Cousett v. Commonwealth

• Decision Date: 05 November 2019
• Docket Number: Record No. 0967-18-1
• Citation: 71 Va.App. 49,833 S.E.2d 908
• Court: Virginia Court of Appeals
• Parties: Shannon Shamar COUSETT v. COMMONWEALTH of Virginia

71 Va.App. 49

833 S.E.2d 908

Shannon Shamar COUSETT

v.COMMONWEALTH of Virginia

Record No. 0967-18-1

Court of Appeals of Virginia, Hampton.

NOVEMBER 5, 2019

Annette Miller, Senior Trial Attorney (Office of the Public Defender, on brief), for appellant.

Mason Williams, Assistant Attorney General (Mark R. Herring, Attorney General; Kelsey M. Bulger, Assistant Attorney General, on brief), for appellee.

Present: Judges Humphreys, Malveaux and Senior Judge Frank

OPINION BY JUDGE ROBERT J. HUMPHREYS

On February 6, 2017, appellant Shannon Shamar Cousett ("Cousett") was indicted in the Circuit Court of the City of Virginia Beach ("circuit court") on the following charges: one count of rape of T.H., in violation of Code § 18.2-61 ; one count of abduction of I.P., in violation of Code § 18.2-47 ; burglary with the intent to commit larceny/assault/battery, in violation of Code § 18.2-91 ; and burglary with the intent to commit rape/robbery/murder, in violation of Code § 18.2-90. Cousett was also charged with assault and battery, in violation of Code § 18.2-57. The Commonwealth alleged that Cousett committed all offenses on or about August 6, 2016. Before trial, Cousett moved to sever the charges, arguing that the charges involving T.H. should be severed from those charges involving I.P. The circuit court, however, denied Cousett’s motion.

After a bench trial on December 5, 2017, the circuit court found Cousett guilty of all charges. The circuit court later sentenced Cousett to a total of fifty years and 365 days of incarceration, with ten years suspended. On appeal, Cousett argues that the circuit court "erred in not severing the [I.P.] and [T.H.] offenses inasmuch as the Commonwealth did not prove, under Rule 3A:10(c) of the Rules of the Supreme Court of Virginia, that (1) justice did not require separate trials; and (2) that the offenses met one of the criteria as set out in Rule 3A:6."

I. BACKGROUND

On August 6, 2016, at approximately 9:30 p.m., T.H. woke up "to a man [she] did not know inside of [her] in [her] bed." T.H. clarified that her characterization of the incident meant that the unknown man forced his penis inside her vagina. T.H. described the man as a "[t]all African-American" man with a "black do-rag on his head." After waking up to the assault, T.H. screamed, yelled, and chased the man out of her apartment. As T.H. chased the man, T.H. saw him grab a white bag by the front door of the apartment. T.H. later observed that she was missing fifty dollars, a money order, and a beer from her refrigerator. T.H. was unable to identify her assailant.

Approximately ten minutes before the assault took place, T.H.’s neighbor, N.B., observed a black male standing on the stairs of the apartment complex, wearing all-black clothing and a black "do-rag." He also described that the black male was carrying a white "book bag." A few minutes later, N.B. witnessed the same black male walk out of T.H.’s apartment building at a fast pace and followed by T.H. According to N.B., T.H. "started breaking down into tears" and stated, "I woke up and he was next to me." N.B. later identified the black male as Cousett, both in a photo lineup and at Cousett’s trial. Detective Jeffrey Michael Oglesby ("Detective Oglesby") of the Virginia Beach Police Department administered the photo array to N.B. the night of the assault on T.H.

Approximately two hours after the assault on T.H., and within half a mile of T.H.’s apartment, Cousett entered I.P.’s apartment. At the time, I.P. was sitting on her sofa, and her front door was unlocked. I.P. described Cousett as "a little bit over average height," African-American, and in his mid-to-late forties or early fifties. I.P. also stated that Cousett was wearing dark clothing and had a "cream colored bag slung over his ... right shoulder." I.P. described that after Cousett entered her apartment, Cousett "latche[d] the door closed and he turn[ed] around and [said] shh to [her]." I.P. subsequently ran to the door to unlatch it. Cousett repeatedly punched I.P. on the right side of her head, "four to six" times, until I.P. was able to unlatch the door. When I.P. twisted the door handle to open it, Cousett pushed the door open and ran out of the apartment. I.P. was unable to identify Cousett in a photo lineup, but she identified Cousett as her assailant at Cousett’s preliminary hearing and trial.

Canvassing the area of the two incidents later that night, Officer William Patrick Ahern, Jr. ("Officer Ahern"), of the Virginia Beach Police Department discovered a white "drawstring" bag on a bench in the "convention center area," approximately a quarter of a mile from I.P.’s apartment. After Officer Daley of the Virginia Beach Police Department arrived on the scene, Officer Ahern observed a cell phone, money, and Cousett’s identification card inside of the bag. Additionally, Officer Ahern observed two red spots on the outside of the bag that he believed to be blood stains.

On February 6, 2017, a grand jury indicted Cousett on multiple charges stemming from the night of August 6, 2016. Regarding the incident involving T.H., the grand jury charged Cousett with one count of rape of T.H. and burglary with the intent to commit rape/robbery/murder. Regarding the incident involving I.P., the grand jury charged Cousett with one count of abduction and burglary with the intent to commit larceny/assault/battery. Cousett was also charged with one count of assault and battery against I.P.

Before trial, Cousett moved to sever the charges involving T.H. from those involving I.P.² On May 22, 2017, following a hearing, the circuit court denied Cousett’s motion.³

Cousett subsequently pleaded not guilty to all charges against him.

A bench trial took place on December 5, 2017. There, the Commonwealth called eight witnesses, including T.H., N.B., I.P., Officer Ahern, and Detective Oglesby. Cynthia James ("James"), a security officer at the Virginia Beach Convention Center, also testified for the Commonwealth. James worked the night shift from approximately midnight to 8:00 a.m. James testified that sometime during the night of August 6, 2016, she witnessed two Virginia Beach police officers retrieve a white bag from a bench outside of the convention center. James also testified that later that same night, an African-American male, around "forty-ish" with a bald head and dark clothing, rang the convention center’s doorbell. James explained that the man asked her "if [she] seen [sic] his white bag" or "if any of [her] guards saw the bag."

Officer Ryan Daniel Coon ("Officer Coon") of the Virginia Beach Police Department testified at the trial about a consensual encounter with Cousett a few days prior to the attacks on T.H. and I.P. Specifically, Officer Coon testified that on August 3, 2016, at approximately 3:45 a.m. he spoke with Cousett behind a closed business. The consensual encounter took place in the vicinity of where the crimes against T.H. and I.P. occurred a few days later. Officer Coon described Cousett as wearing a black t-shirt, a tan hat, and khaki shorts. Officer Coon also noted that Cousett was carrying a "white bag." Officer Coon, however, neither observed nor had any interaction with Cousett on August 6, 2016.

At the conclusion of the Commonwealth’s evidence, Cousett made what the circuit court recognized as a motion to strike and renewed motion to strike the evidence incorporated into his closing argument. The circuit court, however, denied Cousett’s motion to strike and found Cousett guilty of all charges. On May 30, 2018, the circuit court sentenced Cousett to a total of fifty years and 365 days in prison, with ten years suspended.⁴ This appeal follows.

II. ANALYSIS

A. Standard of Review

"The question whether an accused, pursuant to Rule 3A:10(c), can be tried in a single trial for all offenses then pending against that defendant is a matter resting within a trial court’s sound discretion." Commonwealth v. Minor, 267 Va. 166, 172, 591 S.E.2d 61 (2004) (citing Cheng v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599 (1990) ). Accordingly, "[t]he circuit court’s decision to join offenses for trial is reviewed for abuse of discretion." Walker v. Commonwealth, 289 Va. 410, 415, 770 S.E.2d 197 (2015) (citing Scott v. Commonwealth, 274 Va. 636, 644, 651 S.E.2d 630 (2007) ). A lower court’s interpretation and application of the Rules of the Supreme Court, however, presents a question of law that we review de novo . See id. (citing LaCava v. Commonwealth, 283 Va. 465, 471, 722 S.E.2d 838 (2012) ).

B. Joinder of Offenses

Rule 3A:10(c) states 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 (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth’s attorney consent thereto." Here, because Cousett did not consent to be tried in a single trial for the charged offenses, "the Commonwealth was required to establish both of the two other conditions of Rule 3A:10(c), namely, that the offenses satisfied the requirements of Rule 3A:6(b), and that justice did not require separate trials." Scott, 274 Va. at 644, 651 S.E.2d 630.

Rule 3A:6(b), in turn, provides that two or more offenses may be joined in a single 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." Notably, "[o]ur Supreme Court has held that the terms ‘common scheme’ and ‘common plan’ are not synonymous."

Stickle v. Commonwealth, 68 Va. App. 321, 339, 808 S.E.2d 530 (2017) (some internal quotation marks omitted) (quoting Scott, 274 Va. at 645, 651 S.E.2d 630 ). However, neither are they mutually exclusive. Scott, 274 Va. at 646, 651 S.E.2d 630. In Scott, our Supreme Court defined both terms for the first time. A common scheme is composed of "crimes that share features idiosyncratic in character, which permit an...