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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
MEMORANDUM OPINION * BY
JUDGE RUDOLPH BUMGARDNER, III
AUGUST 29, 2000
Record No. 2181-99-3
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission, on brief), for
(Mark L. Earley, Attorney General; Amy L.
Marshall, Assistant Attorney General, on
brief), for appellee.
The trial judge convicted Ronnie Lee of one count of driving
after having been adjudicated an habitual offender in violation of
Code § 46.2-357(B)(3).
On appeal, he contends the trial judge
erred in refusing to allow him to ask during cross-examination
whether race was a criterion in selecting a traffic checkpoint.
For the following reasons, we affirm the defendant's conviction.
Field Training Officer Ricky Luck, of the Danville Police
Department, testified that on May 11, 1999 he was in charge of a
routine traffic checkpoint on the corner of Betts and Epps Streets
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
in the City of Danville.
In accordance with departmental policy,
the deputy chief of police approved the checkpoint plan as part of
the community-policing program.
the checkpoint were stopped.
All vehicles that came through
The defendant's car was stopped.
When an officer asked him if he had his license, the defendant
said he did not have one.
During cross-examination, Officer Luck explained the criteria
for selecting a checkpoint.
(1) location within
the community-policing area; (2) the amount of traffic; (3) the
number of past arrests in the area based on community-policing
logs; (4) the physical proximity to an entrance to the
community-policing area; (5) the visibility of the checkpoint for
the motorists' and officers' safety, and (6) the width of the road
which enabled officers to pull vehicles off the road safely.
Defense counsel then asked Luck whether the housing development
near the checkpoint was predominantly black.
objected and asked, "What relevance does that have?"
Defense counsel claimed that if race was a factor in
determining where to conduct the checkpoint, it adversely
affected the black community.
The trial judge noted that the
essence of public housing was a lack of racial bias, and because
the checkpoint was conducted on a public street, he believed
defense counsel was "injecting something into this, that's
The trial judge sustained the Commonwealth's
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Defense counsel accepted the judge's ruling:
On appeal, the defendant contends the trial judge
improperly limited his cross-examination of Officer Luck by
refusing to allow him to ask whether race was an additional
criterion used in establishing the checkpoint.
He argues the
police did not use neutral criteria to select the checkpoint,
and therefore, the results of the stop should be suppressed.
The defendant's claim is procedurally barred.
defendant failed to file a motion to suppress the evidence in
accordance with Code § 19.2-266.2. 1
See Upchurch v.
Commonwealth, 31 Va. App. 48, 53, 521 S.E.2d 290, 292 (1999)
(statutory requirement that motion to suppress be timely filed
is mandatory and trial court did not abuse its discretion in
"finding lack of good cause for excusing" defendant's failure to
The defendant also failed to proffer the answer Officer
Luck would have given had the trial court permitted the
See Spencer v. Commonwealth, 238 Va. 563, 570, 385
S.E.2d 850, 854 (1989) (where defendant claims court erroneously
Code § 19.2-266.2 provides that:
Defense motions or objections seeking
(i) suppression of evidence on the grounds
such evidence was obtained in violation of
the . . . Constitution of the United States
or . . . the Constitution of Virginia . . .
shall be raised by motion or objection, in
writing, before trial.
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limited cross-examination, record must contain proffer of both
questions to be asked and expected answers), cert. denied, 493
U.S. 1093 (1990).
Absent a proper proffer of the anticipated
evidence of the use of race as a criterion in selecting
checkpoints, "we are precluded from a consideration of this
issue on appeal."
Mostyn v. Commonwealth, 14 Va. App. 920, 924,
420 S.E.2d 519, 520 (1992) (citations omitted).
v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79, 81 (1977).
In addition, the defendant is required to show the excluded
evidence was relevant and material to his case.
See Toro v.
City of Norfolk, 14 Va. App. 244, 254, 416 S.E.2d 29, 35 (1992).
The defendant did not file a motion to suppress or challenge the
constitutionality of the checkpoint.
He never raised the issue,
so the issue of race was collateral and immaterial to his case.
See Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d
635, 640 (1990) (en banc) (cross-examination questions about
existence of probable cause are irrelevant to the issue of guilt
or innocence because defendant did not challenge the legality of
Cf. Stewart v. Commonwealth, 10 Va. App. 563, 568,
394 S.E.2d 509, 512 (1990) (no abuse of discretion where defense
counsel properly prevented from engaging in a fishing
Accordingly, we affirm the conviction.
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Benton, J., dissenting.
The right to cross-examine prosecution witnesses is
"fundamental to the truth-finding process [and] is an absolute
right guaranteed to an accused by the confrontation clause of
the Sixth Amendment."
Barrett v. Commonwealth, 231 Va. 102,
108, 341 S.E.2d 190, 194 (1986).
"While it is true that the
trial [judge] may, in the exercise of discretion, limit
cross-examination of a witness within reasonable bounds, that
does not mean that in the exercise of such judicial discretion
[the trial judge] should exclude relevant evidence."
Commonwealth, 217 Va. 548, 550, 231 S.E.2d 216, 217 (1977).
"Subject to such reasonable limitations as the trial [judge] may
impose, a party has an absolute right to cross-examine his
opponent's witness on a matter relevant to the case, which the
opponent has put in issue by direct examination of the witness."
Washington v. Commonwealth, 228 Va. 535, 549, 323 S.E.2d 577,
The issue of the criteria used to establish the roadblock
was relevant and was placed in issue by the prosecutor when he
presented testimony from Officer Ricky Luck concerning
"procedures mandated by departmental policies" for the
On cross-examination, Officer Luck testified that
"all of our [driver's license traffic] checks are located near
housing developments, or near the areas that we walk, and patrol
[as part of the community-policing program]."
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counsel was entitled to explore this and the other criteria used
to establish the roadblock.
The following exchange occurred between Lee's counsel and
Officer Luck on cross-examination:
[DEFENSE COUNSEL]: Well, do you run traffic
checks . . . traffic count checks all over
the city of Danville. . . .
[DEFENSE COUNSEL]: . . . or just in those
[OFFICER LUCK]: No. We go all over . . .
community police . . . we only do them
within our areas.
Patrol goes all over the
[DEFENSE COUNSEL]: All right, so community
police, if I understand it, only do it
within the areas that you previously
identified to me? Is that correct?
[OFFICER LUCK]: Yes. But now, again, we go
several blocks . . . we can go several
blocks away from it. Now this is just a
policy within community police.
[DEFENSE COUNSEL]: And that was the
criteria that was used to draw . . . to have
[DEFENSE COUNSEL]: Now, the housing
development that's over there near Betts and
Epps Streets . . .
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black, isn't it?
. . . it's predominantly
does that have?
The record clearly establishes that Lee's counsel preserved
for the record his argument that his question was relevant and
that the area the police chose for the roadblock was
After the prosecutor objected
as to the relevance of Lee's counsel's questions concerning the
racial composition of the housing development near the
checkpoint, the following colloquy occurred between Lee's
counsel and the trial judge:
[DEFENSE COUNSEL]: It has good relevance.
If the community police are picking things
that have an adverse impact on the black
community, then it has some relevance.
No it doesn't.
[DEFENSE COUNSEL]: And if they are choosing
that as a criteria for where their stops are
going to be made . . . that's it . . . and
that's why I'm asking these questions.
[PROSECUTOR]: I don't think . . . I don't
think race has got anything to do with this
[DEFENSE COUNSEL]: If they are choosing
areas that are predominantly black, it does
have something to do with it, because there
are predominantly going to be black people
[PROSECUTOR]: Judge, he has testified they
choose the areas where they patrol. I mean,
that's got nothing to do with the racial
composition of the areas they patrol.
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[DEFENSE COUNSEL]: The areas that they
patrol have been identified . . . are those
areas that you identified, that are owned by
the Public Housing Authority . . . are those
predominantly . . . the occupants
[DEFENSE COUNSEL]: I have to ask these
questions, as to the basis of it.
THE COURT: Well, I think you are . . . I
think you are entitled to ask him questions
about the thing . . . , but I don't think
that race is one of the issues to be
injected into this. If it's public streets,
and there are people of all races living in
these areas . . . I think you are out of
line on that.
[DEFENSE COUNSEL]: Well, Judge, that's to
be established. According to his testimony,
the areas that they are . . . that they are
set up in . . . community policing . . .
from what I understand, are things that are
owned by the Danville Redevelopment and
Housing Authority. Now again, I've been
away from Danville a long time, but the ones
that I know about . . . and this one I know
about, over there, I know what the
composition of it was, and I'm asking that
. . . if that's going to be a criteria, I
think that . . . that has got to be set out
here, and that ought to be set out here,
because as we are making a record, we have
to make the record full, and this Court
. . . and the Supreme Court of Virginia
. . . the Court of Appeals have looked at
these stops, and they . . . these stops have
. . . are subject to a greater
constitutional scrutiny, because of the way
they are done . . . .
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[JUDGE]: Well, the Redevelopment and
Housing Authority is predicated on the thing
that it's open to . . .
I . . .
Oh, I agree Judge . . .
[JUDGE]: . . . people of all races, creeds
and colors [counsel], so I mean I think you
are attacking it on that, the every basis of
the foundation of the thing is that there be
no racial bias in that.
I agree with . . .
[JUDGE]: And we're talking about public
streets. We don't know who is going to be
coming down the street, using the public
roads, so I think you are injecting
something into this, that's improper.
Defense counsel's argument was sufficient to preserve for
appeal the issues of criteria for establishing the roadblock.
The trial judge simply did not want defense counsel to inquire
whether race was a factor in locating the roadblock.
the trial judge resisted defense counsel's best efforts to
establish any more of a record as to the actual racial
composition of the housing development, saying his efforts were
In view of defense counsel's statements on the
record and the trial judge's admonition to defense counsel, I
would hold that Lee's counsel created an adequate record to
preserve the issue of the criteria for establishing the
roadblock and the issue of relevance.
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The trial judge should not have barred cross-examination to
prove this evidence because whether the neighborhood is or is
not predominantly African-American was relevant to the issue
whether the checkpoint was based on neutral criteria or had a
The Commonwealth bears the burden of
proving that a "roadblock [has been] carried out pursuant to a
plan or practice which . . . contains neutral criteria."
Simmons v. Commonwealth, 238 Va. 200, 202-03, 380 S.E.2d 656,
658 (1989); see also Brown v. Commonwealth, 20 Va. App. 21, 25,
454 S.E.2d 758, 759 (1995).
Thus, the question of impermissible
criteria is germane not just to suppression of evidence but also
to whether the prosecution itself is lawful.
"Selectivity in the enforcement of criminal laws is . . .
subject to constitutional constraints."
Batchelder, 442 U.S. 114, 125 (1979).
United States v.
Indeed, the Equal
Protection Clause of the Constitution prohibits selective
enforcement of the law based on considerations such as race.
See Arnold v. North Carolina, 376 U.S. 773, 774 (1964); Oyler v.
Boles, 368 U.S. 448, 456 (1962).
When, as in this case, the
neutrality of the criteria is at issue, the Equal Protection
Clause guarantees the defendant the right to inquire about the
use of race as an impermissible factor as a defense to the
See Turner v. Murray, 476 U.S. 28, 35-36 (1986);
Ham v. South Carolina, 409 U.S. 524, 529 (1973).
cannot be based upon state activity that denies an accused equal
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protection of the law.
See Brown v. Louisiana, 383 U.S. 131
(1966); Wright v. Georgia, 373 U.S. 284 (1963).
For these reasons, I would hold that the trial judge erred
in limiting cross-examination on a relevant issue.
I would reverse the conviction and remand for retrial,
permitting consideration of the evidence concerning racial
composition of the area adjacent to the checkpoint and the
criteria for placing the checkpoint.
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