Ferrell v. Commonwealth , 11 Va. App. 380 ( 1990 )

Barrow, J.,

dissenting.

Although I agree that the defendant’s incriminating statement was admissible, the trial court, in my opinion, erred in denying the defendant’s severance motion and in admitting the inventory of the contents of the automobile.

SEVERANCE

The commission of four burglaries, three involving auto storehouses and one an industrial materials business, over a period of a month and one-half in a large city, does not, in my opinion, manifest a “common scheme or plan.”

Severance in a criminal case is controlled by the Rules of the Supreme Court. Rule 3A: 10(b); see Brown v. Commonwealth, 223 Va. 601, 607, 292 S.E.2d 319, 322 (1982); Cook v. Commonwealth, 7 Va. App. 225, 228, 372 S.E.2d 780, 782 (1988); Godwin v. Commonwealth, 6 Va. App. 118, 121, 367 S.E.2d 520, 521-22 (1988). Under these Rules, an accused may be tried for more than one offense at the same time only if (1) “justice does not require separate trials” and (2) “the offenses meet the requirements of Rule 3A:6(b) [or] the accused and the Commonwealth’s attorney consent thereto.” Rule 3A:10(b). Since the accused and the Commonwealth’s attorney in this case did not both consent to the four burglaries being tried together, each of the other two requirements had to be met.

Rule 3A:6(b) requires that the offenses be 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.” Rule 3A:6(b). These four burglaries were not based on the same act or transaction nor was there any suggestion that they were based on two or more acts or transactions that were connected. Therefore, to meet the requirements of Rule 3A:6(b) these four burglaries must be based on two or more acts or transactions that constitute a common scheme or plan.

A “common plan” as used in the context of a criminal defendant’s right to severance means that the “relationship among 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.” 2 ABA Standards for Criminal Justice § 13-1.2, commentary at 13.10 (1980). It does not mean multiple offenses of a similar nature committed by the same person or persons. Cook, 7 Va. App. at 228, 372 S.E.2d at 782; see also 2 ABA Standards for Criminal Justice § 13-1.2, at 13.35 (Supp. 1982). A conspiracy is a particularly appropriate application of the concept of “common scheme.” Dorantes v. Commonwealth, 222 Va. 383, 385, 281 S.E.2d 823, 824 (1981) (conspiracy to rob banking institutions in Arlington, Virginia). Even if a conspiracy is not charged, if the offenses are based on a single plan common to all offenses, the offenses “constitute parts of a common scheme or plan.” See Cook, 1 Va. App. at 229, 372 S.E.2d at 782 (three offenses of concealing cigarettes within thirty minutes of each other at three convenience stores in the same area by the same two people driving the same car).

The majority does not attempt to define the meaning of Rules 3A: 10(b) and 3A:6(b); it concludes instead that the issue is whether the trial court abused its discretion and that it did not. It relies, understandably, on language appearing in Cheng v. Commonwealth, 240 Va. 26, 33-34, 393 S.E.2d 599, 603 (1990).

The majority’s reliance on Cheng is, in my opinion, misplaced. In Cheng, the Supreme Court refers to Rules 3A: 10(b) and 3A:6(b) to define when a trial court may require an accused to be tried at one time for multiple offenses pending against him. However, immediately following that reference, it concludes that “[wjhether different offenses should be tried separately is a matter that rests within the sound discretion of a trial court.” Id. at 33-34, 393 S.E.2d at 603 (emphasis added). In support of this proposition it, cites two decisions based on the law as it existed prior to the adoption of Rule 3A:10.⁷

Rule 3A:10 gives a trial court absolute discretion to try an accused separately for different offenses, but carefully limits the trial court’s discretion to try an accused at one time for more than one offense. By saying that the trial court “may direct that an accused be tried at one time for all offenses,” (emphasis added) the rule permits a trial court to try an accused separately for different offenses even if the offenses meet the requirements that would permit him to be tried for multiple offenses at one time. However, the rule limits the trial court’s discretion to try an accused for multiple offenses at one time to those occasions where “justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth’s attorney consent thereto.” Therefore, where an accused is to be tried separately for multiple offenses, the trial court has absolute discretion. Where, however, the accused is to be tried at one time for multiple offenses, the discretion is appropriately circumscribed by Rules of Court.

The language in Cheng correctly states that the decision to try different offenses “separately is a matter that rests within the sound discretion of the trial court” (emphasis added). This language, however, cannot be read to refer to the decision to order the offenses to be tried together for, to so hold, would conflict with the plain language of Rules 3A: 10(b) and 3A:6(b). The decision to order the joint trial of multiple offenses is, by Rules of Court, not a matter committed solely to the exercise of the trial court’s sound discretion. The trial court’s discretion is exercised with reference to whether the offenses meet the requirements of Rule 3A:6(b) and, if so, whether the ends of justice nonetheless require separate trials. The policy considerations reflected in Rules 3A: 10(b) and 3A:6(b) are important to the administration of criminal justice in Virginia because they implement the fundamental precept that “like cases be treated alike.” If a trial court’s discretion to try an accused at one time for multiple offenses is limited by Rule 3A: 10(b) uniformity is encouraged, but, if the trial court’s discretion is absolute, disparity will follow.

For the reasons stated, I conclude that the requirements of Rule 3A:6(b), and also, therefore, Rule 3A:10(b), were not met and that the trial court erred in refusing to sever the offenses relating to each burglary. However, there was no error in joining the offenses of burglary and larceny where they arose out of the same transaction.

INVENTORY

I also would hold that the trial court erred in admitting the inventory of the contents of the automobile. The inventory listed approximately seventy items of tangible personal property. Some of this property was taken during the burglaries with which he was charged, and evidence that he had these items in his possession would have been admissible. However, other items on the inventory were not taken during the burglaries but appeared to have been stolen on other occasions since they belonged to other people. These included the license plate which had been stolen, the driver’s license, a number of billfolds belonging to other people, and various pieces of women’s jewelry. This evidence did not tend to prove the defendant’s involvement in the four burglaries with which he was charged. It only suggested to the jury that the defendant may have also been involved in other unrelated crimes. The admission of such evidence was not harmless error.

Since, in my opinion, the trial court erred in denying the motion to sever the offenses and in admitting the inventory, I would reverse the defendant’s convictions and remand the proceeding for a new trial.

7 Fincher v. Commonwealth, 212 Va. 552, 553, 186 S.E.2d 75, 76, cert. denied, 409 U.S. 913 (1972) (decided January 17, 1972, affirming a judgement presumably entered prior to January 1, 1972, the effective date of Rule 3A: 10); Bryant v. Commonwealth, 189 Va. 310, 315, 53 S.E.2d 54, 56 (1949).