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Ferrell v. Commonwealth12/11/1990
cense plates; he had in his possession stolen license plates of others and their operator's licenses, wallets, and identification cards, all of which could reasonably be inferred to be parts of a common scheme or plan to commit the offenses with which he was charged. Where the accused's acts constitute parts of a common scheme or plan to commit the offenses with which he is charged, Rules 3A:6(b) and 3A:10(b) empower the trial court to order that the indictments be consolidated in a single trial, if justice does not require separate trials. Because evidence of the source of the fruits of various thefts would be admissible in separate trials to show "guilty knowledge," appellant was not prejudiced by the consolidation. Cook, 7 Va. App. at 230, 372 S.E.2d at 783; Foster v. Commonwealth, 6 Va. App. 313, 323, 369 S.E.2d 688, 694 (1988); see also Fincher, 212 Va. at 552, 186 S.E.2d at 76. We find that justice did not require that appellant be granted separate trials, and that the trial court did not abuse its discretion in ordering that the cases be consolidated for trial.
We further find that the inventory list included items that were either proved to have been stolen from the victims or were sufficiently related thereto to permit the jury to infer that they too were part of appellant's common scheme. To the extent the items on the inventory were not related to the thefts charged, we find this admission to be harmless beyond a reasonable doubt. For the
reasons stated it was not error to admit the inventory list to rebut appellant's testimony.
Relying on Schrum v. Commonwealth, 219 Va. 204, 246 S.E.2d 893 (1978), appellant further argues that the trial court erroneously permitted Officer Bond to testify to responses made by appellant to Bond's inquiry as to where appellant had acquired the Cadillac. The inquiry had been made as a part of Bond's preliminary investigation but after appellant's Miranda rights had been given. The facts in Schrum are substantially different from the case before us. There, the defendant, accompanied by his attorney, surrendered to the police. He signed the Miranda form and on advice of counsel refused to respond to police interrogation. At trial, the Commonwealth Attorney was permitted to cross-examine Schrum about his refusal to make a statement. The Supreme Court held that his refusal to respond was not admissible at trial and that the cross-examination violated Schrum's constitutional right to remain silent. The case before us is controlled by Squire v. Commonwealth, 222 Va. 633, 283 S.E.2d 201 (1981). In Squire, as here, the defendant voluntarily responded to questions. "Once [appellant] broke his silence... he did not have the right to remain silent selectively." Id. at 638, 283 S.E.2d at 205. As in Squire, we hold that the record shows that appellant chose not to rely on his right to remain silent, and that the expression, apparently intended to further express lack of knowledge of the theft was properly admitted.
In our review of the applicable law and the evidence presented at trial, we hold that there has been no showing that the trial court abused the discretionary powers contained in Rules 3A:6(b) and 3A:10(b) as interpreted by Cheng, 240 Va. at 33-34, 393 S.E.2d at 603 and Fincher, 212 Va. at 553, 186 S.E.2d at 76. Moreover, we observe that
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