739 S.E.2d 241
Va. Ct. App.2013Background
- Montano pled guilty to third-offense DWI, involuntary manslaughter, driving with a suspended license, and two counts of maiming from DWI.
- Following a bench trial, Montano was convicted of felony murder predicated on the DWI underlying felony.
- On Aug. 1, 2010, Steven Lester was driving in a 45 mph zone when Montano’s vehicle allegedly struck a wall and then collided with a vehicle carrying three women; one woman died and two were seriously injured.
- Montano’s blood alcohol content was .20% at the hospital; police found nearly twenty beer containers in Montano’s vehicle, including an open can.
- Dr. Carol O’Neal testified that high BAC impairs reaction time, vision, judgment, and coordination, with effects intensifying as BAC rises.
- The trial court held that third-offense DWI was inherently dangerous, malice was imputed to Montano’s actions, and the death occurred within the res gestae of the underlying felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Malice imputed to drunk driving under 18.2-33 | Montano argues malice cannot be imputed for DWI. | Commonwealth contends malice is implied when a felonious act causes death. | Imputed malice established; DWI qualifies as the predicate felony for second-degree murder under 18.2-33. |
| Res gestae and causation of death | Death was not in furtherance of the felonies, nor caused by the felonies. | Death resulted from the intoxicated driving linked to the underlying felony. | Death was within the res gestae; underlying felony caused the collision and death. |
| Support for felony-murder conviction under 18.2-33 | Death occurred during the commission of a felony; supports felony murder. | Argues lack of malice and lack of causal connection to the felony. | The conviction affirmed; the homicide was in the res gestae of the underlying DWI felony. |
Key Cases Cited
- Heacock v. Commonwealth, 228 Va. 397 (1984) (malice imputed for felonious acts to support second-degree murder)
- Hylton v. Commonwealth, 60 Va. App. 50 (2012) (statutory scope of 18.2-33 encompasses all felonies not expressly excluded)
- Wooden v. Commonwealth, 222 Va. 758 (1981) (malice implied from felonious acts in felony-murder analysis)
- Davis v. Commonwealth, 12 Va. App. 408 (1991) (driving while intoxicated deemed inherently dangerous for res gestae)
- King v. Commonwealth, 6 Va. App. 351 (1988) (felony-murder requires close temporal and causal connection between felony and death)
- Barnes v. Commonwealth, 33 Va. App. 619 (2000) (felony-murder imputation of malice when death occurs during an inherently dangerous felony)