Ferrell v. Com.

• Citation: 399 S.E.2d 614,11 Va.App. 380
• Decision Date: 11 December 1990
• Docket Number: No. 0157-88-1,0157-88-1
• Parties: Larabee Bryan FERRELL v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 614

399 S.E.2d 614

11 Va.App. 380

Larabee Bryan FERRELL v. COMMONWEALTH of Virginia.

Record No. 0157-88-1.

Court of Appeals of Virginia.

Dec. 11, 1990.

Randall D. Smith (Bouchard & Smith, Chesapeake, on brief), for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: JOSEPH E. BAKER, BARROW and WILLIS, JJ.

JOSEPH E. BAKER, Judge.

Larabee Bryan Ferrell (appellant) was indicted, tried by jury in the Circuit Court of the City of Chesapeake (trial court), and convicted of: (1) breaking and entering the storehouse of Bill Elliott's Used Autos on or about November 9, 1985 and November 11, 1985; (2) breaking and entering the storehouse of Greenleaf Auto on or about December 4, 1985; (3) stealing a 1973 Cadillac automobile on December 4, 1985, which was owned by Greenleaf Auto; (4) breaking and entering the storehouse of Yale Materials of Virginia (Sydnor division) on or about December 10, 1985 and December 11, 1985; (5) stealing, on or about December 10, 1985 and December 11, 1985, from the premises of Sydnor, various items including a television, briefcase, tool box, tools, solar calculator and $45 in United States currency belonging to Tom Ricks of Sydnor Industrial Services; and (6) breaking and entering the storehouse of Cavalier Ford, on December 29, 1985. He appeals from judgments entered on each jury verdict.

Prior to his trial, appellant moved the trial court to grant him separate trials on each of the breaking and entering charges. His motion was overruled and all charges were tried together before the same jury. Appellant contends (1) the trial court erroneously refused to sever the trials on the four breaking and entering indictments; (2) the trial court, in violation of the Fifth Amendment to the Constitution of the United States, erroneously permitted a police officer to relate several of the preliminary questions he had asked appellant after he had informed appellant of his Miranda rights; and (3) the trial court erroneously permitted the Commonwealth to introduce a list of items found in the stolen vehicle in which appellant was arrested, including several identification cards and license plates which belonged to other people.

Upon familiar principles, we view the evidence on appeal in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). The record discloses that all of the break-ins were made into commercial business storehouses. Three of the four entries involved businesses engaged in sales and services of automobiles. The fourth was engaged in sales and services of industrial supplies.

On January 4, 1986, at approximately 3:00 a.m., appellant was arrested in Prince George County, Maryland, where he was charged by Laurel City police officer M.W. Bond ¹ with driving under the influence of alcohol. At that time, appellant was driving the 1973 Cadillac which had been stolen in Chesapeake from Greenleaf Auto. Bond first noticed the car because it had no rear license plate; however, a plate on the front bore Virginia numbers JWM-271. Bond decided to investigate. When he first activated his siren and lights, appellant continued to drive away from Bond until six blocks later, where he stopped when he found himself entering a one-way street from the wrong direction. As Bond approached the car, he observed numerous items of property in its back seat. There were two passengers in the front seat of the car, both of whom Bond recognized as local residents. As Bond neared the Cadillac he smelled the odor of alcohol and asked appellant to get out of the car.

When appellant was asked to produce some identification, he handed Bond a woman's (Patricia Gneville) driver's license. Bond looked at the license and asked appellant "what [his] name was." Appellant responded that it was "Willie Coke." ² At this point, Bond ran a computer check on the license plate and found it had been stolen from Patricia Ann Fitchette. Bond then ran the cadillac identification number through the computer and discovered that the car had been stolen from Greenleaf Auto in Chesapeake. Appellant was arrested and charged with driving while under the influence of alcohol, transported to the police station by another patrol officer and advised of his Miranda rights. Having determined that appellant was in possession and control of the stolen Cadillac, Bond twice asked him where he had obtained the car. Appellant responded with two questions: "Well, what are you talking about?" and, "Why do you want to know?"

Bond made an inventory of the contents of the Cadillac prior to its impoundment. The inventory revealed that in appellant's possession and/or under his control were the stolen Cadillac, personal checks, a Thundersound equalizer, bags of assorted keys, a stereo cassette, an 8-track adapter, various papers, and Virginia license plates with numbers FWB-490 and FWN-271, all taken from Greenleaf Auto; a military business ID card with number 17518, a calculator, one briefcase, two window-lock keys, and three Yale Materials with Tom Ricks' name on it, all except the ID card taken from the premises of Sydnor Industries; and ten sets of keys taken from Cavalier Ford, which were removed from appellant's suitcase in which a Polaroid picture of appellant was also found.

The inventory included the license plate stolen from Fitchette, driver's license of Gneville, a number of billfolds belonging to other people, and various items of women's jewelry. None of these items were stolen from the Chesapeake business victims named in the indictments. The list was introduced into evidence to rebut appellant's assertions that he was unaware that the Cadillac and items found in it had been stolen.

At the same time that the items shown on the inventory list were stolen from Bill Elliott's a 1979 Ford Thunderbird belonging to that company was also stolen from its premises. In addition, at the time the ten sets of keys were stolen from Cavalier Ford a Ford van was also stolen from its premises. These automobiles apparently were abandoned by the thief and had been returned to the owners prior to appellant's arrest in Maryland.

Appellant testified on his own behalf. He denied that he committed the break-ins, and stated that he had bought the Cadillac from a man named James, whom he had met at a local bar. He did not produce James as a witness at trial. On cross-examination, appellant stated that he was aware of the presence of the calculator and some jewelry on a "plaque" that was in the glove compartment but denied that there was a bag containing jewels. He specifically denied any knowledge of Patricia Gneville's driver's license, the identification card of Thomas Ricks, the military ID card of David Dunn, and the sets of automobile and clock keys. He further denied that he had given Gneville's card to the police officer. Generally, he denied knowledge that the many items found either in the back seat or trunk of the Cadillac were stolen, asserting that they must have belonged to "James." He admitted that prior to the trial he had told no one that the stolen items belonged to James, and he did not claim that he told Officer Bond that he had purchased the vehicle from James.

Officer Bond was recalled by the Commonwealth to rebut appellant's denial that he gave Gneville's driver's license to Bond, to show that there was a bag containing a substantial amount of jewelry, and for the purpose of introducing the inventory list to show appellant's knowledge of the stolen items which were in his possession or under his control.

Appellant asserts that the trial court committed reversible error by refusing to grant his motion to sever the trials on the four separate indictments charging him with violation of Code § 18.2-91 (breaking and entering). He concedes that the trial of the larceny counts arising out of two breaking and entering indictments properly could be tried at the same time as the related burglary charge if the breaking and entering trials were severed. He argues that Rule 3A:6(b), Godwin v. Commonwealth, 6 Va.App. 118, 367 S.E.2d 520 (1988) and Cook v. Commonwealth, 7 Va.App. 225, 372 S.E.2d 780 (1988) give him the absolute right to separate trials.

Because appellant relies heavily on the majority opinion in Godwin, a threshold question we must decide is the effect, if any, that opinion has on the matter before us. Initially, we note that the dissent in Godwin opined that the issue the Court was required to decide was not as stated by the majority but was whether the trial court abused its discretionary power when it found the existence of a common scheme or plan and denied the defendant's motion to sever. Godwin, 6 Va.App. at 125, 367 S.E.2d at 524 (Baker, J., dissenting). The majority in Godwin did not address that issue. Subsequent to Godwin, Cheng v. Commonwealth, 240 Va. 26, 393 S.E.2d 599 (1990), was decided. A threshold issue in Cheng involved Rules 3A:6(b) and 3A:10(b), and the effect of the phrase "parts of a common scheme or plan."

A court may direct that an accused be tried at one time for all offenses pending against him if (1) "justice does not require separate trials," Rule 3A:10(b), and (2) "the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan," Rule 3A:6(b). Whether different offenses should be tried separately is a matter that rests within the sound discretion of a trial court. Fincher v. Commonwealth, 212 Va. 552, 553, 186 S.E.2d 75, 76, cert. denied, 409 U.S. 913 [93 S.Ct. 243, 34 L.Ed.2d 174] (1972); Bryant v. Commonwealth, 189 Va. 310, 315, 53 S.E.2d 54, 46 (1949). Thus, a trial court's ruling on the matter will not be reversed absent a showing that the court abused its discretion. Fincher, 212 Va. at 553, 186 S.E.2d at...