833 S.E.2d 908
Va. Ct. App.2019Background
- On August 6, 2016, two separate incidents occurred within ~½ mile and about two hours apart: an intruder raped T.H. after entering her locked-but-unlatched apartment; later an intruder forced entry into I.P.’s unlocked apartment and struck her before fleeing.
- Neighbors and witnesses described a tall African-American man wearing dark clothing and carrying a white/cream bag; a white drawstring bag containing Cousett’s ID, money, a cell phone, and suspected bloodstains was recovered nearby.
- N.B. (neighbor) identified Cousett in a photo lineup and at trial in connection with T.H.’s incident; I.P. could not identify from the photo lineup but identified Cousett at the preliminary hearing and trial.
- Cousett was indicted for rape (T.H.), abduction and assault (I.P.), and two burglary counts; he moved (verbally) to sever the T.H. and I.P. charges pretrial; the circuit court denied severance.
- After a bench trial, Cousett was convicted on all counts and sentenced to a total of 50 years and 365 days, with ten years suspended; he appealed, arguing the court abused its discretion by denying severance under Rule 3A:10(c)/3A:6(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in denying severance under Rule 3A:10(c)/3A:6(b) (joinder based on common scheme/plan) and whether justice required separate trials because I.P.’s ID prejudiced the T.H. case | Cousett: the offenses lacked sufficient common scheme/plan (only shared unlocked-door entry); I.P.’s identification improperly bolstered the T.H. rape case and caused unfair prejudice | Commonwealth: the offenses were part of a common scheme and, in any event, evidence from each incident would have been admissible in separate trials (identity/other-crimes evidence) | The Court of Appeals held the trial court erred in finding a common scheme (insufficient similarity in means), but the error was harmless because the I.P.-related evidence would have been admissible in a separate trial to prove identity and, in a bench trial, the judge is presumed to have considered only admissible evidence; convictions affirmed |
Key Cases Cited
- Commonwealth v. Minor, 267 Va. 166 (2004) (trial court has discretion whether to join offenses under Rule 3A:10(c))
- Cheng v. Commonwealth, 240 Va. 26 (1990) (joinder and related procedural principles)
- Scott v. Commonwealth, 274 Va. 636 (2007) (distinguishes and defines "common scheme" and "common plan")
- Walker v. Commonwealth, 289 Va. 410 (2015) (offenses may be joined when closely connected in time, place, and means)
- Satcher v. Commonwealth, 244 Va. 220 (1992) (joinder appropriate when offenses closely connected in time/place/means)
- Stickle v. Commonwealth, 68 Va. App. 321 (2017) (reiterating that common scheme and common plan are not synonymous)
- Purvis v. Commonwealth, 31 Va. App. 298 (2000) (methods "not unusual" and lack of connection defeat joinder)
- Godwin v. Commonwealth, 6 Va. App. 118 (1988) (joinder balances judicial economy against risk of unfair prejudice)
- Severance v. Commonwealth, 67 Va. App. 629 (2017) (other-crimes evidence admissible to prove identity and related issues)
- Hall v. Commonwealth, 14 Va. App. 892 (1992) (in a bench trial judge is presumed to disregard prejudicial or inadmissible evidence)
- Hackney v. Commonwealth, 28 Va. App. 288 (1998) (harmless-error standard for erroneous refusal to sever in bench trials)
- LaCava v. Commonwealth, 283 Va. 465 (2012) (de novo review of lower court’s interpretation of court rules)
- Lavinder v. Commonwealth, 12 Va. App. 1003 (1991) (standard for assessing whether error is harmless)