Godwin v. Commonwealth

Baker, J.,

dissenting.

I respectfully disagree with the majority’s determination that the issue in this case is whether a defendant should “be required to defend two criminal charges in the same trial simply because they arose out of factually similar events.” It is my judgment that what we must decide is whether the trial court abused its discretionary power when it found the existence of a common scheme or plan and denied the defendant’s motion to sever. The panel of the Court of Appeals which granted the writ framed the issue in this case as follows: “Did the trial court err in denying the defendant’s motion for severance of two separate and distinct indictments?”

The settled rule applicable to the issue whether the court should consolidate trial of indictments for separate offenses is that it is a matter resting in the sound discretion of the trial court. Bryant v. Commonwealth, 189 Va. 310, 315, 53 S.E.2d 54, 56 (1949); see also United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977). That discretionary power is the same in cases involving separate indictments as in cases where a defendant is charged with separate felony counts in a single indictment. Fincher v. Commonwealth, 212 Va. 552, 553, 186 S.E.2d 75, 76, cert. denied, 409 U.S. 913 (1972). In Fincher two separate indictments were ordered consolidated for trial. In a per curiam opinion affirming the ruling of the trial court the Court said:

*126[W]e see no reason the rule in this type case should differ from the rule applicable where a defendant is charged with separate felonies in several counts of the same indictment. Whether such counts should be tried separately or together is a matter resting within the sound discretion of the trial court. Hence, we adopt the rule of discretion for determining questions of consolidation.

Id. (citation omitted). If an appellate court is to reverse the trial court’s discretionary ruling the record must affirmatively show an abuse of discretion. See, e.g., Mundy v. Commonwealth, 161 Va. 1049, 1064, 171 S.E. 691, 696 (1933). To show that abuse, the record must disclose that the trial judge acted arbitrarily, rather than with due regard to conscientious judgment. Slayton v. Commonwealth, 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946). The appellate court will overturn the exercise of this discretion only for “clear abuse affecting substantial rights of the accused.” Jamar, 561 F.2d at 1106 (emphasis added).

Appellant’s motion to sever was made pursuant to the provisions of Rule 3A:10(b). In relevant part, that rule permits consolidation if the offenses meet the requirements of Rule 3A:6(b), which permits two or more offenses to be charged in separate counts of an indictment if they “constitute parts of a common scheme or plan.” Thus, the precise issue in this case is whether the trial court abused its discretion in allowing consolidation based on a common scheme or plan.

Two pretrial hearings were conducted pursuant to appellant’s motion to sever. By agreement, the evidence presented to the trial court at those hearings was submitted by statement of counsel in lieu of actual witness testimony. In our review of whether the trial court abused its discretion in denying severance and ordering consolidation we are bound by the evidence as disclosed in those statements.

In its recitation of the facts, the majority emphasizes the evidence of the two robberies for which appellant stands convicted; it fails to view the remaining evidence in the light most favorable to support the discretionary ruling of the trial court, granting to it all reasonable inferences fairly deducible therefrom, as is required by law. See Evans v. Commonwealth, 215 Va. 609, 612, 212 S.E.2d 268, 271 (1975). In fact, the majority opinion appears to argue *127against reasonable inference. Following the rule of Evans, I view the record upon which we should base our decision whether the trial court abused its discretion to be as follows:

Appellant appeals his conviction of two robberies for which he was separately indicted. Each indictment contained two counts, one each of robbery and use of a firearm in connection therewith. The robberies were alleged to have been committed five days apart in the City of Virginia Beach on August 26, 1984 and August 31, 1984, respectively, a period within the forty days hereafter noted. Appellant had been tried and convicted of six other robberies within Virginia Beach and the adjoining Tidewater cities of Chesapeake, Suffolk and Hampton which occurred within a forty-day period beginning on July 31, 1984 and extending through September 5, 1984. Because of those prior convictions the Virginia Beach police were aware of appellant’s activities and that knowledge led the detectives to concentrate on appellant as a suspect because the method of the robberies was amazingly similar.

In the present cases, both robberies were committed in the daylight by two males similar in personal appearance and wearing similar clothing. Both robberies were committed in Flowers Bakery Thrift Stores, and by use of a handgun to force compliance. On each occasion as the robbers entered the stores they were unmasked, but placed stocking masks over their faces after entry. The method used to obtain the money was the same. They “herded” the employees to the back of the stores, required one to open the safes from which money was taken, and compelled all employees to lie on the floor while the robbers made their escape. The time spent “in and out” each store was approximately the same.

At the pretrial hearing, the assistant Commonwealth attorney, after referring to the six other robberies which occurred within the forty-day span, stated:

The circumstances, the mode of the robbery is in fact what led the detectives to concentrate on these defendants, and the mode of the—method of robbery is amazingly similar, (emphasis added).

*128In quoting the above statement, the majority elected to place a period after the word “defendants,” and failed to include the portion of the quote which states that the “method of robbery is amazingly similar.” The majority argues that the quote follows a reference to the “two robberies” which were the subject of the consolidation and hence did not contribute to the decision of whether they should be tried together. This reasoning fails to note the entire paragraph which preceded the above quote:

I think they (the robberies) are part of a common scheme, and the common scheme is to conduct a terrorizing raid of robberies through the City of Virginia Beach in a very short period of time. Approximately forty days in which six robberies occurred. These two I’m asking to try together occurred within five days.

The foregoing quote immediately preceded the evidence that the detectives were led to appellant due to the similarity of the six robberies. Granting all reasonable inferences favorable to support the exercise of the trial court’s discretionary power, the evidence clearly supports a finding of common scheme or plan. Appellant committed six other robberies in the same geographical area within a forty-day period that encompassed the days on which the two offenses under review were committed. The manner of committing the other six robberies was, according to the police, “amazingly similar” to the manner in which the two offenses were committed. Thus, the trial judge was clearly empowered to deny the motion for severance unless the circumstances were such that the ends of justice required separate trials. If such were the case, the Commonwealth would be required to select which indictment to try first. Allen v. Commonwealth, 122 Va. 834, 839, 94 S.E. 783, 785 (1918). There is, however, nothing in this record to show that the consolidation confounded appellant in his defense or adversely affected his substantive rights; therefore, no abuse of discretion is shown. See Fincher, 212 Va. at 553, 186 S.E.2d at 76.

The majority concludes that the evidence of one of the robberies would not be admissible in the trial of the other and, therefore, separate trials were required.

*129Where a course of criminal conduct is continuous and interwoven, consisting of a series of related crimes, the perpetrator has no right to have the evidence “sanitized” so as to deny the jury knowledge of all but the immediate crime for which he is on trial. The fact-finder is entitled to all of the relevant and connected facts, including those which followed the commission of the crime on trial, as well as those which preceded it; even though they may show the defendant guilty of other offenses. Evidence of such connected criminal conduct is often relevant to show motive, method, and intent. Indeed, it may be the only way in which such matters may be shown, as was the case here. Even where another crime is not inextricably linked with the offense of trial, it may nevertheless be proved if it shows the conduct and feeling of the accused toward his victim, his motive, intent, plan or scheme, or any other relevant element of the offense on trial.

Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984) (citations omitted) (emphasis added). The general rule that evidence that the accused has committed other offenses is inadmissible yields to society’s interest in the truth-finding process where the other crimes constitute a part of the general scheme of which the crime charged is a part. Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).

Where evidence of other offenses is admissible under an exception to the general rule, the exception applies to offenses committed before and after the date of the offense for which the defendant is being tried. In Minor v. Commonwealth, a pandering case, evidence was admitted of a similar offense that occurred the day after the offense for which the defendant was being tried. We held the evidence was properly admitted to show the defendant’s relationship with the prostitute and to show a common scheme, plan, or course of conduct tending to establish motive, intent, or knowledge.
In Moore v. Commonwealth, the defendant was charged with enticing and fondling a male child with lascivious intent. The trial court admitted evidence of two similar incidents, one occurring approximately three months after and the other approximately 20 months before the incident in dis*130pute. We held the evidence was admissible on the issue of lascivious intent.
We have also held that it is largely within the discretion of the trial court to determine “[wjhether evidence is so remote that it lacks probative value.” In the present case, we hold that the trial court did not abuse its discretion in admitting the testimony of Walker and Blain to show Collins’s knowledge, intent, and course of conduct.

Collins v. Commonwealth, 226 Va. 223, 230, 307 S.E.2d 884, 888-89 (1983) (citations omitted) (emphasis added); see also Scott, 228 Va. at 526-27, 323 S.E.2d at 577; Dorantes v. Commonwealth, 222 Va. 383, 281 S.E.2d 823 (1981).

In Dorantes, defendant was indicted, tried and convicted by a jury of two counts of robbery, one of conspiracy to rob, and one of entering a bank while armed with a deadly weapon with intent to commit larceny. On appeal, the weapons charge was reversed and dismissed for insufficiency of evidence. The two robbery convictions and one conspiracy conviction were affirmed. The only issue on appeal applicable to the robbery charges concerned the admissibility of evidence of other offenses. The same issue was raised as to the conspiracy to rob charge. In affirming, the Supreme Court stated: “[T]he Commonwealth was permitted to show that the defendant and Brooks had robbed another Arlington County banking institution twice within a short period preceding the instant robbery. On the first occasion, no weapon was observed in the possession of either robber. On the second, the defendant pulled a gun when challenged by a bank employee.” Id. at 385, 281 S.E.2d at 824. The foregoing quote constituted the factual basis for the admission of the prior offense evidence on the ground that the prior offenses “constitute a part of the general scheme of which the crime charged is a part.” Id. It has been argued that the language in Dorantes affirming the admissibility of the prior offenses evidence was to prove conspiracy. The evidence, however, was also accepted to affirm the robbery convictions as it was presented to the jury in support of the two robbery cases as well as the conspiracy offense.

The Supreme Court specifically noted that the record in Dorantes did not show “anything unique about the defendant’s *131method of committing bank robberies,” thus indicating that uniqueness is not a requirement for admitting evidence of prior offenses for the purpose of showing a general scheme. Id. at 386, 281 S.E.2d at 825. By comparison, in the case before us the severance hearing evidence disclosed six to eight robberies known to have been committed by appellant and another in the general area of Virginia Beach within a forty-day period. In all cases a gun was used. The two cases being tried were almost identical in fact and so “amazingly similar” to the others that the detectives were led to defendants by their knowledge of the other cases.

Here, the record clearly discloses no abuse of discretion; therefore the question directed by the writ panel should be answered in the negative. The evidence as submitted to the trial court was neither complex nor confusing. Nothing recited disclosed that consolidation would confound appellant in his defense, adversely affect his substantive rights, or be likely to confuse the jury. Fincher, 212 Va. at 553, 186 S.E.2d at 76. Thus, because the other crimes were amazingly similar, occurred in the same geographical area and were near in proximity both in time and space, the trier of fact could reasonably infer that all the crimes were a part of a common scheme.

For the reasons stated, I respectfully disagree with the majority and would affirm the judgment of the trial court.