Brooks v. Commonwealth
| Decision Date | 13 April 2021 |
| Docket Number | Record No. 0209-20-4 |
| Citation | 73 Va.App. 133,856 S.E.2d 599 |
| Court | Virginia Court of Appeals |
| Parties | Jason Laufetette BROOKS v. COMMONWEALTH of Virginia |
Kelly L. King (Law Office of Kelly L. King, PLLC, on brief), for appellant.
Leanna C. Minix, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Huff and AtLee
OPINION BY JUDGE ROBERT J. HUMPHREYS
On July 12, 2017, Jason Laufetette Brooks ("Brooks") was found guilty in the Circuit Court of Loudoun County ("the circuit court") of six counts of grand larceny, in violation of Code § 18.2-95, six counts of grand larceny with intent to sell, in violation of Code § 18.2-108.01(A), three counts of unlawfully entering a vehicle, in violation of Code § 18.2-147, and three counts of damaging personal property belonging to another, in violation of Code § 18.2-137. On March 23, 2017, Brooks filed a motion to sever the charges against him to require multiple independent trials. On April 4, 2017, following a hearing, the circuit court denied his motion to sever. On appeal, Brooks argues that the circuit court erred by denying his motion because the offenses did not constitute a "common scheme or plan" and because justice required separate trials.
On March 13, 2017, Brooks was indicted for offenses that occurred on six separate dates between May 1 and September 10, 2016. In each instance, tires and rims were stolen from late-model sports utility vehicles ("SUVs") or trucks parked overnight in the driveways of single-family homes and the vehicles were found resting entirely on cinder blocks in the morning. Several of the affected vehicles were equipped with lug nut locks; the windows of those trucks and SUVs were broken, and the lug nut lock keys were missing from the vehicle's interior. The tire and rim sets were all fairly new, each worth between $2,000 and $5,600, and their prior use ranged from 8,000 to 20,000 miles. Aidan Shealy ("Shealy"), whose SUV was equipped with lug nut locks and whose rear passenger window was broken, also reported that a custom set of golf clubs was missing from his vehicle. In two instances, older tires or cars were located nearby the targeted truck or SUV but were left undisturbed.
On September 20, 2016, Sergeant William Bernard ("Sergeant Bernard") of the Holmdel Township Police Department in Monmouth County, New Jersey, stopped a white Ford Explorer being driven by Brooks. After obtaining a search warrant, Detective Andrew Kret ("Detective Kret") of the Holmdel Township Police Department searched the vehicle and found a GPS unit, cinder blocks, a car jack, and a socket wrench with sockets of varying sizes. Detective Kret also found an access card to a U-Haul storage unit in Maryland. Additionally, Brooks's cell phone contained a link to an online article titled "Tire Bandit Strikes Again" regarding a series of tire and rim thefts in Loudoun County.
Loudoun County police executed a search warrant at the U-Haul storage facility and found lug nuts, lug nut keys, tires, rims, and golfing paraphernalia. At trial, Shealy identified "golf gear" found in Brooks's storage unit as his, along with a receipt bearing Shealy's name and several other items that had been stolen from his SUV. Additionally, officers found business cards that said "Deals on Wheels." Brooks's apartment in Maryland contained business cards for "Deals on Wheels" identical to those in the storage unit, as well as lug nuts and lug nut keys. Brooks admitted that the U-Haul storage unit and business cards belonged to him and stated that he started a tire and rim re-sale business approximately a year earlier.
On March 13, 2017, a grand jury indicted Brooks on twenty-two counts (later reduced to eighteen) including grand larceny, grand larceny with the intent to sell, destruction of personal property, and automobile tampering.1 On March 23, 2017, Brooks filed a motion to sever the charges and require six separate trials for each incident. After a hearing, the circuit court denied the motion, finding both that the idiosyncratic nature of the circumstances surrounding the offenses demonstrated a common scheme and that the additional evidence regarding Brooks's tire re-sale business indicated he had a common plan in their commission.
Brooks was tried by a jury on July 10-12, 2017, and was found guilty on all eighteen charges against him. On January 9, 2018, he was sentenced to seventy-two years and sixty-three months of jail time and $6,000 in fines with sixty years and $6,000 suspended. Brooks filed a petition for a delayed appeal, which was denied by this Court on June 26, 2019. He subsequently filed a petition for a writ of habeas corpus, which was granted, ultimately resulting in this appeal.
Rule 3A:10(c) governs when courts may direct an accused to be tried at one time for all charges currently against him. See Rule 3A:10(c). "A lower court's interpretation and application of the Rules of the Supreme Court ... presents a question of law that we review de novo. " Cousett v. Commonwealth, 71 Va. App. 49, 57, 833 S.E.2d 908 (2019). "The question whether an accused, pursuant to Rule 3A:10(c), can be tried in a single trial for all offenses then pending against that defendant is a matter resting within a trial court's sound discretion." Commonwealth v. Minor, 267 Va. 166, 172, 591 S.E.2d 61 (2004) (citing Cheng v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599 (1990) ). Thus, unless the circuit court abused its discretion in ordering a single trial for the multiple charges against Brooks, the circuit court's decision will be affirmed on appeal. See id.
"The court may direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth's attorney consent hereto." Rule 3A:10(c). Rule 3A:6(b) states, "Two or more offenses ... may be charged in separate counts of an indictment or information if the offenses ... constitute parts of a common scheme or plan." Because Brooks did not consent to be tried jointly for his offenses, "the Commonwealth was required to establish both of the other two conditions of Rule 3A:10(c), namely, that the offenses satisfied the requirements of Rule 3A:6(b), and that justice did not require separate trials." Scott v. Commonwealth, 274 Va. 636, 644, 651 S.E.2d 630 (2007). Brooks argues that the circuit court erred by finding that his offenses met the definitions for both "common scheme" and "common plan" under Rule 3A:6(b). Additionally, he argues that the Commonwealth failed to establish that justice did not require separate trials.
In Scott v. Commonwealth, the Supreme Court of Virginia differentiated between "common scheme" and "common plan," finding that the terms are not synonymous. 274 Va. at 645, 651 S.E.2d 630. However, they also are not mutually exclusive; a series of crimes may exhibit both a common scheme and a common plan. See id. at 646, 651 S.E.2d 630. Accordingly, although a common scheme and a common plan are distinctively different, it is possible for the same set of facts to meet both definitions.
" ‘[C]ommon scheme’ describes crimes that share features idiosyncratic in character, which permit an inference that each individual offense was committed by the same person or persons as part of a pattern of criminal activity involving certain identified crimes." Id. at 645, 651 S.E.2d 630. The possible range of idiosyncratic features that may prove a "common scheme" is very broad. See id. at 647, 651 S.E.2d 630. However, the Commonwealth's evidence regarding idiosyncratic features must permit an inference of a pattern of criminal activity by the same person; mere general similarities common to all offenses of the same type are insufficient. See id. at 646, 651 S.E.2d 630.
In Scott, the Supreme Court of Virginia examined multiple robberies in the same large city, all occurring within a four-month period, in the commission of which the robber displayed a gun, threatened the victims or struck them, and demanded money, credit cards, and personal identification numbers. See id. The Court held that those occurrences were not sufficiently idiosyncratic for a common scheme. See id.
Conversely, in Severance v. Commonwealth, 67 Va. App. 629, 799 S.E.2d 329 (2017), three murders occurred within a mile and a half of each other in a low-crime, residential area at the same time of day. See id. at 646, 799 S.E.2d 329. Each victim was found shot by their front door but there was no evidence of robbery despite the opportunity. See id. Additionally, the weapons and ammunition used in each murder were significantly "distinctive." See id. This Court found that the evidence in Severance was sufficiently idiosyncratic to establish a common scheme. See id.
A motion to sever charges is decided on the evidence "as it appears before trial," not on the evidence that ultimately was adduced at trial. Spence v. Commonwealth, 12 Va. App. 1040, 1045, 407 S.E.2d 916 (1991). Here, the Commonwealth presented GPS evidence linking the series of thefts. Officers from the Loudoun County Sheriff's Office analyzed data from the GPS unit from Brooks's automobile, ran that data through the Google Earth application, and verified that the GPS had in fact been located outside the victims’ residences at the time the offenses took place. Although the Commonwealth ultimately failed to prove this at trial because appellant asserted—and the circuit court agreed—that the Commonwealth failed to provide any foundation for the accuracy and reliability of Google Earth's locational data, this nevertheless provided a basis for finding a "common scheme" when the motion to sever was decided. Additionally, five out of the six thefts occurred within an approximate six-mile...
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