Lead Opinion
Opinion
Stanley Justin Berkeley (appellant) appeals from a judgment of the Circuit Court of the City of Chesapeake (trial court) that approved a jury verdict convicting him of first degree murder. The same jury convicted appellant of rape and abduction with intent to defile.
This appeal is limited to the first degree murder conviction for violation of Code § 18.2-32.
Chabrol had been victim’s superior in the Navy office at which they worked. Upon information received by persons who resided in victim’s Virginia Beach apartment complex, that same morning the police went to Chabrol’s house. Upon being admitted, the police saw appellant seated in the den and observed that Chabrol had fresh lacerations on his chin and a bandage on his knuckles.
Appellant and Chabrol were separately questioned by the police. They gave conflicting statements as to their activities on the night before and the morning of the abduction. Initially, appellant told the police that he and Chabrol had gone to bed prior to midnight on the night before and that neither had left the house on the morning of July 9. Chabrol told the police that they had “stayed up all night playing computer games” and had left the house that morning at 7:00 a.m. to purchase beer. When confronted with Chabrol’s statement, appellant changed his story to conform with Chabrol’s account, except he claimed that he purchased only juice and Chabrol did not purchase anything. When appellant was told by the police that they were there only “to find Melissa Harrington,” appellant denied having seen “any girls in the house.”
The police request for permission to search Chabrol’s residence was refused. A search warrant was then obtained. On that same day at approximately 2:30 p.m., the police found victim’s nude, dead body on the floor of the master bedroom. Her body had been wrapped in a blanket, her face taped from her eyebrows to her chin, her head covered by a plastic bag and a rope ligature was tied around her neck.
Vaginal swabs taken from victim were analyzed and revealed the presence of seminal fluid and spermatozoa. DNA testing of the sperm was consistent with the DNA of appellant and inconsistent with Chabrol and victim’s husband. The likelihood of any black male other than appellant being the source of the sperm was .018 percent, or approximately one in 5,000. If white males were included in the computation, the likelihood that the sperm came from anyone, other than appellant, decreased to .0058 percent, or approximately one in 17,000.
The cause of victim’s death was “complex asphyxia due to suffocation and strangulation, both ligature and manual.”
Upon discovery of victim’s body, both Chabrol and appellant were arrested. At 3:45 a.m. on July 10, 1991, at the local jail, appellant made inculpatory statements to Chesapeake Deputy Kevin Knight (Knight). Knight testified that appellant stated that he “was a victim of circumstances,” that,
He stated was only here on vacation. He stated during the abduction he could only drive the car in which they picked her up due to his limited ability. He said he f-—— her but on the second time he could not bring himself to do it.
Appellant presented no evidence on his behalf.*3
Appellant was indicted and charged by the grand jury with having violated Code § 18.2-31 (capital murder). Upon a motion of the Commonwealth, prior to the trial, that indictment was amended by deleting Code § 18.2-31 and substituting Code § 18.2-32 as the offense alleged to have been committed. Also deleted was the allegation in the original indictment that the killing occurred “during the commission of, or subsequent to, rape.”
After the Commonwealth rested its case, and during appellant’s argument in support of his motion to strike, the Common
The amended indictment provided:
The Grand Jury charges that:
On or about July 9, 1991, in the City of Chesapeake Virginia, the accused, STANLEY JUSTIN BERKELEY, did maliciously kill and murder Melissa Harrington, in the commission of rape or abduction, in violation of Section 18.2-32 of the Virginia Code.
Following the trial court’s approval of the amended indictment, appellant contended that the evidence failed to show either who killed victim or that appellant was in any way connected to the killing. He further argued that, because the Commonwealth had agreed not to contend that the murder occurred by “concert of action,” the record must contain evidence that appellant was either the perpetrator,
No reasonable hypothesis contained in this record supports even a remote possibility of appellant’s innocence.
“Whether the Commonwealth relies upon either direct or circumstantial evidence, it is not required to disprove every remote possibility of innocence, but is, instead, required only to establish guilt of the accused to the exclusion of a reasonable doubt.”
Cantrell v. Commonwealth,
We need only to decide whether the felony-murder elements were proved beyond a reasonable doubt:
The rule which we adopt, therefore, consistent with the weight of authority elsewhere, is that the felony-murder statute applies where the killing is so closely related to the felony*285 in time, place, and causal connection as to make it a part of the same criminal enterprise.
Haskell v. Commonwealth,
In King v. Commonwealth,
The [felony-murder] doctrine was developed to elevate to murder a homicide committed during the course of a felony by imputing malice to the killing. . . . The justification for imputing malice was the theory that the increased risk of death or serious harm occasioned by the commission of a felony demonstrated the felon’s lack of concern for human life. The purpose of the doctrine was to deter inherently dangerous felonies by holding the felons responsible for the consequences of the felony, whether intended or not. While the range of felonies which may be a predicate for the felony-murder conviction has changed, the function of the doctrine is still to elevate to murder a homicide resulting from a felony by imputing malice.
Evidence in this record establishes appellant’s guilt of both the rape and the abduction beyond a reasonable doubt. Abduction is a continuing offense. See Brown v. Commonwealth,
[W]hen the homicide is within the res gestae of the initial felony and is an emanation thereof, it is committed in the perpetration of that felony. Thus, the felony-murder statute applies where the initial felony and the homicide were parts of one continuous transaction, and were closely related in point of time, place, and causal connection.
Haskell,
Here, appellant began his criminal venture by abducting victim and enlarged that venture by raping her. This record contains evidence from which the fact finder could reasonably infer that the abduction continued until victim’s death, and thus, the homicide occurred as a part of the res gestae of the criminal venture.
It has been justly said that the affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to*287 some preceding circumstance, and in its turn becomes the prolific parent of others; and each during its existence, has its inseparable attributes and its kindred facts materially affecting its character, and essential to be known in order to a right understanding of its nature. These surrounding circumstances constituting a part of the res gestae may always be shown to the jury in connection with the principal fact.
Davis v. Franke,
We hold that victim’s murder stemmed from the commission of the felony of abduction, was a part of one continuous transaction, closely related in point of time, place and causal connection, and occurred within the res gestae of the initial felony. Accordingly, the judgment of the trial court is affirmed.
Affirmed.
Bray, J., concurred.
Notes
Code § 18.2-32, in effect at the time of these proceedings, provided as follows: Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate object sexual penetration, robbery, burglary or abduction, except as provided in § 18.2-31, is murder of the first degree, punishable as a Class 2 felony.
All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable as a Class 3 felony.
Victim also suffered multiple hemorrhages in the muscles of her neck and throat. Due to the strangulation, there were “conjunctival” hemorrhages in the victim’s eyes and abrasions on her neck consistent with “fingernail marks.” There were abrasions on her wrists and ankles, consistent with being bound; a small laceration on her finger; contusions on the inner surfaces of her lips; small abrasions on her abdomen, right arm and left calf; and electrical burns on her upper left thigh. The ligature around her neck had been tied so
In a separate trial, Chabrol pleaded guilty to the capital murder of victim and was sentenced to death. See Chabrol v. Commonwealth,
To learn who killed victim, we would have to consult the record in Chabrol, supra note 3, published after appellant’s trial.
Although “[a] principal in the second degree is equally accountable and is subject to the same punishment as the actual perpetrator,” Ramsey v. Commonwealth,
The record fails to show directly that appellant shared the criminal intent of the killer or that appellant intended to incite or aid in the commission of the crime, require
Dissenting Opinion
dissenting.
Although the majority recognized that the Commonwealth’s Attorney agreed at trial of this case that the Commonwealth would “give up any claim ... to concert of action,” the majority holds that the Commonwealth was not precluded from prosecuting Stanley Justin Berkeley for felony-murder under Code § 18.2-32. I disagree with the majority’s holding.
Because of its stipulation, the Commonwealth was required to prove that Berkeley actually committed the murder, i.e., was the principal in the first degree. See Johnson v. Commonwealth,
The grand jury returned a capital murder indictment charging that Berkeley “willfully, deliberately and with premeditation
The jury was not instructed that it could find Berkeley guilty of murder if the victim died during the occurrence of the abduction. Nothing in the record explains that omission. The jury was instructed that it could find Berkeley guilty of murder only if the victim died during the occurrence of the rape. No evidence proved, however, that Berkeley was the person who actually killed the victim. Indeed, Andrew Chabrol pleaded guilty to capital murder of the victim. See Chabrol v. Commonwealth,
A defendant may be “a principal in the second degree [to a felony-murder] and, as such, criminally responsible for the consequences of his conduct ‘as if a principal in the first degree.’ ” Heacock v. Commonwealth,
On this appeal, the Commonwealth argued in its brief that “[concert of action] has nothing to do with felony-murder.” The Commonwealth also argued that “under the felony-murder theory, . . . [proof of] ‘concert of action’ and ‘shared intent’ [is] not required.” The Commonwealth further asserted that concert of action is only relevant if the Commonwealth had been attempting to convict Berkeley of murder as a principal in the second degree. Thus, the Commonwealth asserts that “[t]his appeal, then, reduces itself to the self-answering question of whether the evidence was sufficient to prove that the homicide was within the res gestae of the predicate felonies that Berkeley clearly committed.”
The majority opinion apparently adopts the Commonwealth’s arguments but also goes further and “hold[s] that any degree of causation is sufficient.” (emphasis added). That holding is in direct conflict with Wooden. See
The Court instructs the jury that the defendant is charged with the crime of first degree murder. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:
(1) That Melissa Harrington was killed;
(2) That the killing was malicious; and
(3) That the killing occurred in the commission of rape in which the defendant participated.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty ....
Thus, even though the jury was not instructed that abduction could be the predicate offense that would support a conviction of felony-murder, the majority finds that the “record contains evidence from which the fact finder could reasonably infer that the abduction continued until victim’s death, and thus, the homicide occurred as a part of the res gestae of the criminal venture.” This reasoning improperly premises Berkeley’s criminal liability upon a
Felony-murder is codified in Virginia under Code § 18.2-32 and retains the common law elements of murder.
Where a person maliciously engages in criminal activity, such as robbery, and homicide of the victim results, the malice inherent in the robbery provides the malice prerequisite to a finding that the homicide was murder. And, all of the criminal participants in the initial felony may be found guilty of the felony-murder of the victim so long as the homicide was within the res gestae of the initial felony.
Felony-murder was initially developed as a means to elevate a homicide committed during the course of a felony to murder. King v. Commonwealth,
The facts of Wooden illustrate this idea. Wooden and three other persons joined to commit a robbery. Wooden’s co-felon shot the victim of the robbery. Before the victim died, the victim shot and killed Wooden’s co-felon. Wooden was convicted of two felony-murders. She appealed from the conviction of felony-murder that grew out of the death of her co-felon.
For felony-murder prosecutions in states, such as Virginia, that follow the agency theory, liability turns upon the intent of the perpetrator of the killing. To uphold a conviction, “the killing must have been done by the defendant or an accomplice or confederate
A contrary theory, which Virginia has rejected, is the view that a felon is guilty of any homicide resulting from the commission of a felony whenever the evidence proves that the felony is the proximate cause of the homicide. See Wooden, 222 Va. at 764,
In disregarding the principle that a principal in the second degree’s liability for felony-murder is based upon concert of action, the majority resurrects the proximate cause rationale. The majority believes that it is unnecessary to prove concert of action for a felony-murder conviction to stand. The majority’s disregard of Berkeley’s argument that concert of action is inherent in applying the doctrine of felony-murder to a principal in the second degree manifests an erroneous view that malice imputed to the felon charged with felony-murder need not flow through the killer but rather arises solely through the principle of proximate cause. In that way, a felon may always be guilty of the felony-murder of a killing done by anyone, as long as proximate cause is found. Wooden has addressed and rejected that theory.
The issue squarely presented in this case is whether concert of action is subsumed within the felony-murder doctrine when an aider and abetter is prosecuted. In Virginia, the standard jury instruction defining concert of action is as follows:
If there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime.
Our cases also hold that transferred intent occurs “if an accused shoots at another intending to kill him, and a third person is killed because of the act, that same intent follows the bullet and is transferred to the killing of the third person, even if such death was accidental or unintentional.” Riddick v. Commonwealth,
Code § 18.2-18 is explicit in stating that “[i]n the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree; . . . except in the case of a killing for hire.” In Heacock v. Commonwealth,
Felony-murder is also codified under Code § 18.2-33 as the killing of one accidently while in the prosecution of some felonious act other than those specified in Code §§ 18.2-31 and 18.2-32.
The Court cited both Commonwealth v. Redline,