Otis Lee Weaver, Jr v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 18, 2000
• Docket: 0835994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Senior Judges Duff and Hodges

OTIS LEE WEAVER, JR. MEMORANDUM OPINION * BY v. Record No. 0835-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK JANUARY 18, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jonathan C. Thacher, Judge

(Robert C. Whitestone; Whitestone, Brent, Young & Merril, P.C., on brief), for appellant. Appellant submitting on brief.

(Mark L. Earley, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Otis Lee Weaver, Jr., appeals his convictions for two counts

of robbery and one count of abduction. We granted Weaver an

appeal on the issue whether the trial court erred when it failed

to instruct the jury not to consider certain inadmissible evidence

in response to an inquiry the jury made during its deliberations.

Upon reviewing the record and briefs of the parties, we conclude

that this appeal is without merit. Accordingly, we affirm the

decision of the trial court.

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

On June 17, 1998, employees of the First Union Bank branch

in the Kings Park Shopping Center called the Fairfax County

police about a person acting suspiciously who matched the

description of the suspected bank robber of the Old Keene Mill

First Union Bank branch on June 10, 1998. Officer Leeds,

responding to the police dispatch call, stopped appellant at the

shopping center. Leeds testified that no one else who matched

appellant's description was in the area. Appellant agreed to

accompany Leeds to the First Union Bank at the opposite end of

the shopping center. Officer Jones arrived and began to

question appellant. Jones saw a police flyer with the

photographs of the suspected bank robber at the beginning of his

shift that morning. Appellant told Jones that "he was a felon,

he was on probation in Baltimore, and he just wanted to get back

on the bus, because he didn't want to have any problems."

During a pat-down for weapons, appellant admitted that he

possessed marijuana and the police arrested appellant.

Subsequently, he was indicted on two counts of robbery, two

counts of use of a firearm, and abduction in connection with the

Old Keene Mill First Union Bank branch robbery on June 10, 1998.

In his opening statement at trial, the prosecutor told the

jury, without objection, that appellant was identified on

- 2 - June 17, 1998 by Kings Park First Union Bank employees based

upon a poster prepared following the robbery at the Old Keene

Mill First Union Bank on June 10, 1998. On the second day of

trial, appellant objected to any reference to the fact that his

arrest occurred near the Kings Park First Union Bank, arguing

that this information was unduly prejudicial because it implied

he was preparing to rob that branch. The Commonwealth argued

that it was entitled to introduce evidence concerning the

identification of appellant by bank employees based upon the

police poster and his suspicious actions. The trial court ruled

that the Commonwealth could introduce the police poster and the

hat and glasses taken from appellant at the time of his arrest,

but that the Commonwealth could not present evidence that

appellant was arrested near the Kings Park First Union Bank

branch while acting suspiciously. Following some additional

testimony referring to appellant's presence near the Kings Park

branch, appellant moved for a mistrial. The trial court denied

appellant's motion, but instructed the jury to consider only the

evidence relevant to the charges for which appellant was on

trial.

During deliberations, the jury asked "[w]as there any

testimony as to the purpose of [appellant] being at First Union

on 6-17-98 at Kings Park? If yes, can the jury have access to

it." After discussion with counsel, over appellant's

objections, the trial court instructed the jury that "you should

- 3 - reach your verdict based upon the collective recollection of the

jury." The trial court refused to instruct the jury to

disregard the events of June 17, 1998, ruling that any further

reference would draw undue attention prejudicial to either the

Commonwealth or appellant.

We find no error in the trial court's decision to instruct

the jurors to rely upon their collective recollection of the

evidence. "It is proper for a trial court to fully and

completely respond to a jury's inquiry concerning its duties."

Marlowe v. Commonwealth, 2 Va. App. 619, 625, 347 S.E.2d 167,

171 (1986). However, a jury may pose a question to which no

response may properly be given. See, e.g., McLean v.

Commonwealth, 30 Va. App. 322, 328-29, 516 S.E.2d 717, 720

(1999) (en banc). A trial court may provide supplemental

instructions to the jury over the objections of the defendant.

See id. at 333, 516 S.E.2d at 722.

Identification of appellant as the robber was the key issue

at his trial. Relevant evidence supporting the identification

of appellant as the June 10, 1998 robber included the fact that

employees of a branch bank recognized him on June 17, 1998 from

the police poster and that at the time of his arrest he was

wearing glasses and a hat matching those worn by the suspected

robber. Appellant was not entitled to exclude all evidence

arising from the events of June 17, 1998. However, any

suggestion that appellant was preparing to commit another

- 4 - robbery at the time of his arrest was prejudicial and was

properly excluded from the evidence. The trial court properly

responded to the jury's question. See generally Kennedy v.

Commonwealth, 18 Va. App. 543, 445 S.E.2d 699 (1994).

The jury asked if there was any testimony as to why

appellant was near the bank on June 17, 1998. The trial court's

previous ruling rendered any evidence of "why" inadmissible, but

certain facts about his arrest were relevant to the

Commonwealth's identification evidence. We cannot say that the

trial court's instruction to the jury to rely upon its

collective recollection was reversible error.

Accordingly, the decision of the circuit court is affirmed.

Affirmed.

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