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Ferrell v. Commonwealth12/11/1990
upon the facts disclosed by this record the appellant received the fair trial to which he was entitled.
For the reasons stated, the judgments of the trial court are affirmed.
Affirmed.
Disposition
Affirmed.
BARROW, J., dissenting.
Although I agree that the defendant's incriminating statement was admissible, the trial court, in my opinion, erred in denying the defendant's severance motion and in admitting the inventory of the contents of the automobile.
SEVERANCE
The commission of four burglaries, three involving auto storehouses and one an industrial materials business, over a period of a month and one-half in a large city, does not, in my opinion, manifest a "common scheme or plan."
Severance in a criminal case is controlled by the Rules of the Supreme Court. Rule 3A:10(b); see Brown v. Commonwealth, 223 Va. 601, 607, 292 S.E.2d 319, 322 (1982); Cook v. Commonwealth, 7 Va. App. 225, 228, 372 S.E.2d 780, 782 (1988); Godwin v. Commonwealth, 6 Va. App. 118, 121, 367 S.E.2d 520, 521-22 (1988). Under these Rules an accused may be tried for more than one offense at the same time only if (1) "justice does not require separate trials" and (2) "the offenses meet the requirements of Rule 3A:6(b) the accused and the Commonwealth's attorney consent thereto." Rule 3A:10(b). Since the accused and the Commonwealth's attorney in this case did not both consent to the four burglaries being tried together, each of the other two requirements had to be met.
Rule 3A:6(b) requires that the offenses be 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). These four burglaries were not based on the same act or transaction nor was there any suggestion that they were based on two or more acts or transactions that were connected. Therefore, to meet the requirements of Rule 3A:6(b) these four burglaries must be based on two or more acts or transactions that constitute a common scheme or plan.
A "common plan" as used in the context of a criminal defendant's right to severance means that 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 attainable by the commission of any of the individual offenses." 2 ABA Standards
for Criminal Justice § 13-1.2 commentary at 13.10 (1980). It does not mean multiple offenses of a similar nature committed by the same person or persons. Cook, 7 Va. App. at 228, 372 S.E.2d at 782; see also 2 ABA Standards for Criminal Justice § 13-1.2, at 13.35 (Supp. 1982). A conspiracy is a particularly appropriate application of the concept of "common scheme." Dorantes v. Commonwealth, 222 Va. 383, 385, 281 S.E.2d 823, 824 (1981) (conspiracy to rob banking institutions in Arlington, Virginia). Even if a conspiracy is not charged, if the offenses are based on a single plan common to all offenses, the offenses "constitute parts of a common scheme or plan." See Cook, 7 Va. App. at 229, 372 S.E.2d at 782 (three offenses of concealing cigarett
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