FROM THE COURT OF APPEALS OF VIRGINIA.
Lisa C. Francisco for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
OPINION BY JUSTICE WILLIAM C. MIMS. JUSTICE KELSEY, with whom JUSTICE McCLANAHAN joins, dissenting.
PRESENT: All the Justices
WILLIAM C. MIMS, JUSTICE
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. 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, (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. From this evidence, the Court of Appeals inferred that Jarvon had provided a discount price to " create a return customer," 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.'" (quoting Spence v. Commonwealth, 12 Va.App. 1040, 1044, 407 S.E.2d 916, 918, 8 Va. Law Rep. 403 (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. 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.
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 ...