Scott v. Commonwealth

• Decision Date: 18 July 2006
• Docket Number: Record No. 0067-05-1.
• Citation: 632 S.E.2d 12,48 Va. App. 401
• Parties: Otis SCOTT, III v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

632 S.E.2d 12

48 Va. App. 401

Otis SCOTT, III v. COMMONWEALTH of Virginia.

Record No. 0067-05-1.

Court of Appeals of Virginia, Chesapeake.

July 18, 2006.

Gregory B. Turpin, Virginia Beach, for appellant.

Deana A. Malek, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: BENTON, HUMPHREYS and PETTY, JJ.

ROBERT J. HUMPHREYS, Judge.

Otis Scott, III ("Scott") appeals his convictions of abduction with intent to extort money, two counts of armed common law burglary, seven counts of robbery, nine counts of use of a firearm in the commission of a felony, attempted extortion, and statutory burglary, in violation of Code §§ 18.2-48, 18.2-90, 18.2-58, 18.2-53.1, 18.2-59, and 18.2-90, respectively. Scott contends the trial court erred in granting the Commonwealth's pretrial motion for joinder.¹ Specifically, Scott argues that the Commonwealth failed to prove that the offenses were part of a "common scheme or plan" and, even if they were, that "justice still required separate trials." For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the evidence established the following.

On February 3, 2003, at approximately 10:30 p.m., a man approached Michelle Bingaman ("Bingaman") from behind as she was getting out of her car in front of her apartment building. The man pointed a gun at Bingaman's head and stated, "[w]e can do this the easy way or the hard way." The man told Bingaman to empty her pockets, and to lay down facing the ground. He then took her purse and fled on foot. Bingaman described the man as African-American, approximately six feet tall, medium build, and in his mid-twenties to thirties. During a photo lineup, and at trial, Bingaman positively identified Scott as the perpetrator of the crime.

On March 16, 2003, at approximately 10:40 p.m., a man approached Florentina Lizan ("Lizan") from behind as she was getting out of her car in front of her house. The man pointed a gun at her head, demanded money and credit cards, and threatened to kill Lizan if she did not cooperate. Lizan gave the man her wallet and her credit cards. After demanding the PIN number for her card, the man fled on foot to a car parked across the street. Lizan described the man as African-American, approximately five feet, nine inches tall, medium build, and in his mid-twenties or thirties. At a photo lineup, and at trial, she positively identified Scott as the perpetrator of the crime.

On March 23, 2003, shortly after 10:00 p.m., a man approached Kay Holloway ("Holloway") from behind as she was unloading her car in front of her house. The man had a gun on his side, and he demanded money, credit cards, and Holloway's ATM number. When Holloway did not move fast enough, the man raised the gun to his chest and pointed it at Holloway. Once Holloway gave him her money, the man fled on foot. Moments later, Holloway heard a car start up. Holloway identified the man as African-American, approximately five feet, nine inches tall, medium build, and in his mid-twenties or thirties. However, she could not identify Scott at either a photo lineup, or at trial, as the perpetrator of the crime.

On April 27, 2003, between 10:00 and 10:30 p.m., a man approached Jeffrey Ratliff ("Ratliff") from behind as he was vacuuming out a van in front of a friend's home. The man placed a gun on the back of Ratliff's head, and he demanded Ratliff's wallet and the "code" for his credit cards. Ratliff gave the man his wallet, but told the man that he did not have any "codes" for his cards. The man then fled on foot. Ratliff identified the perpetrator as African-American, approximately five feet ten to five feet eleven inches tall, and about 180 pounds. He could not identify the perpetrator in a photo lineup. However, on the day of the trial, Ratliff identified Scott as his assailant.

On May 2, 2003, at 8:30 p.m., a man approached Holly Narducci ("Narducci") while she was alone in her garage. The man came up behind her from the driveway, pointed a gun at her, and said, "[s]cream and I'll kill you." The man demanded her wallet, stating that he wanted money and credit cards. He then asked for Narducci's PIN number, which she told him she did not have. Narducci then grabbed for the gun, a brief struggle ensued, and the man fled on foot. Narducci identified Scott as the perpetrator at both a photo lineup and at trial.

On May 13, 2003, at approximately 11:00 p.m., a man approached Jean Becker ("Becker") as she was getting out of her car in her driveway. When the man came up beside her car, Becker attempted to cross over to the other side of the vehicle in order to get away from him. However, the man grabbed her wrist and struggled with Becker in an attempt to get her wallet. In the course of the struggle, the man hit Becker with a hard object, chipping her tooth. The man took the wallet and fled. At trial, Becker identified Scott as the perpetrator of the crime.

On May 15, 2003, at approximately 12:30 a.m., a man approached Aderonke Aderonmu ("Aderonmu") as she was getting out of her car in front of her home. The man pointed a gun at Aderonmu's head, and he demanded all of her money or else he would "blow her head off." Aderonmu panicked and dropped her purse. The man grabbed the purse, and he left in a car that was parked in front of a neighboring house. Aderonmu described the man as African-American with a medium build. She positively identified Scott in a photo lineup, and at trial, as her assailant.

On May 31, 2003, at approximately 9:30 p.m., a man approached Samuel Owens ("Owens") as he was working alone in his garage. The man ran up Owens' driveway, came into the garage, and pulled out a gun. When Owens began screaming, the assailant pointed the gun at Owens and told him to be quiet. The man demanded Owens' wallet. When Owens told him that his wallet was in the house, the assailant forced him to retrieve it at gunpoint. After demanding Owens' PIN number, the gunman fled on foot. Owens described the man as African-American, approximately five feet, seven inches tall, muscular, and in his mid-twenties. Owens identified Scott at both a photo lineup, and at trial, as the perpetrator of the crime.

On June 7, 2003, at around 10:00 p.m., a man approached Ian Goodwin ("Goodwin") as he was getting into his car in front of a friend's house. The man was holding a gun, and he demanded the keys to Goodwin's car. Goodwin said "no," and he began yelling for help. The man hit Goodwin several times in the head, and he then fled on foot. After the attack, Goodwin realized that his wallet was missing. Goodwin described his attacker as African-American, in his thirties, under six feet tall, and well built. Goodwin could not identify his attacker in a photo lineup, but at trial, Goodwin stated that Scott "positively resemble[d] the figure" he saw on the night he was attacked.

On June 14, 2003, a police officer stopped Scott for a traffic violation, and he was arrested for driving on a suspended license. After he was arrested, the police found a credit card belonging to Goodwin in Scott's possession. They also found, in his car, clothing matching the descriptions given by Lizan and Narducci.

On September 2, 2003, a grand jury issued a twenty-seven-count indictment against Scott. On December 18, 2003, the Commonwealth moved for joinder, arguing that the multiple armed robberies had the following common scheme:

1. They occurred in the late evening;

2. Each of the victims were alone;

3. Each of the victims were threatened with a handgun;

4. The suspect demanded personal property from each victim;

5. The victims had either just arrived in their vehicle or were in their garage;

6. All of the robberies occurred in a residential neighborhood;

7. Most of the victims were either threatened or suffered bodily injury at the hands of the suspect;

8. Each robbery was committed by a lone suspect.

On January 14, 2004, after oral argument, the trial court granted the Commonwealth's motion for joinder. The trial court held that,

[i]n weighing all of the various factors that we have considered ... and in balancing all of the prejudice or the possible prejudice to the defendant and the other factors we've talked about, including the fact that several lay witnesses perhaps ostensibly might be required to testify in multiple separate trials if they were to be held separately, the standard by which that evidence is judged, the likelihood that at least some of those individuals may be in a position to be permitted to offer testimony as to identity in those cases in which identity would be an issue, the substantial similarities in terms of the modus operandi in these offenses, the method by which they were carried out, the similarity in the selection of victims, the type of victim, the location that was selected for the offenses, the offense itself that was committed, what was taken, what was requested in addition to the method and means by which the crimes were carried out, I think all of that suggest that the Commonwealth's motion should be granted.... I do not find that justice requires separate trials in this case.

On December 16, 2004, a jury convicted Scott of abduction with intent to extort money, two counts of armed common law burglary, seven counts of robbery, nine counts of use of a firearm in the commission of a felony, one count of attempted extortion, and one count of statutory burglary, in violation of Code §§ 18.2-48, 18.2-90, 18.2-58, 18.2-53.1, 18.2-59 and 18.2-90.² On January 21, 2005, the trial court affirmed the findings of the jury, and sentenced Scott to 253 years incarceration. Scott now appeals.

ANALYSIS

"Rule 3A:10(c) permits the trial of multiple...