Durrette v. Commonwealth

JAMES CARROLL DURRETTE v. COMMONWEALTH OF VIRGINIA

Record No. 1316-18-4

COURT OF APPEALS OF VIRGINIA

FEBRUARY 18, 2020

UNPUBLISHED

Present: Judges Huff, Russell and Athey

Argued at Fredericksburg, Virginia

MEMORANDUM OPINION^* BY JUDGE WESLEY G. RUSSELL, JR.

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Louise M. DiMatteo, Judge

Helen Randolph, Assistant Public Defender II, for appellant.

Mason D. Williams, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

James Carroll Durrette was convicted by an Arlington County jury of two counts of burglary and one count of grand larceny. One burglary was committed on September 17, 2015, at the Dominion Arms Apartments, and the other burglary, as well as the related grand larceny, took place on January 18, 2016, at the Cavendish, an apartment building.¹ Appellant contends that the trial court erred by admitting "evidence of an unadjudicated bad act[, a burglary that was committed in Fairfax County,] where it failed to show the presence of a common scheme, prejudicing the jury to infer conformity with a general bad act." For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND²

Jerry Fitzgerald pled guilty in connection with burglaries and thefts at the Dominion Arms Apartments, the River House Apartments, and the Cavendish, all located in Arlington County. He testified that appellant was his accomplice for the offenses. Fitzgerald testified that he and appellant broke into all three apartment complexes for the purpose of stealing money from the value transfer machine ("VTM") in each building.³ In the course of his testimony, Fitzgerald provided commentary on video surveillance footage that the Commonwealth played for the jury.

August 15, 2015 burglary at the River House Apartments

The jury was shown surveillance video of an August 15, 2015 burglary at the River House Apartments, which are located in Arlington County. Fitzgerald testified that he pried open a window while appellant and another accomplice, Billy Carter, remained outside. Later, appellant and Fitzgerald returned to enter the building through the previously opened window. The video shows Fitzgerald covering the security camera with an umbrella; Fitzgerald testified that, while he was covering the camera, appellant broke into the VTM and stole money. The time-stamped video shows Fitzgerald at 2:20 a.m. and, with Fitzgerald obscuring another security camera with the umbrella, depicts two men leaving the building through a separate exit at 2:22 a.m. Fitzgerald testified that appellant gave him a "cut" of the money taken from the VTM.September 17, 2015 burglary at the Dominion Arms Apartments

The jury was shown surveillance video of a September 17, 2015 burglary at the Dominion Arms Apartments, and Fitzgerald provided commentary. He identified himself and appellant as they entered the building. Fitzgerald testified that he used a screwdriver to gain access to the lobby. Fitzgerald covered his face with a shirt, and appellant used a black hat and his shirt to cover most of his face, making it difficult to identify him. After entering the building, Fitzgerald covered an interior surveillance camera with a piece of paper. Fitzgerald and appellant left the building, but returned later. Because Fitzgerald and appellant eventually encountered a security guard, they left the building without damaging the VTM or obtaining any money from it.

January 18, 2016 burglary at the Cavendish

The jury was shown surveillance video of a January 18, 2016 burglary at the Cavendish. Fitzgerald testified that on January 18, 2016, he and appellant entered the Cavendish using a screwdriver to pry open the front door. Fitzgerald, wearing a disguise, disabled the surveillance camera in the laundry room where the VTM was located. According to Fitzgerald, after the camera was disabled, he and appellant used screwdrivers, prying tools, and a circular blade grinder to break into the VTM and obtain money from it. They left the building with the money.

June 30, 2016 burglary at the Woodlake Towers Apartments

Prior to trial, the Commonwealth filed a notice indicating that it would "move the [trial c]ourt to admit evidence of a Fairfax burglary sharing the same modus operandi as the charged offenses to prove the defendant's identity." Specifically, the Commonwealth sought permission to introduce video surveillance and other evidence demonstrating that Fitzgerald, appellant, and another accomplice burglarized a VTM machine on June 30, 2016, at the Woodlake Towers Apartments in neighboring Fairfax County.

In addition to its notice, the Commonwealth filed a memorandum asserting that evidence of the Woodlake Towers burglary was admissible under the modus operandi exception to the general prohibition on evidence of other criminal acts. Appellant filed a responding memorandum, arguing that "[t]he Fairfax . . . break in shares no idiosyncratic characteristic with the Arlington charges," and therefore, "there exists no common modus operandi" that would allow for the admission of the Woodlake Towers evidence.

The trial court held a hearing on the issue on March 1, 2018. The Commonwealth reiterated its written argument that the Woodlake Towers evidence was admissible to prove identity under the modus operandi exception; appellant argued that the crimes were not sufficiently idiosyncratic to fall within the exception. The trial court granted the Commonwealth's motion from the bench, stating that the evidence was admissible because "it's the same modus operandi." At no point in the proceedings below did the Commonwealth, the appellant, or the trial court reference the "common scheme" exception to the general prohibition on evidence of other criminal acts.

At trial, the jury was shown surveillance video of a June 30, 2016 burglary at the Woodlake Towers Apartments. Because the surveillance camera at the Woodlake Towers Apartments was hidden, the burglars did not cover it or take sufficient steps to mask their identities. Fitzgerald testified and confirmed that he, appellant, and Carter committed the burglary. The camera captured close-up images of appellant's face as he and Fitzgerald accessed the VTM. Fitzgerald testified that he, appellant, and Carter cut open the VTM with a circle grinder. Fitzgerald pled guilty in Fairfax County to those offenses.

The jury convicted appellant of committing burglary at the Dominion Arms Apartments on September 17, 2015, and committing burglary and grand larceny on January 18, 2016, at the Cavendish. The jury was unable to reach a verdict regarding the charges that appellantcommitted burglary and grand larceny for the burglary at the River House Apartments on August 15, 2015. Accordingly, the trial court declared a mistrial as to those charges.

This appeal follows. In his sole assignment of error, appellant argues that the trial court committed reversible error by "permitting the Commonwealth to enter evidence of an unadjudicated bad act where it failed to show the presence of a common scheme, prejudicing the jury to infer conformity with a general bad act." (Emphasis added).

ANALYSIS

I. Standard of Review

In general, we review a challenge to a trial court's decision to admit evidence under the familiar abuse of discretion standard. Massey v. Commonwealth, 67 Va. App. 108, 138 (2016). Our resolution of this appeal, however, turns on the interpretation and application of Rules of the Supreme Court of Virginia. Such an inquiry presents a question of law subject to de novo review. Minor v. Commonwealth, 66 Va. App. 728, 738 (2016).

II. Rule 5A:12, Rule 5A:18, and the Limits of Appellate Review

One of the hallmarks of appellate review is that it is what it purports to be—a review. As a general rule, appellate courts may consider only arguments actually made to and judgments actually rendered by the trial court. Rules 5A:12 and 5A:18 implement this concept.

Rule 5A:12(c)(1) provides that a petition for appeal "shall list . . . the specific errors in the rulings below-or the issue(s) on which the tribunal or court appealed from failed to rule[.]" Rule 5A:12(c)(1)(ii) explains that "[a]n assignment of error which does not address the findings, rulings, or failures to rule on issues in the trial court . . . from which an appeal is taken . . . is not sufficient." Rule 5A:12(c)(1)(ii) also specifies the sanction for failing to assign error to what the trial court actually did, providing that "[i]f the assignments of error are insufficient, the petition for appeal shall be dismissed." Thus, we are precluded from considering appellate argumentsthat are not tied to the rulings of the trial court.⁴ See Coleman v. Commonwealth, 60 Va. App. 618, 621 (2012).

While Rule 5A:12(c) limits an appellant to challenging what a trial court actually did, Rule 5A:18 generally limits an appellant to arguments that he actually made. Subject to limited exceptions not applicable here, Rule 5A:18 provides that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling[.]" Thus, "Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial court has 'an opportunity to rule intelligently on the issues presented,'" Brown v. Commonwealth, 279 Va. 210, 217 (2010) (emphasis added) (quoting West v. Commonwealth, 43 Va. App. 327, 337 (2004)), and we "will not consider an argument on appeal which was not presented to the trial court," Le v. Commonwealth, 65 Va. App. 66, 73 (2015) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)).

Here, appellant's assignment of error asserts that the trial court erred in admitting "evidence of an unadjudicated bad act" under the "common scheme" exception to the general prohibition against evidence of other criminal acts. However, the trial court did not admit any evidence pursuant to the common scheme exception, expressly ruling that the...