Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 010749 CHIEF JUSTICE HARRY L. CARRICO
January 11, 2002
MELVIN DOUGLAS SMITH, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
In the trial court, the defendant, Melvin Douglas Smith,
Jr., was indicted in connection with four murders. In
Indictment No. F-98-2375, he was charged with first degree
murder in the killing of Bruce Ross (Code § 18.2-32), in
Indictment No. F-98-2373 with capital murder in the killing of
Irvin Doughty as part of the same act or transaction as the
murder of Bruce Ross (Code § 18.2-31(7)), in Indictment No. F-
98-2379 with first degree murder in the killing of Kenneth
"Randy" Smith (Code § 18.2-32), 1 and in Indictment No. F-98-2383
with capital murder in the killing of Warrick Ray within three
years of the murder of "Irving Doughty and/or Bruce Ross and/or
Kenneth 'Randy' Smith" (Code § 18.2-31(8)).
Pretrial, the defendant filed a motion to sever, seeking
separate trials on the several charges against him. The trial
court denied the motion, and all the charges were submitted to
the same jury. The jury convicted the defendant only of first
degree murder in the killing of Kenneth "Randy" Smith
1
The defendant and Kenneth "Randy" Smith were not related.
(Indictment No. F-98-2379) and fixed the defendant's punishment
at fifty-five years in the penitentiary.
The jury acquitted the defendant of first degree murder in
the killing of Bruce Ross (Indictment No. F-98-2375) and of
capital murder in the killing of Irvin Doughty as part of the
same act or transaction as the murder of Bruce Ross (Indictment
No. F-98-2373). The jury failed to reach a verdict on the
charge of capital murder in the killing of Warrick Ray within
three years of the murder of Irvin Doughty, Bruce Ross, or
Kenneth "Randy" Smith (Indictment No. F-98-2383), and the trial
court declared a mistrial with respect to that charge. The
trial court imposed upon the defendant the fifty-five year
sentence fixed by the jury for the murder of Kenneth "Randy"
Smith, but suspended seven years of the sentence.
The defendant appealed his conviction for the murder of
Kenneth "Randy" Smith to the Court of Appeals. In a published
opinion, the Court of Appeals reversed the conviction, holding
that the trial court abused its discretion in refusing to grant
the defendant's motion for separate trials. Smith v.
Commonwealth, 35 Va. App. 68, 78, 542 S.E.2d 803, 807 (2001).
We awarded the Commonwealth this appeal.
The Commonwealth presented evidence before the jury showing
that on November 20, 1994, the defendant and a friend, Timothy
Leon Frazier, while armed, went to a convenience store in
2
Richmond. There, they encountered and fired at Tyrone Reed in
apparent retaliation for Reed's earlier involvement in the
killing of another of the defendant's friends, Michael Atkins.
"A whole lot of shots" were fired, and, in the melee, two
bystanders, Irvin Doughty and Bruce Ross, were killed.
On March 23, 1995, the defendant encountered Kenneth
"Randy" Smith in a Richmond alley and shot and killed him
because the defendant "thought Randy was being paid to kill
him." Testifying in his own behalf, the defendant said he
killed "Randy" in self-defense when "Randy" reached for a gun to
shoot him.
On August 19, 1996, the defendant shot and killed Warrick
Ray in a Richmond rooming house. The defendant told Timothy
Frazier he "felt like he had to kill [Ray] because he knew where
[the defendant] lived out in Chesterfield [County]." The
defendant says on brief that Ray "was killed because he knew
where [the defendant] lived and might have been a threat to [the
defendant] or his family."
The sole question for decision is whether the trial court
erred in denying the defendant's motion for separate trials.
"Whether different offenses should be tried separately is a
matter that rests within the sound discretion of a trial court,"
and "a trial court's ruling on the matter will not be reversed
absent a showing that the court abused its discretion." Cheng
3
v. Commonwealth, 240 Va. 26, 33-34, 393 S.E.2d 599, 603 (1990).
Rule 3A:10(c) of the Rules of Court provides in pertinent
part that "[t]he court may direct that an accused be tried at
one time for all offenses then pending against him, if justice
does not require separate trials and . . . the offenses meet the
requirements of Rule 3A:6(b)." 2 Rule 3A:6(b) provides that
"[t]wo or more offenses . . . may be charged in separate counts
of an indictment . . . if the offenses are based on the same act
or transaction, or on two or more acts or transactions that are
connected or constitute parts of a common scheme or plan."
The Commonwealth contends it was proper for the trial court
to try all the charges together because the defendant was
associated with one of two rival gangs engaged in a feud
competing for the drug trade in the Richmond area and the
offenses arose as a part of the continuing feud. Hence, the
Commonwealth maintains, the four murders "were connected and
were part of a common scheme or plan," as required by Rule
3A:6(b)."
On the other hand, the defendant contends the Court of
Appeals correctly found there was no evidence that he was
involved in the drug trade, that he or any of his victims were
members of a gang, that the motive for any of the murders was
2
The defendant makes no argument concerning the part of
Rule 3A:10(c) that permits joinder "if justice does not require
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drug-related, or that the murders were gang-related. Clearly,
therefore, the defendant says, his "crimes were not 'connected'
as described by case law."
The defendant cites Kirkpatrick v. Commonwealth, 211 Va.
269, 176 S.E.2d 802 (1970), where we said that to find a
connection between two or more crimes they must be " 'so
intimately connected and blended with the main facts adduced in
evidence, that they cannot be departed from with propriety.' "
Id. at 273, 176 S.E.2d at 806 (quoting Walker v. Commonwealth,
28 Va. (1 Leigh) 574, 576 (1829)). Here, the defendant asserts,
his "cases were not 'connected' by any facts [and the] only
thing they even had in common was the name of one of the alleged
perpetrators." 3
These arguments are interesting but are for the most part
irrelevant in light of what we consider an overriding
alternative argument advanced by the Commonwealth here and in
the Court of Appeals. The Commonwealth says that because the
capital murder charge alleged in Indictment No. F-98-2383
required proof of the murder of "Irvin Doughty and/or Bruce Ross
separate trials."
3
The defendant argues on brief that under Code § 18.2-
31(8), the Commonwealth is required to "try a predicate killing
first," secure a murder conviction, "and then [try] the capital
case." However, nothing in the statute even suggests such a
requirement.
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and/or Kenneth 'Randy' Smith," all four murders were properly
joined for trial. 4
The Court of Appeals dismissed the Commonwealth's
alternative argument with this statement: "[T]he Commonwealth
cites no authority for supplanting the joinder test under Rule
3A:10(c) when the Commonwealth seeks to try a defendant not only
for capital murder under Code § 18.2-31(8), but for the
predicate murders as well. To try the offenses jointly, each
offense must satisfy the requirements of Rule 3A:6(b)." Smith,
35 Va. App. at 75, 542 S.E.2d at 806.
However, the Commonwealth does cite authority for trying a
defendant for capital murder under Code § 18.2-31(8) and for the
predicate murders as well. The Commonwealth cites the statute
itself, which provides that "[t]he willful, deliberate, and
premeditated killing of more than one person within a three-year
period" shall constitute capital murder. The Commonwealth then
says of the statute:
Virginia's capital murder statute defines separate
species of capital murder, which are united by a common
structure of "gradation." See E. Fitzgerald v.
Commonwealth, 223 Va. 615, 636, 292 S.E.2d 798, 810 (1982).
In each instance, an aggravating circumstance, which is
often a gradation or nexus crime, is required to elevate
the offense from a standard, premeditated first-degree
murder to capital murder. See Burlile [v. Commonwealth,
261 Va. 501, 510, 544 S.E.2d 360, 365 (2001)] ([citing]
Graham v. Commonwealth, 250 Va. 487, 491, 464 S.E.2d 128,
4
No question has been raised here about the validity of
Indictment No. F-98-2383.
6
130 (1995)). Under § 18.2-31(8), "the gradation crime is
the defendant's killing of more than one person within a
three-year period." [Burlile, 261 Va.] at 511, 544 S.E.2d
at 365.
We are of opinion that, in this context, "gradation"
equates with "connection" and, hence, that Code § 18.2-31(8)
supplies the connection to satisfy the requirement for joinder
specified by Rule 3A:10(c). The connection is the fact that the
capital murder and the predicate murder or murders occur within
a three-year period, a connection similar to the link the
General Assembly has established between capital murders and
predicate offenses in other subsections of Code § 18.2-31. See,
e.g., Graham, 250 Va. at 491, 464 S.E.2d at 130 (under Code
§ 18.2-31(7), "the gradation crime is the defendant's killing of
more than one person as part of the same act or transaction").
This analysis does not supplant the joinder test under Rule
3A:10(c), as the Court of Appeals indicated would be the result
of adopting the Commonwealth's alternative argument. Rather,
the analysis affirms the test but recognizes the authority of
the General Assembly to modify a rule of this Court or an
interpretation we have given one of our rules. Va. Const. Art.
VI, § 5 ("rules [of this Court] shall not be in conflict with
the general law as the same shall, from time to time, be
established by the General Assembly"); Code § 8.01-3(D) ("[t]he
General Assembly may, from time to time, by the enactment of a
7
general law, modify, or annul any rules adopted or amended [by
this Court])."
For the purposes sought to be served by Code § 18.2-31(8),
the General Assembly has implicitly modified Rule 3A:6(b) to the
extent that the meaning we gave the words "connected crimes" in
Kirkpatrick, 211 Va. at 273, 176 S.E.2d at 806, i.e., " 'so
intimately connected and blended with the main facts adduced in
evidence, that they cannot be departed from with propriety,' "
no longer applies. Rather, to establish the required connection
for a joint trial of offenses under Code § 18.2-31(8), it is
only necessary to show that the capital murder and the predicate
murder or murders occurred within three years.
The defendant argues, however, that when, as here, "four
murders, occurring on three separate occasions[,] are put before
the jury, the sheer seriousness and number of charges must
create prejudice violative of due process." The courts have
been "acutely aware of such necessary prejudice," the defendant
says, "and have enumerated precise conditions under which the
Commonwealth may join counts or charges despite the prejudice
that will result thereafter."
We disagree with the defendant's argument concerning
prejudice. We have merely done here what the defendant's
argument concedes courts may do. We have determined the precise
condition under which the Commonwealth may join two or more
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counts or charges of murder in a prosecution under Code § 18.2-
31(8) despite the prejudice that may result thereafter. The
precise condition is that the murders shall have occurred within
a three year period, a condition that clearly was met in this
case.
Accordingly, we hold that the Court of Appeals erred in
finding that the trial court abused its discretion in denying
the defendant's motion to sever. Accordingly, we will reverse
the judgment of the Court of Appeals, enter final judgment here
reinstating the judgment of the trial court, and remand the case
to the Court of Appeals with directions to remand the matter to
the trial court for enforcement of the sentencing order.
Reversed and remanded.
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