VA: Defendant bound by his testimony there was no consent at all

Defendant’s suppression hearing testimony that he did not consent to his search and that he refused to consent barred his argument that his consent was involuntary. Elliott v. Commonwealth, 2012 Va. App. LEXIS 335 (October 23, 2012)*:

In essence, Elliott asks us to hold the trial court erred (as a matter of law) by not finding (as a matter of fact) that he involuntarily consented to the search, even though he swore under oath that he voluntarily refused to consent to the search. In other words — lest we appear to be splitting hairs — for Elliott to prevail on appeal he must first prove that he perjured himself in the trial court. Such a self-defeating argument ordinarily brings appellate review to a standstill. A criminal defendant, no less than any other litigant, “is bound by [his] testimony on appeal.” Waters v. Commonwealth, 39 Va. App. 72, 79, 569 S.E.2d 763, 766 (2002) (citing Delawder v. Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915 (1973)). We need not rest our holding solely on this ground, however, because the other circumstances of this case confirm the trial court’s finding that Elliott was not coerced into consenting to the search.

Note: Unacceptable. The trial court held that he consented. Therefore, the defendant should have the complete right to argue that the trial court was wrong in finding consent, at least as an alternative argument, no matter that the defendant testified to. How does the defendant attack the findings then if his testimony is just rejected? Apparently this court is staffed with former lawyers who never tried a case.