Scott v. Com.

• Decision Date: 02 November 2007
• Docket Number: Record No. 062454.
• Parties: Otis SCOTT, III v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

651 S.E.2d 630

Otis SCOTT, III v. COMMONWEALTH of Virginia.

Record No. 062454.

Supreme Court of Virginia.

November 2, 2007.

Gregory B. Turpin (Clarke, Dolph, Rapaport, Hull, Brunick & Garriott, on brief), Norfolk, for appellant.

Josephine F. Whalen, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and RUSSELL, S.J.

OPINION BY Justice BARBARAMILANO KEENAN.

In this appeal, we consider whether the circuit court abused its discretion in granting the Commonwealth's motion to have a defendant tried at the same time for nine robberies and other related crimes, which were based on incidents involving different victims that occurred in various locations on different dates over a four-month period.

Otis Scott, III, was indicted in the Circuit Court of the City of Virginia Beach for 27 offenses based on incidents that occurred between February 2003 and June 2003. Scott was indicted for nine counts of robbery and 18 other related charges, including three counts of burglary, one count of abduction with the intent to extort money, one count of attempted extortion, one count of attempted carjacking, and 12 counts of use of a firearm in the commission of these offenses.¹

The Commonwealth filed a pretrial motion for joinder in the circuit court, requesting that the court join Scott's offenses for a single trial. The Commonwealth alleged that the robberies were part of a "common scheme or plan" and, therefore, could be tried together under the provisions of Rules 3A:6(b) and 3A:10(c). According to the Commonwealth the robberies had the following similarities: the robberies occurred between 10:00 p.m. and 12:30 a.m. in residential neighborhoods; each of the victims was an adult and was alone at the time of the crime; each of the victims was threatened by the robber with a gun; the robber demanded personal property from each victim; in five of the robberies the victim was asked for a personal identification number (PIN) to provide access to a bank account or credit card; each victim had either just stepped out of a vehicle or was in a garage; most of the victims were threatened with or suffered bodily harm; and each robbery was committed by a lone, black male. The Commonwealth also asserted that justice did not require separate trials for the offenses under Rule 3A:10(c), because if each offense were tried separately, evidence of the other offenses would be admissible in the separate trials in order to prove the robber's identity.

Scott opposed the motion for joinder. After hearing oral argument on the motion, the circuit court granted the Commonwealth's motion to join the offenses in a single trial. The circuit court held that several of the Commonwealth's witnesses might be required to testify regarding the identity of the perpetrator in the different offenses, and that there were substantial similarities among the offenses that constituted a "modus operandi." The case proceeded to a jury trial.

At trial, Michelle P. Bingaman testified that about 10:30 p.m. on February 4, 2003, a black man approached her as she stepped out of her vehicle in the parking lot of her apartment building. Bingaman stated that after the man displayed a gun and demanded that she give him her purse, she complied and dropped her purse on the ground. According to Bingaman, the man directed her to lie on the ground "face down," and then the man fled on foot. Bingaman stated that after the man departed, she discovered that her purse had been taken. At trial, Bingaman identified Scott as the man who robbed her.

Florentina Lizan testified that at 10:40 p.m. on March 16, 2003, a black male approached her after she left her vehicle and walked onto the front porch of her residence. Lizan stated that the man held a gun to her head and said, "This is a holdup," and "Give me your money. If not, I'm going to kill you." After Lizan gave the man her wallet, the man demanded Lizan's PIN for a certain credit card. Upon Lizan's refusal to give the man her PIN, the man ran toward a vehicle parked across the street.

According to Lizan, the man spoke with her several times on the telephone after the robbery demanding her PIN. The Commonwealth introduced into evidence telephone records indicating that the telephone calls to Lizan were made from a nearby convenience store. At trial, Lizan identified Scott as her assailant.

The Commonwealth presented testimony from Katherine F. Holloway about the night she was robbed. Holloway stated that about 10:00 p.m. on March 23, 2003, a black man with a gun appeared as she was unloading bags from her vehicle, which was parked in front of her home. According to Holloway, the man said, "Give me your money and your credit cards," and Holloway complied. Holloway testified that the man also asked for her "ATM number," and when she told him that she did not have one, he left. Holloway was unable to identify her assailant.

Next, Jeffrey R. Ratliff testified that he was robbed on April 27, 2003, about 10:00 p.m. Ratliff stated that he was in the driveway of a friend's home vacuuming the inside of a van when a man placed a gun to the back of Ratliff's head. According to Ratliff, the man, whom Ratliff described as a black male, asked for Ratliff's wallet and for the "codes" to his credit cards. Ratliff stated that he gave the man his wallet and told him that he did not have any "codes." Ratliff testified that after he complied with the robber's demand to lie face down on the ground, Ratliff heard the man run away. Ratliff identified Scott at trial as his assailant.

Holly L. Narducci testified about an incident that occurred between 7:30 p.m. and 8:30 p.m. on May 2, 2003. Narducci related that she was sitting in her garage, with the garage door open, when a black man entered the garage and said, "Scream, and I'll kill you." Narducci stated that the man pointed a gun at her head and demanded a wallet lying on a nearby workbench. Narducci testified that after she gave the man a credit card from the wallet, the man demanded a PIN. According to Narducci, she told the man the card did not have a PIN. As she "grabbed for" the man's gun, he ran away. Narducci identified Scott as the robber in a photographic lineup and at trial.

Next, Aderonke Aderonmu testified that she was driving home from work about 12:30 a.m. on May 15, 2003, when she noticed that a vehicle appeared to be following her car. Aderonmu stated that she saw the vehicle stop near her neighbor's home and assumed that the driver was her neighbor. Aderonmu testified that after she parked her vehicle in the driveway of her residence, a black man approached her. He pointed a gun at her head and said, "Give me all the money or I blow your head." According to Aderonmu, she gave the man her purse, and the man drove away in the vehicle that was parked near her neighbor's home. Aderonmu identified Scott in a photographic lineup and at trial as the man who robbed her.

Samuel K. Owens also testified, stating that he was robbed in the garage of his home at 9:30 p.m. on May 31, 2003. Owens testified that he was painting the inside of his garage, with the garage door open, when a black male ran into the garage and pointed a gun at Owens' head. According to Owens, the man asked for his wallet but Owens did not have his wallet with him. Owens stated that the man forced Owens, at gunpoint, inside the house to retrieve his wallet. Owens testified that after the man took his wallet and asked for Owens' PIN, Owens gave the man an incorrect PIN and the man left the house. Owens identified Scott as the perpetrator of the crime in both a photographic lineup and at trial.

Next, Jean Becker testified that she was robbed on the night of May 31, 2003. Becker stated that around 11:00 p.m., after she parked her vehicle in the driveway of her home, a black man appeared next to her vehicle. Becker stated that she tried to move to the other side of the vehicle to get away from the man but he reached into the vehicle, attempting to seize Becker's wallet. Becker testified that the man struggled with her and hit her in the mouth with a hard object that chipped her tooth. The man next grabbed Becker's wallet and left. At trial, Becker identified Scott as her assailant.

Finally, the Commonwealth presented the testimony of Ian P. Goodwin, who described the details of the night he was robbed. Goodwin stated that on June 7, 2003, between 10:00 p.m. and 10:30 p.m., he left a friend's home. As Goodwin entered his vehicle that was parked on a street, a black male holding a gun approached the car and said, "Give me the keys to your car." Goodwin stated that he responded, "No," and began yelling for help. According to Goodwin, the man hit Goodwin several times with the gun while the two men engaged in a struggle. Goodwin testified that the man ultimately left the scene by driving away in a vehicle. After the incident, Goodwin discovered that his wallet had been taken. Goodwin was unable to identify his assailant.

Officer Michael A. Melnyk of the City of Virginia Beach Police testified that about one week after the Goodwin robbery, Melnyk initiated a traffic stop of Scott's vehicle for several apparent traffic violations. William Handlin, another police officer present during the traffic stop, testified that Scott, a black male, was ultimately arrested for driving with a suspended driver's license. Handlin stated that he found Goodwin's debit card in Scott's pants pocket.

Charles P. Primeaux, a City of Virginia Beach police officer who interviewed Scott after his arrest, testified that during an initial interview, Scott denied any involvement in the robberies. However, during a later interview, when Primeaux asked Scott why he committed robberies, Scott replied that he owed many people money. Primeaux also testified that when he asked Scott where he obtained the gun used in the robberies...