Brown v. Com.

• Decision Date: 12 February 2002
• Docket Number: Record No. 0024-01-2.
• Parties: Thomas William BROWN v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

559 S.E.2d 415

37 Va. App. 507

Thomas William BROWN v. COMMONWEALTH of Virginia.

Record No. 0024-01-2.

Court of Appeals of Virginia, Richmond.

February 12, 2002.

Craig W. Stallard, Assistant Public Defender (Patricia P. Nagel, Assistant Public Defender; Office of the Public Defender, on brief), for appellant.

Stephen R. McCullough, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: ELDER, CLEMENTS and AGEE, JJ.

AGEE, Judge.

Thomas William Brown (Brown) was indicted in the City of Richmond for robbery and the attempted carjacking of Josherryl Amos, and for robbery of Patricia Wolliver. The Commonwealth pursued all three indictments in one trial. A jury convicted Brown of carjacking, in violation of Code § 18.2-58.1, and two counts of robbery, in violation of Code § 18.2-58. The trial court, on Brown's motion, reduced the carjacking conviction to attempted carjacking prior to sentencing in view of the actual charge in the indictment. He was sentenced to a term of ten years incarceration, with eight years suspended, on the attempted carjacking conviction, and terms of imprisonment of five years for each robbery conviction. On appeal, Brown contends (1) the trial court erred in refusing his request to sever the charges and permit a separate trial on the Wolliver robbery; (2) the Double Jeopardy Clause precludes his conviction of both robbery and carjacking; (3) a "fatal variance" between the indictment and the jury's pronouncement of guilty of carjacking requires dismissal; and (4) the evidence is insufficient for the attempted carjacking conviction and one of the robbery convictions. For the following reasons, we disagree with all of Brown's contentions and affirm his convictions.

I. BACKGROUND

On October 3, 1999, Josherryl Amos (Amos), accompanied a friend's niece, Lynn Bishop (Bishop) to purchase infant formula. Bishop drove her car, a 1993 silver Mitsubishi two-door coupe, to the parking lot of a drug store on Hull Street in the City of Richmond around 6:00 p.m. hile Bishop ran inside, Amos stayed in the car with the doors unlocked and the engine running.

Brown suddenly entered the car and ordered Amos to leave. Amos refused. He pulled out a knife, placed it on Amos' throat and told her to get the "f' out of the car or he would kill her. Amos tried to take her pocketbook with her, which prompted Brown to rhetorically ask if she "was stupid or something." Amos then got out of the car, leaving her pocketbook behind.

Shortly thereafter, around 7:00 p.m., Patricia Wolliver (Wolliver) was seated in her automobile in the parking lot of a grocery store on Jahnke Road in the City of Richmond. She was about to exit the parking lot onto the road when Brown, who was driving a small, silver colored car, left his vehicle and approached Wolliver's car. He initially asked her for directions to Midlothian Turnpike. She explained how to get there. He then asked her how to find Chippenham Hospital. She gave him more directions. Brown then told her, "I've got a gun and I will shoot and kill you if you don't give me your pocketbook." Wolliver was shocked at this unexpected threat. Brown reached in, struck her across the chest, grabbed her purse and sped away in the silver car. The experience was devastating for Wolliver.

At approximately 10:00 p.m. that evening, Bishop and Amos chanced upon Bishop's car, which Brown had abandoned, leaving the engine running and the lights on. Amos found certain items belonging to Wolliver in Bishop's recovered car and contacted Wolliver to return the items. These items had been in Wolliver's purse.

At trial, Amos and Wolliver identified Brown as the man who robbed them. Brown, however, denied committing the offenses and adduced alibi testimony from his former girlfriend and her mother, who claimed Brown spent the entire day in question with them.

II. ANALYSIS

A. MOTION TO SEVER

Brown argues that the trial court erred in denying his motion to sever the Amos and Wolliver charges for trial. Rule 3A:10(b) allows the trial court to try the accused for more than one offense at a time "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 thereto." Because appellant did not consent to joint trial of the offenses, we must examine whether Rule 3A:6(b) allowed joinder and, if so, whether justice nonetheless required separate trials.

1. RULE 3A:6(b)

Under Rule 3A:6(b), "[o]ffenses may be joined if (1) the offenses are based on the same act or transaction,' (2) the offenses are based on two or more acts or transactions that are connected,' or (3) the offenses `constitute parts of a common scheme or plan.'" Cook v. Commonwealth, 7 Va.App. 225, 228, 372 S.E.2d 780, 782 (1988). If the offenses are merely "multiple offenses of a similar nature committed by the same people" they do not meet the requirements of Rule 3A:6(b). Spence v. Commonwealth, 12 Va.App. 1040, 1043, 407 S.E.2d 916, 917 (1991). The determination as to joinder rests within the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion. Ferrell v. Commonwealth, 11 Va.App. 380, 386, 399 S.E.2d 614, 617 (1990).

We find Brown's offenses were not part of the "[s]ame act or transaction" under the first prong of Rule 3A:6(b). Each offense was a separate act taking place at a different location and at a different time. However, the Commonwealth argues that the offenses were properly tried together because they were interconnected, thus satisfying the second prong of Rule 3A:6(b). We agree that the offenses were based on "two or more acts or transactions" that were "connected."

To meet the "connected" test, the crimes should be "so intimately connected and blended with the main facts adduced in evidence, that they cannot be departed from with propriety." Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802, 806 (1970) (quoting Walker v. Commonwealth, 28 Va. (1 Leigh) 628, 631 (1829)); see also Spence, 12 Va.App. at 1044, 407 S.E.2d at 918. Here, the evidence of Brown's crimes was closely intertwined. Wolliver observed Brown driving a small, silver car at the time he robbed her. Items stolen from Wolliver were discovered in Bishop's car. Wolliver's testimony was indispensable to corroborate Amos' account that Brown robbed and carjacked her because he was the one Wolliver saw driving Bishop's car. Conversely, Amos' testimony that Brown had very recently carjacked a small, silver car, which was later found with Wolliver's stolen items inside it, constituted critical corroboration of Wolliver's testimony because it placed Brown in the car he used during the robbery of Wolliver. Furthermore, the evidence, heard together, rebutted Brown's contention that he did not commit the crimes because he was with his girlfriend the entire day.

Wolliver's testimony was critical in Amos' case and Amos' testimony was critical in Wolliver's case so that they could "not be departed from with propriety." The requirements of Rule 3A:6(b) were met in this case.

2. JUSTICE DID NOT REQUIRE SEPARATE TRIALS

Finding the offenses "connected" under Rule 3A:6(b), we must then determine if justice required Brown to have separate trials. Brown's motion for severance suggested that justice required separate trials by asserting that evidence of one offense would prejudice the jury as to the other offense. This result could occur in any case where one offense is tried with another.

"Justice often requires separate trials where highly prejudicial evidence of one of the crimes is not admissible in the trial of the other." Long v. Commonwealth, 20 Va.App. 223, 226, 456 S.E.2d 138, 139 (1995). "Generally, evidence of other offenses is inadmissible if it is offered merely to show that an accused was likely to commit the crime for which he is being tried." Cheng v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599, 603 (1990). Exceptions to this rule allow evidence of other offenses where the evidence "tends to prove any relevant element of the offense charged . [or] where the motive, intent or knowledge of the accused is involved." Id. at 34, 393 S.E.2d at 603 (citation omitted).

In the case at bar, evidence pertaining to the commission of each crime tended to prove the identity of the offender in the commission of the other crime.

Evidence of other offenses is admitted if it shows the conduct and feeling of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. Such evidence is permissible in cases where the motive, intent or knowledge of the accused is involved, or where the evidence is connected with or leads up to the offense for which the accused is on trial.

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805 (citations omitted).

"[J]ustice did not require separate trials for the offenses because, if the offenses were . . . tried separately, evidence of the other offenses would have been admissible to prove the perpetrator's identity." Traish v. Commonwealth, 36 Va.App. 114, 130, 549 S.E.2d 5, 13 (2001). Given Brown's claim that he was not the person who committed the offenses, the probative value of the evidence of the other offenses is obvious, and we cannot say that the trial court abused its discretion in finding that the probative value outweighed the prejudicial effect of such evidence.

Because the offenses met the requirement of Rule 3A:6(b) and justice did not require separate trials, the requirements of Rule 3A:10(c) were met. We hold, therefore, that the trial court did not abuse its discretion in denying Brown's motion for separate trials.

B. CLAIM OF DOUBLE JEOPARDY VIOLATION

Brown also avers that the trial court erred in convicting him of the separate charges of carjacking and robbery of Amos. He argues the robbery of the purse "merges" with the carjacking...