Motion for separate trial correctly denied

Where appellant argues that joinder of his trial with that of a co-defendant’s was prejudicial, “his claims of prejudice are unpersuasive. …”

“This lack of actual prejudice is especially clear when considering the evidence introduced solely against appellant: namely, his multiple confessions and statements to his cousin about his plans to rob [the victim].”

Background

Appellant Coleman and Hargrove planned to rob Anderson, who had won money in a lottery. They broke into Anderson’s house. Anderson attempted to shoot at them but his gun jammed when appellant and Hargrove were running from the house. Hargrove and appellant returned fire. A shot struck and killed Anderson’s eight-year-old son.

“Appellant and Hargrove were charged with the same offenses. Over appellant’s objection, the court granted the Commonwealth’s motion to join their cases for trial.”

A jury convicted appellant of “first-degree murder, attempted robbery, armed burglary, discharging a firearm in an occupied building, conspiracy to commit burglary, conspiracy to commit robbery, and three counts of using a firearm in the commission of a felony.”

Proper joinder

“Appellant contends that the court erred by joining his case for trial with that of his co-defendant, Hargrove. He asserts that joinder prejudiced him because he could not ‘confront or cross-examine evidence … solely applicable to Hargrove,’ as Hargrove himself did not testify.

“Appellant insists that ‘all the admissions or statements of Hargrove [were] attributed to [appellant] absent his ability to cross-examine or confront Hargrove.’ …

“Appellant does not specify which prong of actual prejudice he is invoking: that a trial right was compromised or that the jury could not make a reliable judgment about guilt or innocence. …

“Regardless of which prong applies, appellant’s claims of prejudice are unpersuasive.

“First, he has not established why evidence introduced against Hargrove would have automatically been ‘attributed to [appellant] absent his ability to cross-examine or confront Hargrove.’

“For example, evidence of Hargrove’s arrest for possessing a gun as a felon was not attributed or connected to appellant; to the contrary, the plea and conviction appellant complains of were introduced to prove Hargrove’s possession of a gun used in the crimes.

“Further, the fact that some evidence was introduced only against Hargrove does not constitute actual prejudice to appellant.

“This lack of actual prejudice is especially clear when considering the evidence introduced solely against appellant: namely, his multiple confessions and statements to his cousin about his plans to rob Anderson.

“Ultimately, appellant has not identified any ‘trial right which was compromised or any basis for concluding the jury was prevented from making a reliable judgment about his guilt or innocence.’ …

“For these reasons, we find that the court did not abuse its discretion by joining appellant’s trial with Hargrove’s.”

Sufficient evidence

“Appellant argues that the evidence was insufficient to convict him of attempted robbery because there were no ‘demands for money or any personal property’ and the ‘home had [not] been ransacked.’

“He proposes an alternative theory that the intruders were merely seeking to harm Anderson, not steal from him.

“He also challenges the sufficiency of the evidence to establish his participation in the crimes because he claims that the witnesses who testified about his confessions were not credible and the evidence against him was circumstantial. …

“Appellant relies on Jay v. Commonwealth, 275 Va. 510, 525 (2008), to support his contention that the Commonwealth did not prove he intended to rob Anderson. Appellant’s reliance is misplaced. In Jay, the defendant’s conviction was reversed because, although he confessed that he intended to rob the victim, the Commonwealth did not prove an ‘overt act.’ …

“Here, the evidence established that appellant broke into Anderson’s home by force; clearly, an ‘overt act.’ … Appellant’s comments about ‘life-changing money’ reflected his intent, as did his multiple confessions after the crime when he admitted he went to Anderson’s house to rob him. …

“Moreover, the record lacks evidence to support appellant’s alternative theory that perhaps he was at Anderson’s residence for another purpose, such as to harm Anderson. …

“Accordingly, we cannot say that the jury’s rejection of appellant’s alternative theory was plainly wrong.”

Witness credibility

“Appellant also argues that the witnesses who testified against him were not credible. He asserts that Goodall and Knight were not worthy of belief due to their extensive criminal records and because they had pending criminal charges when they testified.

“Appellant further argues that Jefferson was biased against him based on her status as his ex-girlfriend and notes that she did not give a statement to police until after their relationship ended.

“The conclusions of the fact finder on issues of witness credibility ‘may only be disturbed on appeal if this Court finds that [the witness’s] testimony was “inherently incredible, or so contrary to human experience as to render it unworthy of belief.”’ …

“That the inmate-witnesses were awaiting trial on other charges and had felony records did not render their testimony ‘so contrary to human experience as to render it unworthy of belief’ as a matter of law. …

“The jury was aware of these facts, just as it knew that Jefferson was appellant’s ex-girlfriend and that she did not report her information about the crime until after their relationship ended. These circumstances are ‘appropriately weighed as part of the entire issue of witness credibility, which is left to the jury to determine.’”

Affirmed.

Coleman III v. Commonwealth, Record No. 0223-22-2, May 16, 2023. CAV (unpublished opinion) (O’Brien). From the Circuit Court of King William County (Bondurant). Kevin Purnell for appellant. Timothy J. Huffstutter, Jason S. Miyares for appellee. VLW 023-7-176, 12 pp.