Spence v. Com., 1714-89-1

• Decision Date: 30 July 1991
• Docket Number: No. 1714-89-1,1714-89-1
• Citation: 12 Va.App. 1040,407 S.E.2d 916
• Parties: Gregory Lynn SPENCE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 916

407 S.E.2d 916

12 Va.App. 1040

Gregory Lynn SPENCE v. COMMONWEALTH of Virginia.

Record No. 1714-89-1.

Court of Appeals of Virginia.

July 30, 1991.

A. Theresa Bliss, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, COLEMAN and MOON, JJ.

MOON, Judge.

Gregory Lynn Spence was convicted of four counts of distribution of cocaine. Here, we hold that the trial court erred in refusing to grant Spence's motion to sever the four counts of his indictment and try each offense separately pursuant to Rule 3A:10(b).

Virginia State Trooper Oliver Johnson, while conducting an undercover narcotics investigation in Accomack County, Virginia, encountered the appellant, Gregory Lynn Spence, in an area known as Whitesville. Trooper Johnson concentrated his investigation in the vicinity of a pool hall, parking lot and public dumpster where individuals congregated. Between January and June of 1989, Trooper Johnson made regular purchases of controlled substances.

Trooper Johnson testified that he first purchased cocaine from the appellant on February 3 in the above described location. Trooper Johnson testified that in the late afternoon of February 3, he drove to the Whitesville area and was approached by the appellant, from whom he purchased cocaine. Johnson engaged Spence in conversation, inquiring as to the quality of the drugs. Johnson was told by Spence that the cocaine was of good quality and "if you're not satisfied, you come back and let me know" and "if you need anything else, I will be here." Johnson next encountered Spence on February 14. While driving in the Whitesville area, Johnson recognized Spence and made a second purchase. On March 1, Johnson was again investigating the Whitesville area and stated that, at this time, he was not interested in encountering Spence as he had already made two purchases from Spence and others were selling drugs in that area. As Johnson approached the pool hall area, he spoke to at least two individuals who indicated they had no drugs. He then "saw Mr. Spence" and "got his attention" and was able to make a third drug purchase. On May 10, Johnson, again unable to make contact with other sellers, made his fourth purchase from Spence. Prior to trial, Spence moved to sever the four distribution counts.

The trial court may, in its discretion, try the defendant for more than one offense at the same time without his consent only if justice does not require separate trials and the offenses meet the requirements of Rule 3A:6(b). See Godwin v. Commonwealth, 6 Va.App. 118, 121, 367 S.E.2d 520, 521-22 (1988). The requirements of Rule 3A:6(b) provide for the joinder of offenses only where the offenses (1) "are based on the same act or transaction" or (2) "on two or more acts or transactions that are connected" or (3) "constitute parts of a common scheme or plan." The introduction of evidence of factually similar offenses, even those occurring within hours of one another, has been held to be error. See, e.g., Boyd v. Commonwealth, 213 Va. 52, 189 S.E.2d 359 (1972); Johnson v. Commonwealth, 3 Va.App. 444, 350 S.E.2d 673 (1986); Henderson v. Commonwealth, 5 Va.App. 125, 360 S.E.2d 876 (1987); Godwin v. Commonwealth, 6 Va.App. 118, 367 S.E.2d 520 (1988).

I. The Same Transaction

In Boyd v. Commonwealth, 213 Va. 52, 189 S.E.2d 359 (1972), the Supreme Court reversed Boyd's conviction for possession and distribution of heroin because of the admission during the trial of evidence of previous sales. The Court held that testimony by the police officer to whom Boyd sold heroin concerning two prior sales the officer witnessed, two days before the sale for which Boyd was being tried, was inadmissible. The Court held that the prior sales were unrelated to the sale being tried and that the prejudicial effect of the evidence outweighed its probative value. Id. at 53, 189 S.E.2d at 360.

Boyd is to be contrasted with the case of Cook v. Commonwealth, 7 Va.App. 225, 372 S.E.2d 780 (1988). In Cook, the defendant and his accomplice, within a time period of thirty minutes, entered three separate 7-Eleven stores in the same geographic area. Once inside, one accomplice would distract the clerk while the other concealed cigarettes. At trial, the defendant's motion to have the three offenses severed and tried separately was denied. "Each offense was a separate act or transaction taking place at a different location and at a different, although closely related, time." Id. at 228-29, 372 S.E.2d at 782. In affirming the conviction, this Court found that while these were similar transactions, they did not meet the requirement of "the same act or transaction." Id. However, the Court found that the prior offenses met the two other requirements of Rule 3A:6(b) as they constituted "connected" offenses and were part of the same "common scheme or plan." Id. at 229, 372 S.E.2d at 782. This Court held that the evidence of three offenses demonstrated that "they were not simply multiple offenses of a similar nature committed by the same people." Id.

Conversely, in this case, the cocaine sales are merely multiple offenses of a similar nature committed by the same person. In Cook, the offenses, in addition to being similar crimes committed by the same people in the same geographical area, were committed one immediately after the other, each within thirty minutes of the previous one. This timing, we held, manifested a single plan common to all three offense. Id. In cases such as this, where the sales occurred as discreet events with a significant separation of time between each event, they do not meet the requirement of "the same act or transaction."

II. Connected Transactions

The evidence shows that four sales of cocaine were made by Spence to Johnson, all of which took place at Whitesville. But the shortest interval between any two sales was eleven days and the longest interval was over two months. The Commonwealth makes much of the fact that Spence allegedly said to Johnson on one sale, "if you are not satisfied, you can come back and let me know," and "if you need anything else, I will be here," as proof of two or more acts or transactions that are connected. However, in this context we consider Spence's statements to be merely the assurances of a salesman that his wares were of good quality. Johnson never testified that he followed up on another sale because of Spence's statements. In fact, Johnson testified that he "didn't want to continue to buy from the same person ... because so many people were selling drugs." On March 1, 1989, and again on May 10, 1989, Johnson purchased drugs from Spence only after being unable to successfully connect with other individuals. As Spence suggests, Johnson sought out Spence. The transactions were initiated by Johnson. To meet the "connected" test, the crimes should be "so intimately connected and blended with the main facts adduced in evidence, that t...