Godwin v. Com., 1040-85

• Decision Date: 05 April 1988
• Docket Number: No. 1040-85,1040-85
• Citation: 6 Va.App. 118,367 S.E.2d 520
• Parties: Keith GODWIN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 520

367 S.E.2d 520

6 Va.App. 118

Keith GODWIN v. COMMONWEALTH of Virginia.

Record No. 1040-85.

Court of Appeals of Virginia.

April 5, 1988.

Paul H. Ray, Virginia Beach, for appellant.

Lucy Allen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BARROW and COLEMAN, JJ.

BARROW, Judge.

In this appeal we decide that a defendant should not be required to defend two criminal charges in the same trial simply because they arose out of factually similar events. The trial court denied the defendant's motion to sever the trial of two robbery and two use of a firearm offenses which, though factually similar, were not part of a common plan. We reverse the convictions and remand the proceedings for new trials.

The offenses were similar in time and place. They occurred five days apart at two different Flowers Bakery stores, three and one-half miles apart. The first occurred on a Sunday at 1:00 p.m., and the second on a Friday at 4:40 p.m.

Two black males committed both offenses. In the first robbery, one of the two men was described as five feet five inches to five feet six inches tall, dark skin, and short, cropped hair. He wore no shirt, and had on light, faded blue jeans. The other man was described as five feet seven inches tall or taller, very thin build, very young, short hair, and wearing beige courduroy dress pants, and a pullover shirt. In the second robbery, one of the two men was described as five feet six inches to five feet eight inches tall, 160 pounds, with short, cropped black hair, thin build and in his early twenties. The other man was described as five feet ten inches to five feet eleven inches tall, 150 pounds, with short, cropped black hair and in his early twenties.

In both offenses an automatic pistol was used. In the first offense the weapon was described as gold or silver. In the second offense it was described as nickel-plated.

The method of each offense was similar, but not unusual. See, e.g., Scaggs v. Commonwealth, 5 Va.App. 1, 3, 359 S.E.2d 830, 830-31 (1987) (defendants wearing dark clothes, gloves and stocking masks ordered robbery victims at gunpoint to crouch on the floor). In both offenses, the two men ordered the clerks to lie on the floor, except for one whom they required to open the cash register and safe. In the second robbery, patrons who were present were required to lie on the floor with the clerks. In both instances the men entered the stores unmasked but placed stocking masks over their heads once inside.

During two pretrial hearings on the defendant's motion for severance, in addition to the facts previously described, the Commonwealth's Attorney reported that the defendant had been convicted of four other robberies committed between July 31 and September 5, 1984. Presumably, these other robberies occurred in either Hampton, Suffolk, Chesapeake or Virginia Beach since defense counsel admitted that the defendant had been convicted "either five or six separate times recently ... for felonies" in these Tidewater cities. No other facts and circumstances underlying these four robberies were disclosed. Thus, the four prior robbery convictions reveal only the defendant's propensity for crime and do not assist in deciding whether these two robbery charges should be tried together.

The Commonwealth's Attorney added that "[t]he circumstances, the mode of robbery, is in fact what led the detectives to concentrate on these defendants." This statement immediately followed a discussion of the two robberies being consolidated and, therefore, appears to refer to them rather than the four other robberies. However, even if the statement referred to the other four robberies, since it reveals none of the circumstances on which the detectives relied, it did not aid in deciding whether to try the two robbery charges together.

At the conclusion of the second pretrial hearing the trial court denied the defendant's motion to sever the trial of the offenses and ordered that all of the offenses be tried together. We conclude that the court erred in requiring one robbery to be tried simultaneously with the other.

A trial court has limited discretion to order an accused to be tried for more than one offense at the same time. Rule 3A:10(b) ¹; see Brown v. Commonwealth, 223 Va. 601, 607, 292 S.E.2d 319, 322 (1982). The court may exercise this discretion only when justice does not "require separate trials" and (1) the Commonwealth's attorney and the accused consent to the charges being tried together or (2) the offenses meet the requirements of Rule 3A:6(b). Rule 3A:10(b). Since the accused did not consent to the charges being tried together, the trial court in this case could not try them together unless the offenses met the criteria of Rule 3A:6(b) and justice did not require separate trials.

To meet the requirements of Rule 3A:6(b) the offenses must 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 two robberies do not fall into any of these three categories.

The two robberies in this case do not meet "the same act or transaction" requirement since each of the robberies was a separate act which occurred at a different time and place. Each of the firearm charges was based on "the same act or transaction" as the robbery during which it occurred and could, therefore, be tried with the robbery charge.

The two robberies did not arise out of "two or more acts or transactions that are connected." They occurred on different days, at different places, and no evidence linked or connected the one robbery with the other. Cf. Goughf v. State, 232 Ga. 178, 180-182, 205 S.E.2d 844, 846 (1974).

Thus, these robberies met the requirements for joinder only if they "constitute parts of a common scheme or plan." We conclude they do not.

A similar requirement is used in the standard for severance contained in the American Bar Association's Standards for Criminal Justice. ² This standard, which parallels our rules, provides a right to severance except where two or more offenses are "based upon the same conduct, upon a single criminal episode, or upon a common plan." 2 ABA Standards for Criminal Justice § 13-1.2., at 13.9 (2d ed. 1986 Supplement) (emphasis added). A "common plan" exists when 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." Id., commentary following 13-1.2. A conspiracy involving more than one offense is a typical example of offenses involving a common plan. Id. See, e.g., Dorantes v. Commonwealth, 222 Va. 383, 385, 281 S.E.2d 823, 824 (1981). Offenses using a "common plan," however, should be "distinguished from similar character offenses (where the offenses merely duplicate each other)." 2 ABA Standards for Criminal Justice § 13-1.2., at 13.35 (Supp.1986).

In this case there was no evidence of conspiracy or other common plan underlying the two robberies. Although the robberies were factually similar, the evidence did not show the existence of a plan tying the offenses together. The conclusion that, since the offenses were factually similar, they were committed by the same persons as part of a plan is speculative. It is just as probable that they were two separate, independent offenses committed by the same or different persons.

A further obstacle to the joinder of these two robberies for trial is the limitation that "justice does not require separate trials." Justice requires separate trials where the evidence of one of the crimes is not admissible in the trial of the other. See, e.g., Essex v. Commonwealth, 228 Va. 273, 286-87, 322 S.E.2d 216, 224 (1984). The efficiency promoted by joinder of offenses does not outweigh the harm caused by the introduction of inadmissible evidence of another crime. Such evidence "confuses one offense with the other, unfairly surprises the defendant with a charge he is unprepared to meet, and, by showing that the accused has a criminal propensity, tends to reverse his presumption of innocence." Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983); Johnson v. Commonwealth, 3 Va.App. 444, 448, 350 S.E.2d 673, 675 (1986).

In this case the evidence of one of the robberies would not be admissible in the trial of the other. Although the rule has exceptions, evidence of other crimes generally is not admissible for the purpose of showing the commission of the particular crime charged. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Exception often is made to show a common plan from which motive, intent or knowledge may be inferred. Minor v. Commonwealth, 213 Va. 278, 280, 191 S.E.2d 825, 827 (1972); Sutphin v. Commonwealth, 1 Va.App. 241, 246, 337 S.E.2d 897, 899 (1985). However, where motive, intent or knowledge is not the issue, but the prosecution seeks to establish the identity of the accused, "more is required than merely proving repeated commission of crimes of the same class." Sutphin, 1 Va.App. at 246-47, 337 S.E.2d at 900. To prove identity "the device used to commit the crime, or the manner in which the crime was committed, must be so unusual and distinctive as to act as a signature." Id. at 247, 337 S.E.2d at 900.

Three Supreme Court decisions demonstrate that evidence of other crimes may be admissible where the other crimes are part of a general scheme which also includes the crime charged but not when the real purpose is to prove the identity of the person who committed the crime charged. In Dorantes, evidence that the defendant and an accomplice had twice robbed a bank in Arlington County was admitted in his trial for a later robbery of another bank in the same county. Dorantes, 222 Va. at 385, 281 S.E.2d at 824....