COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia
MELVIN DOUGLAS SMITH, JR.
OPINION BY
v. Record No. 0127-00-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Christopher J. Collins for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The appellant, Melvin Douglas Smith, Jr., was tried on four
counts of murder and four counts of use of a firearm in the
commission of murder. On September 24, 1999, a jury in the
Circuit Court of the City of Richmond found appellant guilty of
first degree murder of only one of the victims, Kenneth "Randy"
Smith, and of use of a firearm in the commission of that murder.
The jury sentenced appellant to prison terms of fifty-five years
for the murder and five years for the firearm offense. The
trial court suspended seven years of the murder sentence on
December 15, 1999. The jury found appellant not guilty of two
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
of the four murders and associated firearm charges, and
deadlocked on the remaining murder and associated firearm
charge. Therefore, the court declared a mistrial as to those
final two charges.
Before trial, appellant filed a motion to sever the four
murder charges under Rule 3A:10(c), which the trial court
denied. Appellant contends the court erroneously denied his
motion for separate trials. For the following reasons, we
reverse the convictions for the murder of Kenneth "Randy" Smith
and the related firearm charge and remand for a new trial on
those two counts if the Commonwealth be so disposed.
The Commonwealth charged appellant with first degree murder
under Code § 18.2-32 for the killing of Bruce Ross (Murder #1),
capital murder under Code § 18.2-31(7) for the killing of Irvin
Doughty (Murder #2) in the same transaction as the killing of
Ross, first degree murder of Randy Smith (Murder #3), and
capital murder under Code § 18.2-31(8) for the killing of
Warrick Ray (Murder #4) within three years of the killing of
Ross and/or Doughty and/or Smith. The Commonwealth also charged
appellant with four counts of use of a firearm in the commission
of murder. The jury found appellant not guilty of Murders #1
and 2, guilty of Murder #3, and deadlocked with respect to
Murder #4.
A trial court has limited discretion to combine offenses
for trial. Godwin v. Commonwealth, 6 Va. App. 118, 121, 367
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S.E.2d 520, 521 (1988). However, a trial court's ruling on the
issue will not be reversed absent a showing that the court
abused its discretion. Cheng v. Commonwealth, 240 Va. 26,
33-34, 393 S.E.2d 599, 603 (1990). Under Rule 3A:10(c), a court
may join separate charges for trial only if two criteria are
met: (1) justice does not require separate trials; and (2)
either (a) the requirements of Rule 3A:6(b) are met; or (b) the
defendant and the Commonwealth's attorney consent. Under Rule
3A:6(b), the offenses must be either: (1) part of the same act
or transaction; or (2) two or more acts or transactions which
are connected; or (3) the offenses must be part of a common plan
or scheme.
The facts as presented in the record before us, viewed in
the light most favorable to the Commonwealth, are as follows.
Timothy Frazier testified that on November 20, 1994, he and
appellant went to the Mar-Ket on Grayland Avenue in Richmond
intending to kill Tyrone Reed. The attempt to kill Reed was in
retaliation for the earlier killing of appellant's friend,
Michael Atkins. Both Frazier and appellant were armed and began
firing when they reached the market. Bruce Ross (Murder #1) and
Irvin Doughty (Murder #2), who were bystanders at the scene,
were killed in the barrage of gunfire.
On March 23, 1995, four months after appellant committed
Murders #1 and 2, he shot and killed Randy Smith (Murder #3) and
told Frazier that he had done so because he believed that Randy
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had been hired to kill him. However, the Commonwealth
introduced no evidence as to why Randy Smith had been hired to
kill appellant or who had hired him. Appellant claimed he shot
Randy Smith in self-defense. Appellant testified that Kenneth
Daniels pulled a gun on appellant and threatened to kill him
because he had testified against Daniels' brother in the Michael
Atkins murder trial. According to appellant's testimony, when
Randy Smith reached for Daniels' gun to shoot appellant,
appellant shot Randy Smith in self-defense.
On August 19, 1996, over a year after appellant committed
Murder #3, he shot Warrick Ray (Murder #4) in a rooming house in
Richmond. Appellant told Frazier about this killing as well.
According to Frazier, appellant killed Ray because Ray knew
where appellant lived. Kevin Roane, who witnessed the murder,
testified that appellant shot Ray because Ray had gone to
appellant's grandmother's house. The record contains no further
evidence of a motive for this killing.
The four murders in this case do not meet the "same act or
transaction" requirement because they involved three separate
acts which occurred at three different times and places.
Godwin, 6 Va. App. at 122, 367 S.E.2d at 522.
Additionally, because the four murders occurred "on
different days, at different places and no evidence link[s] or
connects[s]" the murders, the offenses were not "connected."
Id. at 122, 367 S.E.2d at 522; see also Spence v. Commonwealth,
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12 Va. App. 1040, 1044, 407 S.E.2d 916, 918 (1991) ("To meet the
'connected' test, the crimes should be 'so intimately connected
and blended with the main facts adduced in evidence, that they
cannot be departed from with propriety.'" (citation omitted));
Cook v. Commonwealth, 7 Va. App. 225, 229, 372 S.E.2d 780, 782
(1988) (two or more acts or transactions are "connected" where
the offenses are "connected by time, place, method and
perpetrators").
The Commonwealth contends the four murders were part of a
"common scheme or plan" emanating from a "continuing feud
between rival groups who were competing to distribute illegal
drugs in the Richmond area." The record does not support the
Commonwealth's contention.
Offenses will be deemed to be part of a common scheme or
plan when the "'relationship among [the] offenses . . . is
dependent upon the existence of a plan that ties the offenses
together and demonstrates that the objective of each offense was
to contribute to the achievement of a goal not attainable by the
commission of any of the individual offenses.'" Godwin, 6 Va.
App. at 122, 367 S.E.2d at 522 (citation omitted); see also
Purvis v. Commonwealth, 31 Va. App. 298, 306, 522 S.E.2d 898,
902 (2000) ("A conspiracy involving more than one offense is a
typical example of offenses involving a common plan."); Spence,
12 Va. App. at 1044, 407 S.E.2d at 918. In addition, "offenses
using a 'common plan' . . . should be 'distinguished from
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similar character offenses (where the offenses merely duplicate
each other).'" Godwin, 6 Va. App. at 122-23, 367 S.E.2d at 522
(citation omitted); see also Purvis, 31 Va. App. at 307, 522
S.E.2d at 902; Foster v. Commonwealth, 6 Va. App. 313, 322, 369
S.E.2d 688, 694 (1988) (where there had been a three-year hiatus
between the offenses, "no action was taken to establish a common
scheme or plan").
The record contains no evidence that appellant was involved
in the drug trade or that the motive for any of the four murders
was related to the drug trade. The record likewise contains no
evidence proving that appellant or any of his victims were
members of a gang or that the murders were gang-related. The
only testimony pertaining to a gang-related conflict was
provided by Timothy Frazier, who participated in the Ross and
Doughty murders (Murders #1 and 2) with appellant. Frazier
admitted there was a "general beef" between the Top and Bottom
gangs, which involved "a lot of shoot-outs." Frazier testified
that the conflict began with the robbery of Jevon Clayton by
Frazier, Kurt Holmes, and William Atkins. Following the
robbery, "[t]hey came down and shot the block up." Frazier
admitted that his friend, Kurt Holmes, had been shot by Harry
George, "Bubba," and "J.B." and that Frazier "[s]hot some people
from their crew" in retaliation. Frazier's testimony does not
establish, however, appellant's alleged association with either
gang, nor did his testimony link any of the four murders to gang
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activity. To infer that appellant was part of a gang because
Frazier may have belonged to one of the two gangs, and because
Frazier and appellant committed the Ross and Doughty murders
together, is unreasonable and insufficient to support a
conclusion that appellant committed the four murders as part of
a common scheme or plan. Therefore, the evidence does not
support the Commonwealth's allegation that the four murders were
part of a common plan or scheme and were, for that reason,
properly tried together.
The Commonwealth also argues that because the capital
charge for Murder #4 under Code § 18.2-31(8) 1 required proof of
one of the three other murders, all four murders were properly
joined. However, the 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. Accordingly, we find the trial
court abused its discretion in ordering that all of the murder
offenses be tried together. 2
1
Code § 18.2-31(8) designates as capital murder, "[t]he
willful, deliberate, and premeditated killing of more than one
person within a three-year period."
2
As the requirements of Rule 3A:6(b) were not met, we need
not consider whether justice required separate trials.
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Although we find the court abused its discretion in
ordering that the four murders be tried together, we will not
reverse appellant's convictions unless the error affected a
substantive right. Rule 3A:2(a); Foster, 6 Va. App. at 323, 369
S.E.2d at 694; Burley v. Commonwealth, 29 Va. App. 140, 149, 510
S.E.2d 265, 269-70 (1999) ("The harmless error doctrine 'enables
an appellate court . . . to ignore the effect of an erroneous
ruling when an error clearly has had no impact upon the verdict
or sentence in a case.'" (citation omitted)). "An error [in
joining charges] is harmless when a 'reviewing court, can
conclude, without usurping the jury's fact finding function,
that, had the error not occurred, the verdict would have been
the same.'" Id. at 149, 510 S.E.2d at 270 (citation omitted);
see also Purvis, 31 Va. App. at 308, 522 S.E.2d at 902.
The error is harmless where "the evidence related to each
of the counts would have been admissible in a separate trial of
any of the other counts." Foster, 6 Va. App. at 323, 369 S.E.2d
at 694; see also Purvis, 31 Va. App. at 307, 522 S.E.2d at 903.
"Conversely, such error may not be harmless if evidence related
to each of the counts would have been inadmissible in a separate
trial of any of the other counts." Id. at 308, 522 S.E.2d at
903. Generally, in a criminal prosecution, evidence that the
accused is guilty of other crimes is "inadmissible for the
purpose of showing the commission of the particular crime
charged." Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
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S.E.2d 802, 805 (1970); see also Cooper v. Commonwealth, 31 Va.
App. 643, 647, 525 S.E.2d 72, 74 (2000) (en banc). However, the
Supreme Court has defined certain exceptions to this rule:
Evidence of other offenses is [admissible]
if it shows the conduct and feelings of the
accused toward his victim, if it establishes
their prior relations, or if it tends to
prove any relevant element of the offense
charged. Such evidence is permissible in
cases where the motive, intent or knowledge
of the accused is involved, or where the
evidence is connected with or leads up to
the offense for which the accused is on
trial. Also, testimony of other crimes is
admissible where the other crimes constitute
a part of the general scheme of which the
crime charged is a part.
Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. However, even
if the evidence of other crimes is relevant to the charged
offense, "such evidence is only admissible if its probative
value outweighs its prejudicial nature." Foster, 6 Va. App. at
323, 369 S.E.2d at 694.
The Commonwealth alleged that evidence pertaining to each
of the murders would have been admissible in a separate trial of
each of the murders because "evidence regarding the four murders
tended to show they were perpetrated by Smith as part of a
general scheme of grudge killings between rival groups." Even
if proof of such a "general scheme" were sufficient to admit
evidence of the other offenses, the record does not establish
that such a scheme existed. As discussed above, there was no
evidence that appellant committed these murders to protect a
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drug business in which he was engaged. Indeed, no evidence
established appellant was involved in the drug trade. Likewise,
the Commonwealth introduced no evidence that appellant was a
member of a gang or that the murders were gang-related. In
short, "[t]here is no evidence of a plan tying [the offenses]
together or showing that each offense was intended to assist in
accomplishing a goal other than that achieved by each individual
offense. The four offenses merely show that [appellant] has the
propensity to commit the crime and this inference has been held
to be error because it reverses his presumption of innocence."
Spence, 12 Va. App. at 1044-45, 407 S.E.2d at 918.
The Commonwealth also alleges any error in joining the
offenses was harmless because the evidence supporting
appellant's conviction for Murder #3 was "overwhelming."
Burley, 29 Va. App. at 150, 510 S.E.2d at 270 (error had no
effect on the verdict where the other evidence was
overwhelming). We disagree. Although appellant admitted
killing Randy Smith, he claimed it was in self-defense. The
only evidence refuting appellant's claim of self-defense came
from Kenneth Daniels, a participant in the altercation, and from
Timothy Frazier, who participated with appellant in committing
Murders #1 and 2. Although the jury was entitled to disbelieve
appellant's testimony, Barrett v. Commonwealth, 231 Va. 102,
107, 341 S.E.2d 190, 193 (1986), we cannot say the evidence
supporting a first degree murder conviction for the killing of
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Randy Smith was so overwhelming that the erroneous joinder of
the other murder charges "clearly had no impact upon the
verdict." Burley, 29 Va. App. at 149, 510 S.E.2d at 270.
Furthermore, even had the evidence of appellant's guilt
been overwhelming, the error was not harmless because the
inadmissible evidence of the other three murders may have
affected the jury's decision concerning an appropriate sentence
for the murder of Randy Smith. Long v. Commonwealth, 20 Va.
App. 223, 227, 456 S.E.2d 138, 140 (1995); see also Burley, 29
Va. App. at 149, 510 S.E.2d at 270 (error harmless where it
"clearly has had no impact upon the verdict or sentence in a
case"). Here, although appellant was acquitted of two of the
four murder charges, the jury deadlocked on the fourth charge,
indicating that at least one juror thought appellant was guilty
of a murder other than the one for which he was convicted. We
cannot say the sentence ultimately imposed upon a finding of
guilt for the murder of Randy Smith was not affected by the
joinder for trial of the other murder charges.
Because we find the trial court abused its discretion in
joining the four murder charges and that the error was not
harmless, we reverse the convictions for the murder of Kenneth
"Randy" Smith and the related firearm charge and remand for a
new trial on those two counts, if the Commonwealth be so
disposed. Long, 20 Va. App. at 227, 456 S.E.2d at 140; Godwin,
6 Va. App. at 123, 367 S.E.2d at 522.
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Reversed and remanded.
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