COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Coleman∗

Argued at Richmond, Virginia 

MELVIN DOUGLAS SMITH, JR. 

 OPINION BY 

v. Record No. 0127-00-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 6, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Christopher J. Collins for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

 The appellant, Melvin Douglas Smith, Jr., was tried on four 

counts of murder and four counts of use of a firearm in the 

commission of murder. On September 24, 1999, a jury in the 

Circuit Court of the City of Richmond found appellant guilty of 

first degree murder of only one of the victims, Kenneth "Randy" 

Smith, and of use of a firearm in the commission of that murder. 

The jury sentenced appellant to prison terms of fifty-five years 

for the murder and five years for the firearm offense. The 

trial court suspended seven years of the murder sentence on 

December 15, 1999. The jury found appellant not guilty of two 

∗

 Judge Coleman participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

December 31, 2000 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401. 
of the four murders and associated firearm charges, and 

deadlocked on the remaining murder and associated firearm 

charge. Therefore, the court declared a mistrial as to those 

final two charges. 

 Before trial, appellant filed a motion to sever the four 

murder charges under Rule 3A:10(c), which the trial court 

denied. Appellant contends the court erroneously denied his 

motion for separate trials. For the following reasons, we 

reverse the convictions for the murder of Kenneth "Randy" Smith 

and the related firearm charge and remand for a new trial on 

those two counts if the Commonwealth be so disposed. 

 The Commonwealth charged appellant with first degree murder 

under Code § 18.2-32 for the killing of Bruce Ross (Murder #1), 

capital murder under Code § 18.2-31(7) for the killing of Irvin 

Doughty (Murder #2) in the same transaction as the killing of 

Ross, first degree murder of Randy Smith (Murder #3), and 

capital murder under Code § 18.2-31(8) for the killing of 

Warrick Ray (Murder #4) within three years of the killing of 

Ross and/or Doughty and/or Smith. The Commonwealth also charged 

appellant with four counts of use of a firearm in the commission 

of murder. The jury found appellant not guilty of Murders #1 

and 2, guilty of Murder #3, and deadlocked with respect to 

Murder #4. 

 A trial court has limited discretion to combine offenses 

for trial. Godwin v. Commonwealth, 6 Va. App. 118, 121, 367 

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S.E.2d 520, 521 (1988). However, a trial court's ruling on the 

issue will not be reversed absent a showing that the court 

abused its discretion. Cheng v. Commonwealth, 240 Va. 26, 

33-34, 393 S.E.2d 599, 603 (1990). Under Rule 3A:10(c), a court 

may join separate charges for trial only if two criteria are 

met: (1) justice does not require separate trials; and (2) 

either (a) the requirements of Rule 3A:6(b) are met; or (b) the 

defendant and the Commonwealth's attorney consent. Under Rule 

3A:6(b), the offenses must be either: (1) part of the same act 

or transaction; or (2) two or more acts or transactions which 

are connected; or (3) the offenses must be part of a common plan 

or scheme. 

 The facts as presented in the record before us, viewed in 

the light most favorable to the Commonwealth, are as follows. 

Timothy Frazier testified that on November 20, 1994, he and 

appellant went to the Mar-Ket on Grayland Avenue in Richmond 

intending to kill Tyrone Reed. The attempt to kill Reed was in 

retaliation for the earlier killing of appellant's friend, 

Michael Atkins. Both Frazier and appellant were armed and began 

firing when they reached the market. Bruce Ross (Murder #1) and 

Irvin Doughty (Murder #2), who were bystanders at the scene, 

were killed in the barrage of gunfire. 

 On March 23, 1995, four months after appellant committed 

Murders #1 and 2, he shot and killed Randy Smith (Murder #3) and 

told Frazier that he had done so because he believed that Randy 

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had been hired to kill him. However, the Commonwealth 

introduced no evidence as to why Randy Smith had been hired to 

kill appellant or who had hired him. Appellant claimed he shot 

Randy Smith in self-defense. Appellant testified that Kenneth 

Daniels pulled a gun on appellant and threatened to kill him 

because he had testified against Daniels' brother in the Michael 

Atkins murder trial. According to appellant's testimony, when 

Randy Smith reached for Daniels' gun to shoot appellant, 

appellant shot Randy Smith in self-defense. 

 On August 19, 1996, over a year after appellant committed 

Murder #3, he shot Warrick Ray (Murder #4) in a rooming house in 

Richmond. Appellant told Frazier about this killing as well. 

According to Frazier, appellant killed Ray because Ray knew 

where appellant lived. Kevin Roane, who witnessed the murder, 

testified that appellant shot Ray because Ray had gone to 

appellant's grandmother's house. The record contains no further 

evidence of a motive for this killing. 

 The four murders in this case do not meet the "same act or 

transaction" requirement because they involved three separate 

acts which occurred at three different times and places. 

Godwin, 6 Va. App. at 122, 367 S.E.2d at 522. 

 Additionally, because the four murders occurred "on 

different days, at different places and no evidence link[s] or 

connects[s]" the murders, the offenses were not "connected." 

Id. at 122, 367 S.E.2d at 522; see also Spence v. Commonwealth, 

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12 Va. App. 1040, 1044, 407 S.E.2d 916, 918 (1991) ("To meet the 

'connected' test, the crimes should be 'so intimately connected 

and blended with the main facts adduced in evidence, that they 

cannot be departed from with propriety.'" (citation omitted)); 

Cook v. Commonwealth, 7 Va. App. 225, 229, 372 S.E.2d 780, 782 

(1988) (two or more acts or transactions are "connected" where 

the offenses are "connected by time, place, method and 

perpetrators"). 

 The Commonwealth contends the four murders were part of a 

"common scheme or plan" emanating from a "continuing feud 

between rival groups who were competing to distribute illegal 

drugs in the Richmond area." The record does not support the 

Commonwealth's contention. 

 Offenses will be deemed to be part of a common scheme or 

plan when the "'relationship among [the] 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 attainable by the 

commission of any of the individual offenses.'" Godwin, 6 Va. 

App. at 122, 367 S.E.2d at 522 (citation omitted); see also

Purvis v. Commonwealth, 31 Va. App. 298, 306, 522 S.E.2d 898, 

902 (2000) ("A conspiracy involving more than one offense is a 

typical example of offenses involving a common plan."); Spence, 

12 Va. App. at 1044, 407 S.E.2d at 918. In addition, "offenses 

using a 'common plan' . . . should be 'distinguished from 

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similar character offenses (where the offenses merely duplicate 

each other).'" Godwin, 6 Va. App. at 122-23, 367 S.E.2d at 522 

(citation omitted); see also Purvis, 31 Va. App. at 307, 522 

S.E.2d at 902; Foster v. Commonwealth, 6 Va. App. 313, 322, 369 

S.E.2d 688, 694 (1988) (where there had been a three-year hiatus 

between the offenses, "no action was taken to establish a common 

scheme or plan"). 

 The record contains no evidence that appellant was involved 

in the drug trade or that the motive for any of the four murders 

was related to the drug trade. The record likewise contains no 

evidence proving that appellant or any of his victims were 

members of a gang or that the murders were gang-related. The 

only testimony pertaining to a gang-related conflict was 

provided by Timothy Frazier, who participated in the Ross and 

Doughty murders (Murders #1 and 2) with appellant. Frazier 

admitted there was a "general beef" between the Top and Bottom 

gangs, which involved "a lot of shoot-outs." Frazier testified 

that the conflict began with the robbery of Jevon Clayton by 

Frazier, Kurt Holmes, and William Atkins. Following the 

robbery, "[t]hey came down and shot the block up." Frazier 

admitted that his friend, Kurt Holmes, had been shot by Harry 

George, "Bubba," and "J.B." and that Frazier "[s]hot some people 

from their crew" in retaliation. Frazier's testimony does not 

establish, however, appellant's alleged association with either 

gang, nor did his testimony link any of the four murders to gang 

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activity. To infer that appellant was part of a gang because 

Frazier may have belonged to one of the two gangs, and because 

Frazier and appellant committed the Ross and Doughty murders 

together, is unreasonable and insufficient to support a 

conclusion that appellant committed the four murders as part of 

a common scheme or plan. Therefore, the evidence does not 

support the Commonwealth's allegation that the four murders were 

part of a common plan or scheme and were, for that reason, 

properly tried together. 

 The Commonwealth also argues that because the capital 

charge for Murder #4 under Code § 18.2-31(8)1 required proof of 

one of the three other murders, all four murders were properly 

joined. However, the Commonwealth cites no authority for 

supplanting the joinder test under Rule 3A:10(c) when the 

Commonwealth seeks to try a defendant not only for capital 

murder under Code § 18.2-31(8), but for the predicate murders as 

well. To try the offenses jointly, each offense must satisfy 

the requirements of Rule 3A:6. Accordingly, we find the trial 

court abused its discretion in ordering that all of the murder 

offenses be tried together.2

 1

 Code § 18.2-31(8) designates as capital murder, "[t]he 

willful, deliberate, and premeditated killing of more than one 

person within a three-year period." 

 

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2

 As the requirements of Rule 3A:6(b) were not met, we need 

not consider whether justice required separate trials. 
 Although we find the court abused its discretion in 

ordering that the four murders be tried together, we will not 

reverse appellant's convictions unless the error affected a 

substantive right. Rule 3A:2(a); Foster, 6 Va. App. at 323, 369 

S.E.2d at 694; Burley v. Commonwealth, 29 Va. App. 140, 149, 510 

S.E.2d 265, 269-70 (1999) ("The harmless error doctrine 'enables 

an appellate court . . . to ignore the effect of an erroneous 

ruling when an error clearly has had no impact upon the verdict 

or sentence in a case.'" (citation omitted)). "An error [in 

joining charges] is harmless when a 'reviewing court, can 

conclude, without usurping the jury's fact finding function, 

that, had the error not occurred, the verdict would have been 

the same.'" Id. at 149, 510 S.E.2d at 270 (citation omitted); 

see also Purvis, 31 Va. App. at 308, 522 S.E.2d at 902. 

 The error is harmless where "the evidence related to each 

of the counts would have been admissible in a separate trial of 

any of the other counts." Foster, 6 Va. App. at 323, 369 S.E.2d 

at 694; see also Purvis, 31 Va. App. at 307, 522 S.E.2d at 903. 

"Conversely, such error may not be harmless if evidence related 

to each of the counts would have been inadmissible in a separate 

trial of any of the other counts." Id. at 308, 522 S.E.2d at 

903. Generally, in a criminal prosecution, evidence that the 

accused is guilty of other crimes is "inadmissible for the 

purpose of showing the commission of the particular crime 

charged." Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 

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S.E.2d 802, 805 (1970); see also Cooper v. Commonwealth, 31 Va. 

App. 643, 647, 525 S.E.2d 72, 74 (2000) (en banc). However, the 

Supreme Court has defined certain exceptions to this rule: 

Evidence of other offenses is [admissible] 

if it shows the conduct and feelings of the 

accused toward his victim, if it establishes 

their prior relations, or if it tends to 

prove any relevant element of the offense 

charged. Such evidence is permissible in 

cases where the motive, intent or knowledge 

of the accused is involved, or where the 

evidence is connected with or leads up to 

the offense for which the accused is on 

trial. Also, 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. 

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. However, even 

if the evidence of other crimes is relevant to the charged 

offense, "such evidence is only admissible if its probative 

value outweighs its prejudicial nature." Foster, 6 Va. App. at 

323, 369 S.E.2d at 694. 

 The Commonwealth alleged that evidence pertaining to each 

of the murders would have been admissible in a separate trial of 

each of the murders because "evidence regarding the four murders 

tended to show they were perpetrated by Smith as part of a 

general scheme of grudge killings between rival groups." Even 

if proof of such a "general scheme" were sufficient to admit 

evidence of the other offenses, the record does not establish 

that such a scheme existed. As discussed above, there was no 

evidence that appellant committed these murders to protect a 

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drug business in which he was engaged. Indeed, no evidence 

established appellant was involved in the drug trade. Likewise, 

the Commonwealth introduced no evidence that appellant was a 

member of a gang or that the murders were gang-related. In 

short, "[t]here is no evidence of a plan tying [the offenses] 

together or showing that each offense was intended to assist in 

accomplishing a goal other than that achieved by each individual 

offense. The four offenses merely show that [appellant] has the 

propensity to commit the crime and this inference has been held 

to be error because it reverses his presumption of innocence." 

Spence, 12 Va. App. at 1044-45, 407 S.E.2d at 918. 

 The Commonwealth also alleges any error in joining the 

offenses was harmless because the evidence supporting 

appellant's conviction for Murder #3 was "overwhelming." 

Burley, 29 Va. App. at 150, 510 S.E.2d at 270 (error had no 

effect on the verdict where the other evidence was 

overwhelming). We disagree. Although appellant admitted 

killing Randy Smith, he claimed it was in self-defense. The 

only evidence refuting appellant's claim of self-defense came 

from Kenneth Daniels, a participant in the altercation, and from 

Timothy Frazier, who participated with appellant in committing 

Murders #1 and 2. Although the jury was entitled to disbelieve 

appellant's testimony, Barrett v. Commonwealth, 231 Va. 102, 

107, 341 S.E.2d 190, 193 (1986), we cannot say the evidence 

supporting a first degree murder conviction for the killing of 

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Randy Smith was so overwhelming that the erroneous joinder of 

the other murder charges "clearly had no impact upon the 

verdict." Burley, 29 Va. App. at 149, 510 S.E.2d at 270. 

 Furthermore, even had the evidence of appellant's guilt 

been overwhelming, the error was not harmless because the 

inadmissible evidence of the other three murders may have 

affected the jury's decision concerning an appropriate sentence 

for the murder of Randy Smith. Long v. Commonwealth, 20 Va. 

App. 223, 227, 456 S.E.2d 138, 140 (1995); see also Burley, 29 

Va. App. at 149, 510 S.E.2d at 270 (error harmless where it 

"clearly has had no impact upon the verdict or sentence in a 

case"). Here, although appellant was acquitted of two of the 

four murder charges, the jury deadlocked on the fourth charge, 

indicating that at least one juror thought appellant was guilty 

of a murder other than the one for which he was convicted. We 

cannot say the sentence ultimately imposed upon a finding of 

guilt for the murder of Randy Smith was not affected by the 

joinder for trial of the other murder charges. 

 Because we find the trial court abused its discretion in 

joining the four murder charges and that the error was not 

harmless, we reverse the convictions for the murder of Kenneth 

"Randy" Smith and the related firearm charge and remand for a 

new trial on those two counts, if the Commonwealth be so 

disposed. Long, 20 Va. App. at 227, 456 S.E.2d at 140; Godwin, 

6 Va. App. at 123, 367 S.E.2d at 522. 

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 Reversed and remanded. 

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