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No Severance of Multiple Murder Charges

A Fairfax Circuit Court denies defendant’s motion to sever and says his charges for a murder committed in 2003 will be tried with his charges for similar murders committed in 2013 and 2014; the commonwealth’s proffered evidence suggests the defendant’s common plan was to exact revenge on the “elites” of the city of Alexandria because of his deep anger over the loss of the custody of his child.

The court must review the commonwealth’s expected evidence in order to determine if the 2003 charges are connected to or part of a common scheme or plan with the 2013 and 2014 charges, and also to determine if justice requires separate trials.

The commonwealth argues the 2003 charges are “connected” to the 2013 charges and the 2014 charges because the jury will be asked to compare known images of the defendant in 2003 with a videotape showing a man who appeared to be following the 2003 murder victim in a Target store about an hour before she was murdered. Further, the jury will be asked to compare a police artist’s sketch created based on the recollection of an eyewitness to the 2014 murder with defendant’s present appearance.

The commonwealth also outlined its evidence of a “common scheme.”

The court concludes the motion to sever should be denied. The court finds the 2003 charges are not “connected” with the 2013 charges or the 2014 charges as that term is used in Rule 3A:6(b). The court does not agree with the commonwealth that the “interlocking evidence” of the various images of defendant over the years, the images of the man in the Target video, and the police artist’s sketch from 2014 make the offenses “connected” under Rule 3A:6(b).

The two capital murder charges (i.e., the murder of Mr. Kirby in 2013 and the murder of Ms. Lodato in 2014) are “connected” because one is the predicate offense for the other. It is the murder of Mr. Kirby and Ms. Lodato within a three-year period which elevates the offenses to capital murder under Va. Code § 18.2-31(8).

The commonwealth’s evidence, if proven at trial, would satisfy the “common scheme” prong of the test for joinder under Rule 3A:6(b). The offenses are sufficiently idiosyncratic in character to permit an inference that each individual offense was committed by the same person or persons as part of a pattern of criminal activity involving certain identified crimes.

Similarly, the commonwealth’s evidence, if proven at trial, would satisfy the “common plan” test for joinder under Rule 3A:6(b). The offenses constitute a series of acts done with a relatively specific goal or outcome in mind. Under the pertinent test, the constituent offenses occurred sequentially or interdependently or advanced some common, extrinsic objective. The commonwealth’s proffered evidence suggests that the defendant’s common plan was to exact revenge on the elites of the city of Alexandria because of his deep anger over the loss of the custody of his child.

Justice does not require separate trials because evidence of the 2003 offenses will be admissible in trial of the other offenses under Rule of Evidence 2:404(b), in that it tends to prove any relevant fact pertaining to the offense charged, such as motive, intent, preparation, plan, knowledge and identity. Also, evidence of the other crimes is admissible under Rule of Evidence 2:404(b) because they are part of a common scheme or plan.

Commonwealth v. Severance (Roush) No. FE-2015-430, June 22, 2015; Fairfax Cir.Ct.; Bryan Porter, Comm. Att’y; Christopher Leibig for defendant. VLW 015-8-070, 20 pp.

VLW 015-8-070


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