Claude Elmer Frazier (appellant) was convicted in a bench trial of reckless driving, a misdemeanor, in violation of Code § 46.2-852. On appeal, he contends the trial court erred in finding the evidence was sufficient to convict. For the reasons stated, we affirm the conviction.
As the parties are familiar with these facts, we do not repeat them in this opinion. We do note, however, at the close of the Commonwealth's case, appellant moved to strike the Commonwealth's evidence regarding whether Flood Road, the road on which the reckless driving occurred, was a public or private road. The trial court denied this motion. At the close of all the evidence, appellant renewed the motion to strike based upon the discrepancy in the Commonwealth's proof that Flood Road was a “highway.” The parties then made their final arguments. The agreed upon statement of facts indicated: FN1 [For More information on Reckless Driving, check out virginiarecklessdriving.net.]
FN1.FN1. A statement of facts was submitted pursuant to Rule 5A:8(c).
The Commonwealth then argued its case concerning the credibility of the witnesses and the legal definition of a highway. Counsel for Mr. Frazier likewise reiterated his arguments concerning the discrepancy in the Commonwealth's proof of whether or not this was a highway within the definition of Virginia Code Ann. § 46.2-100 and the credibility of the witnesses.
Convicted by jury of involuntary manslaughter and reckless driving, Ismail Takow appeals from his motion to set aside the verdict. He asserts the trial court deprived him of adequate interpreter services and erred in concluding that he understood the process of his trial, in violation of his due process rights. We affirm.
Background.
On May 19, 2003, appellant, a native of Somalia, struck and killed a pedestrian, Albert Davis, while driving for the Arlington Yellow taxicab company in Arlington, Virginia. He was subsequently charged with involuntary manslaughter and reckless driving. [ Involuntary Manslaughter and Reckless Driving are Serious Crimes in Virginia.]
A.
TRIAL
Appellant's trial was continued three times before proceeding on April 26, 2004. None of the continuance orders found in the record reflect that the case was continued so appellant could retain an interpreter.
On day one of the four-day trial, the trial court attempted to determine whether or not appellant spoke English well enough to understand the trial process. During an exchange with both appellant and his counsel, the trial judge ascertained the following: 1) appellant has resided in the United States since 1997; 2) he knew English well enough to obtain and hold a driver's license; 3) he followed directions given by his employer which are written in English; 4) he conversed with passengers in English; and 5) he accepted and made change in U.S. currency. Appellant himself answered the judge's questions pertaining to the last three points. Counsel responded that the language problem centered more on appellant speaking, rather than appellant's understanding of English.
Thereafter, the trial court asked if anyone present in the courtroom, which at the time contained many individuals of Somali descent, “could help [the defendant] understand what's going on.”Mohamed Ali Hassan responded that appellant was a friend of his, and he would help him throughout the trial. The judge instructed him to come forward, take a seat, and “promise to do a good job.”Hassan told the judge that he had been in the United States for 23 years and spoke “good English.” Appellant's counsel stated that he was “concerned about this gentleman, [didn't] know anything about him, or his qualifications.”The trial court responded, “I am satisfied that your client communicates well enough to know what's going on in this case.... But in an abundance of caution, I want someone that he's comfortable with to explain any difficulties that may arise.” [ A Virginia Court Lawyer is familiar with laws surround motor vehicle related crimes in VA.]
Later that same day, appellant's counsel expressed concern that Hassan was paraphrasing and needed to translate verbatim. The trial court asked Hassan, “To the extent that you can, would you do that? Can you do that for him?”Hassan responded, “Yes, that's fine. I don't know nothing about technical likeness translating.”The next day, appellant's counsel informed the trial court that he had spoken with Hassan to make sure that future translations would be verbatim. Counsel admitted that Hassan spoke “both languages [ ] quite well.”
*2 The following recounts the witnesses called by the Commonwealth during day one of the trial and a brief synopsis of their testimony: 1) Mary Bielefed testified about her close relationship with Albert Davis, her visit to the hospital on the day of the accident, and Davis' death eleven days later; 2) Darren Smith explained the closed-circuit television system which captured the accident; 3) Christopher McKay testified as an eyewitness to the accident; and 4) Avery Kent, also an eyewitness, testified as to her observations.FN1At no time during the testimony of these witnesses did appellant ask for clarification or express that he did not understand the testimony, nor did counsel express any such concern.
FN1.FN1. Also on day one, the Commonwealth introduced into evidence both still photographs of the accident scene and a CCTV video depicting the accident. [ A Richmond VA Lawyer can assist you with Motor Vehicle cases around the metro area.]
Finally, Detective Doug Johnson of the Arlington Police Department appeared as a witness on day one of trial. He testified that while working off-duty for a security company, he witnessed the collision between appellant's vehicle and Davis. After rendering assistance at the scene, Johnson, along with two other detectives, interviewed Takow. During cross-examination, appellant's attorney questioned Johnson, as follows, on Takow's ability to speak English and interact with the detectives:
Q: Did you notice that he had any trouble speaking English?
A: That was a situation we broached right from the beginning, and I tried to explain to him that if we came to that road where we couldn't understand each other that we'd try to make other arrangements, and he continued to speak English with me the entire time I spoke to him.
Q: Kind of, broken English?
A: I wouldn't necessarily say broken, if there was something that was not necessarily said, in context I just rephrased it so it was understandable.
Q: Okay.
A: But the entire interview was in English.
On day three of trial, the Commonwealth presented stipulations of fact “upon which the Commonwealth and the Defendant have agreed.”FN2The stipulation of facts included references to photos of the accident scene, a surveillance video that by happenstance had recorded the accident, and the distance between impact and the stopping point of the vehicle. It also recited that appellant “would get his fares through dispatch from the Red Top Cab Company and from roaming the roads.”That stipulation concluded with the following:
FN2.FN2. Day two consisted of convening the jury for a view of the accident scene.
My name is Ismail Takow, and I am the defendant in this case. On May 19, 2003, I was driving a Yellow Cab taxi on Fairfax Drive in Arlington. At about 7:40 p.m. I drove the taxi into the intersection of Fairfax Drive and North Nelson Street and struck a pedestrian named Albert Davis. Mr. Davis died from injuries that he sustained when I struck him with my taxi. [ Motor Vehicle related crimes are on the rise, and are taken very seriously.]
I have read this Stipulation, and my attorney has read this Stipulation to me. I speak and understand English, and I understand the factual statement set out above and agree to the accuracy of those facts.
(Emphasis added). Appellant signed the above statement.
*3 Appellant thereafter presented a motion to strike. At no point during his argument did appellant's counsel mention the interpreter or appellant's failure to understand the proceedings. After denying Takow's motion to strike, and as appellant prepared to testify, the trial judge stated, “Mr. Takow, let me know if anything that I say is not clear to you or you do not understand.”Appellant responded, through Hassan, “I can tell you, sir.”
Appellant testified at length in his own defense. Hassan translated this testimony from Somali into English.FN3During this testimony, the Commonwealth objected to the relevance of several background questions. At a bench conference outside the hearing of the jury, appellant's counsel argued that he should be able to “ask how long he's been speaking English, how long he's been in this country.”The trial court responded,
FN3.FN3. As previously noted, appellant advised the trial court that he understood English but had some difficulty expressing himself in English. Takow testified in Somali through the interpreter and obviously heard the immediate interpretation of his testimony into English. At no time during his testimony did appellant ever suggest or claim that the English translation of his testimony was inaccurate or misleading, nor did he ever offer any corrections to the same. [ An attorney who knows Spanish, would be more helpful to a case like this.]
Well, I don't see any problem-well, okay, with that. But that's going to open up the Commonwealth to go into matters that cut the other way. I mean, he did take a driver's test. It was in English. He's spoken in English. He communicated with people in English.
He works in an area that requires to be familiar with highway signs, English. He translates-I mean, he communicates in English. So, all that's opened up, if you want to go there.
Thereafter, counsel asked appellant “how good is your command of English?”Appellant responded, through Hassan, “My understanding is much better than responding. I have difficulty of [sic] responding.”
Marvin Carroll, a safety investigator for Transportation General, Inc., appeared as a rebuttal witness and testified about an interview he conducted in English with appellant after the accident. The Commonwealth asked Carroll if he asked appellant “if he had any explanation at all as to why he did not see this man in the intersection.”Carroll responded that appellant told him that “he had no explanation for that.”Again, at the conclusion of Carroll's testimony, neither appellant nor counsel maintained that his testimony was not understood.
The jury convicted appellant of involuntary manslaughter and reckless driving. The jury sentenced him to three years imprisonment on the first charge and twelve months with a $2,500 fine on the second charge.FN4
FN4.FN4. At no time during the trial did appellant's trial counsel claim that his client was deprived of constitutional due process rights because of language differences; that is, while there may have been difficulties, those difficulties did not rise to constitutional dimension.
Defendant was convicted following bench trial in the Circuit Court, BotetourtCounty, George E. Honts, III, J., of maiming as a result of driving while intoxicated (DWI). Defendant appealed. The Court of Appeals, Robert J. Humphreys, J., held that: (1) DWI can serve as evidence to support the requisite manner of driving, i.e., criminal negligence, in a prosecution for maiming as a result of DWI; and (2) finding of criminal negligence was supported by defendant's concession to trooper that he was driving too fast when car left road and passenger was injured and by evidence that he was driving while his intellectual and motor functions were substantially impaired by his voluntary consumption of alcohol and drugs.
I. Background
Virginia State Police Trooper Mike Bradley was dispatched to the scene of a car accident at approximately 2:10 a.m. on June 3, 2001. When he arrived, emergency personnel were already present and treating two individuals on the ground. Bradley observed Wright standing nearby, in the company of two deputies. Trooper Bradley approached Wright and asked *701 him what he knew about the accident. Wright stated, “I'm f---ing drunk, okay? I was driving. Run off the f---ing road. I'm f---ing drunk.” Bradley asked Wright how much he had had to drink, and Wright responded “I don't f---ing know. A lot.” He then asked Wright how fast he had been driving. Wright stated, “Don't know. Too f---ing fast.” [DUI, DWI, and Reckless Driving are serious crimes in Virginia.]
As emergency personnel attempted to treat Wright's injuries, Trooper Bradley observed that Wright cursed and spat at them. Wright's demeanor fluctuated from “one extreme to the other,” as he was calm one moment and then “yelling, cursing and screaming,” the next. Wright was eventually restrained by medical personnel and transported to the hospital. Trooper Bradley then obtained a search warrant for a sample of Wright's blood. The analysis showed that Wright had a blood alcohol content of 0.09%. Wright was arrested on charges of driving while intoxicated, in violation of Code § 18.2-266 and maiming, in violation of Code § 18.2-51.4. [This type of case would call for a lawyer who specializes in Motor Vehicle related Crimes.]
At trial, Trooper Bradley testified that, when he arrived at the scene, he observed emergency personnel performing CPR on Matthew Switzer, a passenger in Wright's car. He further stated that, according to Wright, the accident occurred when he was travelling south on Route 640 and approached a sharp right curve in the road. Instead of making the turn, Wright continued straight and drove off the left side of the road, over an embankment, crashing into a tree. The “total distance off the left side of the road to the impact was one hundred forty-seven feet.” The skid marks measured sixty-four feet. Trooper Bradley testified that there was no posted speed limit on that road, so the speed limit was “fifty-five” miles per hour. [You should always take a Virginia Court Lawyer with you to Court, even for minor traffic violations.]
Switzer testified that he was a passenger in Wright's car when the accident occurred. Switzer stated that Wright picked him up that evening at about 5:00 or 6:00 p.m. and that they went riding around with another passenger named “Shaney.” Switzer stated that at some point, they stopped and obtained over a dozen Xanax pills. He stated that everyone in the car took the pills. He personally took three-and-a-half *702 pills. They later obtained some beer and drank while they continued to drive around. Switzer did not recall the accident.
The doctor who treated Switzer testified that Switzer presented to the emergency room with “a lot of superficial lacerations,” and a severely fractured jaw.
**244 At the close of the evidence, Wright moved to strike, contending that the Commonwealth had failed to establish that he drove in a manner so gross, wanton and culpable as to show a reckless disregard for human life. The trial court denied the motion finding that although the evidence may not have proven that Wright was driving “in excess of the speed limit,”“his speed was clearly too fast for the conditions and clearly too fast for him to be able to maintain proper control.” The court then found Wright guilty of the charge and sentenced him to five years in prison, with four years suspended.
On April 21, 2003, the automobile that Defendant was operating overturned and struck a tree. This accident resulted in the death of two passengers in Defendant's vehicle. Defendant had a suspended driver's license and did not have proper registration or insurance for the vehicle. On June 21, 2003, Defendant was indicted on seven counts, including two charges of involuntary manslaughter in violation of § 18.2-36 of the Code of Virginia in connection with the deaths of his two passengers (“Count 1” and “Count 2”), reckless driving in violation of § 46.2-852 of the Code of Virginia (“Count 3”), driving on a suspended license in violation of § 46.2-301 of the Code of Virginia (“Count 4”), unlawfully operating a motor vehicle with improper registration in violation of 46.2-613 (“Count 5”), failing to secure a child less than sixteen years old in a seatbelt in violation of § 46.2-1095 (“Count 6”), and operating a motor vehicle on the highway knowing that fees had not been paid to the Commission in violation of § 46.2-707 of the Code of Virginia (“Count 7”). [ This Case involve many different charges that would need to handled by an Expert Virginia Court Lawyer.]
On August 5, 2003, Defendant filed a Motion to Sever Counts 4, 5, and 7 from Counts 1, 2, 3, and 6. On August 27, 2003, the Court granted the Defendant's Motion to Sever Count 5. The Court also invited counsel for both parties to submit additional memoranda on the issue of whether to sever Counts 4 and 7.
Analysis
Under the pertinent portions of Virginia Supreme Court Rule 3A: 10, the Court has discretion to direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and the offenses meet the requirements of Supreme Court Rule 3A: 6(b). In the case at bar, Counts 4 and 7 do not meet the requirements of Virginia Supreme Court Rule 3A: 6(b), which provides:
Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an indictment or information if the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.
Va. Sup.Ct. R. 3A: 6 (2003). The “connected” test of Rule 3A:6(b) is that the crimes should be “so intimately connected and blended with the main facts adduced in evidence that they can not be departed from with propriety.” Spence v. Commonwealth, 12 Va.App. 1040, 1044, 407 S.E.2d 916, 918 (1991)(quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802, 806 (1970)). The Spence court found that four sales of cocaine did not meet this test because the transactions occurred on different days and “no evidence linked or connected one sale with the other.” Spence, 12. Va.App. at 1044, 407 S.E.2d at 918. [Motor Vehicle Charges can range from sitations to felonies.]
*2 The connection between all of the Counts at issue here is insufficient because Counts 4 and 7 are strict liability offenses and relate only to the fact that the Defendant operated the vehicle at all. As defense counsel states, the Defendant could have been charged with Counts 4 and 7 the moment he pulled out of his driveway. Mem. in Support at 5.
In contrast, Counts 1, 2, and 3 are not based on the simple act of driving; those Counts relate to the manner in which Defendant operated a motor vehicle.Va.Code § 46.2-852 states that “any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”In King v. Commonwealth, the court defined involuntary manslaughter in the operation of motor vehicle as “the accidental killing which, although unintended, is the proximate result of negligence so gross, wanton, and culpable as to show a reckless disregard of human life.” 217 Va. 601, 607, 231 S.E.2d 312, 316. The court held that the accident resulting in death must be the result of the culpable conduct, and that the mental state must relate to the driving conduct of the defendant. Id. Evidence to support Counts 4 and 7 bears neither on the mental state nor driving conduct of the Defendant. In fact, no evidence, other than the fact that the Defendant drove a motor vehicle, links these separate counts in the indictment.
The counts in the indictment also do not constitute parts of a common scheme or plan. “A common scheme or plan is present only if the relationship among 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 obtainable by the commission of any of the individual offenses.” Spence, 12. Va.App. at 1044, 407 S.E.2d at 918 (ellipsis in original)(quotation omitted). This is clearly not applicable to the situation in this case. [ Richmond VA Lawyers can assist with case around the state.]
The Commonwealth argues that even if another crime is not inextricably linked with the offense on trial, evidence of another crime may be introduced for the purpose of establishing the feelings of the accused toward his victim. Shifflett v. Commonwealth, 29 Va.App. 521, 513 S.E.2d 440 (1999). However, to be admissible, the “prior crime or bad act must be shown to have a causal relation or logical and natural connection with the crime charged, or alternatively, the two acts must form parts of the same transaction.” Shifflett, 29 Va.App. at 529, 513 S.E.2d at 444 (citing Guill v. Commonwealth, 255 Va. 134, 140, 495 S.E.2d 489, 492-93 (1998)). Commonwealth argues that evidence of Counts 4 and 7 can be used to prove Defendant's disregard for the safety of the other passengers in the vehicle, in that the Defendant's “act of placing the vehicle on the highway set in motion the process that caused the other events.”Mem. in Opp. at 3. However, this connection is too tenuous; the act of driving on a suspended license and without proper insurance itself did not cause the accident and has no logical connection to the manner in which the Defendant drove.
*3 Further, evidence of prior bad acts is not admissible if the prejudice to the Defendant would outweigh its probative value. Shifflett, 29 VA App. at 529, 513 S.E.2d at 444 (citing Woodfin v. Commonwealth, 236 VA. 89, 95, 372 S.E.2d 377, 381 (1988)). Here, knowledge that the Defendant had a suspended license and had no insurance would clearly be prejudicial. The jury would naturally conclude that the Defendant was a bad driver and was a regular violator of state driving laws, and would also speculate as to the nature of his previous driving offenses. [ You should always have a VA Court Lawyer with you, even for minor traffic charges.]
Conclusion
Counts 4 and 7 do not fall within the ambit of Virginia Supreme Court Rule 3A: 6(b), nor are they admissible prior bad acts because there is no logical or causal connection between these counts and Counts 1, 2, 3, and 6 of the Indictment. Further, prejudice to the Defendant would far outweigh any probative value. Accordingly, the Defendant's Motion to Sever Counts 4 and 7 is granted.
The Court requests that Mr. Edwards or Mr. Butswinkas prepare a final order consistent with this opinion and circulate it to Mr. Close, noting counsel's objections to the Court's ruling, if any.
The present action is a suit for personal injuries resulting from a car accident in which the Defendant was the driver and the Plaintiff was injured. The accident occurred on January 26, 2006. On July 31, 2006, the Defendant was convicted of driving while under the influence and reckless driving, and his convictions are currently on appeal in the Virginia Court of Appeals. At the criminal trial, evidence was introduced that at the time of the accident, the Defendant had four times the normal prescription dose of Ambien, a sleep aid, in his blood. The Defendant testified, inter alia, that he routinely took Ambien without a prescription and that he obtained samples of Ambien from doctors' offices and from “colleagues,” some of whom sold pharmaceuticals. The Defendant's fiance testified that he had a briefcase containing samples of Ambien. The Plaintiff filed this civil suit on July 23, 2007, and now seeks to depose the Defendant, seeking, in part, to obtain the identities of the “colleagues” who sold him the Ambien in order for the Plaintiff to determine whether there are other responsible parties who should be proceeded against in this civil suit. In addition, the Plaintiff wants to know whether the samples found in the Defendant's briefcase are still in existence as the containers would likely contain information identifying their source. The statute of limitations expires in less than four months. For the reasons set forth below, the Defendant's motion is granted in part and denied in part. [ Virginia Court Lawyers are experts on Motor Vehicle Laws.]
The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself....” In North Am. Mort. v. Pomponio, 219 Va. 914, 918, 252 S.E.2d 345, 348 (1979), the Court noted that “[t]here is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings.”(Citation omitted). While a party to a civil case may invoke the privilege against self-incrimination, “[t]he privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination of the validity of the claim.”Id. In deciding whether to grant a slay pending the outcome of action in another court, factors for consideration include the identity of the parties and issues in both actions, the time of filing, promotion of judicial efficiency and possible prejudice to a party if the stay is granted. Potomac Savings Bank, FSB v. Lewis, 25 Va. Cir. 184 (Fairfax Cir. Cot.1991). [ Motor Vehicle Charges are serious crimes in Virginia.]
The Defendant waived his Fifth Amendment right against self-incrimination and testified in his own behalf in the criminal case, the facts of which are the same as those that underlie this civil case. At argument on the motion, the Plaintiff limited the discovery she seeks at this time to the identity of the doctors' offices and the individuals from whom the Defendant obtained the Ambien and to whether the samples found in his briefcase still exist and, if so, information on the sample containers, such as the lot numbers. In light of the fact that the statute of limitations will likely expire before the Defendant's appeal of his criminal convictions is completed and the fact that the Defendant waived his Fifth Amendment right by testifying in the criminal trial, and admitted that he obtained the Ambien from doctors' offices and colleagues, the Defendant's motion to stay the proceedings in this civil case pending the outcome of his appeal is denied with the exception that the Defendant's deposition and responses to interrogatories shall be limited at this time to requiring the Defendant to provide discovery identifying the source of the Ambien he obtained and providing the information sought by Plaintiff about the existence of samples found in his briefcase and specific information on the containers of those samples. [ Motor Vehicle Charges can range from sitations all the way up to felonies.]
