Parker v. Commonwealth

421 S.E.2d 450, 14 Va. App. 592, 8 Va. Law Rep. 3123, 1992 Va. App. LEXIS 153

• Court: Court of Appeals of Virginia
• Decided: June 2, 1992
• Docket: Record No. 0979-91-1
• Status: Published

Opinions

Opinion

BARROW, J.

This appeal is from a conviction of robbery with the use of a firearm. The defendant contends that (1) evidence that the get-away car was stolen was inadmissible evidence of another crime and (2) a mistrial should have been ordered when an alternate juror was discovered to have remained in the jury room during part of the jury’s deliberations. We hold that the evidence that the automobile was stolen was admissible and that the defendant, who did not seek a mistrial, cannot now complain because the trial court failed to order one.

STOLEN CAR

After the defendant robbed the bank, he was seen escaping in a red Monte Carlo with Florida license plates. Later, a red Monte Carlo with Florida license plates was found in a nearby parking lot. The car doors were open; the engine was still running; no key was in the ignition; an odor of tear gas was present inside the car; and red dye was on the passenger side window. An explosive dye pack containing tear gas and red dye had been placed with the money that the bank teller had given to the defendant. The vehicle had been stolen in Norfolk a few days earlier. Fingerprints taken from the stolen car matched those of the defendant.

While evidence that an accused committed other crimes is generally not admissible to prove the crime charged, it may be admissible if relevant to an issue or element required to be proven. Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985) (citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)). See also Williams v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962). Evidence of a separate crime is admissible where it is “connected with or leads up to the offense for which the accused is on trial.” Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 381 (1988), cert. denied, 490 U.S. 1009 (1989). A “continuous and interwoven” course of criminal conduct, “consisting of a series of related crimes” need not be “ ‘sanitized’ ” of “all but the immediate crime” for which an accused is on trial. Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 577 (1984). “[A]ll of the relevant and connected facts, including those which followed the commission of the crime on trial, as well as those which preceded it” are admissible “even though they may show the defendant guilty of other offenses.” Id. However, even where evidence of another crime falls within one of the stated exceptions, its probative value must outweigh any incidental prejudice to the defendant before it is admissible. Sutphin, 1 Va. App. at 245, 337 S.E.2d at 899.

Evidence that the red Monte Carlo was stolen was connected with the offense for which the accused was on trial. The fact that it was stolen tended to corroborate the Commonwealth’s contention that the car was the one used to escape from this bank robbery. Furthermore, evidence that it was stolen enhanced the likelihood that the defendant had robbed the bank because it reduced the likelihood that the true owner of the automobile had done so. Finally, no evidence was presented that the defendant had stolen the automobile and, therefore, evidence that it was stolen did little, if anything, to prejudice the defendant beyond its proper purpose to show that the defendant, as opposed to someone else, committed the robbery.

ALTERNATE JUROR

Twenty-five minutes after the jury began its deliberations, the trial court discovered that an alternate juror had not been excused and was inadvertently allowed to accompany the jury into the jury room. The trial judge asked defense counsel if he wanted him to “tell the rest of the jurors why she’s no longer with them?” Defense counsel responded that he “would prefer that to having one just disappear from the deliberations.” The trial judge then recalled the jury to the jury box and explained to them why the alternate juror was removed and instructed them to return to the jury room. Defense counsel then said, “For the record, Judge, we’re going to object to the irregularity of the jury. I think they were out twenty-five minutes and there were thirteen jurors back there deliberating, sir.” The court responded, “Well, she will certainly have nothing to do with the final conclusion rendered by the jury at this point. I’m going to overrule your motion, note your exception for the record.”

An overwhelming majority of courts that have considered the question have concluded that the presence of an alternate juror at any time during jury deliberations is a fundamental irregularity requiring a mistrial. State v. Bindyke, 220 S.E.2d 521, 530 (N.C. 1975). However, in this case, the defense counsel did not request a mistrial.

An error is sufficiently preserved for consideration on appeal if a party “at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor.” Code § 8.01-384 (emphasis added). Additionally, “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18. This rule serves to “avoid unnecessary appeals, reversals and mistrials by allowing the trial judge to intelligently consider an issue and, if necessary, to take corrective action.” Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc).

Arguably, an objection, without more, should be sufficient to accomplish this purpose; however, on occasion more is required. If a party disagrees with the action of the trial court, the statement of an objection and the grounds of the objection are required. Code § 8.01-384. If, however, the party does not simply disagree with the action of the trial court, but seeks the trial court to take action, that action must be expressly sought. Id. For example, improper comments or conduct during closing argument may not be the basis for reversal unless a timely motion for a mistrial is made. Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990); see also Martinez v. Commonwealth, 241 Va. 557, 559 n.2, 403 S.E.2d 358, 359 n.2 (1991). A motion for mistrial is required to preserve such an issue for appeal even if an objection is made to the conduct or comments and is overruled by the trial court. Morris v. Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464 (1992) (en banc).

Similarly, in this case, a motion for a mistrial was required to assure that the trial court was advised of the action the defendant sought. Merely stating an objection to “the irregularity of the jury” failed to indicate what action the defendant wanted the trial court to take. Defense counsel may have been seeking a cautionary instruction or a voir dire of the jury to determine what effect, if any, the alternate juror had on the jury’s deliberations. Precedent compels us to conclude that, even though the defendant voiced an objection, his failure to seek a mistrial or other action by the trial court prevents considering this error as a basis for a reversal. See Cheng, 240 Va. at 38, 393 S.E.2d at 605-06. See also Martinez, 241 Va. at 559 n.2, 403 S.E.2d at 359 n.2; Morris, 14 Va. App. at 286-87, 416 S.E.2d at 464.

For these reasons, the judgment of conviction is affirmed.

Affirmed.

Moon, J., concurred.