COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
JULIUS J. SCOTT, S/K/A
JULIUS JAMES SCOTT
OPINION BY
v. Record No. 2521-98-1 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Charles E. Haden for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his convictions of two counts of robbery, in
violation of Code § 18.2-58, and two counts of use or display of
a firearm in the commission of a robbery, in violation of Code
§ 18.2-53.1, Julius J. Scott contends (1) that the trial court
erred in admitting into evidence his codefendants' unreliable
hearsay statements, (2) that the evidence was insufficient to
support his convictions, and (3) that the trial court lacked
jurisdiction. Finding no error, we affirm the judgment of the
trial court.
I. Background
On appeal, we review the evidence in
the light most favorable to the
Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. The
judgment of a trial court sitting without a
jury is entitled to the same weight as a
jury verdict and will not be set aside
unless it is plainly wrong or without
evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
Around midnight on February 1, 1998, Robert Randolph and
Jacqueline James were shopping for food at a 7-Eleven store.
They then crossed the street to a Food Lion store, where they
made a purchase. They were followed outside by three men who
robbed them of $8 in cash and less than $10 worth of groceries.
Detective Larry Rilee interviewed Maurice Sirls, Kawaski
Bass, and Scott concerning the robbery.
Sirls told Detective Rilee that he, Bass, and Scott drove
to Newport News and parked behind a 7-Eleven. They walked
across the street to a Food Lion parking lot, where they robbed
a white couple who left the store. Sirls stated that he used a
handgun to rob the man and that Scott used an antique gun to rob
the woman.
Bass told Rilee that he, Sirls, and Scott went to Newport
News in Scott's mother's car and parked behind a 7-Eleven. They
waited outside the Food Lion for a man and woman to come out.
Bass stated that he did not have a firearm but that Sirls had a
.25 caliber handgun and Scott had an unloaded old handgun. Bass
stated that Sirls robbed the male victim. Bass denied that he
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participated in the robbery, stating that he walked off a
distance to put himself away from the scene.
Scott, having been properly advised of his Miranda rights,
told Detective Rilee that he was in his mother's car with Sirls
and Bass. They discussed and planned a robbery. After parking
behind a 7-Eleven, they walked to the Food Lion. He said that
Sirls produced a gun and took money from the male victim and
that he checked the female victim's pockets. He admitted taking
groceries from the female victim. He denied that he actually
produced a gun, but admitted that he possessed a weapon and had
exposed it so that the victims could see it.
Over Scott's objection, the trial court admitted Sirls'
statement into evidence. It also admitted Bass' statement, to
which Scott made no objection.
Scott, then seventeen years old, was charged initially in
juvenile and domestic relations district court. On May 28,
1998, the juvenile and domestic relations district court found
probable cause for the charges and transferred Scott to the
trial court. Sirls, Bass, and Scott were tried jointly in a
bench trial. Scott was convicted of two counts of robbery, in
violation of Code § 18.2-58, and two counts of use of a firearm
in the commission of robbery, in violation of Code § 18.2-53.1.
The trial court sentenced him to a total of sixty-eight years
imprisonment, with forty years suspended.
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II. Admissibility of Codefendants' Statements
Citing Lilly v. Virginia, 119 S. Ct. 1187 (1999), Scott
first contends that the trial court erred by admitting Sirls'
and Bass' statements into evidence. Whether the statements were
unreliable hearsay is an issue that can be considered on appeal
only if properly preserved. See Rule 5A:18; Jones v.
Commonwealth, 230 Va. 14, 18 n.1, 334 S.E.2d 536, 539 n.1
(1985). At trial, Scott did not object to the statements as
hearsay. When Sirls' statement was tendered, Scott's counsel
objected as follows: "[a]lthough these people are being tried
together, I don't think the [trial c]ourt should consider
statements of co-defendants against each other." Confronted
with Randolph v. Commonwealth, 24 Va. App. 345, 482 S.E.2d 101
(1997), Scott's counsel replied, "I feel that case only applies
if the witnesses are unavailable. They are certainly available
and to my knowledge they haven't been subpoenaed." Scott lodged
no objection to the introduction of Bass' statement.
To preserve an issue for appeal, objection must be made
with specificity. See Rule 5A:18. This requirement applies to
claims of constitutional deprivation. See Deal v. Commonwealth,
15 Va. App. 157, 161, 421 S.E.2d 897, 898 (1992). By failing to
raise before the trial court his claim that Sirls' and Bass'
statements were unreliable hearsay, Scott denied the trial court
the opportunity to address and correct the error of which he now
complains. Thus, he failed to preserve that issue for appeal.
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See Simmons v. Commonwealth, 6 Va. App. 445, 450-51, 371 S.E.2d
7, 10 (1988). 1
III. Sufficiency of the Evidence
Scott next contends that the evidence is insufficient to
support his convictions. He argues that the Commonwealth did
not prove that the robbery of Randolph and James was the same
robbery confessed by the three defendants.
Randolph identified Sirls and Bass as two of the three
robbers who attacked him and James in the Food Lion parking lot.
Sirls' statement to Detective Rilee described how he, Bass, and
Scott parked at a 7-Eleven at "Glendale and Warwick" and crossed
the street to the Food Lion. Both Randolph and Detective Rilee
described the Food Lion as being in the Hidenwood neighborhood.
The testimony of Randolph and Detective Rilee and the statements
made by Sirls, Bass, and Scott are not inherently incredible and
are sufficient to support the trial court's finding that Sirls,
Bass, and Scott robbed Randolph and James.
IV. Jurisdiction of Trial Court
At Scott's sentencing hearing, his mother testified that he
was mentally retarded and was enrolled in special education
classes. Scott contends that a juvenile can be transferred to
1
In Bass v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___
(2000), we held that admission of the codefendants' statements
into evidence violated Lilly and was error, albeit harmless
error. In Bass, the Commonwealth did not raise the procedural
bar raised in this case.
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the circuit court for trial as an adult only if the requirements
of Code § 16.1-269.1 have been followed strictly. He argues
that the juvenile court made no findings regarding his mental
retardation and that this omission denied jurisdiction to the
circuit court under Code § 16.1-269.1. See Code
§ 16.1-269.1(A)(4)(i).
Scott's argument ignores Code § 16.1-269.1(E), which
provides:
[A]n indictment in the circuit court cures
any error or defect in any proceeding held
in the juvenile court except with respect to
the juvenile's age.
Id. Any error made by the juvenile court in failing to make
findings as to Scott's mental retardation was cured by the
return of indictments in the trial court.
The judgment of the trial court is affirmed.
Affirmed.
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