Dennis Wade Haynes v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
DENNIS WADE HAYNES
MEMORANDUM OPINION * BY
v. Record No. 0615-94-4 JUDGE JAMES W. BENTON, JR.
JUNE 6, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
Perry W. Sarver, Judge
Kermit L. Racey, II (Racey & Racey, on brief),
for appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Dennis Wade Haynes was indicted for two offenses of burglary
and one offense of attempted burglary. He was tried for those
three felonies and two misdemeanor charges at one trial. At the
conclusion of the Commonwealth's evidence, the trial judge
granted the Commonwealth's motion to amend the attempted burglary
indictment to charge burglary with the intent to commit larceny
in violation of Code § 18.2-89. On this appeal, Haynes raises
the following issues:
1. Whether the trial judge erred in allowing
the Commonwealth to amend the attempted
burglary indictment pursuant to Code
§ 19.2-231 to charge burglary;
2. Whether the amendment violated Haynes'
constitutional right against double jeopardy;
3. Whether the trial judge erred in
admitting in evidence statements of a co-
conspirator made to a police officer after
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the termination of the criminal enterprise
and outside of Haynes' presence;
4. Whether Haynes received ineffective
assistance of counsel from his court-
appointed counsel; and
5. Whether the evidence was sufficient to
prove Haynes' guilt beyond a reasonable
doubt.
For the reasons that follow, we dismiss the appeal in part and we
affirm the convictions.
I.
The record establishes that Haynes's trial counsel failed to
object at trial to several issues that are now raised on appeal.
Although Haynes seeks to raise at this time issues concerning
the amended indictment, when the Commonwealth moved at trial to
amend the indictment from an attempted burglary to burglary,
Haynes's trial counsel did not object that such an amendment
would be unlawful. Counsel also made no objection that such an
amendment would violate the prohibition against double jeopardy.
In fact, counsel said of the amendment, "I don't know of any
reason for saying it cannot be done at this point."
The record also reflects that Haynes's trial counsel voiced
no objection to Investigator Jenkins's testimony concerning the
statements related to Jenkins by the other participant in the
burglaries. We find no indication that this issue was raised in
any fashion at trial.
Rule 5A:18 bars our consideration of these issues on appeal.
This Court has repeatedly held that the Court of Appeals will
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not consider an issue on appeal which was not presented in the
trial court. See Jacques v. Commonwealth, 12 Va. App. 591, 593,
405 S.E.2d 630, 631 (1991). Moreover, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
II.
Haynes contends that his trial counsel was ineffective in
failing to preserve these issues for appeal. Claims of
ineffective assistance of counsel, however, may no longer be
raised on direct appeal. Code § 19.2-317.1, which allowed, under
certain circumstances, direct appeal of claims concerning the
ineffectiveness of trial counsel, was repealed in 1990. 1990 Va.
Acts, c. 74. See also Walker v. Mitchell, 224 Va. 568, 570-71,
299 S.E.2d 698, 699-700 (1983). Accordingly, we dismiss the
appeal of this issue. Id. at 571, 299 S.E.2d at 700.
III.
Haynes's counsel did move to strike the evidence. Our
review of Haynes's challenge to the sufficiency of the evidence
is guided by a well established principle. "On appeal, we review
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
Brian Woodward, the other participant in the burglaries,
testified that he and Haynes both needed money. They decided
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that breaking into houses "seemed to be the only way" to obtain
money. Woodward testified that when he and Haynes arrived at the
first house, Haynes decided that the phone line should be cut so
that no one could call the police. After they cut wires, they
opened the back storm door, walked into the house, and took a
purse from the living room. At the second house, Woodward cut
the screen on the door and Haynes picked the lock of an interior
door. They took a purse from the dining room of the house. At a
third house, they opened an unlocked basement door and entered.
When they were unable to open a door that led to the main part of
the house, they left.
Jason Judd testified that on the day following the
burglaries, he heard Haynes and Woodward discussing their
participation in the burglaries. Judd testified that he became
angry at Woodward and criticized Woodward for participating in
the burglaries.
The trial judge, as fact finder, explicitly found the
testimony of Woodward and Judd to be reliable. The trial judge
rejected Haynes's alibi defense and found that the testimony of
the alibi witness was not worthy of belief. "The weight which
should be given to evidence and whether the testimony of a
witness is credible are questions which the fact finder must
decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). The testimony of Woodward and Judd was
competent, was not inherently incredible, and was sufficient to
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prove beyond a reasonable doubt that Haynes committed the charged
offenses.
For these reasons, the appeal is dismissed in part and the
judgment is affirmed.
Dismissed, in part, and affirmed.
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