Rawls v. Com.

• Decision Date: 15 September 2006
• Docket Number: Record No. 052128.
• Citation: 634 S.E.2d 697
• Parties: Jarrit M. RAWLS v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

634 S.E.2d 697

Jarrit M. RAWLS v. COMMONWEALTH of Virginia.

Record No. 052128.

Supreme Court of Virginia.

September 15, 2006.

COPYRIGHT MATERIAL OMITTED

Michael L. Ritchie, Harrisonburg (Ritchie Law Firm, on briefs), for appellant.

Eugene Murphy, Senior Asst. Atty. General (Robert F. McDonnell, Atty. General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice LAWRENCE L. KOONTZ, JR.

Jarrit M. Rawls was convicted by a jury in the Circuit Court of Rockingham County of possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. In an unpublished per curiam opinion, the Court of Appeals denied Rawls' petition for appeal. Rawls v. Commonwealth, Record No. 2049-04-3 (May 13, 2005). We awarded Rawls this appeal in which he challenges (1) the validity of his waiver of indictment, (2) the Commonwealth's amendment of the arrest warrant upon which the case was tried, (3) the sufficiency of the evidence to support his conviction, and (4) the denial of his motion for a mistrial upon the jury rendering an initial verdict for twice the mandatory sentence before rendering a verdict for the mandatory sentence after further deliberation. For the reasons set forth below, we will affirm the judgment of the Court of Appeals.

BACKGROUND

On September 25, 2003 police officers went to Rawls' residence to execute a warrant for his arrest for violating the terms of his probation imposed from a prior criminal conviction. The officers located Rawls in an upstairs bedroom and, following a search of the bedroom, found a .22 caliber handgun between the mattress and box spring of the bed in that room. Subsequently, a warrant was issued charging Rawls with possession of a firearm by a felon in violation of Code § 18.2-308.2 and further describing the charge against Rawls as possession of a firearm "after having been convicted of a felony not defined in § 17.1-805."¹

Rawls waived his right to a preliminary hearing and filed a motion to waive indictment. At two hearings held thereafter Rawls stated to the trial court his intention to waive indictment and proceed to trial upon the warrant. However, Rawls did not sign a written waiver of indictment in the presence of the trial court as required by Code § 19.2-217.

On the morning of trial, the Commonwealth moved to amend the allegation in the warrant from possession of a firearm after conviction of a felony "not defined in [Code] § 17.1-805" to possession of a firearm after conviction of a felony "as defined in [Code] § 17.1-805." (Emphasis added.) Under the proposed amendment, the reference to Code § 18.2-308.2 remained the same. The Commonwealth contended that the amendment was permissible because Rawls had notice of the charge against him and because the amendment would affect only the available punishment, not the substantive charge. Rawls objected, asserting that since he waived indictment on the original warrant, the case should proceed to trial on the allegations as stated in that warrant.

The trial court granted the Commonwealth's motion to amend the warrant, ruling that the amendment was permissible because the charged offense, possession of a firearm after conviction of a felony, remained the same between the original and amended warrant. The trial court then offered Rawls a continuance. Rawls declined, and the trial proceeded that day as scheduled.

The following evidence was adduced at trial, which was bifurcated into guilt and penalty phases. We will recite the evidence in the light most favorable to the Commonwealth, the prevailing party at trial. Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005); Dixon v. Commonwealth, 270 Va. 34, 37, 613 S.E.2d 398, 399 (2005).

Rawls resided in a four bedroom rental home along with four male roommates. When police officers arrived at this home, they were admitted entry by a man who was in the downstairs living room with two other men. Upon being asked for Rawls, the men directed the officers to a bedroom at the top of the stairs on the second floor.² The door to the bedroom was closed. When the officers knocked on the door, Rawls opened it. The officers noted that Rawls was alone in the bedroom, and that Rawls' appearance and clothing suggested that he had been sleeping. The officers advised Rawls of the warrant for his arrest for a violation of his probation. Immediately, Rawls blurted out that the bedroom was not his, and that it belonged to his roommate.

Rawls proceeded to dress by selecting an outfit from various articles of clothing that were scattered about the room, including a pair of size ten shoes. Rawls also gathered two or three pairs of socks to take with him. One of the officers escorted Rawls from the house and transported him to the Rockingham County Sheriff's Office.

The remaining officers proceeded to search the bedroom. At the head of the bed, between the mattress and box spring, the officers found a loaded .22 caliber handgun in a holster.

The bedroom also contained several pairs of size ten shoes, but no shoes of any other size. Male clothing was strewn throughout the bedroom, but no female clothing was found. In a shoebox, the officers found a pay stub and a Virginia identification card both bearing Rawls' name. Various other papers bearing Rawls' name were found in another part of the room. No items were found bearing any other person's name.

In response to subsequent questioning by the police, Rawls maintained that the bedroom belonged to a person named "Softy" or "Maurice." With regard to his own use of the room, Rawls maintained that he kept personal belongings in the room but did not stay there. He admitted that his shoe size was ten.

After the Commonwealth presented its case, Rawls introduced evidence to establish that numerous individuals had access to the bedroom. Generally, the testimony of Rawls' witnesses indicated that although the bedroom belonged to Rawls, the roommates and their friends occasionally used the bedroom to watch television or to sleep. According to the roommates, the front door and bedroom doors of the home were always unlocked.

After deliberation, the jury returned a verdict finding Rawls guilty of the offense charged in the amended warrant. Proceeding to the penalty phase, the trial court instructed the jury that the mandatory punishment was imprisonment for five years.³ Nevertheless, the jury rendered a verdict for a ten-year sentence. Rawls moved for a mistrial. The trial court denied the motion and explained the instructions to the jury. Upon further deliberation, the jury rendered a verdict for the mandatory sentence of imprisonment for five years.

Rawls filed a post-trial motion to set aside the verdict. In support of this motion, Rawls first argued that his waiver of indictment was invalid because he had not signed it as required by Code § 19.2-217.⁴ Rawls also contended that the trial court erred in permitting the Commonwealth to amend the warrant. Rawls asserted that if his waiver of indictment was valid, then that waiver was limited to the original warrant and did not apply to the amended warrant. Rawls further contended that the evidence was insufficient to prove his possession of the firearm. Finally, Rawls contended that the jury's initial rendering of a verdict for a ten-year sentence, after being instructed that five years was the mandatory sentence, required the declaration of a mistrial.

The trial court held a hearing and overruled Rawls' motion to set aside the verdict, rejecting all of Rawls' contentions except his challenge to the validity of his waiver of indictment. Thereafter, in a letter opinion dated May 28, 2004, the trial court denied the motion as to Rawls' challenge to the validity of the waiver of indictment, ruling that while the waiver of indictment did not comply with the statutory requirements of Code § 19.2-217, Rawls waived his objection when he failed to object until after the trial.⁵ Subsequently, the trial court sentenced Rawls to a term of imprisonment of five years in accord with the jury's verdict.

Rawls filed a petition to the Court of Appeals, asserting the same contentions he previously made in the trial court in his motion to set aside the verdict. The Court of Appeals denied the petition.⁶ The Court of Appeals determined that Rawls was barred from challenging the validity of the waiver of indictment by failing to raise the issue until after the jury returned its verdict.⁷ The Court of Appeals also concluded that the trial court did not err in allowing the Commonwealth to amend the original warrant because the amendment affected only the available punishment, not the "nature and character" of the charged offense. Additionally, the Court of Appeals held that the evidence was sufficient to support Rawls' conviction and that the trial court did not err in refusing to declare a mistrial after the jury initially returned a verdict for a ten-year sentence rather than the mandatory five-year sentence. This appeal followed.

DISCUSSION

We will address each of Rawls' four assignments of error in order. Rawls' first assignment of error states that "[t]he Court of Appeals erred when it ruled that the trial court was not clearly erroneous in proceeding with a trial under a waiver of indictment that failed to comport with the statutory requirements of Virginia Code § 19.2-217."

The requirement that the defendant be indicted is "not jurisdictional and constitutionally imposed but is only statutory and procedural." See Triplett v. Commonwealth, 212 Va. 649, 650, 186 S.E.2d 16, 17 (1972). Thus, it may be waived by the defendant. But, when a defendant insists upon his statutory right to an indictment, "the failure of the trial court to adhere to [that] procedural requirement[] is reversible error." Id. at 651, 186 S.E.2d at 17. Here, however, Rawls' assignment of error does not address the determination by both the trial court and the Court of Appeals that he did not timely raise his...