holding that case involving two attempted rapes and robberies, which occurred within a few yards and one-half hour of each other and involved forcible removal of the victims from a bicycle path, “constituted parts of a common scheme or plan” and was distinguishable from Godwin, in which “the two robberies in issue occurred five days and three and one-half miles apart and ‘no evidence linked or connected the one robbery with the other’ ”
How later courts described this case
- holding that case involving two attempted rapes and robberies, which occurred within a few yards and one-half hour of each other and involved forcible removal of the victims from a bicycle path, “constituted parts of a common scheme or plan” and was distinguishable from Godwin, in which “the two robberies in issue occurred five days and three and one-half miles apart and ‘no evidence linked or connected the one robbery with the other’ ”
- finding that an identification was reliable where the victim “testified that she first saw the person who turned out to be her assailant when he was between 30 and 50 feet away from her on the bicycle path, that she looked at him ‘a few times,’ and that she made ‘eye contact’ with him when they passed one another, at which time they were ‘very close,’ not ‘even . . . two feet’ apart”
- finding that, under Neil v. Biggers factor five, “the lapse of time alone is not sufficient to render an identification unreliable as a matter of law,” but “[r]ather, whether an identification is reliable ‘depends on the totality of the circumstances’” (quoting Stovall, 388 U.S. at 302 )
- holding that the identification of the defendant was reliable although the identification was fifteen months after -5- the crime and concluding that “the lapse of time alone is not sufficient to render an identification unreliable as a matter of law”
Written by the judges who cited it.
The opinion
JUSTICE HASSELL, with whom JUSTICE WHITING joins, dissenting.
I dissent because I believe that the trial court committed reversible error which deprived Satcher of a fair trial.
The trial court erred in failing to grant Satcher’s motion for separate trials. Satcher was indicted and tried for crimes against two separate victims. He was found guilty of the following offenses relating to Deborah Abel: attempted rape, assault and battery, and robbery. He was also tried and convicted of the following offenses relating to Ann Borghesani: rape and capital murder.
*262 The offenses involving Deborah Abel occurred on March 31, 1990, at approximately 7:15 p.m. The record does not establish the time that Ann Borghesani was raped and murdered. Ms. Borghesani was last seen alive on March 31, 1990, at 7:10 p.m. in her apartment. Her body was discovered some time after 6:45 a.m. on the following morning, April 1, 1990.
Rule 3A: 10(b) of the Rules of this Court states:
An Accused Charged With More Than One Offense. The court may direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth’s attorney consent thereto.
Rule 3A:6(b) states:
Joinder of Offenses. — Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an indictment or information if 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.
There is no evidence in the record which reveals that the offenses committed against Deborah Abel and Ann Borghesani “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.” Id. Contrary to the assertions contained in the majority’s opinion, there is no evidence from which a proper inference can be drawn that the acts are connected.
We have not heretofore discussed under what circumstances ‘ ‘two or more acts or transactions ... are connected’ ’ in the context of Rule 3A:6(b). However, we have discussed the requisites which must be present before a crime can be deemed to be “connected” to another crime. In Walker v. Commonwealth, 28 Va. (1 Leigh) 574 (1829), we stated:
It frequently happens, however, that as the evidence of circumstances must be resorted to for the purpose of proving the commission of the particular offence charged, the proof of *263 those circumstances involves the proof of other acts, either criminal or apparently innocent. In such cases, it is proper, that the chain of evidence should be unbroken. If one or more links of that chain consist of circumstances, which tend to prove that the prisoner has been guilty of other crimes than that charged, this is no reason why the court should exclude those circumstances. They are so intimately connected and blended with the main facts adduced in evidence, that they cannot be departed from with propriety; and there is no reason why the criminality of such intimate and connected circumstances, should exclude them, more than other facts apparently innocent.
Id. at 576 (emphasis in original). In Kirkpatrick v. Commonwealth, 211 Va. 269 , 176 S.E.2d 802 (1970), we repeated the rule articulated in Walker .
[Testimony of other crimes is admissible where the other crimes constitute a part of the general scheme of which the crime charged is a part. Frequently it is impossible to give a connected statement showing the crime charged without incidental reference to such contemporaneous and similar crimes and where there is only such incidental disclosure of other offenses.
Id. at 272, 176 S.E.2d at 805 . Furthermore, while approving the admission in evidence of prior criminal conduct committed by a defendant, we stated:
They [the crimes] are “so intimately connected and blended with the main facts adduced in evidence, that they cannot be departed from with propriety; and there is no reason why the criminality of such intimate and connected circumstances, should exclude them, more than any other facts apparently innocent.”
Id. at 276 , 176 S.E.2d at 807 -08 (quoting Walker, 28 Va. (1 Leigh) at 576).
Numerous courts, which have considered Rule 8 of the Federal Rules of Criminal Procedure, * which is substantially similar to Rule *264 3A:6(b), have essentially applied the Kirkpatrick rule when determining if offenses can be tried together over the defendant’s objection. For example, the court in United States v. Montes-Cardenas, 746 F.2d 771 (11th Cir. 1984) stated:
Offenses may be joined if they are based on “two or more acts or transactions connected together or constituting part of a common scheme or plan.” Fed.R.Crim.P. 8(a). Two crimes are “connected” together if the proof of one crime constitutes a substantial portion of the proof of the other. See, e.g. United States v. Sweig, 44l F.2d 114, 118-19 (2nd Cir.) cert. denied, 403 U.S. 932 , 91 S.Ct. 2256 , 29 L.Ed.2d 711 (1971); United States v. Weber, 437 F.2d 327, 331 (3rd Cir. 1970), cert. denied, 402 U.S. 932 , 91 S.Ct. 1524 , 28 L.Ed.2d 867 (1971); see also United States v. Halper, 590 F.2d 422, 492 (2nd Cir. 1978) (joinder improper when commission of one crime did not lead to commission of the other and proof of one did not constitute proof of the other).
Id. at 776. The Ninth Circuit Court of Appeals recently held that “[t]wo crimes are connected together if the proof of one crime constitutes a substantial portion of the proof of another.” United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990) (quoting Montes-Cardenas, 746 F.2d at 776 ).
Joint trials are permissible, in certain circumstances, to avoid unnecessary inconvenience to witnesses, the accused, the government, and the court. As we observed in Kirkpatrick , the facts giving rise to the offenses charged against the defendant may be “ ‘so intimately connected and blended’” that they cannot be “ ‘departed from with propriety.’” 211 Va. at 276 , 176 S.E.2d at 807 (quoting Walker, 28 Va. (1 Leigh) at 576). Neither the majority nor the Commonwealth has shown that the facts relating to the acts perpetrated against Ms. Abel are “intimately connected or blended” with the acts committed against Ms. Borghesani. Additionally, neither the *265 majority nor the Commonwealth has shown that evidence necessary to prove Satcher’s offenses against Ms. Abel constitutes a substantial portion of the proof involving the offenses perpetrated against Ms. Borghesani, as required by Kirkpatrick .
In Day v. Commonwealth, 196 Va. 907 , 86 S.E.2d 23 (1955), a case remarkably similar to this case and which is not discussed by the majority, we rejected the same argument which the Commonwealth advances and the majority approves today. In Day , the defendant was indicted for attempted rape, robbery, and sodomy of a single victim, Della Claytor. The indictments were tried together and the defendant was convicted of each offense and the jury fixed his punishment at death.
In Day , evidence was admitted of an attempted attack by Day on a witness, Mrs. Stanford, which occurred at 7:10 p.m. on February 1, 1954. Day, 196 Va. at 910 , 86 S.E.2d at 24-25 . Day attacked Della Claytor, his second victim, later that evening and took her to a vacant lot. Id. at 908 , 86 S.E.2d at 23 . He attempted to rape her but was unable to do so. Id. at 908 , 86 S.E.2d at 23-24 . Day then sodomized and beat Claytor. Id. at 908 , 86 S.E.2d at 24 . Day took Claytor to her home where her daughter and her daughter’s two small children were present. Id. at 908-09 , 86 S.E.2d at 24 . Soon thereafter, two of Claytor’s neighbors arrived and after a brief conversation, they left the house with Day. Id. at 909 , 86 S.E.2d at 24 . Later that evening, Day returned to Claytor’s home, broke the lock on the door, and abducted Claytor. Id. The police found Day and Claytor approximately five blocks from her home. Id.
While the record in Day does not disclose the exact time of Day’s attack on Claytor, Claytor’s daughter testified that she called the police after Day abducted her mother from the house. Id. A police officer testified that he received a complaint from someone at Claytor’s home at 7:46 p.m. on February 1, 1954. Id. These facts indicate that Day’s crimes committed against Claytor occurred between 7:10 p.m. and sometime well before 7:46 p.m. Thus, it is proper to infer that the first attack of Claytor occurred within minutes of his attempted attack on Mrs. Stanford.
The Commonwealth argued in Day that Stanford’s testimony was admissible because it tended to identify the accused by placing him in the vicinity at the time that the victim was assaulted and “to show his intent and plan to make an assault on some woman,” the sine qua non of the Commonwealth’s position in this case. Id. at 912 , 86 S.E.2d at 25 . Mrs. Stanford, testified that:
*266 “[S]he was standing on the corner of Grace and Knight Streets waiting for a bus at 7:10 o’clock on the night of February 1, 1954. While she was standing there she stated she saw the defendant, or a man she felt reasonably sure was the defendant, Earl Day, coming towards her. She was frightened and started to run and he started to run after her. She saw the bus coming and she ran to the bus and he chased her to the door of the bus. As she was getting on the bus she heard him call something like,‘You had better run.’ [S]he said the man was [Day] but she did not see his features but the man wore a white cap and a jacket like the ones belonging to [Day] and which were exhibited to her.... At this time [upon returning over the same route on the next bus] she saw the same man who had chased her at Knight and Grace Streets standing near the corner of Locust and Grace Streets, which was one city block from Grace and Knight Streets. She never did see the man’s face so as to positively identify him but she did notice he was wearing a similar cap and jacket to those worn by the man who had chased her.”
Id. at 910-11 , 86 S.E.2d at 24-25 .
Rejecting the Commonwealth’s argument, we reversed Day’s capital murder conviction and remanded the case for a new trial. We stated, clearly and unequivocally:
The accepted rule to be derived from the cases is that evidence which shows or tends to show the accused guilty of the commission of other offenses at other times is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense similar to that charged; but if such evidence tends to prove any other relevant fact of the offense charged, and is otherwise admissible, it will not be excluded merely because it also shows him to have been guilty of another crime.
Id. at 914 , 86 S.E.2d at 26-27 .
The majority, without explanation, deviates from Day , which has not been overruled and which has been cited as controlling authority in numerous cases. See Largin v. Commonwealth, 215 Va. 318, 320 , 208 S.E.2d 775, 777 (1974); Bunting v. Commonwealth, 208 Va. 309, 314 , 157 S.E.2d 204, 208 (1967); Rees v. Commonwealth, 203 Va. 850, 870 , 127 S.E.2d 406, 419 (1962), cert. denied, 372 U.S. *267 964 , reh’g denied, 373 U.S. 947 (1963); Williams v. Commonwealth, 203 Va. 837, 841 , 127 S.E.2d 423, 426 (1962); Sturgis v. Commonwealth, 197 Va. 264, 268 , 88 S.E.2d 919, 922 (1955). Furthermore, Day is consistent with the rule we articulated in Walker and Kirkpatrick and we have cited Day as the law in this Commonwealth since our holding in Kirkpatrick. See Largin, 215 Va. at 320 , 208 S.E.2d at 777.
The majority ignores our precedent and concludes that the crimes are “connected” because of certain facts. The record, however, does not support the inferences upon which the majority’s conclusion is based. First, the. majority states, “the two crimes occurred within a few yards in about one-half hour of each other.” The majority’s assertions here are not facts, but rather are inferences. However, these inferences are not reasonable and are flawed.
There is no evidence in the record which supports an inference that the crimes occurred within “about one-half hour of each other.” Ms. Borghesani was last seen alive on March 31, 1990 at 7:10 p.m. in her apartment. She was expected to be the guest of honor at a belated birthday party at 8:00 p.m. at a friend’s home in the Crystal City area of Arlington. The record does not establish the time that Ms. Borghesani left her apartment in Roslyn en route to her friend’s home. The only proper inference that can be drawn is that Ms. Borghesani left her apartment sometime between 7:10 p.m. and 8:00 p.m. Furthermore, the medical examiner testified that it was not possible to determine the time of Ms. Borghesani’s death.
There is no testimony in the record from which a reasonable inference can be drawn that the attack on Ms. Borghesani occurred within a “few yards” of the attack on Ms. Abel. Ms. Borghesani’s body was not found within a “few yards” from the location where Ms. Abel was attacked. Likewise, there is no evidence in the record to support an inference that both victims were removed from the bicycle path at a location behind the sound barrier wall. The record simply does not reveal the exact location of Satcher’s attack on Ms. Borghesani.
The majority, without any explanation, states that “from the evidence and reasonable inferences to be drawn therefrom, it is clear that the two or more acts involved in this case constituted parts of a common scheme or plan.” This holding is conclusory and is neither explained by the majority nor supported by the record or our precedent. Furthermore, the majority ignores the legal differences between crimes that are “connected” and crimes that “constitute a *268 part of a common scheme or plan.” The majority blurs the distinction between these concepts and treats them as though they are synonymous.
In Kirkpatrick, 211 Va. 269 , 176 S.E.2d 802 , we stated that “testimony of other crimes is admissible where the other crimes constitute a part of the general scheme of which the crime charged is a part.” 211 Va. at 272 , 176 S.E.2d at 805 . In McWhorter v. Commonwealth, 191 Va. 857 , 63 S.E.2d 20 (1951), we said:
Another exception to the general rule is that evidence of similar acts is admissible to show a common scheme, design, or plan where there is‘such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’
(Citations omitted). Id. at 870-71 , 63 S.E.2d at 26 . See also Boyd v. Commonwealth, 156 Va. 934, 944 , 157 S.E. 546, 550 (1931).
The Court of Appeals, discussing whether two robberies were part of a common scheme or plan in the context of Rule 3A: 6(B), stated:
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.’
Spence v. Commonwealth, 12 Va. App. 1040, 1044 , 407 S.E.2d 916, 918 (1991) (citations omitted). This definition of “common scheme or plan” has also been accepted by legal scholars. For example, the following statement is found in 1 Wharton’s Criminal Evidence § 186 (Charles E. Torcia ed„ 14th ed. 1985):
Evidence of other crimes is admissible when it tends to establish a common plan, design, or scheme embracing a series of crimes, including the crime charged, so related to each other that proof of one tends to prove the other.
Id.
*269 The majority relies upon Cheng v. Commonwealth, 240 Va. 26 , 393 S.E.2d 599 (1990), to support its holding that the trial court did not err by failing to grant Satcher’s motion for separate trials. Cheng does not support the majority’s position. Dung Cheng, who was indicted for several offenses arising out of a murder, filed a pretrial motion to sever the indictment for possession of a ‘ ‘sawed-off” shotgun from indictments for offenses including capital murder, abduction, robbery, conspiracy to commit abduction, and murder of the victim, Hsiang Liu.
Cheng and his cohorts had planned to commit a robbery. In furtherance of the plan, Cheng directed his cohorts to “bring the shotgun and the jeep.” On the evening of the abduction, robbery, and murder of the victim, a bag containing the shotgun was placed in Cheng’s jeep. We stated that the shotgun possession offense and the other offenses were connected and that the evidence indicated that the offenses were parts of a common scheme or plan.
Here, unlike Cheng , there are multiple victims who were attacked at different times and there is no evidence that the offenses constitute parts of a common scheme or plan. Satcher did not commit any act in his crimes against Ms. Abel which contributed to the achievement of his crimes against Ms. Borghesani. Thus, it is not surprising that the majority fails to articulate its so-called common scheme or plan because it is unable to do so.
Today, the majority, in a capital murder case, creates a new definition for the word “connected” which permits the Commonwealth to try cases jointly when the only relevance is to show the character of the accused and the accused’s disposition to commit offenses similar to those charged. I fail to understand why, in a capital murder case, the majority departs from established precedent which we have applied consistently since 1829. See Walker v. Commonwealth, 28 Va. (1 Leigh) 574 . I also fail to understand why the majority makes no effort to reconcile its new definition of “connected” with our clear and established precedent which the majority has either overruled or conveniently ignored. Furthermore, the majority, by blurring the distinction between “crimes that are connected” and “crimes that constitute a common scheme or plan” has created confusion in this important distinction in the law.
I am not aware of any other case decided by this Court in which we have approved the trial of separate crimes which are not connected and which are not a part of a common scheme or plan. Such practice is so unfair and unjust that it constitutes a denial of *270 Satcher’s rights to due process of law guaranteed by the federal constitution and the Constitution of Virginia. U.S. Const, amend. XIV, § 1; Ham v. South Carolina, 409 U.S. 524, 526-27 (1973) (citing Lisenba v. California, 314 U.S. 219, 236 (1941)); Va. Const, art. I, § 8. Therefore, I respectfully dissent.
Rule 8(a) of the Federal Rules of Criminal Procedure states:
This rule differs from Rule 3A:6 because it includes the phrase “are of the same or similar character. ’ ’