770 S.E.2d 197
Va.2015Background
- Over 13 days in April 2012 an informant (Derrick) made four recorded purchases of crack cocaine from Jarvon Walker in and near South Hill, Virginia; DEA/DFS testing confirmed the substances and quantities.
- Transactions: Apr 11 (0.961 g, $50), Apr 13 (0.845 g, $50), Apr 19 (0.603 g, $70), Apr 24 (0.773 g, $70).
- Grand jury indicted Walker on four counts of selling/distributing a Schedule I/II controlled substance (Code § 18.2-248) with prior convictions; Walker moved to sever to four separate trials, arguing the offenses were not part of a common scheme or plan and that joinder was prejudicial.
- The circuit court denied severance; a jury convicted on all four counts and imposed concurrent six-year terms plus post-release supervision.
- The Court of Appeals upheld joinder, finding a common plan (noting pattern, repeated buyer, location, and discounted pricing to cultivate a return customer) and also found Rule 3A:10(c) severance not required. The Supreme Court granted review.
Issues
| Issue | Walker's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the four sales constituted a "common plan" under Rule 3A:6(b) to permit joinder | Separate, repeated sales on different occasions do not establish a common plan; Spence controls | The sales formed a pattern (same buyer, territory, timing, pricing strategy) showing a plan to cultivate a return customer | Reversed Court of Appeals: no common plan — joinder under Rule 3A:6(b) not satisfied |
| Whether justice required joinder (Rule 3A:10(c)) — prejudicial effect vs. probative value | Joinder prejudiced Walker; four offenses tried together risked propensity inferences | Evidence of prior/following sales was probative of knowledge and intent; judicial economy favored joinder | Supreme Court did not decide Rule 3A:10(c) because joinder under Rule 3A:6(b) failed |
| Whether Scott v. Commonwealth altered or overruled Spence such that repeated sales could form a common plan | Court of Appeals incorrectly treated Scott as superseding Spence | Court of Appeals relied on Scott to find common plan on these facts | Scott did not overrule Spence; the decisions are consistent and Spence remains controlling on similar facts |
| Proper meaning/scope of "common plan" under joinder rules | Common plan must show an extrinsic, relatively specific goal not inherent to each offense | Commonwealth urged a flexible, context-driven application (buyer cultivation can be part of a plan) | A common plan requires a goal extrinsic to at least one offense; profiting/retaining customers is intrinsic to drug sales and thus insufficient here |
Key Cases Cited
- Scott v. Commonwealth, 274 Va. 636 (2007) (defines "common plan" as crimes related to accomplishing a particular goal)
- Spence v. Commonwealth, 12 Va. App. 1040 (1991) (repeated separate drug sales do not necessarily constitute a common plan)
- LaCava v. Commonwealth, 283 Va. 465 (2012) (standard of review: legal interpretation by Court of Appeals reviewed de novo)
- McWhorter v. Commonwealth, 191 Va. 857 (1951) (common plan described as acts naturally explained as manifestations of a general plan)
- United States v. Jawara, 474 F.3d 565 (9th Cir. 2007) (federal joinder practice: counts growing out of related transactions often joinable under common-scheme test)