Wyatt v. Commonwealth

• Decision Date: 13 January 2015
• Docket Number: Record No. 1409-13-3
• Court: Virginia Court of Appeals
• Parties: MICHAEL EDWARD WYATT v. COMMONWEALTH OF VIRGINIA

MICHAEL EDWARD WYATT v. COMMONWEALTH OF VIRGINIA

Record No. 1409-13-3

COURT OF APPEALS OF VIRGINIA

JANUARY 13, 2015

UNPUBLISHED

Present: Chief Judge Huff,^* Judge Petty and Senior Judge Annunziata

Argued at Lexington, Virginia

MEMORANDUM OPINION^** BY JUDGE ROSEMARIE ANNUNZIATA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

Stacey W. Moreau, Judge

James C. Martin (Martin & Martin Law Firm, on briefs), for appellant.

Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Michael Edward Wyatt, appellant, appeals his convictions of statutory burglary, grand larceny, and possession of a firearm by a convicted violent felon. A jury considered the burglary and grand larceny charges and, upon the same evidence, the trial court decided the firearm charge. Appellant advances the following assignments of error on appeal:

(1) The trial court erred by denying his motion for mistrial and to set aside the verdicts due to juror misconduct;

(2) The trial court erred by denying his motion for mistrial and to set aside the verdicts because the trial court failed to instruct the jury whether the sentences would run consecutively or concurrently;

(3) The trial court erred by overruling a motion in limine and later refusing to set aside the verdicts or grant a mistrial because of the unrelated and irrelevant evidence of eluding the police;

(4) The trial court erred by refusing to set aside the verdicts and grant a mistrial because, if the evidence of eluding was to be admitted, a police video should have been admitted;

(5) The trial court erred in upholding the jury's verdict in the grand larceny charge despite the lack of sufficient evidence in that only a very few of the stolen items were found on appellant;

(6) The trial court erred in upholding the jury's verdict of statutory burglary despite the lack of sufficient evidence of appellant's connection to the burglary;

(7) The trial court erred in ruling that the evidence was sufficient to convict of possession of a firearm after having been convicted of a violent felony where the failure to connect appellant to the burglary was also a failure to connect him to the possession of any firearm; and

(8) The trial court erred in overruling the motion to modify the sentence because the lack of instruction to the jury on whether the sentences would be consecutive or concurrent created a situation where the total sentence imposed was an abuse of discretion, as well as being cruel, unusual, and constitutionally disproportionate to the facts of the case and to the factors which ought to have been considered in sentencing, thus violating the Eighth Amendment to the U.S. Constitution and Article I, § 9 of the Virginia Constitution.

Finding no error, we affirm the judgments of conviction.

Background

"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)). Viewed in this light, the evidence adduced at trial established the victims were away from their home for five hours on a Sunday. When they returned home, they discovered their home had been ransacked. The victims reported that numerous items were missing, including a television, several pieces of jewelry, and fifteen "working firearms." One victim testified the back door was pried open with "some type of tool."

Within forty-eight hours of the break-in, Investigator Johnny Owens went to a hotel in Danville to locate appellant. Owens saw appellant leave the hotel and enter his vehicle. Owens attempted to block appellant's vehicle; however, appellant avoided Owens, drove out of the parking lot, and led police on a high-speed chase. After some time, appellant jumped out of his vehicle and attempted to flee on foot. Owens and other officers pursued him and observed that appellant was running with his right hand "tucked in tight" to his waistband area. When the officers caught appellant, he initially refused to release his hand. In appellant's right front pocket, the officers found an eyeglass bag containing four rings, later identified as jewelry stolen from the victims' home. The officers did not recover any other property taken from the home, including the firearms.

Investigator Marcus Jones interviewed appellant four days after his arrest. Appellant denied having any memory of the rings. However, when shown a picture of the rings, he stated he found them in a plastic bag at a dumpster and, in a recorded phone call, made from the jail, appellant stated he obtained the rings at a flea market, on a Sunday. In another recorded call, appellant told a woman to get rid of a big, red, screwdriver.

At trial, appellant presented alibi evidence that he was working at the residence of another individual during the time of the break-in.

Juror Misconduct

Appellant contends the trial court erred by denying his motions for mistrial and to set aside the verdicts because a juror failed to disclose she had knowledge of the offenses and that appellant had additional charges in another jurisdiction.

The Supreme Court of Virginia has "repeatedly held that if a defendant wishes to take advantage on appeal of some incident he regards as objectionable enough to warrant a mistrial, he must make his motion timely or else be deemed to have waived his objection." Yeatts v. Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991) (citing Cheng v. Commonwealth, 240 Va. 26, 38-39, 393 S.E.2d 599, 605-06 (1990); Price v. Commonwealth, 213 Va. 113, 121, 189 S.E.2d 324, 330 (1972); Brown v. Commonwealth, 208Va. 512, 518-19, 158 S.E.2d 663, 668-69 (1968); Russo v. Commonwealth, 207 Va. 251, 257, 148 S.E.2d 820, 825 (1966)). More particularly, when a defendant learns of alleged juror misconduct during the trial, but fails to move for a mistrial at the time the misconduct is discovered, the defendant waives appellate review of the juror's misconduct. Riner v. Commonwealth, 268 Va. 296, 318, 601 S.E.2d 555, 567 (2004) (citing Rule 5:25, the Rule of the Virginia Supreme Court that articulates the contemporaneous objection rule); see alsoYeatts, 242 Va. at 137, 410 S.E.2d at 264 (holding a motion for mistrial was untimely when it was made the day after the alleged objectionable incident occurred).

Perry v. Commonwealth, 58 Va. App. 655, 676-77, 712 S.E.2d 765, 776 (2011).

Appellant learned midday at trial that appellant's daughter, Dawn Jones, was acquainted with a juror. The juror was the half-sister of Jones' ex-boyfriend. Jones testified the juror was present during a conversation Jones had with another relative of the juror and her ex-boyfriend, during which Jones discussed appellant's pending criminal charges and the police chase.

Appellant did not make any inquiry about, or object to, the juror's truthfulness in voir dire when he learned of the issue during the course of the trial. Appellant first raised the argument he presents on appeal in a post-trial motion to set aside the jury verdicts and declare a mistrial. As in Perry, this Court will not speculate as to why appellant did not object at the time he learned of the potential error. Such decision to wait until after the jury's verdict was an untimely motion for mistrial and a failure to comply with the contemporaneous objection requirement of Rule 5A:18. See Perry, 58 Va. App. at 679-80, 712 S.E.2d at 777.

Appellant asks that the Court apply the ends of justice exception to Rule 5A:18 based on the lengthy sentence imposed for the offenses. "'[T]here are two distinct requirements that [appellant] must meet before we can apply the ends of justice exception: (1) that the trial court erred, and (2) that a grave or manifest injustice will occur or the appellant will be denied essential rights.'" Masika v. Commonwealth, 63 Va. App. 330, 334-35, 757 S.E.2d 571, 573 (2014) (quoting Brittle v. Commonwealth, 54 Va. App. 505, 512-13, 680 S.E.2d 335, 339 (2009)). Appellant has satisfiedneither requirement. Appellant failed to show that the trial court erred. He failed to establish the juror knew Jones was speaking about the appellant or that she heard the conversation about appellant's pending criminal charges and the police chase. Further, a lengthy sentence is neither a manifest injustice nor a denial of essential rights. Accordingly, because appellant did not preserve this issue for appeal and the ends of justice exception does not apply, we will not consider the merits of this assignment of error.

Jury Question

Appellant argues the trial court erred by refusing to set aside the verdicts and declare a mistrial because the jury was not told whether the sentences would be run consecutively or concurrently. Appellant concedes he agreed to provide no answer in response to the jury's inquiry at the time the question was posed. Well after trial, appellant filed his motions to set aside the verdicts and declare a mistrial. Appellant failed to make a timely objection to the trial court's action. See Yeatts, 242 Va. at 137, 410 S.E.2d at 264.

Appellant again asks this Court to apply the ends of justice exception to Rule 5A:18 due to the lengthy sentence he received. As noted previously, the length of the sentence received does not warrant the application of Rule 5A:18's ends of justice exception, as it does not constitute a manifest injustice or a denial of essential right. In short, appellant has shown no trial court error. Further, "'[a] party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory. Nor may a party invite error and then attempt to take advantage of the situation created by his own wrong.'" Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (20...