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.
- 5 -