Willie Jones, Jr v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Alexandria, Virginia
WILLIE JONES, JR.
MEMORANDUM OPINION * BY
v. Record No. 3453-01-2 JUDGE ROBERT J. HUMPHREYS
JANUARY 7, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
Leonard R. Piotrowski, Deputy Public Defender
(Office of the Public Defender, on brief),
for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Willie Jones, Jr., appeals his conviction by a jury of two
counts of robbery. Jones contends the trial court erred in 1)
admitting into evidence testimony concerning Jones' conduct prior
to the robberies; 2) refusing to admit into evidence certain
letters; and, 3) finding the evidence sufficient, as a matter of
law, to support his convictions. For the reasons that follow, we
affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
The issue Jones first raises on appeal concerns the trial
court's admission of the testimony of Roy Hurd. Jones argues
Hurd's testimony was hearsay not subject to any exception and
therefore constituted inadmissible evidence of Jones' prior bad
act. We disagree.
At trial, Hurd testified that he worked as a desk clerk at
the Heritage Inn Motel, located at 5308 Jeff Davis Highway. He
stated that he knew Jones because Jones had stayed at the motel on
several occasions in the past. On January 7, 2001, Jones, who was
not a guest at the motel at the time, approached Hurd and "said he
was in need of money and wanted to know if [Hurd would] let him
rob him and he would give [Hurd] part of the money." Hurd
testified that he did not take Jones seriously, and told him
"don't even joke like that because I'd never do anything like
that."
The following day, Jones returned and proposed the robbery to
Hurd again. Hurd testified that he again told Jones he would not
"do anything like that and . . . don't kid around like that."
Jones left, but returned an hour later, through the back door.
Hurd stated that, at that time, Jones was wearing a "pair of
pantyhose over his head and face." Jones' jacket was "open," and
he had his left hand under the jacket "like he had something in
his hand." He stated "this a robbery." Hurd told Jones "he could
tell it was him." Hurd testified that Jones was surprised that
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Hurd was able to identify him and seemed disappointed. Jones then
left.
Subsequently, on January 19, 2001, the Heritage Inn was
robbed. On that date, Helen Blake was working as the front desk
clerk. Blake testified that between 10:00-10:30 p.m., she was in
the break room eating dinner when she heard wood cracking. She
turned to find that a man had kicked in the door. Blake described
the man as a slim, "light-skinned black man," approximately 5 feet
8 inches tall. She stated that he wore a "plum-colored cloth
jacket," "gray sweatpants," "black tennis shoes and a black do-rag
over [his] face and [his] head."
Blake testified that the man's "jacket was open and he put
his finger . . . under the jacket and pointed it," and said
"[g]ive me your money." When Blake opened the cash register, the
man shoved her aside and took all the bills in the register,
leaving the coins. The man then left. He took approximately
$120-$140.
Approximately one month later, on March 18, 2001, the
McDonalds restaurant, across the street from the Heritage Inn, was
also robbed. Joyce Heflin testified that she was working in the
store as an assistant manager at that time. Shortly after she
unlocked the doors that morning, at 6:00 a.m., a man wearing a
green ski mask and a blue hooded sweatshirt entered. He grabbed
her by her hair, "put something to [her] back," and pushed her to
the office. Heflin testified that he stated "get in there, give
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me the money." After the store manager, Scott Benson, opened the
safe, the man took the bank deposit bag. The man then left.
Benson testified that the man wore jeans, a hooded sweatshirt
and a "dark ski mask." He described the man as a thin, black
male, approximately 5 feet 11 inches tall, weighing approximately
170-175 pounds. He stated that the man had one hand in his pocket
"and there appeared to be a gun in there." The man took over
$3,000.
We first note that the Virginia Supreme Court has "defined
hearsay evidence as 'testimony in court . . . of a statement made
out of court, the statement being offered as an assertion to show
the truth of matters asserted therein, and thus resting for its
value upon the credibility of the out-of-court asserter.'"
Jenkins v. Commonwealth, 254 Va. 333, 338-39, 492 S.E.2d 131, 134
(1997) (quoting Stevenson v. Commonwealth, 218 Va. 462, 465, 237
S.E.2d 779, 781 (1977)). "As a general rule, hearsay evidence is
incompetent and inadmissible." Neal v. Commonwealth, 15 Va. App.
416, 420, 425 S.E.2d 521, 524 (1992). However, "[i]t is well
established . . . that an out-of-court statement by a criminal
defendant, if relevant, is admissible as a party admission, under
an exception to the rule against hearsay." Bloom v. Commonwealth,
262 Va. 814, 820, 554 S.E.2d 84, 87 (2001). Thus, although Hurd's
testimony amounted to hearsay, it was uniquely relevant to the
issue of the identity of the perpetrator and thus, clearly
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admissible pursuant to the party admission exception to the
hearsay rule.
Additionally, we have consistently held that admissibility of
evidence is within the broad discretion of the trial court, and
the trial court's ruling in that regard will not be disturbed on
appeal in the absence of an abuse of discretion. Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)
(citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823
(1986)). Indeed, "[e]very fact, however remote or insignificant,
that tends to establish the probability or improbability of a fact
in issue, is relevant, and if otherwise admissible, should be
admitted." Harrell v. Woodson, 233 Va. 117, 122, 353 S.E.2d 770,
773 (1987).
Nevertheless, Jones correctly contends that "[g]enerally,
evidence of other offenses is inadmissible if it is offered merely
to show that an accused was likely to commit the crime for which
he is being tried. There are, however, well-established
exceptions to the general rule." Cheng v. Commonwealth, 240 Va.
26, 34, 393 S.E.2d 599, 603 (1990). Specifically, "evidence of
other crimes or other bad acts is admissible when relevant to
prove a material fact or element of the offense." Jennings v.
Commonwealth, 20 Va. App. 9, 15, 454 S.E.2d 752, 755 (1995)
(citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d
802, 805 (1970)). "[O]ne of the issues upon which 'other crimes'
evidence may be admitted is that of the perpetrator's identity, or
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criminal agency, where that has been disputed. Proof of modus
operandi is competent evidence where there is a disputed issue of
identity." Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d
609, 616 (1990).
Furthermore, "[e]vidence of other crimes, to qualify for
admission as proof of modus operandi, need not bear such an exact
resemblance to the crime on trial as to constitute a 'signature.'
Rather, it is sufficient if the other crimes bear 'a singular
strong resemblance to the pattern of the offense charged.'" Id.
at 90, 393 S.E.2d at 616 (quoting United States v. Hudson, 884
F.2d 1016, 1021 (7th Cir. 1989)). "That test is met where the
other incidents are 'sufficiently idiosyncratic to permit an
inference of pattern for purposes of proof,' thus tending to
establish the probability of a common perpetrator." Id. (quoting
Hudson, 884 F.2d at 1021).
Moreover, "'[o]ther crimes' evidence bearing sufficient marks
of similarity to the case on trial to establish the probability of
a common perpetrator is . . . usually relevant." Id. at 90, 393
S.E.2d at 617. Whether the evidence is "otherwise admissible" is
a question "that requires the trial court to weigh its probative
value against its prejudicial effect." Id.
The "other crime" presented to the jury in the present case,
by way of Hurd's testimony, was not identical to the crimes on
trial. However, the similarities between the offenses,
particularly the indications of a common modus operandi, strongly
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support the trial court's ruling. Indeed, the robberies,
especially those of the Heritage Inn, "were sufficiently
idiosyncratic and similar to each other to support an inference of
a pattern of operation and the probability of [a] common
perpetrator[]." Chichester v. Commonwealth, 248 Va. 311, 328, 448
S.E.2d 638, 649 (1994). Thus, we cannot say that under these
circumstances, the trial court abused its discretion in ruling
that the prejudicial effect of Hurd's testimony was outweighed by
its probative value, and we find no error in the trial court's
admission of that evidence.
Jones next contends the trial court erred in refusing to
admit letters written by witness Chavonne Blackwell. Jones argues
that the letters were inconsistent with Blackwell's testimony at
trial and were therefore admissible to impeach her testimony. We
disagree.
Code § 8.01-403 provides that:
[a] party producing a witness shall not be
allowed to impeach his credit by general
evidence of bad character, but he may, in
case the witness shall in the opinion of the
court prove adverse, by leave of the court,
prove that he has made at other times a
statement inconsistent with his present
testimony; but before such last mentioned
proof can be given the circumstances of the
supposed statement, sufficient to designate
the particular occasion, must be mentioned
to the witness, and he must be asked whether
or not he has made such statement. In every
such case the court, if requested by either
party, shall instruct the jury not to
consider the evidence of such inconsistent
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statements, except for the purpose of
contradicting the witness.
Thus, Jones is correct that prior inconsistent statements, under
certain circumstances, can be used at trial to impeach the
witness. Hall v. Commonwealth, 233 Va. 369, 375, 355 S.E.2d
591, 595 (1987). However, in the case at bar, the record
demonstrates that Jones never brought the circumstances
surrounding Blackwell's writing of the letters, nor the content
of the letters, to Blackwell's attention during her testimony.
Instead, Jones attempted to introduce the letters during his own
testimony.
Accordingly, because Jones failed to lay the proper
foundation for admission of the evidence, which requires the
proponent to bring the circumstances of the supposed statement
to the attention of the witness so that the witness can answer
whether or not he or she has made such statement, we find no
error in the trial court's decision to exclude it. See Edwards
v. Commonwealth, 19 Va. App. 568, 571, 454 S.E.2d 1, 2 (1995)
("An attorney may impeach a witness in this manner, 'provided a
foundation is first laid by calling his attention to the
statement and then questioning him about it . . . .'" (quoting
Hall, 233 Va. at 374, 355 S.E.2d at 594)).
Finally, Jones contends the trial court erred in finding the
evidence sufficient, as a matter of law, to support his
convictions. We again, disagree.
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Applying well-established principles of
appellate review, we must consider the
evidence and all reasonable inferences
fairly deducible therefrom in the light most
favorable to the Commonwealth. The burden
is upon the Commonwealth, however, to prove
beyond a reasonable doubt that [the
defendant] was the perpetrator of the
crimes. Additionally, circumstantial
evidence is as competent, and entitled to
the same weight, as direct testimony if such
evidence is sufficiently convincing.
Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668
(1991).
Jones argues that the evidence was insufficient to establish
he was the perpetrator of the crimes. However, we consider the
evidence as a whole in deciding whether it is sufficient to
support the jury's findings that Jones was the perpetrator of the
crimes. See Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d
808, 818 (1979). "While no single piece of evidence may be
sufficient, the 'combined force of many concurrent and related
circumstances, each insufficient in itself, may lead a reasonable
mind irresistibly to a conclusion.'" Id. (quoting Karnes v.
Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)).
Here, when considered in the light most favorable to the
Commonwealth, the evidence overwhelmingly supported the jury's
conclusion that Jones perpetrated the crimes. Perhaps most
importantly, Blackwell testified that Jones told her he committed
both crimes. Blackwell further testified that on the same day of
the McDonalds robbery, Jones gave Blackwell a $300 money order,
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and bought her approximately $1,600 worth of merchandise for her
home. Therefore, based upon the totality of the evidence, we find
no error in the jury's determination that the evidence established
Jones was the perpetrator of both robberies.
For the reasons stated herein, we affirm Jones' convictions.
Affirmed.
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