COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank

Argued at Chesapeake, Virginia

DAVID WAYNE SMITH

OPINION BY

v. Record No. 2910-02-1 JUDGE ROBERT P. FRANK

 NOVEMBER 25, 2003

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Patricia L. West, Judge

Michael F. Fasanaro, Jr. (Abrons, Fasanaro & Sceviour, on briefs),

for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on briefs), for appellee.

David Wayne Smith (appellant) was convicted in a jury trial of first-degree murder, in

violation of Code § 18.2-32. On appeal, he contends the trial court erred in refusing to grant his

motion to suppress the evidence and in failing to recuse herself. For the reasons stated, we

affirm the judgment of the trial court.

BACKGROUND

Martin O’Grady, Guenther Dietz, and appellant shared a townhouse located at 4245

Maplehurst Road in Virginia Beach. Sometime during the evening of April 2, 2001 or early

morning of April 3rd, O’Grady was awakened by Dietz yelling, “Stop, David. Don’t do it, Dave.

Please stop.” O’Grady testified he was afraid to go downstairs. He pushed a dresser against the

door and went back to sleep when quiet resumed. 

When O’Grady awoke the next morning, he went into the bathroom and saw a pair of

white bloody sneakers inside the bathtub with water running on them. O’Grady then went
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downstairs, where he found Dietz’s body, lying face down in a pool of blood in the living room.

O’Grady went back upstairs and quickly dressed. As he passed appellant’s room, he closed that

door. Appellant was in the room.

O’Grady went to the police station. He reported that Dietz had been murdered and that

appellant was still in the house. Sergeant Andrew Spiess, who talked to O’Grady, dispatched

two units to the house, advising them there was a probable homicide in the residence and the

suspect was still there. He described the suspect as “a white male named Dave.”

When Detective Ricardo arrived at the scene, Officers Barger and Johnson were already

outside the residence. The front door was open. Ricardo could see “red stains” on the vertical

blinds. The three officers entered the house. Ricardo noticed a man lying next to the sliding

doors. He was “obviously dead.” The officers searched the downstairs and then “started up the

stairs.”

Officer Johnson found appellant in an upstairs bedroom. Officer Ricardo handcuffed

appellant, whom he recognized from a “previous encounter” as Dave Smith. Appellant had a

“red kind of tint” to his hand. Ricardo noticed “blood spatter” on appellant’s socks, “some blood

on his right leg and his shin area.”

Officer Ricardo walked appellant out of the house and placed him in a police vehicle. He

did not search the house any further prior to taking appellant outside because “[I]n the

expediency of getting him out and my knowing his name and face, recognizing him already as

David Smith, with the information I knew, my expediency was getting him out of the house

first.”

The officer testified:

I returned back to that house to once again just make a quick

cursory search for the safety of the other officers. Obviously based

on my training and experience, there was a dead body in the house,

and I wanted to make sure that the safety of the detectives and the
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forensic services officers when they responded in – I wanted to

make sure that they wouldn’t be placed in any further danger.

That’s why I made another search of the house myself.

Ricardo explained he was looking for

[a]nything that I would consider to be something that would place

them in danger, any kind of – any kind of traps set up, booby trap,

weapons, anything like that that would propose a danger, any other

people in the house because we had went in fairly quickly, and I

did not do another search of the upstairs. I did not ask Officer

Barger if they had been searching the upstairs once I walked out

with [appellant].

Ricardo conducted a “visual search,” opening only doors.

When Ricardo went upstairs, he returned to appellant’s room. Ricardo looked out the

open window and noticed a pair of white tennis shoes “sitting outside the window on a planter

box.” He walked over to the window and saw “red stains that appeared to me again to be blood

spatter on the shoes themselves and on the laces.” He did not touch or seize the shoes at that

time.

At some point that morning, officers at the scene contacted Detective Alfred Byrum, who

remained at the police station, and requested that he prepare an affidavit for a search warrant.

After collecting information from several police officers, he prepared the affidavit. Eventually,

he took the affidavit to a magistrate and was granted a search warrant. 

As the police at the scene were waiting for the search warrant to arrive, “it began to rain.”

At first, Ricardo put “[t]hick, heavy craft paper” on the shoes to protect them from the rain.

Again, the officer did not touch the shoes. As the rain continued and became heavier, the police

concluded “the paper would not suffice for protecting the shoes from getting contaminated from

rain. We believed it would wash away and cause damage to the evidence.” Officer Stockman

then collected the shoes from outside the window and retained them as evidence.
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Once the search warrant arrived, the police collected several items from the house. A

large flashlight was collected, as well as several knives from a sink in the kitchen. 

Detective Christopher Molleen questioned appellant at the police station. Appellant

initially claimed he came home after drinking two pitchers of beer at a bar and went to bed. He

denied seeing Dietz that evening or early morning. He claimed he was not wearing his tennis

shoes that night. Appellant suggested one of several women could have attacked Dietz, claiming

he heard women’s voices downstairs during the night. He then claimed he had blood on his body

and clothing because he broke up a fight between O’Grady and Dietz. Appellant then changed

his story again, admitting he had an altercation with the victim, but claiming it involved only a

flashlight. Finally, appellant said that Dietz attacked him with a flashlight and a knife during an

argument early that morning. He claimed he took the knife from Dietz and used it to defend

himself, “poking” the knife at him at least once. Eventually he took the flashlight from Dietz.

He told the detective he then hit Dietz once with the flashlight, very hard, in the head and then

hit him again in the head as Dietz was falling to the floor. After the victim fell, he went upstairs

to bed and did not leave the bedroom until the police arrived later that morning. Appellant

insisted he was not drunk during this altercation.

Dr. Leah Bush, the medical examiner, testified that Dietz had sustained severe blunt force

trauma and sharp force injury. She opined that Dietz received at least ten blows to the head and

at least ten blows to his body and arms. She also explained that Dietz had numerous defensive

wounds on his hands and arms. She concluded that Dietz had died as a result of severe blunt

force trauma to the head, chest, and abdomen, with a stab wound to the abdomen contributing to

his death.
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Ruth Damaso of the Division of Forensic Science testified that DNA material from

appellant’s socks, sneakers, and hands was consistent with Dietz’s DNA. The tests she ran

excluded appellant as a source of this material.

Appellant testified in his own behalf at trial. He claimed he came home after a day of

drinking and broke up a fight between O’Grady and Dietz. O’Grady then left. After making a

telephone call and going upstairs, appellant returned downstairs. Appellant testified that Dietz,

who was drunk, began verbally assaulting him and then “approached [him] yielding [sic] the

flashlight and the knife.” He said Dietz attacked him with the flashlight and a knife, telling

appellant “[h]e was going to get me.” Appellant testified, “I just kept telling him, don’t do this.”

Appellant claimed he took two knives away from Dietz and then, while defending himself, hit

Dietz twice with the flashlight. Appellant also claimed Dietz was sitting on the couch,

mumbling and conscious, when he went upstairs to bed.

Appellant testified he was still feeling the effects of alcohol and the hit to his head when

he was arrested that morning. He claimed he lied to Detective Molleen because he was confused

and scared. He insisted his testimony was truthful.

At the suppression hearing, appellant argued the police illegally re-entered the residence

after placing appellant in the police unit.1

 The trial court denied the motion to suppress.

In a post-verdict motion, appellant, for the first time, moved that the trial judge recuse

herself, contending, as a juvenile and domestic relations district court judge, she heard a custody

case involving appellant and his wife. Additionally, appellant reminded the judge that she had

recused herself in a previous burglary case against appellant.

 1 Appellant also argued the search warrant was illegal, but that issue is not before this

Court.
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As to the custody case, the trial judge indicated:

So I have no independent recollection of his custody case. I

couldn’t even tell you until you just said it that it was custody. I

couldn’t remember whether it was assault and battery, whether it

was support, whether it was custody. Now that you’ve said it and I

know the wife was here, I still don’t know what the facts were; but

I do know it was custody because you just told me that. That had

nothing to do – I had no independent recollection of that. It would

not be a reason for me to recuse myself.

The trial court explained she recused herself from the earlier burglary case because the victim

“was a friend of the family” and “not because of anything about the defendant.” She added, “It’s

a little late for a motion to recuse.”

ANALYSIS

A. The Recovery of the Shoes

Appellant contends that, once he was arrested and placed in the police vehicle, the police

violated his Fourth Amendment rights by re-entering the residence. He argues the police were

required to wait for the search warrant to arrive.2

When addressing an allegation of error arising from a ruling on a motion to suppress, “we

will review the evidence in the light most favorable to the Commonwealth, the party prevailing

below, together with all reasonable inferences that may be drawn. The burden to establish that

the denial of the motion to suppress constituted reversible error rests with the defendant.” King

v. Commonwealth, 39 Va. App. 306, 308, 572 S.E.2d 518, 519 (2002) (citations omitted).

“We are bound by the trial court’s findings of historical fact unless

‘plainly wrong’ or without evidence to support them[,] and we give

due weight to the inferences drawn from those facts by resident

judges and local law enforcement officers.” McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690,

699, 116 S. Ct. 1657, 1659, 134 L.Ed.2d 911 (1996)). However,

 2 Appellant does not contest the validity of the original entry, the original “sweep,” or his

seizure.
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we review de novo the trial court’s application of defined legal

standards such as probable cause and reasonable suspicion to the

particular facts of the case. See Shears v. Commonwealth, 23

Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas,

517 U.S. at 699, 116 S. Ct. at 1659.

Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999).

The Fourth Amendment to the Federal Constitution provides that

“the right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated.” Therefore, warrantless searches are per se

unreasonable, subject to a few specifically established and

well-delineated exceptions, and the Commonwealth has the heavy

burden of establishing an exception to the warrant requirement. 

Megel v. Commonwealth, 262 Va. 531, 534, 551 S.E.2d 638, 640 (2001) (citations omitted).

During oral argument, the Commonwealth conceded Officer Ricardo’s re-entry into the

house was illegal. However, the Commonwealth contends the doctrine of inevitable discovery

allows introduction of the evidence. The Commonwealth also argues, if the admission of the

shoes into evidence was error, that error was harmless. We agree the inevitable discovery

doctrine applies here. 

Inevitable discovery has long been recognized in Virginia as an

exception to the exclusionary rule. Keeter [v. Commonwealth],

222 Va. [134,] 140 n.2, 278 S.E.2d [841,] 845 n.2 [(1981)];

Warlick[ v. Commonwealth], 215 Va. [263,] 265, 208 S.E.2d

[746,] 748 [(1974)]. The United States Supreme Court approved

this exception in Nix v. Williams, 467 U.S. 431 (1984). There, the

Court held that evidence may be admitted under this theory if the

prosecution can establish by a preponderance of the evidence that

it would ultimately or inevitably have been discovered. Id. at 444.

Walls v. Commonwealth, 2 Va. App. 639, 655, 347 S.E.2d 175, 184 (1986). For this exception

to apply, the Commonwealth must establish:

“(1) a reasonable probability that the evidence in question would

have been discovered by lawful means but for the police

misconduct, (2) that the leads making the discovery inevitable

were possessed by the police at the time of the misconduct, and (3)

that the police also prior to the misconduct were actively pursuing

the alternative line of investigation.”
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Id. at 656, 347 S.E.2d at 185 (quoting United States v. Cherry, 759 F.2d 1196, 1204 (5th Cir.

1985)); Wilkins v. Commonwealth, 37 Va. App. 465, 475, 559 S.E.2d 395, 400 (2002). The

Commonwealth has met this burden.

O’Grady had informed the police that he had seen bloodstained shoes in the tub in the

bathroom. Later, the shoes were in plain view outside the window, easily viewed from inside the

bathroom. If the police had waited to re-enter the house when the search warrant arrived, then

they would have discovered the shoes. The first prong of the exception is clearly met.

The leads that allowed the police to obtain a search warrant were within the knowledge of

the officers prior to the illegal entry into the house. O’Grady had provided information, and the

police had seen the murder victim in the house. Only after the police had this information did

Officer Ricardo re-enter the house and discover the shoes. The second prong of the exception is

established.

Finally, the police were in the process of obtaining a search warrant and had the

information necessary to obtain the warrant when the illegal entry occurred. By the time Officer

Ricardo re-entered the house, the police knew an argument had occurred between appellant and

Dietz during the night. The police had legally entered the home and found Dietz’s body, clearly

the victim of a violent attack. O’Grady had informed them that appellant was in the house. All

of this information was used to obtain the warrant. Officer Ricardo’s actions did not prompt the

police to request a search warrant; the shoes are not even mentioned in the affidavit. Detective

Byrum, who prepared the affidavit and requested the warrant, never talked to Officer Ricardo.

As the police were actively pursuing the option of a search warrant at the time Ricardo re-entered

the house, the third prong of the inevitable discovery burden is met. 

Although the officer did not have a search warrant at the time he entered and observed

the shoes, we find the inevitable discovery doctrine allowed admission of the evidence at trial. 
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B. The Recusal

Appellant contends the trial judge erred in failing to recuse herself from presiding over

his murder trial. He raises two bases for the recusal. First, when she was a juvenile and

domestic relations district court judge, the judge heard a custody case involving appellant.

Second, in an unrelated burglary trial involving appellant, the trial judge recused herself. 

We have consistently held that a trial judge must exercise

reasonable discretion to determine whether he possesses such bias

or prejudice as would deny a party a fair trial. Justus v.

Commonwealth, 222 Va. 667, 673, 283 S.E.2d 905, 908 (1981);

accord, Slayton v. Commonwealth, 185 Va. 371, 376, 38 S.E.2d

485, 488 (1946). “Merely because a trial judge is familiar with a

party and his legal difficulties through prior judicial hearings . . .

does not automatically or inferentially raise the issue of bias.”

Barry v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967).

Deahl v. Winchester Dep’t of Soc. Servs., 224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983).

“Decisions regarding a judge’s impartiality are to be made by the judge in the exercise of his or

her discretion and will be reversed on appeal only upon a finding that the court abused its

discretion in deciding the question.” Scott v. Rutherfoord, 30 Va. App. 176, 189, 516 S.E.2d

225, 232 (1999).

The trial judge determined that she was able to preside impartially over appellant’s trial.

As to the custody case, the trial judge stated she had no independent recollection of the matter.

The judge also indicated she recused herself from the burglary case because she knew the victim,

“not because of anything about the defendant.” Appellant does not make a claim of bias beyond

the judge’s knowledge of these prior incidents. Nothing in the record suggests the judge abused

her discretion in denying the motion for recusal. Although she may have been familiar with

appellant’s legal history, that fact alone does not necessitate recusal.
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CONCLUSION

The trial court did not err in refusing to exclude the shoes as evidence. Additionally, the

judge did not err in presiding over the trial. We affirm the first-degree murder conviction.

Affirmed.