JOHN K. DARNELL v. COMMONWEALTH OF VIRGINIA
No. 1683-89-2
Richmond
Decided July 16, 1991
948
C. David Whaley (Elizabeth Dashiell Scher; Morchower, Luxton and Whaley, on brief), for appellant.
Richard B. Smith, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
OPINION
COLE, J.*—The defendant, John K. Darnell, appeals his convictions of two counts of taking, obtaining, or withholding a credit card in violation of
On March 6, 1989, Douglas Long‘s wallet was taken from his pants, which were hanging in the locker room at the Westwood Racquet Club. The wallet contained $61 in cash and other items,
Henrico County Police Officer E. J. Kopacki arrived at the scene and took a statement from the defendant. The defendant admitted taking the wallet from Mr. Long‘s trousers. He also admitted removing the money from the wallet, but claimed he did not know the credit cards were in the wallet.
On April 6, 1989, the defendant was convicted in the general district court of petit larceny of a “pocketbook containing U. S. currency, credit cards and misc. items” belonging to Douglas Long in violation of
On June 20, 1989, the defendant filed a motion to dismiss in the trial court, alleging that “[t]hese indictments are violative of the double jeopardy clause of the Constitution since he has previously been convicted of the lesser included offense petit larceny involving these items. (Warrant of arrest is attached).” Filed with the motion was a legal memorandum in support thereof. The court took the motion under advisement and, after the trial, heard argument on the motion on August 9, 1989. No reference was made to Grady because it was not decided until May 29, 1990. At the conclusion of the hearing, the court overruled the motion to dismiss, holding that petit larceny is not a lesser included offense of credit card theft and that the elements of the two are different.
At the outset, the Commonwealth contends that Darnell cannot rely on the argument that his conviction is barred by Grady v. Corbin, 495 U.S. 508 (1990), because he did not make this argu-
We find that Grady, although decided after the decision was rendered in the trial court, is applicable to this case. In Griffith v. Kentucky, 479 U.S. 314 (1987), the United States Supreme Court held: “[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328; see also Kelly v. Commonwealth, 8 Va. App. 359, 367-68, 382 S.E.2d 270, 274-75 (1989). As a general rule, judicial decisions are to be applied retroactively. Department of Highways & Transp. v. Williams, 1 Va. App. 349, 352, 338 S.E.2d 660, 662-63 (1986).
“Rule 5A:18 serves an important function during the conduct of a trial. It places the parties on notice that they must give the trial court the first opportunity to rule on disputed evidentiary and procedural questions. The purpose of this rule is to allow correction of an error if possible during trial, thereby avoiding the necessity of mistrials and reversals.” Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). The defendant complied with Rule 5A:18 by making a motion to dismiss based on the double jeopardy clause, by filing a legal memorandum with the motion, and by fully arguing the motion before the trial court. He could not have argued Grady because it had not been decided.
In order to be considered on appeal, an objection must be timely made and the grounds stated with specificity. Rule 5A:18. “Unless an objection is stated with reasonable certainty at the time of the ruling, neither the Supreme Court nor the Court of Appeals will consider the question for the first time on appeal.” Simmons v. Commonwealth, 6 Va. App. 445, 450, 371 S.E.2d 7, 10 (1988), rev‘d, 238 Va. 200, 380 S.E.2d 656 (1989). The purpose of the rule is “to give the trial court an opportunity to rule intelligently and to avoid unnecessary appeals, reversals, and mistrials.” Marshall v. Goughnour, 221 Va. 265, 269, 269 S.E.2d 801, 804 (1980).
“It is the duty of a party, as a rule, when he objects to evidence, to state the grounds of his objection, so that the trial
The double jeopardy clause embodies three protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnote omitted). In Grady v. Corbin, “the Supreme Court clarified the standard for determining whether successive prosecutions are barred by the double jeopardy clause of the fifth amendment.” Low v. Commonwealth, 11 Va. App. 48, 51, 396 S.E.2d 383, 385 (1990). Under Grady, the court must first apply the traditional Blockburger test:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
284 U.S. at 304. However, as stated in Grady:
[A] subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.
495 U.S. at 521 (footnote omitted).
The first inquiry is whether Blockburger bars the subsequent prosecution. “If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other the inquiry must cease, and the subsequent prosecution is barred.” Id. at 516. The Supreme Court of Virginia has stated:
The theft of several articles at one and the same time constitutes an indivisible offense, and a conviction or acquittal of any one or more of them is a bar to a subsequent prosecution for the larceny of the others.
Holly v. Commonwealth, 113 Va. 769, 772, 75 S.E. 88, 89 (1912). However, “the rule applies only to a case involving multiple larceny prosecutions predicated upon the theft of multiple articles stolen contemporaneously.” Jones v. Commonwealth, 218 Va. 757, 761, 240 S.E.2d 658, 661 (1978), cert. denied, 435 U.S. 909 (1978). Here, the defendant faced only one larceny charge.
The defendant asserts that petit larceny is a lesser included offense of taking, obtaining or withholding a credit card. “A lesser included offense is an offense which is composed entirely of elements that are also elements of the greater offense. Thus, in order for one crime to be a lesser included offense of another crime, every commission of the greater offense must be a commission of the lesser offense.” Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 283 (1989). “Conversely, an offense is not lesser included within another if it has an element the other does not.” Taylor v. Commonwealth, 11 Va. App. 649, 652, 400 S.E.2d 794, 795 (1991).
In pertinent part,
(1) A person shall be guilty of credit card or credit card number theft when:
(a) He takes, obtains or withholds a credit card or credit card number from the person, possession, custody or control of another without the cardholder‘s consent.3
The taking must be with the intent to use, sell, or transfer the card to a person other than the issuer or the cardholder. Cheatham v. Commonwealth, 215 Va. 286, 290, 208 S.E.2d 760, 763 (1974); see also Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411, 413 (1976).
“Larceny is the wrongful taking of the goods of another without the owner‘s consent and with the intention to permanently deprive the owner of possession of the goods.” Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987).
A comparison of the elements discloses that petit larceny is not a lesser included offense of a violation of
Applying the Grady test, however, we reach a different result. In the present case, the same conduct which constituted the substantive petit larceny offense was alleged and proved as essential elements in the credit card theft prosecution. The issue before us is whether evidence of the larceny of the “pocketbook, containing U. S. currency, credit cards and misc. items” belonging to Douglas Long — conduct that constitutes an offense for which Darnell has already been convicted — established an essential element of the credit card theft charge.
We must decide whether Grady “prohibits a successive prosecution when evidence of previously prosecuted conduct proves only a portion of an essential element of the second charge, or whether Grady prohibits a successive prosecution only when the evidence of previously prosecuted conduct proves the ‘entirety’ of an essential element.” United States v. Clark, 928 F.2d 639 (4th Cir. 1991). In Clark, the fourth circuit adopted the rule that in order for the conduct used in the first trial to be barred from use in the second trial, the conduct must, standing alone, fully establish a legal element of the crime charged in the second prosecution. Id. at 642. We agree with the holding in Clark and adopt it.
In circuit court, the indictments specifically charged the defendant with taking, obtaining and withholding a Dominion Bank card and an American Express card belonging to Long. At trial in the circuit court, Long testified on cross-examination that the American Express card and Dominion Bank card were the only credit cards contained in the wallet. Thus, there can be no question but that the American Express card and the Dominion Bank card were the credit cards referred to in the district court case.
We assume that “proof in the first trial followed the charge.” Low, 11 Va. App. at 52, 396 S.E.2d at 385. In order for the defendant to be convicted of petit larceny of the credit cards, as alleged in the warrant, the Commonwealth was required to prove that the defendant wrongfully removed the wallet containing the credit cards from Long‘s trousers, without his consent. This is the precise conduct which the Commonwealth relied on in the circuit
The defendant also contends that the subsequent prosecution is barred under
In conclusion, the subsequent prosecution is barred under Grady v. Corbin where the Commonwealth, to establish an essential element of
Reversed and dismissed.
Willis, J., concurred.
Barrow, J., concurring.
I concur that the prosecution in this case is barred by double jeopardy. See Grady v. Corbin, 495 U.S. 508 (1990). In reaching this determination, however, we need not adopt the holding in United States v. Clark, 928 F.2d 639 (4th Cir. 1991). Therefore, I do not join in that aspect of the majority opinion.