Spence v. Commonwealth
| Decision Date | 10 July 2012 |
| Docket Number | Record No. 1195–11–1. |
| Citation | 60 Va.App. 355,727 S.E.2d 786 |
| Court | Virginia Court of Appeals |
| Parties | Jarrod Antonio SPENCE v. COMMONWEALTH of Virginia. |
OPINION TEXT STARTS HERE
From the Circuit Court of the City of Chesapeake, Bruce H. Kushner, Judge.1
Carmelou G. Aloupas, Assistant Public Defender (Chesapeake Public Defender's Office, on brief), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: PETTY, BEALES and ALSTON, JJ.
Jarrod Antonio Spence appeals his convictions for two counts of robbery, Code § 18.2–58, one count of abduction, Code § 18.2–47, three counts of the use or display of a firearm in the commission of a felony, Code § 18.2–53.1, and one count of unlawfully wearing a mask in public, Code § 18.2–422. Spence assigns the following errors to the judgment of the trial court: (1) the trial court abused its discretion in denying Spence's motion for a mistrial after a particular statement by one of the Commonwealth's witnesses; (2) the trial court erred in denying Spence's motions to strike and upholding his convictions in accordance with the verdicts of the jury, as the testimony and evidence at trial failed to prove that Spence was the perpetrator of the crimes in question; and (3) the trial court erred in denying the public defender's motion to withdraw and to relieve the entire Public Defender's Office from representing Spence, as Spence made a serious threat against a senior assistant public defender that should have been imputed to the entire office. For the reasons set forth below, we disagree with Spence's arguments and therefore affirm his convictions.
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).
On March 2, 2010, a man wearing a mask entered a SuperMart in Chesapeake, pointed a gun at the store owner and the two employees who were present at the time, and told them to put their hands up. One of the employees ran to a back room, but the robber went and brought him back into the main room at gunpoint. The other employee gave the robber money out of both cash registers, in the approximate amount of $4,100 to $4,200. The surveillance camera photographs introduced into evidence show the robber wearing a dark, hooded jacket or sweatshirt of some type, with a tag or label on the lower left front side, as well as distinctively marked gloves. The photographs also show the robber pointing a dark handgun in various directions.
On the evening of March 11, 2010, the police received a call from the owner of the SuperMart regarding a suspicious car parked near his store.2 Chesapeake Police Officer Timothy L. Donahue responded 3 and saw Spence in the vicinity of the SuperMart, in front of a nearby apartment complex between two large fern trees. When Officer Donahue first encountered Spence, Spence was wearing a dark jacket, zipped up, with a knit cap on his head and the hood of his jacket pulled over his head. The jacket also had a tag or label on the lower left front side. Officer Donahue asked Spence how he got where he was, and Spence pointed to his car nearby. The car had obviously been parked there before it had started raining. After leaving Spence with Officer Bruce E. Ilapit by Spence's car, Officer Donahue walked back over to the trees in front of the apartment and found a pair of gloves and a handgun behind one of the trees. Officer Ilapit also subsequently went and saw the gloves and gun. Although Officer Ilapit acknowledged that he did not know how long the gloves and gun had been there, he did point out that they were dry and that it was raining outside. A third officer subsequently placed a nearby chair over the area where the gloves and gun were lying, in an effort to protect them, since he saw that it was drizzling rain at the time and that there was “a lot of water run-off coming off the roof [of the apartment building].” The police photographs show that the gloves and gun were lying on the ground in a haphazard fashion, as if someone had quickly or carelessly tossed them there.
Prior to trial, the senior assistant public defender who had been appointed to represent Spence moved to withdraw as counsel for Spence, and the trial court granted this motion, due to some type of threat that Spence had apparently made to this attorney.4 The senior assistant public defender asked that the entire Chesapeake Public Defender's Office be relieved from representing Spence, and the trial court scheduled another hearing to have the public defender appear personally and argue why another attorney in her office could not represent Spence. After hearing argument from the public defender, the trial court took the matter under advisement. Two weeks later, the trial court issued a letter to counsel in which it re-appointed the Chesapeake Public Defender's Office for the public defender to assign the case to a different attorney.
At trial, the store owner testified that he could identify the robber by his height and voice, and he stated that Spence's height was “about the same” as the height of the robber. The owner also testified that the robber's eyes were not covered by the mask and that the robber was African–American. Furthermore, the DNA expert testified that based on her analysis of the gloves, Spence “could not be eliminated as a contributor to the DNA mixture profile developed from the gloves.” 5 Significantly, the gloves had the same color and distinctive markings as the gloves worn by the robber. Likewise, the handgun was of a similar color and appearance to the handgun used by the robber.
During defense counsel's cross-examination of the store owner, the following exchange occurred:
[Defense Counsel:] So you don't know if it's this man wearing those gloves in that picture?
[Witness:] Like I said, I could identify him by his height and his voice.
[Defense Counsel:] But you don't know if it was this man wearing those gloves on that day, March 2, 2010, do you?
[Witness:] Well, when they caught him the second time, he had the gloves on already.
After this statement, defense counsel moved for a mistrial outside the presence of the jury, arguing that the store owner's statement indicated to the jury that Spence had committed a second offense. During the discussion accompanying this motion, the trial court proposed the idea of instructing the jury to disregard the store owner's statement. Defense counsel expressed his appreciation for the trial court's “willingness to caution the jury,” yet reiterated his motion for a mistrial. The trial court denied his motion.
Subsequently, after conversing with the witness and conferring further with counsel, the trial court decided to permit counsel for the Commonwealth “to make further inquiry to allow [the store owner] to clarify his testimony.” Once the jury returned, the following exchange took place:
[Commonwealth:] [W]hen you talked about the second time, were you talking about a second time when you thought you saw the guy that robbed this store?
[Witness:] Yes.
[Commonwealth:] So the first time, March 2, the day of the robbery, the second time about a week or so later?
[Witness:] A week later. Maybe a little bit les [sic].
[Commonwealth:] Did you call the police?
[Witness:] Yes.
[Commonwealth:] And did you see the police come?
[Witness:] Yes.
[Commonwealth:] Did you see the police take someone into custody?
[Witness:] Yes.
The store owner also clarified that he did not actually see the person the police took into custody on March 11, acknowledging that “[h]e was far away.” The trial court did not give the jury any special instruction regarding the store owner's earlier statement.
Later in the trial, defense counsel renewed his motion for a mistrial and asked the trial court “to consider again a cautionary instruction to the jury.” The judge acknowledged, “I initially was inclined to offer a cautionary instruction to the jury.” However, the judge proceeded to state:
After hearing additional examination of [the store owner], I felt that I would draw attention to something that did not deserve attention to be drawn to and would, perhaps, create a greater problem than it cured. I don't think there has been any indication to this jury that there was another offense that was committed, but rather, a second day that [the store owner] saw Mr. Spence, or in his mind saw Mr. Spence a second time, not the date of a second robbery or second criminal action by Mr. Spence.
Accordingly, the trial court concluded that neither a mistrial nor a cautionary instruction was appropriate. The judge reasoned:
I believe that a cautionary instruction would draw attention to something that doesn't deserve attention being drawn to and would be to the detriment, quite frankly, of Mr. Spence because it might imply to the jury that there's something they need to think about, was there a prior offense, was there another crime that was committed by this defendant, and thereby prejudice this jury against Mr. Spence.
Spence was convicted of two counts of robbery, one count of abduction, three counts of the use or display of a firearm in the commission of a felony, and one count of unlawfully wearing a mask in public. He was sentenced to a total of seventy-six years imprisonment with eleven years suspended. This appeal followed.
Spence first argues that the trial court abused its discretion in denying his motion for a mistrial. We find no error in the trial court's ruling.
The standard for reviewing a trial court's ruling on a motion for a mistrial is well established:
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