Witt v. Com., 0194-90-1

• Decision Date: 29 September 1992
• Docket Number: No. 0194-90-1,0194-90-1
• Citation: 422 S.E.2d 465,15 Va.App. 215
• Parties: Robert Charles WITT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 465

422 S.E.2d 465

15 Va.App. 215

Robert Charles WITT v. COMMONWEALTH of Virginia.

Record No. 0194-90-1.

Court of Appeals of Virginia.

Sept. 29, 1992.

James O. Broccoletti, Norfolk (Zoby & Broccoletti, P.C., on brief), for appellant.

Kathleen B. Martin, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and WILLIS, JJ.

JOSEPH E. BAKER, Judge.

Robert Charles Witt (appellant) appeals from his jury trial conviction by the Circuit Court of the City of Portsmouth (trial court) for burglary and grand larceny. Appellant alleges the trial court erred (1) in failing to exclude certain portions of an audio tape as being evidence of other crimes, (2) by admitting into evidence the audio tapes when a proper foundation had not been laid, (3) by failing to grant a mistrial when the Commonwealth failed to link up portions of the "other crimes" evidence with the evidence presented at trial; and (4) by not granting a mistrial after a witness who was testifying claimed to be threatened by someone in the courtroom. For the reasons that follow, we reverse.

On appeal, we view the evidence in the light most favorable to the Commonwealth, granting to it all inferences fairly deducible therefrom. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). Viewed accordingly, the record discloses that on February 6, 1986, at approximately 10:00 p.m., appellant and Eli Campbell broke into the Navy Yard Credit Union building (credit union) in Portsmouth and stole $194,103 from the credit union safe. Prior to entry, appellant ascended a nearby telephone pole and cut the power supply line to the building and dismantled the alarm on the roof of the credit union. Believing that he heard the alarm sound, appellant, by means of a "walkie-talkie," notified Robert Kidd, his lookout, ¹ that he was temporarily ceasing the mission. Appellant left the scene for approximately one-half hour and then returned to complete the theft.

Kidd testified on behalf of the Commonwealth and admitted his part as the "hawk" (lookout) in the crimes. He stated that appellant was an electrician and planned the burglary. ² He and appellant had "checked out" the credit union building and had located the burglar alarm and the telephone line that would have to be cut. Kidd and appellant decided that Kidd's look-out position would be across the street in a second-floor room of a motel. From this position, Kidd communicated with appellant by walkie-talkie, as appellant made entry into the credit union.

Kidd kept with him in the motel room a special saw purchased for the purpose of opening the credit union safe. Appellant radioed a request to Kidd to bring the saw to appellant at a side door of the building. Kidd complied. Appellant and Campbell worked at opening the safe for approximately two hours, announced by walkie-talkie that they had succeeded and called for Kidd to pick them up. Again, Kidd complied. He was given a bag of money and told to meet them at appellant's electric shop. They departed, appellant and Campbell in one car and Kidd driving a separate car.

After meeting at the shop, Kidd threw the burglar tools in a canal. They then went to a motel, where they divided the money. Kidd received $62,000. The tools were later found, identified by Kidd and introduced into evidence.

Subsequently, Kidd was arrested and jailed in Virginia Beach for breaking and entering. When arrested, he had a gun in his possession. He previously had been convicted of approximately ten felonies. His interviews by Federal Bureau of Investigation agents and Virginia Beach police resulted in Kidd's agreement to reveal his part in the credit union theft and his cooperation in attempts to make recordings by body wire and telephone recordings of conversations with appellant. Kidd's objective was to procure and record statements that would incriminate appellant. Several recordings were made and introduced over objection at appellant's trial.

At trial, as the examination of Kidd was about to conclude, Kidd suddenly stated, "I'm being distracted." The Commonwealth's attorney asked to approach the witness and the trial court agreed. Both attorneys then approached the bench and the Commonwealth's attorney explained that an associate of appellant's was in the courtroom and was making threatening gestures toward Kidd. The trial court excused the jury and had the spectator removed from the courtroom. This spectator had been accompanying appellant's wife to the trial. Thereafter, the trial judge stated the following:

Now, before the jury comes back, I want to say that we had a gentleman escorted from the courtroom because there was a complaint that he was making gestures toward the witness. I did not see those gestures. I was watching the witness, so the Court did not see that. I have been advised by the bailiffs in this court, however, that that did as a matter of fact take place.

Appellant moved for a mistrial on the ground that Kidd's statement was audible to the jury; that the statement concerned a threat; and that the statement was prejudicial to appellant. Appellant's attorney also moved to proffer to the trial court evidence that certain spectators approached him during the recess to volunteer information they had about the incident. This motion was denied.

At the conclusion of the Commonwealth's evidence, appellant made a motion to strike. The trial court allowed appellant's attorney to proffer that Michael Pitt, an officer of the court, as well as other spectators in the courtroom heard Kidd tell the Commonwealth's attorney that the person who was removed from the courtroom had mouthed, "I'm going to get you." Appellant argued that it was impossible for the jury not to have heard Kidd's statement to the Commonwealth's attorney and, thus, appellant was prejudiced by the statement. The trial court overruled the motion to strike.

Appellant also moved the trial court to poll individually the jurors as to whether or not they heard anything Kidd said during his sidebar conference with the Commonwealth's attorney. This motion was overruled.

I. EXCLUSION OF THE AUDIO TAPES

Appellant first asserts that the trial court erred in failing to exclude certain portions of the audio tapes as being evidence of other crimes. At the hearing on appellant's motion in limine, the trial court deleted many parts of the audio tapes as being prejudicial to appellant. The parts that were not deleted contained appellant's references to police surveillance of his place of business, procedures or methods for dismantling alarms and gaining entry into credit unions in general, and references to the Navy Yard Credit Union.

Although the general rule in a criminal prosecution is to exclude evidence of other crimes for the purpose of proving the commission of the present crime, there are many exceptions to this rule. See Kirkpatrick v. Commonwealth, 211 Va. 269, 176 S.E.2d 802 (1970).

Evidence of other offenses is admitted ... 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. Also, testimony of other crimes is admissible where the other crimes constitute a part of the general scheme of which the crime charged is a part.

Id. at 272, 176 S.E.2d at 805. See also Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990); Cheng v. Commonwealth, 240 Va. 26, 34, 393 S.E.2d 599, 603 (1990).

We find that the trial court did not err in ruling that portions of the audio tapes were admissible. These portions of the tapes were probative of appellant's knowledge of dismantling alarm systems and of credit unions in general. The audio tapes fit into several exceptions to the general rule as listed in Kirkpatrick and affirmed in Cheng and Spencer. ³

The evidence of dismantling an alarm system as presented in the tapes shows remarkable similarity to Kidd's testimony of dismantling an alarm system. In one portion of the tapes, appellant discusses with Kidd the procedure to dismantle the alarm system at a specific credit union in Virginia Beach:

[T]he first thing you gotta do is cut the phone line and you have a back up.... Wait for at least 20 minutes or half hour because all of these credit unions now, I know this for a fact, they wired um [sic] so when you cut the phone wires it sets the alarm off.... Well anyway, if you do that, you're home free. It's one of the easiest other than the alarms, it's one of the easiest ones I've ever seen.

At trial, Kidd testified that by cutting the telephone line, "it shuts down the silent alarm system, and then you have to dismantle the bell box, burglar alarm." The trial court did not err in admitting the tapes.

II. AUDIO TAPES--PROPER FOUNDATION

A proper foundation must be laid for the introduction of all evidence. The burden is upon the party offering real evidence to show with reasonable certainty that there has been no alteration or substitution of it. But, the burden is not so absolute that one must eliminate all possibility of tampering.

Horsley v. Commonwealth, 2 Va.App. 335, 338, 343 S.E.2d 389, 390 (1986).

In the present case, Special Agent Cross of the Federal Bureau of Investigation testified that he made duplicates of the original body recordings between Kidd and appellant. Cross explained that the body recordings were made on reel-to-reel tapes and there are no counters on reel-to-reel recorder machines. In order to facilitate the playing and stopping of the tapes so that certain portions of the tape would not be played to the jury, a cassette tape recorder which has a counter on it would be easier to operate. Therefore, the duplicates of the body recordings were played to the jury. The telephone conversations that...