Johnson v. Commonwealth
| Decision Date | 01 May 2018 |
| Docket Number | Record No. 0699-17-2 |
| Court | Virginia Court of Appeals |
| Parties | MAKESHA JOHNSON v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Huff, Judges Russell and Malveaux
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
David B. Hargett (Hargett Law, PLC, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Makesha Johnson ("appellant") was convicted of robbery, in violation of Code § 18.2-58, and use of a firearm in the commission of a robbery, in violation of Code § 18.2-53.1. On appeal, she argues that the trial court erred in failing to grant a motion for a mistrial after a detective made a statement at trial mentioning a previous robbery. Appellant further argues that the trial court erred in refusing to give a proffered jury instruction that the "unexplained possession of stolen property" by itself is "not sufficient evidence to support a conviction for robbery." For the following reasons, we affirm.
John Puot was working as a taxi driver in the city of Richmond on May 30, 2016. At around 1:30 p.m., he received a phone call from a man asking to be picked up at an apartmentcomplex on Eric Road. Puot arrived there sometime between 2:00 p.m. and 2:30 p.m., and found a man and a woman "off the road" by the apartment complex. At trial, Puot identified the woman and the man as appellant and her codefendant, James Pettis.
Appellant got into the taxi and sat behind the driver, and Pettis sat next to her. Pettis told Puot that they wanted to go to the Fulton neighborhood, but did not give him a specific address. Instead, he told Puot that he would direct him as he drove. Pettis directed Puot to Denny Street, which ended in a cul-de-sac. Puot drove to the end of the cul-de-sac and stopped. Pettis asked him if he had change for a $50 bill. When Puot started pulling out money, Pettis pointed a gun at the back of his head and told him Appellant got out of the taxi, opened Puot's door, and asked him "[w]here's the money, where's the money?" Pettis again told Puot "[d]on't make any move," at which point appellant told Pettis, Appellant searched Puot and took his wallet, cell phone, and $30 in cash. Puot's wallet contained his driver's license and bank cards. After taking these items, appellant and Pettis told Puot to get out of the taxi, which he did. Pettis took the keys out of the ignition and started to leave with appellant. When they got to the other end of the cul-de-sac, they threw the car keys back toward Puot.
Puot's bank card was subsequently used that day at several different locations in Richmond, including City Dogs restaurant. A restaurant employee testified at trial that appellant and Pettis arrived around 3:30 p.m., ordered shots of alcohol, and asked the employee to call them a taxi. The receipt from the transaction shows that they paid with Puot's bank card around 4:00 p.m.
Another taxi driver testified at trial that he picked up two individuals at City Dogs on the day of the robbery, drove them to several places, and ultimately dropped them off at CamelotInn. A video recording showing appellant and Pettis in the taxi was introduced into evidence. At trial, the parties stipulated that in the video recording, appellant can be heard talking on the phone with a cell phone company and providing them with Puot's bank card number.
Around 5:15 p.m. that day, appellant checked into the Camelot Inn using her driver's license and Puot's bank card. The next day, the front desk manager found a gun covered in a washcloth in the room used by appellant. The manager also found Puot's driver's license and bank cards inside the toilet.
On June 9, 2016, Richmond Police Department officers saw a man and a woman matching the descriptions of appellant and Pettis walking on Eric Road, close to where Puot had picked up the passengers who robbed him. When the officers made eye contact with the man and the woman they fled, but the woman was soon apprehended and identified as appellant.
At trial, the Commonwealth asked Detective Brian Taylor of the Richmond Police Department if he had attempted to locate appellant and Pettis during his investigation of the robbery. The Commonwealth specifically asked, "Where was it that you went looking for them?" Taylor replied, "There was previous a robbery—." Following this statement, Pettis's counsel moved for a mistrial, and appellant's counsel joined in the motion. Counsel argued that a mistral was warranted because Taylor's answer was a "clear violation" of a pretrial motion to exclude evidence of prior robberies,1 and any reference to other robberies was prejudicial to appellant. The trial court noted that Taylor never fully replied to the question. The court asked counsel if she wanted the court to give a curative instruction, and counsel agreed with the court'ssuggestion to instruct the jury to disregard the witness' last answer. The court took the mistrial motion under advisement and directed the jury to "disregard the last answer that the detective gave in regard to the last question asked."
The trial court later denied the motion, finding that the detective's answer did not specifically say that Pettis and appellant were involved in a previous robbery, and noting that the court gave a curative instruction.
Counsel for appellant asked the trial court, over the Commonwealth's objection, to give the following jury instruction:
The mere unexplained possession of stolen property by the defendant, without more, is not sufficient evidence to support a conviction of robbery, but is merely one circumstance that may be considered. If you believe from the evidence that the defendant had in his possession property that was the subject of the robbery, but if you believe that the evidence as a whole fails to show beyond a reasonable doubt that the defendant was one of those perpetrating the robbery, then you cannot find the defendant guilty of robbery.
Counsel argued that the instruction was warranted because it was a correct statement of the law under Bazemore v. Commonwealth, 210 Va. 351, 170 S.E.2d 774 (1969). She further argued that it was an appropriate instruction because, unlike in most robbery cases, appellant was found in the possession of stolen goods. The Commonwealth acknowledged that the instruction was a correct statement of the law, but argued that it should not be given because it was duplicative and also emphasized "a particular aspect of the evidence." The court found that it was a correct statement of the law, but ruled that it would not give the instruction because it was duplicative and "this one element of unexplained possession as opposed to any other parts of the case is unnecessary and could be prejudicial against the Commonwealth."
The jury found appellant guilty of robbery and use of a firearm in the commission of a robbery. This appeal followed.
On appeal, appellant asserts that the trial court erred in failing to grant the motion for a mistrial based on the detective's statement mentioning a previous robbery.
Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420 (1993). "[A] trial court's denial of a motion for a mistrial will not be reversed on appeal unless there exists a manifest probability as a matter of law that the improper evidence prejudiced the accused." Mills v. Commonwealth, 24 Va. App. 415, 420, 482 S.E.2d 860, 862 (1997). In addition, the judgment "will not be reversed for the improper admission of evidence that a court subsequently directs a jury to disregard because juries are presumed to follow prompt, explicit, and curative instructions." Beavers, 245 Va. at 280, 427 S.E.2d at 420.
In the instant case, in response to a question from the Commonwealth about the location in which he was looking for appellant and Pettis, Detective Taylor responded, "There was previous a robbery—." According to appellant, this statement suggested to the jury that she was connected to a previous robbery. However, as the trial court noted, the detective's statement about a previous robbery did not necessarily imply that appellant had committed another crime. Rather, Taylor simply stated that there had been a previous robbery, and his answer did not explicitly link appellant to a prior criminal act.
Further, the trial court clearly instructed the jury to disregard Taylor's answer to the Commonwealth's question. "[I]t is always to be presumed that the jury followed an explicit cautionary instruction promptly given, unless the record clearly shows that the jury disregarded it." Spencer v. Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990). There is no evidence in the record that the jury disregarded the court's instructions. Based upon the nature of Taylor's answer and the curative instruction given by the trial court, we cannot conclude the court's failure to grant a mistrial created a "manifest probability as a matter of law" that Taylor's answer "prejudiced the accused." Mills, 24 Va. App. at 420, 482 S.E.2d at 862.
Appellant further contends that the trial court erred in not giving her requested jury instruction because the instruction was a correct statement of law, and evidence in the record supported the instruction.
"The purpose of any jury instruction is to inform the jury of the law guiding their deliberations and verdict."...
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