Today’s only published opinion from the Court of Appeals, Jason Laufetette Brooks v. Commonwealth of Virginia, comes to the Court from Loudoun County, a once bucolic rural locale which has seen explosive growth as the denizens of the crowded DC suburbs have sought open spaces and (comparatively) affordable housing. Along with that suburban growth, alas, comes the concomitant increase in suburban crimes.
While I mostly view automobiles as basic transportation, I am aware that others view them as extensions of their personalities and both dealer packages and after-market upgrades to tailor a personalize a vehicle can run into some serious money. For example, while I am content to putter about in my basic economy sedan on mid-priced tires from the local Firestone, others prefer to cruise around on rims and tires that cost more than my first car.
During the summer of 2016, Loudoun County suffered a spate of unusual larcenies – high-end late-model SUVs were being relieved of their rims and tires. The crimes all occurred in single-family housing subdivisions. The owners would awake in the morning to find their vehicles sitting on cinderblocks. In a few instances, the owners had wisely purchase locking lug nuts, and instead found only damage caused by the thief’s attempts to break the locks and occasionally other damage to the vehicle and property missing from inside.
In September, an officer in faraway New Jersey pulled Brooks over in a white Ford Explorer. We are not sure why, as the opinion does not say and the legality of the stop is not at issue, but the officer apparently had enough to obtain a search warrant, finding a GPS unit, cinder blocks, a car jack, and a socket wrench with sockets of varying sizes. Additionally, there was an access card for a self-storage unit and on Brooks’ cell phone contained a link to an online article titled “Tire Bandit Strikes Again” regarding the tire and rim thefts in Loudoun County.
A subsequent search of the self-storage unit revealed found lug nuts, lug nut keys, tires, rims, and personal property stolen from one of the vehicles. Also found in the unit and at Brooks apartment in Maryland were business cards for “Deals on Wheels” a tire and rim resale business started by Brooks in 2015.
Brooks ended up being indicted for grand larceny, grand larceny with intent to sell, unlawfully entering a motor vehicle, and damaging a property belonging to another; a total of 22 charges. Brooks, or more likely his counsel, figured that he might stand a better chance with separate trials for each incident, whereas the Commonwealth clearly favored a single trial.
To try charges arising from separate incidents in a single trial, the Commonwealth must show that the incidents are part of a common scheme or plan or are otherwise so idiosyncratic that they must have been committed by the same person. The circuit court found that the various thefts were sufficiently similar to permit the Commonwealth to try all the charges together, and today the Court of Appeals agrees.
The Court’s opinion really does not cover any new ground on what constitutes a common scheme or plan – schemes and plans are not precisely the same thing, and if you want a quick lesson or refresher on the difference and why it usually doesn’t matter, Brooks provides a good summary. What is perhaps new in this case is another element of the test to allow combined trials – the Commonwealth must have a good reason not to sever the trials because “justice so requires.”
The requirement of justice is a balancing test between judicial economy and the danger of unfair prejudice. Typically, the unfair prejudice arises from the tendency of a jury to believe that if the defendant committed one offense, he likely committed them all. Thus, evidence from the victim or a witness of one offense, normally not admissible in a separate trial of a different offense, becomes admissible in the combined trial. In this case, however, the Court found that the evidence of the several offences “had multiple ‘stark similarities’ that, assuming a proper foundation was laid, would have been admissible in the other trials under Rule 2:404” “to show, inter alia, motive, identity, knowledge, and criminal intent.”
What is missing from this opinion – or rather what is missing from this fact pattern in so many similar cases – is whether Brooks was offered a chance to strike a deal for leniency. Specifically, I’d like to know if the Commonwealth considered offering Brooks a deal if he would drop a dime on his customers who received stolen property. Why? Because the market for high-end SUV rims and tires is obviously people who own high-end SUVs. It may come as a shock – akin to Capt. Renault’s discovery of gambling at Rick’s Café American – that people who can afford high end SUVs (or have the credit to make it appear so) do not always want to pay retail for those fancy upgrades and are willing to suspend disbelief that folks like Brooks could offer such great deals on wheels legitimately. So long is that market thrives, there will be someone else to supply the goods even as Mr. Brooks serves his time.