JNTHE Snpretne Court of Virginia - Washington and Lee ...
Transcript of 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
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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
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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?
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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10 FRED C, Mci)ERMQTT. called as a witness,
2 having been first duly sworn, was examined and
3 testified as followsa
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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?
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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
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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.
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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?
19 A Yes, sir, I did.
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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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?
9 A Yes, sir, I did.
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 ........ - _.. .....
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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?
17 A Yes, sir, I did.
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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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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.
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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.
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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.)
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24 MR. BARR: Go ahead and offer it, Judge, for
25 ·v~hatever. se it mi ht serVe. ASSOCIATED COURT REPORTERS
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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.)
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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?
23 A That's correct.
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
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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 •
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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.
19 (Whereupon, the aforementioned
20 offense report was marked as
21 D-2 for identification.)
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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
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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.
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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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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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 --
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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?
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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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
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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
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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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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P. c. MCDermott - Redirect 24 can get back into certain items on it, then.
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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?
19 A That's 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?
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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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?
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
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6
7
8
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II
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IS
16
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19
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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 --
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
. 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.
17 (Whereupon, the aforementioned
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
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14
IS
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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?
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
a2
38 MR. BARRa Yes, sir.
2 THE COURT:a Thank you, Officer.
3 (Witness excused.)
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
14 DIRECT EXAMINATION
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
33
3
4
5
6
7
8
9
10
II
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13
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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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
6 MR. BARRa Yes, sir.
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
24 A Yes, sir, I did.
25 Q which are shown with the known fingerprint of
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
. . :.~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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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,
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
21 DIRECT EXAMINATION
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?
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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? ·
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
8
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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?
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
5f
i'
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
,
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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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?
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
19 (Witness excused.)
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
57
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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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
18 (Witness excused.)
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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 --
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
13 MR. BARRa Yes, sir.
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
66
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3
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8
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12
13
14
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16
17
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20
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22
23
24
25
lll
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
. 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
2
3
4
5
6
7
8
9
10
II
12
13
14
IS
16
17
18
19
20
21
22
23
24
25
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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
22 MR. BARRa Yes, sir.
23 'l'BE COURTa Do you have any evidence you want to
24 put on?
25 MR. BARRa Just one second, Your Honor.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
9 DIRECT EXAMINATION
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.
ASSOCIATED COURT REPORTERS NORFOLK, VIRGINIA
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.