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Ferrell v. Commonwealth12/11/1990
introducing the inventory list to show appellant's knowledge of the stolen items which were in his possession or under his control.
Appellant asserts that the trial court committed reversible error by refusing to grant his motion to sever the trials on the four separate indictments charging him with violation of Code § 18.2-91 (breaking and entering). He concedes that the trial of the larceny counts arising out of two breaking and entering indictments properly could be tried at the same time as the related burglary charge if the breaking and entering trials were severed. He argues that Rule 3A:6(b), Godwin v. Commonwealth, 6 Va. App. 118, 367 S.E.2d 520 (1988) and Cook v. Commonwealth, 7 Va. App. 225, 372 S.E.2d 780 (1988) give him the absolute right to separate trials.
Because appellant relies heavily on the majority opinion in Godwin, a threshold question we must decide is the effect, if any, that opinion has on the matter before us. Initially, we note that the dissent in Godwin opined that the issue the Court was required to decide was not as stated by the majority but was whether the trial court abused its discretionary power when it found the existence of a common scheme or plan and denied the defendant's motion to sever. Godwin, 6 Va. App. at 125, 367 S.E.2d at 524 (Baker, J., dissenting). The majority in Godwin did not address that issue. Subsequent to Godwin, Cheng v. Commonwealth,
240 Va. 26, 393 S.E.2d 599 (1990), was decided. A threshold issue in Cheng involved Rules 3A:6(b) and 3A:10(b), and the effect of the phrase "parts of a common scheme or plan."
A court may direct that an accused be tried at one time for all offenses pending against him if (1) "justice does not require separate trials," Rule 3A:10(b), and (2) "the offenses are 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). Whether different offenses should be tried separately is a matter that rests within the sound discretion of a trial court. Fincher v. Commonwealth, 212 Va. 552, 553, 186 S.E.2d 75, 76, cert. denied, 409 U.S. 913 (1972); Bryant v. Commonwealth, 189 Va. 310, 315, 53 S.E.2d 54, 46 (1949). Thus, a trial court's ruling on the matter will not be reversed absent a showing that the court abused its discretion. Fincher, 212 Va. at 553, 186 S.E.2d at 76.
Id. at 33-34, 393 S.E.2d at 603. As in Cheng, the primary issue before us is whether the record discloses that the trial court abused its discretion in ordering that the indictments be consolidated for trial. We find that, pursuant to the holding in Cheng, the record before us does not disclose an abuse of the trial court's discretionary power.
In Fincher v. Commonwealth, 212 Va. 552, 186 S.E.2d 75 (1972), the Supreme Court held that the trial court did not abuse its discretion in refusing to sever the offenses for trial and said:
From the standpoint of economy of the time of the court, jurors, and witnesses, there was good reason for consolidation. The offenses charged against the defendant arose out of a series of related and connected events. Much the same evidence would have been submitted to the
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