Rodriguez v. Commonwealth

443 S.E.2d 419, 18 Va. App. 277

• Court: Court of Appeals of Virginia
• Decided: April 26, 1994
• Docket: Record No. 0357-92-4
• Status: Published

Opinions

Baker, J., concurring in result, joined by Moon, C.J., and Willis, J.

While I join with the majority in affirming appellant’s conviction, I respectfully cannot concur with its finding that, for the prior sales of cocaine to be admissible, “further evidence linking the sales to the cocaine which he possessed on this occasion” must be shown. This appears to be what some refer to as the “same stash” rule for which I have found no authority.

Moreover, I find the majority’s reference to the “unfair prejudice” rule to be misleading as it fails to discuss the relevance of that rule to the corresponding portions of Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (1990), and Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572 (1984). The following language from Scott is, in my judgment, relevant to this case:

Where a course of criminal conduct is continuous and interwoven, consisting of a series of related crimes, the perpetrator has no right to have the evidence “sanitized” so as to deny the jury knowledge of all but the immediate crime for which he is on trial. The fact-finder is entitled to all of the relevant and connected facts, including those which followed the commission of the crime on trial, as well as those which preceded it; even though they may show the defendant guilty of other offenses.

Scott, 228 Va. at 526-27, 323 S.E.2d at 577. To show that admissibility of “other crimes” evidence is not as limited in application as it appears to be in the majority’s “unfair prejudice” rule, the following language from Spencer is also relevant:

Evidence of other crimes is admissible if it tends to prove any fact in issue, even though it also tends to show the defendant guilty of another crime.

Spencer, 240 Va. at 89, 393 S.E.2d at 616.

“Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue, is relevant, and if otherwise admissible, should be admitted.”

Id. at 90, 393 S.E.2d at 616 (quoting Harrell v. Woodson, 223 Va. 117, 122, 353 S.E.2d 770, 773 (1987)).

“Other crimes” evidence bearing sufficient marks of similarity to the case on trial to establish the probability of a common perpetrator is, therefore, usually relevant.

Id. at 90, 393 S.E.2d at 616-17.

For these reasons, I concur in result only with the majority’s opinion.