*1 Norfolk JOHN W. PARKER COMMONWEALTH OF VIRGINIA
No. 0979-91-1 Decided June *2 Counsel Defender, brief), on Miller, Assistant Public
(Charles B. appellant. Sue Darron, Terry, General Attorney (Mary Assistant
Leah H. General, brief), for appellee. on Attorney Opinion with is from a conviction
BARROW, J.This (1) contends that a firearm. The defendant the use of of an was inadmissible evidence car was stolen that the get-away when an ordered have been a mistrial should other crime in the room remained was discovered to have alternate We hold that the deliberations. during jury’s part was stolen was admissible and that the de- automobile fendant, mistrial, who did not seek a cannot now be- complain trial order one. cause the court failed to
STOLEN CAR After the defendant robbed the he was seen in a escaping Later, red Monte Monte Carlo with Florida license Carlo with Florida license was found in a nearby parking plates was engine running; lot. The car doors were still no open; key car; inside ignition; an odor of tear was gas present and red was on the side window. An dye dye passenger explosive tear and red had been with the pack containing gas placed that the bank teller had to the defendant. The vehi- money given cle had been stolen in Norfolk a few earlier. days Fingerprints taken from the stolen car matched those of the defendant.
While evidence that an accused committed other crimes is
the crime
be
charged, may
admissible
generally
prove
if
admissible
relevant to an issue or element
to be
required
proven.
*3
897,
241, 245,
v.
1 Va.
337 S.E.2d
Sutphin
App.
269,
899
211 Va.
(citing Kirkpatrick
272,
802,
(1970)).
176 S.E.2d
See also Williams v. Common
wealth,
841,
(1962).
203 Va.
127 S.E.2d
Evidence
of a
crime is admissible where it is “connected with or
separate
leads
to the offense for which the accused is on trial.”
up
Woodfin
236 Va.
372 S.E.2d
381 (1988),
denied,
cert.
vant connected those trial, mission the crime on as well as those which it” preceded though guilty are admissible “even show the defendant they may However, Id. even where evidence of another of other offenses.” value crime within one of the stated its exceptions, probative falls before it must incidental to the defendant outweigh any prejudice S.E.2d at 899. is admissible. Va. Sutphin, the red Monte Carlo was stolen was connected Evidence that The fact that for which the accused was on trial. with the offense conten- to corroborate the Commonwealth’s it was stolen tended bank rob- used to from this escape car was the one that the tion likeli- Furthermore, stolen enhanced the evidence that it was bery. it reduced had robbed the bank because the defendant hood that had done so. of the automobile that the true owner the likelihood had stolen that the defendant no evidence was presented Finally, therefore, did lit- and, evidence that it was stolen the automobile its tle, proper pur- the defendant beyond if anything, prejudice else, defendant, com- to someone that the as opposed to show pose mitted the robbery.
ALTERNATE JUROR deliberations, its jury began minutes after the Twenty-five excused juror that an alternate had not been trial court discovered into the jury jury and was allowed to inadvertently accompany if he wanted him to trial asked defense counsel judge room. The De- she’s no with them?” jurors longer “tell the rest of the why that to one having that he “would prefer fense counsel responded then recal- the deliberations.” The trial just from disappear the alter- box and them jury explained why led the to the jury to the jury removed and instructed them to return nate said, record, we’re Judge, Defense counsel then “For room. I think they going object irregularity jury. there were thirteen back jurors out minutes and there twenty-five “Well, she will certainly The court deliberating, responded, sir.” conclusion rendered have to do with the final nothing motion, note your excep- at this I’m to overrule going your point. tion for the record.” considered of courts that have overwhelming majority
An ju of an alternate have concluded that the presence the question irregu is a fundamental ror at time deliberations during jury any 521, 530 Bindyke, a mistrial. State larity requiring did not However, case, defense counsel in this (N.C. 1975). *4 a mistrial. request on appeal for consideration sufficiently
An error is
preserved
or
is made
order of the court
ruling
“at the time the
or
if a party
desires the
which he
to the court the action
sought, makes known
his
the court and
to the action of
objections
to
or his
court
take
added). Addition
(emphasis
Code
8.01-384
therefor.”
grounds
§
. will be considered
court . .
of the trial
ruling
ally, “[n]o
with the
together
was stated
objection
unless the
basis for reversal
therefor at the time of
grounds
ruling,
good
cause
except
shown or to enable the Court of
to attain the ends of
Appeals
justice.” Rule 5A:18. This rule serves to “avoid unnecessary ap-
reversals and mistrials
the trial
to intelli-
peals,
by allowing
and,
consider
if
an issue
to take corrective ac-
gently
necessary,
476, 480,
tion.”
12 Va.
Campbell
App.
1, 2 (1991) (en banc).
more,
objection,
an
without
should be sufficient
Arguably,
however,
to
this
on occasion more is
accomplish
purpose;
required.
court,
If a
with the action of the trial
party disagrees
state
ment
objection
grounds
objection
of an
are re
If, however,
Code
8.01-384.
does not
quired.
party
simply
§
court,
disagree with the action of the trial
but seeks the trial court
action,
to take
sought.
action must be
Id. For exam
expressly
or
ple,
during closing
comments
conduct
improper
argument may
not be the basis for reversal unless a
motion for a mistrial
timely
is made.
240 Va.
Cheng
(1990);
605-06
see also
241 Va.
Martinez
n.2,
403 S.E.2d
359 n.2
A
for mis
(1991). motion
trial is
such an issue for
even if an
required
preserve
is made to the
or
objection
conduct
comments and is overruled
the trial court. Morris v.
14 Va. App.
(1992) (en banc).
416 S.E.2d
case,
in this
a motion for a mistrial was
Similarly,
required
assure that the trial court was advised of the action the defendant
sought.
stating
to “the
Merely
objection
irregularity
failed to indicate what action the defendant wanted the trial
jury”
caution-
court
take. Defense counsel
have been
seeking
effect,
instruction or a voir dire of the
to determine what
ary
if
the alternate
had on the
deliberations. Prece-
any,
jury’s
that,
defendant
dent
us to conclude
even
compels
though
his failure to seek a
or other action
objection,
voiced an
mistrial
for a
court
this error as a basis
considering
the trial
prevents
605-06. See
reversal. See
Affirmed. J., Moon, concurred.
Benton, J., dissenting. is inad- criminal offenses rule, of other
As a general missible. Kirkpatrick admissible, of- of other “To be in the present or element to an issue be relevant
fenses must 1 Va. App. case.” Sutphin motion W. Parker’s to John response “stolen,” Com- was automobile evidence that the to exclude that the fact agreed trial judge argued monwealth of this particular stolen was and “part parcel the automobile was the conclusion However, record does not support transaction.” is- was relevant to any was stolen that the automobile that proof for prejudice case. Because the potential or element in this sue must be reversed. believe the conviction was so great, unmasked entered the bank that the robber The teller testified As the teller while a note. writing around the bank and looked her a robber, window and handed he came to her watched the face as he stood an looked into his She demanding money. note the note to teller returned the counter. The arm’s across length in great the robber him She described gave money. the robber and after Two weeks day by police. when interviewed detail the robber. At in a as line-up identified Parker she robbery, what Parker Parker and described trial, identified again she trial also The evidence at the robbery. at the time of wearing that the the withdrawal slip and deposit slip that both proved bore the time in the bank robber handled Parker’s fingerprints. bank, the teller robber departed after the
Immediately saw window and teller ran to a The second alerted a second teller. Chevrolet,” SS, with Monte Carlo a “1984 red the robber enter saw the rob- the bank also manager license Florida Carlo, drive to- the red Monte enter ber run from the that a cam- testified manager Road. The Pasture ward Bennett’s identified The manager the robber. in the bank photographed era who commit- the same person to be in the photograph the person ted the robbery. photograph Parker was admitted as evi- dence and shown to the jury.
At the approximate events, time of these a mechanic on Bennett’s Pasture Road saw the Monte Carlo enter a parking lot. Two men exited the Monte Carlo and entered a dark brown Cad- illac with a white and a red vinyl top decal. When the city police *6 got to the abandoned Monte Carlo in the lot on Bennett’s Pasture Road, the driver’s and passenger’s doors were and the motor open was running. Parker’s in fingerprints found the automobile.
Based the upon Cadillac, mechanic’s description the po- lice alerted the of City Portsmouth police. Parker was in stopped the of City Portsmouth a week after the He was robbery. driving Cadillac, mother, registered to his that matched the description given the by mechanic. The Cadillac was confiscated and later identified by the mechanic as the same Cadillac he saw on Ben- nett’s Pasture Road.
In view of the prejudice that is engendered by that an proving accused has committed other offenses, criminal the Common- wealth’s generalized assertion that proof that the car was stolen “part of this parcel particular transaction” is insufficient to establish that its value probative its outweighed ef- prejudicial fect. Clearly, the Monte Carlo had been stolen proves nothing relevant or material to the prosecution. concludes that majority proof the Monte Carlo was
stolen “tended to corroborate” it was used in the robbery. This reasoning hinges the upon acceptance universal truth that a common characteristic of cars used to escape from bank robberies is that are stolen. No they such argument was asserted the by Commonwealth on nor appeal suggested Furthermore, at trial. know of no basis in common or experience logic to the support majority’s While a reasoning. trial judge take judicial notice of facts that are of common indisputably knowledge, Charles E. Friend, The Law Evidence in Virginia at 720 (3d ed. § of 1988), the “fact” that underlies the is neither majority’s reasoning nor as indisputable accepted common as evidenced knowledge, the fact that the trial did to it the purport adopt of process judicial notice. In the absence of an express ruling by the fact, trial judge taking judicial notice of the this Court should not on base its on that holding “fact.” See Sutherland v. addition, to reasoning support use of this of type of criminal offense evi- the use other against to the rule exception allow evi- swallow the rule. To will “exception” dence allow understanding” based on “common dence of criminal conduct outweigh the proba- also so as prejudicial criminal behavior is tive value of the evidence. stolen, as- evidence that the car was value probative exists, worthless. The negligible proof ty- it is so as to be
suming is without evidence ing complete the Monte Carlo manager and bank identified that the car was stolen. The teller Parker used. The teller who the Monte Carlo as the automobile license saw Parker enter the Monte Carlo testified had Florida Moreover, identified the Monte Carlo as the the mechanic in Cadillac automobile the men abandoned when they escaped If is driving proof that Parker was when arrested. more certain was found aban- heard that the Monte Carlo required, direction of es- doned a short distance from the bank and still when car was discovered. In The motor was cape. running addition, a used foil robbers had that the bank pack *7 Carlo, red and the odor exploded leaving inside the Monte of tear inside the The abandoned Monte Carlo gas automobile. had Florida license Parker’s plates. Finally, fingerprints was stolen and found in the automobile. Proof that the automobile was dis- in the column steering that detailed the manner which It tended nothing guilt. did the of Parker’s abled to enhance proof crimes, facts only to that Parker had committed other prove the which he was on trial. irrelevant to crime for wholly of is not ad- punishment Evidence relevant to the only question 346, 342, 2 343 missible. Duncan v. Va. App. Moreover, 392, assertion that majority’s S.E.2d 395 the not was stolen was harmful Parker the automobile proof thief, the the almost ignores because Parker was named as would find conclusion that the the evidence jury hearing certain a in theft. Parker was in fact the thief or the participant Cf. 914-15, 69 King be the Commonwealth should per- The assertion that majority’s of the auto- the likelihood that the true owner mitted to eliminate the of bank robbery proving mobile was the the perpetrator 600
automobile was stolen be in but acceptable general theory the in ignores evidence this record. evidence cannot be Prejudicial accused against guise eliminating offered under the of some Parker did not hypothetical person possible perpetrator. con- tend that the owner of the in robbery. automobile was involved proof that the Monte Carlo stolen came into evidence during the Commonwealth’s in chief any case without explanation addition, of purpose. the bank photograph positive identification robber bank do in of the not leave employees of the who entered bank question identity person and com- mitted the in robbery. identity person second Monte Carlo was not an issue at Parker’s trial.
By in fashion that of asserting equivocal admission the disputed “tended to corroborate” merely “enhanced merely the likelihood” that Parker robbed ac- majority knowledges the tenuous relevance the crime is a bank It fundamental rule of robbery. evidence that: For be evidence to admissible must relate and be confined in issue matters and tend to an offense or be prove pertinent thereto. Evidence of collateral or those facts inca- pable affording any reasonable or inference presumption issue, irrelevant, on matters because too remote or cannot be in evidence. accepted Va. 157
Bunting (citing Va. Boggs 772 (1957)). Under the circumstances of this case, “evidence that committed an is unrelated crime [Parker] inadmissible him.” Va. at against King, S.E.2d at 69. reasons,
For these would reverse the conviction and remand new trial.