Walker v. Commonwealth

Decision Date16 April 2015
Docket NumberRecord No. 140747.
Citation289 Va. 410,770 S.E.2d 197
CourtVirginia Supreme Court
PartiesJarvon Lavell WALKER v. COMMONWEALTH of Virginia.

Lisa C. Francisco, Halifax, for appellant.

Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: All the Justices.

Opinion

OPINION BY Justice WILLIAM C. MIMS.

In this appeal, we consider whether four separate charges of selling, giving, or distributing a controlled substance were permissibly joined for trial under Rules 3A:6(b) and 3A:10(c).

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Derrick Walker was an informant working with the Southside Drug Task Force. He identified Jarvon Lavell Walker as a drug dealer.1 Jarvon was previously known to Derrick but they had not spoken for some time.

On April 11, 2012 Derrick contacted Jarvon and arranged to buy a gram of crack cocaine. At Jarvon's suggestion, Derrick met him at a store in South Hill and bought 0.961 gram of crack cocaine for $50.

On April 13, 2012 Derrick again contacted Jarvon to buy crack cocaine. Jarvon again suggested they meet at the same store where he had sold Derrick crack cocaine two days earlier. He later changed the location to a trailer park in South Hill. Derrick met Jarvon there and bought 0.845 gram of crack cocaine for $50.

On April 19, 2012 Derrick again contacted Jarvon to buy crack cocaine. Jarvon suggested they meet at a second trailer park in South Hill. Derrick met Jarvon there and bought 0.603 gram of crack cocaine for $70.

On April 24, 2012 Derrick again contacted Jarvon to buy crack cocaine. Jarvon suggested they meet at a trailer park in Mecklenburg County. Derrick met Jarvon there and bought 0.773 gram of crack cocaine for $70.

Each of the four transactions was overseen and recorded by task force personnel. Subsequent analysis by the Department of Forensic Sciences confirmed the quantity and nature of the substances Derrick had bought in each of the transactions.

A grand jury later indicted Jarvon on four separate counts of selling, giving, or distributing a Schedule I or II controlled substance, in violation of Code § 18.2–248, following two or more prior convictions for substantially similar offenses. He thereafter moved to sever the indictments and be tried in four separate jury trials, arguing that the charged offenses were not part of a common scheme or plan. He also argued that he would be prejudiced if all four charges were tried in a single proceeding because a jury might convict him on all four even if only one was proved. After a hearing, the circuit court denied the motion.

At the subsequent trial, the jury found Jarvon guilty on all four counts. The court sentenced him to six years' imprisonment on each count and three years' post-release supervision under Code § 19.2–295.2.

In an appeal to the Court of Appeals, Jarvon again argued that the four offenses were not part of a common scheme or plan. The Court of Appeals determined that the offenses did constitute a common plan within the meaning of Rule 3A:6(b). The court noted that “the term ‘common plan’ described crimes that are related to one another for the purpose of accomplishing a particular goal.” Walker v. Commonwealth, Record No. 1051–13–2, slip op. at 6, 2014 WL 1226769 (Mar. 25, 2014) (quoting Scott v. Commonwealth, 274 Va. 636, 646, 651 S.E.2d 630, 635 (2007) ). It observed that each sale followed a similar pattern: Jarvon waited for Derrick to contact him about buying crack cocaine; Jarvon set a location for the sale; each sale was for approximately one gram; and all sales took place in or near South Hill in Mecklenburg County. Id.

The Court of Appeals also noted that although expert opinion testimony established the local market price for crack cocaine was $100 per gram, Jarvon only charged $50 for 0.961 gram in the first sale.2 From this evidence, the Court of Appeals inferred that Jarvon had provided a discount price to “create a return customer,” id. at 6, which was “a ‘plan that tied the offenses together and demonstrated that the object of each offense was to contribute to the achievement of a goal that was not obtainable by the commission of any of the individual offenses.’ Id. at 8–9 (quoting Spence v. Commonwealth, 12 Va.App. 1040, 1044, 407 S.E.2d 916, 918 (1991) (internal alteration omitted)). Accordingly, it concluded that joinder was permissible under Rule 3A:6(b).

The Court of Appeals then determined that justice did not require severing the charges for the purposes of Rule 3A:10(c). It opined that the evidence of multiple sales was admissible because it helped establish both that Jarvon had the requisite intent to sell, give, or distribute the controlled substance and that he knew the nature and character of the substance he was selling. The court also opined that the probative value of admitting such evidence outweighed any prejudicial effect. Finally, it noted both that much of the evidence would have been the same if the circuit court had ordered separate trials and that the decision to join the charges served interests of judicial economy.Id. at 9–11. Accordingly, it concluded that the circuit court did not abuse its discretion by permitting all four charges to be tried together.

We awarded Walker this appeal.

II. ANALYSIS

In his first assignment of error, Walker asserts that the Court of Appeals erred by determining that the four offenses constituted a common plan for the purposes of Rule 3A:6(b). Citing Spence, he argues that separate sales of a controlled substance on different occasions are insufficient to constitute a common scheme or plan.

The circuit court's decision to join offenses for trial is reviewed for abuse of discretion. Scott, 274 Va. at 644, 651 S.E.2d at 634. However, interpretations of the Rules of this Court by the Court of Appeals, including the meaning of the term “common plan” as used in Rule 3A:6(b), are questions of law we review de novo. LaCava v. Commonwealth, 283 Va. 465, 471, 722 S.E.2d 838, 840 (2012).3

In Spence, the defendant sold cocaine to an undercover narcotics investigator in four transactions between February 3 and May 10, 1989, in or near Whitesville in Accomack County. 12 Va.App. at 1041–42, 407 S.E.2d at 916–917. The Court of Appeals considered whether the four charges were properly joined for trial under Rule 3A:6(b). It considered each of the three prongs of Rule 3A:6(b). It concluded that the charges fulfilled none of them. Id. at 1042–45, 407 S.E.2d at 917–18.

Specifically addressing the common scheme or plan prong, the Court of Appeals noted that “separate sales of a controlled substance by the same individual on different occasions do not constitute a common scheme or plan.” Id. at 1044, 407 S.E.2d at 918. Rather,

a common scheme or plan is present only if 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 obtainable by the commission of any of the individual offenses.”

Id. (quoting Godwin v. Commonwealth, 6 Va.App. 118, 122, 367 S.E.2d 520, 522 (1988) (internal alteration omitted)).

The Court of Appeals concluded that

[n]othing inherent in any of the four crimes herein charged would separate them from numerous offenses of possession and distribution of drugs that happen every day. There is no evidence of a plan tying these four drug sales together or showing that each offense was intended to assist in accomplishing a goal other than that achieved by each individual offense. The four offenses merely show that Spence has the propensity to commit the crime and this inference has been held to be error because it reverses the presumption of innocence. Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).

Id. at 1044–45, 407 S.E.2d at 918.

The only material distinction between Spence and this case is that the four transactions took place over a span of 13 weeks in Spence and over a span of 13 days here. While we indicated in Satcher v. Commonwealth, 244 Va. 220, 229, 421 S.E.2d 821, 827 (1992), that offenses may be considered parts of a common scheme or plan when they are “closely connected in time, place, and means of commission,” the two crimes charged in that case occurred “within a few yards and about one-half hour of each other,” and shared the same modus operandi.

We are not persuaded that the general vicinity of South Hill and a span of 13 days sufficiently connects the four transactions here any more than the general vicinity of Whitesville and a span of 13 weeks did in Spence. Similarly, we are not persuaded that the pattern of the transactions identified by the Court of Appeals in this case was sufficiently specific to establish an unusual and unifying modus operandi. Cf. Yellardy v. Commonwealth, 38 Va.App. 19, 22–25, 561 S.E.2d 739, 741–42 (2002) (affirming the conviction in a single trial of a defendant charged with two robberies occurring four days apart in the same park where each victim was an unaccompanied male threatened with a rock and subsequently accused by the defendant of having made a sexual proposition).

We likewise are not persuaded that the evidence established that Jarvon had a particular “goal not obtainable by the commission of any of the individual offenses.” Spence, 12 Va.App. at 1044, 407 S.E.2d at 918 (internal quotation marks omitted). The object of selling drugs for money is to make money selling drugs. The seller's goal is to make a profit. Return customers are more profitable: the seller incurs lower operating costs selling to them than if he or she must spend the time and effort to attract new ones. Therefore, the cultivation of return customers is intrinsic to the goal of profiting from the sale of drugs.

The Court of Appeals also sought to distinguish Spence on the ground that it was decided before our 2007 decision in Scott . In that case we defined the term “common scheme or plan” as used in Rule 3A:6(b) for...

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