator L. c. Melcher,

Latent Fingerprint Examiner.

THE COURT: Bow do you spell your name?

THE WITNESS: M-e-1-o-h-e-r.

THE COURT: It has been stipulated you are an

expert ·in the field of fingerprint comparisons.

MR. LAWLESS: Fingerprint analysis.

15 DIRECT EXAMINATIOlf

16 BY MR. LAWLESS:

17 what is it?

18 A Fingerprint examiner.

19 Q If you will, look in front of you. There are

20 two exhibits, Exhibit One, fingerprints lifted from· 308 West

21 29th Street, and c-2, the known prints of the Defendant, Andra

22 Eugene Ricks. In your performance with the Norfolk PolLee

23 Department have you previously had contact with Exhibit c-1 and

24 c-2?

25 A Yes, air, I did.


L. c. Melcher - Direct 42 Q As a result of cominq into contact with c-1

3 have asked be marked C-3?

4 MR. LAWLESSa Counsel has seen this, Your

5 Honor.


7 THE COURTa You ask that this be marked for

8 identification at this time?

9 MR. LAWLESS: Yes, sir, marked for identification

10 Commonwealth's Exhibit C-3.

II THE COURT: Does it matter whether the cover

12 is marked?

13 MR • LAWLESS: No, sir.

14 THE COURT: c-3 for identification only.

IS (Whereupon, the aforementioned

16 comparison photograph was marked

17 as c-3 for identification.)

18

19 BY MR. LAWLESS:

20 Q You prepared the chart, c-3, did you not?

21 A Yes, sir.

22 Q ·All right. Using C-3 aa·a tool, did you have

23 occasion to compare the latent fingerprints


25 Q which are shown with the known fingerprint of


. . :.~5

I

- Direct 43

2 A Yes, sir.

3 Q using that fingerprint, would you narrate what

4 the results of your examination and comparison and your opinion,

s if any, are in relation to the latent fingerprint and the known

6 fingerprint?

7 A All right. Your Honor, the fingerprint is marked

s on. this illustration. There's a photographic enlargement of the

9 left thumb, number six finger, from the roll card that was taken

10 at headquarters when he was processed. The latent impression or

11 latent illustration here is a photographic enlargement of the

12 print that is on the lift card, lifted by Investigator Edwards

13 on the scene of the break-in. What this illustrates is bow I

14 effected my comparison.

IS The number one shown on the latent fingerprint

16 illustration is showing an ending ridge just as you see it in

17 the ink fingerprint illustration on the left. If you count the

18 number of ridges between this number one down to line number two,

19 you will find another ending ridge.

20 THE COURT1 What kind of ridge? Ending ridge?

21 THE WITNESS : End inq ridge •

22 THE COURT: All right, sir.

23 THE WITNESS 1: And you can continue throughout the

24 chart on both charts where I have shown where each

25 illustration or each ridge characteristic falls into


L. c. Melcher - Direct 44 place with the known print.

2

3 BY MR. LAWLESS:

4 Q You have charted on that exhibit 12 comparison

5 points, is that correct?

6 A Yes, sir, and that's all I tried.

7 Q That's ambiguous. You say there were more?

8 A Yea, sir, there were many more.

9 0 Based on your training and experience, have you

10 formed an opinion as to whose fingerprint the latent

II fingerprint C-1 is?

12 A Sir, they were made by one and the same person

13 as listed on the roll tmpression card bearing the name, Andra

14 Euqene Ricks.

15 MR. LAWLESS: Will you answer Counsel's

16 questions.

17 I would ask c-3 be admitted, Your Honor.

18 'l'HE COURT: Objection, Mr. Barr?

19 MR. BARR: No objection, Your Honor.

20 THE COURT: C-3 will be admitted. It is

21 presently marked ID, indicating for identification. Let

22 me make that admitted into evidence without Objection,

23 C-3.

24

25

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA .

37

L. c. Melcher - Cross 45 ereupon,

7 C"Omprn: i !liOn ph(')f:oqraph was

3 admitted into evidence.)

4

s CROSS-EXAMINATION

6 BY MR. BARR:

7 0 Officer Melcher, is it your standard procedure

8 only to chart 12 prints on each fingerprint?

9 A You mean 12 characters?

10 Q I'm sorry, 12 characters.

II A No, sir. Sometimes I may only have 11 or 10,

12 and other times I may chart one. It's just an illustration to

13 show how we effected comparison. There are more. There are in

14 excess of 13 characters in this particular chart, and in the

IS original print itself, there are more.

16 Q And I see you have some dots that do not have

11 lines which are not numbered. Are they the other ones that you

18 identified?

19 A Yes, sir. The reason I did this is because I

20 didn't have enough room to move it out without making it look

21 cluttered.

22 Q Now, as a minimum standard if you don't have 12,

23 you_can•t be certain that it is one in the same person, isn't

24 that a fair statement?

25 A Sir, it depends on the print that you are working


38

L. c. Melcher - Cross 46 may be an occas1on where there are very unuiUII

2 characteristics, and it could be leas than 12.

3 Q You didn't allow • the opportunity to finish

4 my pun. I was. going to ask you if that wasn't a rule of thumb

s in your business.

6 A Yes, sirl!

7 Q But the 12 is the basic standard, though,. isn't

8 it?

9 A No. There's no base number. It depends on the

10 latent impression.

I I Q In the· use of the ridge lines. it is, though.

12 There is a minimwa standard, is there not,. with things like scars

t3 or other clearly identifiable marks? You don't need ~at many

14 points.

IS

16

17

18

19

20

21

22

23

24

25

MR. LAWLESS 1 Your Honor, I obj~ct. Be did not

testify he's using ridge lines. Be might have used

bifurcated deltas. Be better bring thatcout in his

hypothesis.

THE COURT1 I think the witness is capable of

understanding the question. Go ahead.

~ WITNESS• I think the ridges were used in

this part~cular illustration. I used an illustration of

12 here. 'lbere may be a print, or could be a print that

bas very unusual characteristics in a small group area

of leas than 12.

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA ... .

39

L. c. Melcher - cross 47 BY MR. BARR:

0 T unn('>\"Rtl'lnn, hut t.INtt '111 not th~=~ cr~Af> wi.th t.hia

3 particular print, though?

4 A No, sir. There•s many more.

5 Q Yes, sir. And again, in the charting, inthe

6 type of chart which you have prepared and using the points of

1 identification that you have used, in order to render your

8 opinion that the latent print and the inked print are one in

9 the same person, with the standard you have used, there is a

to minimum number of charted points?

II A In this particular illustration there is 12

12 showing.

13 Q Yes, sir. What I am saying is insofar as you

14 having a basis of which to form your opinion, you need a

IS minimum number of comparable points, don't you?

16 A Sir, in this particular illustration I probably

11 would have been satisfied with 10.

18 Q You probably would have been satisfied with 10?

19 A Yes, sir.

20 Q But you can't say that for sure?

21 A I would have to see the print with only 10 in

22 it.

23 Q so you have only two more than what would be your

24 minimum requirement, is that correct?

25 A No, sir. There's more. As I explained before,


40

L. c. Melcher - Cross 48 ----+1-------------- ----:--------:----1 only have 12 illustrated to d•monutrat«L" to the cou1·t. nm1 to

2 you how we effected the comparison. There are more in here.

3 I have dots without linea running to it for 14, 15, 16 on this

4 illustration, and there are several more that I don't even have

s dots to.

6 .MR. BARR• Thank you, Detective Melcher. I

7 have no further questions.

8 .MR. LAWLESS 1 I have no further questions.

9 May he be excused?

10 'l'BE COURT• May he be excused?

II MR. LAWLESS& Yes, sir.

12 MR. BARR 1 Bxcu.se me, Yow: &oDor. There was one

13 other question with respeot to c-1.

14

IS BY MR. BARR I

16 Q !bese are your initials with the date May 17,

17 1976?

18 A Yes, sir.

19 Q And you were the one who wrote Andra E. a.t.aka?

20 A Yes, air, that•a right. I wrote that.

0 21 And you made these notations after you Mde the

comparison of 22 this latent print to what set of ink prints?

A 23 This was the set of prints that we bad in :file

24 on Andra Ricks, 7-26-75, and this card was compared with bis

2s current card. ASSOCIATED COURT REPORTERS

NORFOLK, VIRGINIA

4.1'

II

·I L. c. Melcher - Cross 49 -------------*. --------~o------~A~n~a~tnt~w~ar.s~o~n~e~hkarct~aate that you made thts

3 A Yes, sir.

4 Q And again, with respect to what is on the front

5 of c-1, the date 5-14-76 and the time, 10:15 p.m., that reflects

6 the date and time on which this latent print was lifted, is

7 that correct?

8 A That •s right.

9 MR. BARR: ',l'ibank you. I have no further

10 questions.

II (Witness excused.)

12

13 MR. LAWLESS: Call Deborah A. Smith.

14

IS -----aoo-.. ---

16

17 DEBORAH SHtTH, called as a witness, having

18 been first duly sworn, was examined and testified

19 as follows:

20


22 BY MR. LAWLESS:

23 Q would you tell us your name, please.

24 A Deborah Smith.

25 Q And how do you spell your last name?

ASSOCIATED COURT REPORTERS .NORF04K211RGINIA

,. ...

D. Smith - Direct 50 A --s--m-1-t-n.

2 All right. And directing your attention to

3 May 14th, 1976, where were you living at that time?

4 A 308 West 29th Street.

5 0 Is that in the City of Norfolk?

6 A Yes.

7 0 Is that where you made your home? That's where

8 you lived, is that correct?

9 A Yes, ah -huh.

10 0 And on that date did you have occaaioa.to leave

11 for work in the morning or leave your bouse?

12 A Yes.

13 Q About what time did you leave your bouse?

14 A About 6:00.

IS 0 All right. And when you left your house, did

16 you secure it?

17 A Yes.

18 0 And did there come a time later on in the

19 afternoon when you came back home?

20 A Yes, um-hum.

21 0 About what time did you come back home?

22 A Well, that particular evening I came home about

23 five, 5:30.

24 0 was there any difference in the appearance of

25 your house when you l.eft and when you came back?


43

o. Smith - Direct 51 A Yes.

2 Q V'lould you tell the Court in your own words what

3 appeared to have happened?

4 My mother was there and my daughter.

5 Q Don't tell us what somebody else said.

6 A They were on the porch when I came home sitting

1 there waiting for me, and she told me that --

Q 8 Don't state what somebody else said.

9 A Okay. I saw that my house had been broken into.

10 Q How could you tell? Did you go through the

II front door?

12 A The door was already open.

13 Q And how was it open?

14 A It was just wide open, you know.

15 Q Had it been when you left that morning?

16 A No.

17 Q How had it been? Tell us how it had been when

18 you left.

19 A I had a padlock that, you know --

20 Q You put across and put the padlock on that?

21 A I had it like that.

22 Q And what condition was that when you came back

23 home?

24 \'lell, the lock. was gone, and the pad bad been

25 fumbled with, because it was, you know, twisted.

ASSOCIATED COURT REPORTERS NORFOL-K, VIRGINIA

4.4

D. Smith - Direct 52 a Now. did you qo inside your house?

2 A Yes.

3 Q And had you had property there when you left in

4 the morning?

5 A Yes.

6 0 Did you have occasion to look around to see if

1 you were missing any property?

8 A Yes.

9 0 Could you tell us what property. if any. was

10 missing?

II A My component set, two speakers •.

12 0 Component set? Is that part of your stereo

13 thing?

14 A Yes. It has an PM radio and two large speakers

15 on the side.

16 0 Okay. l'ias anything else missing?

17 A It was albums that was with it, you know.

18 Q The record albums?

1.9 A Yes, um-hum.

. 20 0 All right •

21 A Okay. And next to it I had a small black-and-whit ~

22 television.

23 THE COURTa Black-and-white what?

24 THE WITNESS 1 'l'e lev is ion.

25


45

D. Smith - Direct 53 BY HR.. LAWLESS:

2 Q A portable television?

3 A Yes.

4 Q Okay.

s A I left there and went into my bedroom, one of

6 my bedrooms. My ironing board was sitting in the middle of

1 the floor where I had left it.

8 THE COURT: tihat was?

9 THE WITNESS: Ironing board waa sitting in the

10 middle of.the floor where I had left it.

II THE COURT: All right.

12 1'HE WITNESS 1 Okay. I bad a biq fat applesauce

13 jar full of pennies, and it was sitting up there empty,

14 so I didn't touch that. I looked over there on one of

IS my end tables, and I didn't see my small tape. recorder

16 cassette. 'lba t was missing.

17 I.went into my daughter's bedroom. Her bedspread

18 was taken off her bed. Her piggy bank was - the piqgy

19 bank was broken on the side. Everything was ~aken out

20 · of it.

21 Okay. I went into my other bedroom, ay bedroom.

22 ~ bedspread was missinq and a digital clock radio.

23

24 BY .MR. LAWLESS z

25 Q All right. Based on what was taken, could you


46

'I

D. Smith - Direct 54 te~~ us based on the c::ost to you or the fair market value whether

2 or riot th~'? value was more or less than $100?

3 A It was more.

4 ·MR. BARRs Objection with respect to the fair

5 market value, unless she is in a position to know. She

6 can certainly testify as to what abe paid for it.

7

8 BY ·MR. LAWLESS:

9 Q I will give her two options then, baaed on what

I 0 you paid for them or the fair market valu.e •

II A Yea. It's more than $100, yea.

12 Q Do you know tbe Defendant?

13 A Not personally. I have seen him.

14 Q Did you give the Defendant or anybody else

1s permission to take tbe lock off that door and go in your house?

16 A No, no.

17 Q. Ia this house located in the City of BOrfolk?

18 A Yes.

19 0 Now, you don't know who actually broke in

20 yourself. You didn't sea anybody, did you?

21 A 110, I didn't see anybody.

22 0 Where do you live now? Do you still live at that

23 same address?

24 A No.

25 0 Why don't you live there? ·


47

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D. Smith - Direct 55 A Because --

·.a:.UB COUR'l': .:iusta.t.ned. unJ.ess i.t. has some

materiality. The mere effect she has moved would seem

to have no bearing on it.

MR. LAWLESS: I don't know what her answer would

be.

THE COURT: She has already stated she moved.

Your question is now

MR. LA~"ILESS : Why she moved • I suspect I know

what the answer would be.

MR. BARRe ~ I suspect I know what the answer

would be, too, Judge. That's why I objected.

THE COURTa Unless it's related to this

Defendant and unless it baa some probative value before

the Court

MR. LAWLESS: I will withdraw the question, then.

Answer this gentleman~ who is the defense

lawyer.

THE COURT: Let me ask a question first, if you

don't mind.

As I understood it. Miss Smith, you referred to

three bedrooms. I may be mistaken, but you said in one

bedroom there was a jar which had contained pennies,

which you found emptyo

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA ..

48

D. Smith - Cross 56 THE WITNESS 1 Yes.

2 THE COURT• And also were missing the cassette.

3 THE WITNESS1 Yes.

4 THE COURT& In your d&UCJhter's bedroom, which

5 would be the second bedroom, there was a piggy bank

6 missing.

1 THE WITNESS 1 Yes.

8 THE COURT& Then the third bedroom was your

9 bedroom, where a bedspread and a clock radio was

10 missing. These are three separate bedrooms?

II THE WITNESS 1 Yes.

12 THE COURT 1 Thank you.

13 You may proceed.

14

IS CROSS-EXAMZRATIOR

16 BY MR. BARRa

17 Q Mrs. Smith, how lonv did you live at 308 west

18 29th?

19 MR. LAWLESS: Objection, materiality to that,

20 if it's no more material than why abe moved.

21

22

23 BY MR. BARR:

24 Q

25 A

THE COURT: Objection overruled.

How long did yo~ live at 308 west 29th Street?

I think it was going on three years. It would


49

D. Smith - Cross 57 have been three years September.

2 Going on three years. It would be three years

3 in September?

4 A Itwould have been three years.

5 Q Well then -- okay. It would have been three

6 years in September.

7

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A Yes.

Q And you work, is that correct?

A Yes.

Q And how long have you been regularly employed?

MR. LAWLESS: Objection. What materiality is

that as to what her employment is?

THE COURT: What is it, Mr. Barr?

MR. BARR: Your Honor, please, I want to establisJ .

that she does know this Defendant. I am interested in

how much time she has been spending away from that

house during the period of time that she has been living

there. It is material, Judge, with respect to the case.

MR. LAWLESS: Your Honor, the question, ••oo you

know the Defendant,u might be. I don't see where she

works or how long she has worked is material to whether

she knows the Defendant.

MR. BARR: I intend to ask that question.

THE COURT: The question was how long has she

worked at the place she is now working?


so

D. Smith - Cross 58. MR. BARR: No, s1r. ALJ. :r am 1n,;eres,;ea 1.n 1.s

2 how long has she been employed versus unemplO¥ed.

3 THE COURT: I suppose it would have some bearing

4 on her credibility and value of her testimony. You may

5 proceed.

6

7 BY MR. BARR:

8 Q And I am interested, again, on May 14, Mrs.

9 Smith. You were working on that day?

10 A Yes.

11 Q And I would like to know how long you had been

12 working. If it had been the entire time you were living in that

13 house, that's a good enough answer.

14 A Yes, the entire time I was living there.

IS Q The entire time you were regularly employed?

16 A Yes.

17 Q And who other than your daughter lived there in

18 the house with you?

19 A No one, just me and my daughter.

20 Q NO one. Just the two of you?

21 . A. Yes •

22 Q And how old was your daughter?

23 A She is eight.

24 Q She's eight now?

25 A Yes.


5f

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o. Smith - Cross 59 Q And the entire, roughly, thr~e years that you

2 lived there in that bouse was it just you and your daughter who

3 lived there, no one else?

4 A No, no one else.

5 Q Did you have anyone else stayinq there with

6 you for a period of time?

7 A No.

8 Q Did your mother spend any time there with you?

9 A No. She comes to visit.

10 Q She comes to visit. She didn't stay overnight?

II A No.

12 Q Did you stay home every niqht, or did you

13 occasionally go out and have a babysitter in?

14 A No. I stay home every night.

15 Q Every night?

16 A Yes.

17 Q So you never had -- what did you do with your

18 child while you were at work?

19

20

21

22

23

24

25

A She stayed with my mother.

Q She stayed at your mother's house?.

A Yes ..

0 And where does your mother live?

MR. LAWLESS a Objection, materiality of where

the mother lives. I think he has her on crosa-examinati

but we could o into where th~LJ.I~.tb~x_was empl.QXe.d, and


,

D. Smith - Cross 60 I do not think that's materia 1. That's the tenor of

2 my objection.

3 MR. BARR: I do not intend to, Your Honor.

4 THE COURT a Objection sustained.

5

6 BY MR • . BARR1

7 Q What did you do when you left your house every

8 morning?

9 A Carried my daughter --

10 Q To your mother's house?

I I A Yes.

12 Q And this was everyday without fail?

13 A Sometimes she stayed around to my mother's house.

14 0 That•s what I am asking~ Every morning you took

1 5 her to your mother • s house?

16 A Not every morning. Some nights she spent the

1 1 night at my mother • s house.

18 Q All right. I am with you. Now --

19 THE COURT z EXcuse me. This is a da ugbter of

20 yours who you are referring to in this testimony?

21 THE WITNESS 1 Yes •

22 THE COURT& And she was eight years old.at the

23 time of this?

24 THE l"'ITNESS: Yes.

25 THE COURT: Thank you. Go ahead.


53

D. Smith - Cross 61 BY MR. BARR:

2 Q All right. Now, Andra Ricks lived essentially

3 behind you on 28th Street, is that correct?

4 A No. He lives -- I live on 29th Street. Be lives

s in front, as you might say. I live on 29th Street. Bis back --

6 well, not really his back, but he lives on 28th Street.

7 Q Your address was 308 west 29th, and his was

8 306 ~vest 28th?

9 A Um-hum.

10 Q You-all were not back-to-back, but yo~r house

II and his house were on the same side of different streets, isn't

12 that correct?

13 A No. I am on the right-hand side. His house

14 is on the left-hand aide, I guess you might say.

15 THE COURT1 Even numbers, the houses would

16 both be facing south on the north side of each of these

17 streets.

18 MR. BARR: They would have to, Judge.

19

20 BY MR. BARR:

21 Q But you-all were not more or less back-to-back,

22 · is that correct?

23 A Yes.

24 0 And so do you know how long Andra Ricks lived

25 at 306 west 28th Street?


54

.l.J. ~mit.h - C:toss 62 A NO.

2 You do not know?

3 A No.

4 0 Did you know either of his parents, either his

s mother or his father?

6 A His father, yes.

7 Q You knew his father. Bow long have you known

a his father?

9 A well, I don't know him personally, but he fixes

10 my car.

II Q He does fix your car? tihere does he fix your

13 A At his garage. I guess he has a garage.

14 0 Is it at his house?

IS A No.

16 I see. How far away from the place where Andra

17 and his father live is his garage?

18 A I think the garage is on 26th Street.

19 Q so two blocks away from his residence?

20 A Yes.

21 Q All right. Now, did you know that Mr. Rick's

22 father lived on 28th Street?

23 A Did I know that Mr. --

24 Q Yes.

25 MR. LAWLESS: I have a _guest ion of materialitv ASSOCIATED COURT REPORTERS

.NORFOLK, VIRGINIA

55

D. Smith - Cross 63 of that, Your Honor. ·1"/e are getting rather far afield

2 whether she knew where the Defendant's father resided.

3 I believe the direct testimony in Court is that the

4 Defendant told the arresting officer he was staying

. s with his mother at that address •

6

7 .BY MR. BARR:

8 Q Do you know whether or not Andra Ricks lived

9 with his father?

10 A Not really.

II Q Did you know his father lived at 306 west 28th

12 Street?

13 A No. I just seen htm there, that's all.

14 Q You had seen his father at 306-28th Street?

IS A Yes.

16 Q And had you seen Andra at 306-28th Street?

17 A Yes. I saw him there.

18 Q Over how long a period of time?

19 A Not too long ago.

20 Q so you don't know how long they have been living

21 there?

22 A No, I don't.

23 Q Now, you said that you know the Defendant, Andra

24 Ricks, but you don't know him personally?

25 A Yes.


5H

D .. Smith - Cross 64 Q How do you know him?

2 A From the first offense when my house was broke

3 into.

4 Q Okay. Do you know Andra Brickhouse?

5 A No.

6 0 Do you know Crawley Foreman?

7 A No.

8 Q You don°t know either one of them?

9 A No.

10 MR. BARR: That • s all I have, Your Honor.

II MR. LAWLESS c I have no further questions.

12 "J.'HE COURT: Thank you, Miss Smith • You may

13 stand down.

14 May the witness be excused?

IS MR. LAWLESS a May she be excused to go back to

16 work?

17 MR. BARR 1 Yes, sir.

18 THE COURT a You may be excused, Miss Smith.


20

21 MR. LAWLESS: Your Honor, that's our evidence

22 with regard to the alleged offense of breaking and

23 entering.

24 THE COURT: Do you want to put on your evidence

25 with the other? ASSOCIATED COURT REPORTERS

NORFOLK, VIRGINIA

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ll2 only evidence ~as the fingerprint evidence. Again, the

same type of evidence that we have here. In. that case

the Court of Appeals ruled that the motion to strike

the Government's evidence should have been sustained,

for without evidence to show that the prints were put on

the objects during the commission of the crime in

addition to the fact that the Government did not show

that the objects were generally inaccessible, tbe motion

·should have been granted. And if the court directs, I

will retrieve from the Clerk's Office file number M400•76

which is the file in which the Defendant entered a plea

of91ilty to trespass on the same premisesr but I submit

to the Court based on the BorrWn Opinion, I am under

no obligation to present or qo forward with that

evidence.

THE COURT: All right. If I understand you

or not, if you are .requesting the Court take judicial

notice of something, then I suppose it is an appropriate

time to do so. If it's a matter of your coming forward

with affirmative evidence, we would .not deal with it on

this motion.

Let me ask you thisa Did the case to which you

refer, the charge of trespass to which you refer, have

anything to do with Mr. Leroy Williams' automobile?

MR. BARR: No, sir, it did not.


f"i8

H- M. Showalter - Recross 103 preparation of the litigation at the request of t e

Collllnonwed 1 th A Ltor ney' ~ Ott ice.

3 All right, sir. You may proceed.

4

s RECROSS-EXAMINATION

6 BY MR. BARR:

7 Q All right. Now, do I understand, Detective

8 Showalter, that this was the only area, the only writing of

9 any interview that you had with the Defendant?

10 A Yes, sir.

II Q Now, how long have you been investigating auto

12 thefts?

13 A Si.nce the last week in February.

14 Q Last week in February~ And this car was reported

IS stolen in January, right?

16 A Yes, sir.

17 Q So that was before you went to work in the Auto

18 Squad?

19 A Yes, sir.

20 Q Then as a matter of your investigation of this

21 theft and other thefts, did you also determine. that there were

22 a number of other automobiles stolen in the same area about the

23 same time?

24 A we have had a number of cars stolen from that

25 area. ASSOCIATED COURT REPORTERS

NORFOLK. VIRGINIA

59

H. M. Showalter - Recross 104 Q aut I am talking about January the 19th, 1976.

2 A 1 couldn't answer that. I wasn't in the squad

3 at that time.

4 Q I am asking you whether or not as a part of your

s work in investigating auto thefts, you have learned that in

6 this particular area of Park Place there were several cars

1 stolen on January the 19th, 1976?

8 A I do not know that.

9 Q Incident to your investigation have you had

10 occasion to arrest Michael Harris for auto thefts in the Park

11 Place area at or about this same time?

12 A No, sir.

13 Q You have not?

14 I have not.

IS Q Do you know whether or not he has been arrested

16 by anybody else in the Auto Squad?

17 A Yes, sir.

18 Q What about Lion(~l ·williams?

19 A I never heard that name before.

20 Q How about Lionel Spence?

21 A I don't think I have heard that one.

22 0 How about Robert Fluellen?

23 1\ I have heard of him, yes, air.

24 Q And is he not a resident of Park Place?

25 A I don't know where he lives.

ASSOCIATED COURT REPORTERS . NORFOLK, VIRGINIA

60

H. M. Showalter - Recross lOS Q And has he not been arrested and convicted

2 for auto theft in the Park Place area on or about the same

3 day?

4 A I heard he was, yes, air.

5 Q How about Andra Brickhouse, same thing?

6 A I have heard his name before, but I don't know

1 what it was in reference to.

8 Q now about I.eon Rangley?

9 I have n''ver heard his name.

10 Q All right. Has anyone else been prosecuted for

11 the theft of this particula1.· automobile?

12 A I don't know.

13 Q You do not know?

14 A No, sir.

15 Q In fact, Detective Richardson was the detective

16 in charge on this investigation, was he not?

17 A He's the one that secured the warrant for him.

18 Q Who was in charge of the investigation?

19 Richardson secured the warrant for him, and I

20 believe it was put in Central Files because we could not locate

21 Andra Ricks at the time. When he was arrested, I happened to

22 be working, and Richardson was off.

23 0 And to your knowledge no other arrests were made

24 incident to the theft of this automobile, is tha~ MAat you are

25 saying?

ASSOCIATED COURT REPORTERS NORFO'~rfiRGINIA

B. M. Showalter - Recross 106 ;.-, I don • t know if there has, no. s1.r.

2 Q Do you know whether or not Lionel Spence and

3 Robert Fluellen, names which you are familiar with as having

4 been convicted of auto theft~ were charged with the theft of

s this automobile?

6 A I do not know, Mr. Barr.

7 MR. BARR: That's all I have of this witness,

8 Your Honor.

9 THE COURT: Anything further, Mr. Lawless?

10 MR. LAWLESS: No, sir, Your Honor. Be may step

II down.

12 The Commonwealth rests.

13 ~ COURT: May the officer be excused?

14 MR. LAWLESS: You are working days?

IS THE COURT: May the officer be excused?

16 MR. LAWLESS : Yes, sir. I am sure there are cars

17 in Park Place that's got to be taken care of.


19

20 MR... BARR: Your Honor, at this time I would make

21 a motion to strike.

22 THE COURT: The Court will hear you.

23 MR. BARR: If Your Honor please, I intend to

24 rely on the case out of the Circuit Court of Appeals of

25 the District of Columbia. I have prepared a copy for


f-i2

107 the court. I asked two copies be prepared, one for

. ; ~ \ 'r .~,,, •• ~. ,\~.··.~

I.

4 MR. LA\'ILESS: Your Honor, that • s Federal Law.

5 we probably have an intern

6 MR. BARR: The significance of this case, if

7 Your Honor please, and it's coincidental that it should

8 deal in its facts identically with the facts of breaking

9 and entering in this particular case.

10 In the Borrum (phonetics) Case, Judge, basically

II there are four points which are significant. The first

12 is that the Commonwealth must ahow that the objects,

13 and in this particular case an applesauce jar and a

14 rear view mirror of an automobile, were generally

15 inaccessible to the Defendant. They must show that.

16 There's been no evidence that either of these items

17 was generally inaccessible to the Defendant.

18 THE COURT: In the lady' a bedroom?

19 MR. BARR: I am going to get to that, Judge. I

20 am going to get to that specific point.

21 THE COURT: All right.

22 MR. BARR: Number twQ, the Commonwealth must

23 show that the object& were touched on the date of the

24 offense, and there's been no such showing.

25 Number three, without an evidence to show --


63

108 I . THE COURT& Let me ask you this. Back up on

2 that point. Is that only if it is considered as a fact

3 that the Defendant would at various tLmea have had

4 access to it? If that's the case, would that not be the

s foundation for the requirement that you show the date

6 upon which the print ~"'as placed?

7 .MR. BARR: Judge. the way you phrase t.he question

8 suggests that the burden has shifted to the Defendant,

9 and I submit to you that's not the case. The reverse of

10 that is true.

II 1'BE COURT: You understand the question?

12 MR. BARR: Yes, sir.

13 THE COURT: Never mind the burden. 'tie will get

14 straight on the burden. Answer the question.

IS MR. BARR: The answer to the question is no,

16 and the reason that it ia no is because the Commonwealth

17 must shew that the objects were generally inaccessible.

18 The Defendant doesn't have the burden of showing that

19 he didn't touch them at any other time. Therefore,

20 unless they did show that they were generally

21 inaccessible, then they must show that the objects were

22 touched on the date of the offense. and those are the

23 express words out of that opinion.

24 THE COURT: I think I understand what you are

25 saying. I think I understand the answer to my question


f4 ) .

109 ecause I guess may

2 very well, but go ahead. Those are two points.

3 MR. BARR• well, with respect to the specific:

4 points you are making, Judge, without the evidence to

5 show that the Defendant could not have touched them at

6 any time other than the date of the offense --

7 THE COURT• All right. '!here is a preawaption --

8 In theabsenae of proof there is a presumption that these

9 were accessible to the Defendant at any time. Nov, if

10 that prevails, then the Court can understand the logic

II in saying that the time that the touching occurred would

12 have to be in evidence. The Court can maderstand that.


14 THE COURT 1 Go ahead •

15 MR. BARR 1 And I submit to the court the burden

16 is on the commonwealth to show that the objects were

17 generally inaccessible.

18 THE COURT a But don't you agree an object which

19 is in a lady's bedroom, where there is no evidence that

20 this person has ever been permitted to be, ia proof that

21 it was not accessible to him?

22 MR. BARR: Judge, the Court must take judicial

23 notice.

24 THE COURTa As a matter of fact, I don't think

25 ou have to o that far. I think an object inside a


65

110 person as automobile in which auto has -- 1: mean, mere a

2 no evidence he ever rode in it, that he ever had any

3 occasion to be in it. wouldn't in either case that be

4 sufficient evidence to say it was not generally

5 accessible?

6 MR. BARRa Judge, according to the Borrum

7 Opinion it is not.

8 THE COURT• This case says that?

9 MR. BARR: Yes, sir. It absolutely does, but

10 I will go one step further with you. I will go one

II step further with you on the break-in and to·proof.

12 The Borrum case says 1 do. not have to prove it, but I

13 will prove to you that this Defendant was in that house

14 on a prior occasion, and I prove it, if Your Honor

IS please, by virtue of the fact be entered a plea ~f

16 guilty to trespassing this house in April of 1976.

17 MR. LAWLESS: No evidence of that before this

18 court.

19 MR. BARR• The court must take judicial notice

20 of the records that are of this Court, and I am

21 prepared to give you the case number and file copy.

22 MR. LAWLESS:& certified copy would be appropriate

23 evidence, Your Honor.

24 MR. BARRa The Court will take judicial notices

25 of what's in the record of the courthouse, and I am


66

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of the file up here.

MR. LAWLESS a You should have done that before

trial.

MR. BARR: You don't have to do that. The Court

will take judicial notice of what's in its own records.

THE COUR'l'a The court doean •t take judicial

notice of anything except for its own orders and

judgments. You are saying we take judicial notice of

all the testimony in a previous trial just because it

occurred in trials in this court?

MR. BARR I No, sir.

THE COURT: Part of the records of the order

in this case?

MR. LAWLESSa I will challenge Counsel on this

case. 'l'h~ record will show only he was· convicted of

trespass, and I probably have the record right here.

It will not show an address, and it will probably

just show the date of conviction.

THE COUR'l'a Perhaps we will break for lunch,

and you can give the Court time to pass on that.

MR. BARR 1 Judge, the last point and the

intex·esting feature of the Borrum Case, which you will

see when you read it, is that in that case the District

court allowed the case to go to the jury only, and the


. fit41 ~-

112 only evidence v1as the fingerprint evidence. Again, the

2 same typa of evidence that we have here. In that case

3 the court of Appeals ruled that the motion to strike

4 the Government's evidence should have been sustained,

5 for without evidence to show that the prints were put on

6 the objects during the commission of the crime in

7 addition to the fact that the Government did not show

8 that the objects were generally inaccessible, the motion

9 · should have been granted. And if the Court directs, I

will retrieve from the Clerk's Office file number M400-76

II which is the file in which the Defendant entered a plea

12 ofguilty to trespass on the same premisest bQt I sQbmit

13 to the Court based on the BorrW& Opinion, I am under

14 no obligation to present or go forward with that

15 evidence.

16 '1'BE COURT: All right. If I underst.and you

17 or not, if you are requesting the Court take judicial

18 notice of something, then I suppose it is an appropriate

19 t~e to do so. If it's a matter of your coming forward

20 with affirmative evidence, we would .not deal with it on

21 this motion.

22 Let me ask you this: Did the case to which you

23 referf the charge of trespass to which you refer, have

24 anything to do with Mr. Leroy Williams • automobile?

MR. BARR: No, sir, it did not.

ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA ,-;s

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113 THE COURT: Did it have anything to 40 W1tll

. break-ins or the taking of property from Mrs. Smith's

bedroom, Deborah Smith • s bedroom?

MR. BARRa I don't believe specifically, Judp.

I cannot answer that question honestly. I do not recall

specifically the language of the warrant.

'l'BE COURT: Do you have anything further to say

on this motion at this time other than to put ae on this

case?

MR. BARR: Ro, sir, I do·not.

THE COURTa All right, sir. Then let's recess

for lunch. I will read the case carefully, aDd I will

defer on the motion until I have dane so. In fact, I

will defer hearing Mr. Lawless until I have done so.

iiill 2a00 be soon enough for us to get something

to Aat arid get back here?

MR. BARR: Yes, slr.

THE COURT: When I get back here, I will go into

chambers and read this motion, and we may not start

exactly at two on the dot.

(Y-1hereapon, court recessed for the luncheon

hour, after which the following proceedings were had•)

THE. COURT& Mr. Barr, do you have anything

further to say on your motion?

ASSOCIATED COURT REPORTERS NO,RFOLK, VIRGINIA

69

114 MR. BARR: Specifl.cally, no, Judge. Gl.ve me

2 one second to check my notes. At this point I do not,

3 Your Honor.

4 THE COURT: Mr. Lawless?

5 MR. LAWLESS : Our burden is one of a prima

6 facie case. We have demonstrated a prima facie case.

1 One is the accessibility of the case where the fingerprint

8 were found, the victim's bedroom on an applesauce jar

9 that had formerly contained money preceding the break-in,

10 and on the rear view mirror of the second victim's

II automobile. It being the right thumb, I think the Court

12 would certainly realize the first t~e you gotinto a

13 stranqer's automobile, the first thing you check is your

14 seat, and the S(?cond thing is with your right hand

IS adjust the rear view mirror, and that he had never been

16 in that house of Deborah Smith or the automobile of

17 Leroy \rJilliams would be a prima facie case.

18 MR. BARR: Your Honor, with respect to that

19 showing a prima facie case, I think the argument runs

20 squarely in the face of the Borrum Opinion when the

21 Circuit Court ruled that it would have been appropriate

22 ~or the District court to have striken the GOVernment's

23 evidence at that point. Therefore, with relying solely

24 as the Commonwealth is on this occasion on the

25 fingerprint, there is no prima facie showing.


115 NO\t1 1 Mr.. Lawless says that bas,::CJ on the

2 statemE•nts made by the accused, first, that he's never

3 been in th~ house and, the second, that he has never been

4 in the car, !.submit to the Court are not statements.

5 I think it's the normal course that exculpatory statement•

6 are going to be made under any course of investigation.

7 I respectfully submit to you the testimony of Officer

8 Showalter is incredible in that two months have passed

9 since he spoke with the accused, and he made his notation•

10 only on one place allegedly, and that was on the case

II report. Now, to have absolute recall over a period of

. 12 two months is more than can be expected •

13 In any event, Your Honor, please, his inquiries

14 which lasted a very few minutes of this De~endant were

IS in May, and this automobile was allegedly stolen in

16 January, January the 19th, so easily we have a period of

17 five months there. ~'lith respect to his statements

18 regarding not having been in Deborah Smith's house, the

19 proffer we made to the Court, although I think we are

20 under no obligation to do so, is with respect to the

21 court's own records and the plea of guilty to trespass

22 on the same premises in April. so I would submit to the

23 Court there bas been no prima facie showing, and the

24 argument with ~. Lawless runs squarely in the face of

25 the aorrum Opinion.


116 THE COURT1 The Court will overrule tne mot1on.

2 It appears to the Court that the authority which you

3 offer, Mr. Barr, in the Court of Appeals of the United

4 States in the District of Columbia, it's tn that Court

5 and in the Federal System, apparently not because of any

6 constitutional point involved or any favor point

7 involved, but simply because the defense occurred in the

8 District of columbia. The decision, therefore, is

9 stmply one on procedural or evidentially evaluation in

10 that district, which is not in any way binding on this

II cour.t.

12 ·I could let it go on that alone, but the Dlatr ict

13 Court there and the dissenting opinion by Mr. Chief

14 Justice Burger, presently the Chief Justice of the

IS Supreme court of the United States disagrees with th~

16 conclusion of the two other Circuit court judges, and

17 frankly, this Court is much more inclined to agree with

18 the dis.senting opinions than with the reasoning of the

19 other two. · 'l'he case is also clearly distinguishable on

20 the fa.cts from that in the instant case, in which the

21 court finds that there would clearly be a justifiable

22 entrance from all of the evidence, including the location

23 of the penny jar. The Defendant • s statements which are

24 in evidence, which the Court regards as appropriately

25 in evidence, denying that be had ever been in tbe


72

117 prem~aes pr~or 1:.0 any ev~aenc:e upon wnl.Cn 1:-ne nega1:.:a.ve

2 could reasonably be concluded or which expressed another

3 way, could raise a reasonable doubt as to the fact that

4 these fingerprints were placed at the time of the

5 offenses.

6 Other cases cited here, which we need not go

1 into in detail, indicate other facts. Por instance,

8 where a fingerprint was taken off a steering _wheel of

9 an automobile and was not allowed to be considered

10 sufficient evidence to s~pport a conviction, but the

II Defendant in that case had been driving the automobile

12 regularly and·was in the process of purchasing it. '!'he

13 court simply held there that one fingerprint found on

14 the steering wheel was not sufficient to convict him of

15 driving the automobile when it was being ~sed as a

16 getaway car. 'l'hat•s the other thing. Another thing that

17 doesn't have any real persuasive evidence in the case

18 involved.

19 All right. Mr. Barr, if you would like to

20 present -- Of course, your motion being overruled, your

21 exception is noted.


23 'l'BE COURTa Do you have any evidence you want to

24 put on?

25 MR. BARRa Just one second, Your Honor.


7:1

2

3 .. ., __ ooo------

4

s ANpRA EUoBNE RICK§, called aa a witness,

6 having been first d~ly sworn, was examined and

7 testified as follows:

8


10 BY MR. BARR:

II 0 You are Andra Ricks, the Defendant in this

12 case?

13 A Yes, sir.

14 Q Speak up so that the Judge can hear yoq, ~.

15 Ricks.

16 A Yes, sir.

17 Q All right. Now, Andra, you are charged with

18 breaking and entering a residence of Mrs. Deborah A. Smith at

19 308 west 29th street on ~Y 14, 1976. Now, in May of 1976 at

20 what address were you living?

21 A 306 West 28th Street.

22 0 And that's the next street over?

23 A Yes, sir.

24 Q And did you know who Mrs. Smith was?

25 A I didn't know her exact1 , but I had seen her


74

A. E. Ricks - Direct 119 before.

2 Q You had seen her before?

3 A Yes, sir.

4 Q And you knew where she lived?

5 A Yes, sir.

6 Q NOW, Andra, in January of 1976 were you charged

1 with breaking and entering into Mrs. Smith•s address at 308

8 ~est 29th Street?

9 A Yes, sir.

10 Q And did you enter a plea ofguilty to trespass

II to that offense?

12 A Yeo, sir.

13 0 While you were in the house did you see an

14 applesauce jar, or a jar containing money in the bedroom?

15 A Yes, sir.

16 Q And did you touch that jar?

17 A Yes, I did.

"18 Q ,-lby did you touch that jar 'l

19 A I was going to take the money out, but her mother

20 ~ame. I heard her mother outdoors, her voice, so I got scared

21 and put the jar back down and ran out the back door.

22 0 You did touch the jar?

23 Yes, I did.

24 0 And you entered a plea of guilty in this court

25 to a charge of trespass at that address? ASSOCIATED COURT REPORTERS

NORFOLK, VIRGINIA

75

A. ·E. Ricks - Direct 120 ----·--. ----- ---------------A v~q. •ir.

2 Q Now, were you ever in that bouse or in that

3 bedroom at any time other than this time in January of 1976?

4 A No.

s Q Row, with respect to the theft of a 1964

6 Chevrolet in January, on January 19, 1976, do you have a

1 recollection of being in a 1964 Chevrolet sometime in January

8 of 1976?

9 A No, sir.

10 Q Did you talk to Detective Richardson about this

11 auto theft?

12 A Yea, I did.

13 Q And did you tive him the names of possible auapec

14 who might have stolen this car?

IS A Yes, air.

16 0 And what were the names of the suspects?

17 A Robert Fluellen.

18 Q Speak slowly so that the Court Reporter can get

19 all of the names.

20 A Robert Fluellen, Andra Brickhouse, Lionel

21 Williams and a dude by the name of Leon Langley.

22 Q How about Michael Barris?

23 A Michael Barris.

24 MR. LAWLESS 1 You don •t want to lead him, do

25 ou?

·ASSOCIATED COURT REPORTERS ~ORFOLK, VIRGINIA

76

A. E. Ricks - Cross 123 Q But he s \not out on t e streets, is e?

2 l.

3 shift.

4 Q

5 A

6 Q

f!e '"'ill probably be coming home for a weekend I I

1\ furlough? I

Yes, sir. 1

These are names you gave Richardson as recently

7 as yesterday afternoon?

8 A Yes, sir.

9 Q i Let: •s go back to that trespass. This was the

house, I it? 10 same then, wasn't

II A Yes, sir.

12 Q You know it's the same house that's involved?

13 A Y~s, sir.

14 Q C'Jn March, 1976, was that in this a troom?

IS A No, sir. I went to Whitehurst's coUrtroom.

16 Q Judge Whitehurst?

17 A Yes.

18 Q What sentence did you get in that? I .

19 A I been in for four months. They gave me good

20 time. I pleaded guilty for breaking and entering, and they

21 suspended the eight months, knowing I had been in for four

22 months.

23 Q You got a suspended jail sentence?

24 A Yes.

25 Q Did you say you pled guilty to breaking and


77

132 or a reasonable question would be raised as to whether

2 the fingerprint that was on it was put on earlier or

3 at the time of the later offense, but that•a baaed also

4 on the credibility of the Defendant's testimony, which

5 the Court stmply cannot accept based on the other

6 evidence, his denial he had been in tbe hoase and denial

7 he had been in the automobile, which are 4iaproven by

8 the uncontradicted evidence of the finger~inta which

9 establish· the same.

10 You don't even have that same question in regard

II to tbe automobile. The evidence there is that it was a

12 privately owned automobile, stolen, uncontradicted

13 testimony o:( the Defendant •s fingerprints found in it

14 after the theft and after its recovery, and a statement

IS of the Defendant to the police that he had never been in

16 the automobile and didn't steal it and words to ~hat

17 effect, which coupled with the concrete or physical

18 evidence of the fingerprints leaves the Court no rOQa

19 but to conclude that he not only was lying when he said

20 he had never been in it, but, indeed, that he did commit

21 the theft.

22 The court accordingly will find the Defendant

23 guilty on the indictment for qrand larceny and

24 unauthorized use, and also quilty on the indictment of

25 statutory burglary and grand larceny.


78

llirginia:

July

. '

In the Circuit Court of the City of Norfolk, on the

• in the year 19 76.

COMMONWEALTH vs Andra Eugene Ricks

13th

Attorney for the Commonwealth: Lawrence c. Lawless

Attorney for the accused: Stanley G. Barr, Jr. (X) Heretofore appointed by the court

FELONY TRIAL ORDER

day

This day came the Attorney for the Commonwealth and the

attorney for the accused, as aforesaid, and the accused, who stand

indicted for Grand Larceny and Unauthorized use on Indictment #l,

and for Statutory Burglary and Grand Larceny on Indictment #2, wa

led to the bar in the custody of the Sheriff of the City of Norfol •

Thereupon, the Attorney for the Commonwealth, moved-to amend said

indictments to reflect ·the true first name of the accused, as

i Whereupon the accused was arraigned, and after private

.I consultation with and being advised by his counsel, tendered in

I person his plea of Not Guilty to each aforesaid Indictment #1, and

#2, and·thereupon, after having been first advised by his counsel

1 and by the court ·of his right to trial by jury, the accused know-1

79

Oifu:·e of lUG!! L. STOVALL

CINk of the Circuit Court

:'o;orfolk. Virginia

\i ingly and voluntarily waived trial by jury, and with the concur

~ renee of the Court and of the Attorney for the commonwealth, the

I 1 Court proceeded to hear and determine the case without the inter-

! vention of a jury, as provided by law. And, having heard the .•

evidence presented on behalf of the Commonwealth, the accused by

'counsel, moved the court to strike the Commonwealth's evidence,.

I

I

,·1

which motion, having been fully heard and dete~ined by the Cour~,l

is overruled, and exception noted. Evidence was then presented

on behalf of the accused. Thereupon, having heard all the

evidence and argument of counsel, the Court doth find the ,accused:

Guilty of Grand Larceny of an auto as charged in Indictment #1, "'--~---

and Guilty of Statutory Burglary as charged in the First .cou~t,

and Guilty of Grand Larceny as charged in the second count of

Indictment #2.

Whereupon, on motion of the defendant by counsel, the

whole matter is .referred to the Probation Officer of this court

for a Pre-Sentence Report, the hearing on which will be held on

the 8th day of September, 1976. A court reporter recorded the

evidence and incidents of this trial.

.. -

And the defendant was

re~:e~~ THOMAS R. McNAMARA, Judge

(Court reporter - Sharon Borden)

(Case of Andra Eugene Ricks)

80

'• :'lla~tracco, Bnrr .~ Hu~,.ell S.iONA.L CORP.

¥v-. ,.T \ A.W

I VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

COHNONHEALTH OF V.IRCfNTA

v. DOCKET NO. H400-76

ANDRA EUGENE RICKS

NOTICE OF APPEAL

Notice is hereby given that the defendant» Andra Eugene Ricks~

hereby appeals to the Supreme Court of Appeals of Virginia from the order

l of conviction of this Court entered 1n this action on the 8th day of I

September, 1976. A transcript of th11 testimony and other incidents of

the case will hereafter be filed. ·

I

ASSIGNMENTS OF ERROR

1. The Court erred in failing to strike the Commonwealth's evidence

I , and enter a verdict of acquittal at ihe close of the Commonwealth s case.

2. The Court erred in failiig to sustain the defendant's mo.tion for

acquittal at the close of all the evidence.

ANDRA EUGENE RICKS

By __________ ~--------------------Of Counsel

I hereby certify that on the r;th day of ~~~~*~r-, 1976, a true copy of the foregoing was mailed to L. C. Lawless, Assistant Commonwealth's Attorney, 800 E. City Hall Avenue, Norfolk, Virginia 23510, counsel for the Commonwealth of Virginia.

Stanley G. Barr, Jr., Esquire Canoles, Mastracco, Martone, Barr & Russell, a Professional Corporation 1710 Virginia National Bank Building Norfolk, Virginia 23510

81

Stanley G. Barr» Jr.

jnthe snpretne court of virginia - washington and lee

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