Davis v. Commonwealth

CONCLUSION The doctrine of collateral estoppel apply does not in cases one, such as this where the part offenses were all of a simultaneous prosecution. We therefore affirm the trial court.

Affirmed.

703 S.E.2d 259 Michael Rashe DAVIS Virginia. COMMONWEALTH of Record No. 2581-09-2. Appeals Virginia, Court of

Richmond. Jan. Leslie M. Lunenburg County,

From the Circuit Court Osborn, Judge.1 (Mokris P.L.C., brief), on Dunning, &

Rocco P.T. Columbus appellant. for Theisen, Attorney B. Senior Assistant General

Virginia (Kenneth II, General, brief), Cuccinelli, on for Attorney T. appellee. POWELL, FRANK, BEALES and JJ.

Present: FRANK, Judge. Davis, jury convicted in a trial of appellant,

Michael R. in violation of involuntary manslaughter, aggravated vehicular O’Hara, appellant's Jr. heard motion Robert G. 1. The Honorable dismiss, appeal, July subject which is a of this 18.2-36.1(B). Appellant contends the trial court erred in failing to dismiss the manslaughter indictment because that conviction violates both the Double Jeopardy Clause of the United States Constitution and 19.2-294 of the Code of Virginia. He also contends the evidence was not sufficient to prove causation and criminal negligence. error, no Finding affirm we the trial court.

BACKGROUND Under well principles review, established of appellate we view the evidence and all reasonable inferences deducible from that evidence in the light most favorable to the Common wealth, the party prevailing below. Banks v. (2003). Va.App. viewed, So on 6, 2009,

the evening January of appellant attended a birthday party along cousins, with his Lawanda Rainey and Ronald White. Both appellant and drank White alcohol party. at the left party White on foot before appellant, and Rainey left in appellant’s car.

As Davis drove on an unlit stretch Avenue, of Mecklenburg he was sending text messages on his phone. cellular Appel- lant testified his headlights illuminated the Rainey road. saw something the road yelled to appellant to “watch out.” later, Seconds appellant White, hit who lying in the road. Rainey never indicated appellant took any evasive action prior to striking White. Appellant lost control of his car and crashed into a ditch.

Officers arrived at the scene. White was declared dead at the scene. Virginia State Trooper Joseph Landry observed that there were no skid marks to leading the decedent’s body.2 He also observed damage to the front of undercarriage appel- Landry lant’s car. detected a slight odor of alcohol on appel- lant. Landry testified appellant appeared to be under trooper suggest 2. The seemed to might the road’s wet surface explain the absence of skid marks. car police into the Landry put appellant influence of alcohol. stated: rights. Appellant him of his Miranda3 and advised my cousin was you. with Me and going I’m to be honest texting my there sitting road. I was coming down the in the road. And laying I not realize he was and did phone him, of top And after I ran over I ran of him. top over something. And top I I had ran over that’s when realized everything. I and hit the bank and that’s when swerved alcohol, adminis- drinking Landry to so Appellant admitted did not satisfac- sobriety Appellant perform tered field tests. office, appel- At the sheriffs a breath test revealed torily. .15. lant’s blood alcohol level be district April appellant general On was convicted influence, in violation of Code court of under conviction, Immediately appellant 18.2-266. after his indictment, jury the on by grand served with an returned 6, 2009, involuntary him man- April charging aggravated with 18.2-36.1(B). in slaughter, violation of Code July a motion to the indictment on Appellant filed dismiss a on July hearing 2009. On the trial court conducted The trial found no appellant’s jeopardy motion. court double States, 299, Blockburger violation under v. United 284 U.S. (1932), 76 L.Ed. 306 and no violation of Code S.Ct. § 19.2-294.

A case jury aggravated involuntary manslaughter heard the 11, 2009. Melissa a forensic scientist who August Kennedy, of supervisor Department is a in the Breath Alcohol Forensic Science, in that expert toxicology. testified as an She stated begin when the problems concentration and divided attention Kennedy explained reaches .05.4 blood alcohol level Arizona, 86 S.Ct. 16 L.Ed.2d 694 3. Miranda v. U.S. (1966). ability According Kennedy, to to "divided attention” is the driver's i.e., controlling required driving, the of skills for safe balance number wheel, steering watching speed, paying to road and his attention the traffic, oncoming etc. divided attention important is the most part of safe driving. level, At a .05 blood alcohol one begins to lose judgment and ability the to think coherently. She also testified that visual difficulties at a begin blood alcohol level of about .10. Alcohol consumption impairs reaction time such that impaired an driver longer takes an recognize emergency and to take evasive action. Kennedy stated that appellant’s while blood alcohol tested, level was .15 at the time it was it would have been .19 to .21 at the time of the accident. trial,

At appellant testified that Rainey when told him road, something was the “immediately” he put phone his down and swerved to avoid object. Appellant denied not looking at the explained, road. He “I was looking down and looking up at the same time. I wasn’t my phone cell on. whole entire time.” When asked if he could have seen the object the road sooner had he not had been texting, but forward, looking appellant replied in the negative, because it was dark. He further admitted that after seeing object road, he had trial, time to swerve around it. At appellant denied hitting White. jury

The convicted appellant aggravated involuntary manslaughter. appeal

This followed.

ANALYSIS Appellant contends the trial court erred failing to dismiss the aggravated involuntary manslaughter indictment because that conviction violates both the Jeopardy Double Clause of the United States Constitution and 19.2-294 of the Code of Virginia. Specifically, argues he he improperly convicted and punished twice for committing one offense. He also argues the Commonwealth did not prove that White’s death was caused by appellant driving alcohol, under the influence of nor did the Commonwealth prove requisite the negli- criminal gence.

455 Jeopardy Double Review Standard of claim, a claim based jeopardy a or reviewing In double conduct a de novo this Court shall statutory interpretation, on 156, 164-65, Commonwealth, Va.App. review. See Dalo v. (2001). for punishments the convictions and inquiry Our is whether man- aggravated involuntary intoxicated and driving while incident, from the same violate of which arose slaughter, both the Fifth Amendment of the provision the double of jeopardy amend- pertinent part, this United States Constitution. subject shall ... be for the same person ment states that “[n]o of life or limb.” U.S. put jeopardy offence to be twice Const, amend. V. guarantees protection provision

“This constitutional (1) a second for the same offense after against prosecution (2) after for the same offense acquittal; prosecution second (3) conviction; punishments and for same of multiple 509 S.E.2d Payne fense.” Va. (1999).5 293, 300 charges constitute the

To determine whether two offense, we must consider the rule enunciated Block- same the same 284 U.S. at 52 S.Ct. at 182.6 burger, “[WJhere argue Attorney these were 5. While the General seems to brief that prosecutions, proceedings, but "concurrent” no authori- not successive category ty suggest a third other than simultaneous or is cited to argument, Attorney General conceded that successive. At oral Appellant’s prosecutions successive. convic- are either simultaneous or prosecution aggravated influence for tion for under single evidentiary involuntary manslaughter joined in a hear- were not purposes appeal, ing general this in the district court. For therefore, deciding we assume without these were successive prosecutions. Dalo, legislature Va.App. 554 S.E.2d holds that the 6. While §§ multiple punishments under Code 18.2-266 intended to authorize prosecutions, we need not address and 18.2-36.1 in simultaneous prosecutions. legislative applies to successive whether that same intent analysis preferred by generally Blockburger is courts as it maximizes "A act or transaction constitutes a violation of two distinct statu- tory provisions, applied the test to to determine whether be one, only there are two offenses or is whether each provision a requires proof of fact which the other does not.” Id. A if jeopardy only always double violation exists the offenses Vitale, require proof of the same elements. See Illinois 410, 419-20, (1980). U.S. 100 S.Ct. 65 L.Ed.2d 228 test, “In applying Blockburger we look at the offenses abstract, charged without referring particular to facts of the case under review.” Coleman v. (2001).

261 Va. 539 S.E.2d An analysis of whether the multiple convictions and punish- imposed ments upon appellant proper are a requires determi- Thus, nation of legislative intent. we must first examine the appellant statutes under which was convicted. intoxicated) § Code 18.2-266 (driving while provides, relevant part:

It any shall be unlawful for person operate drive or any (i) motor vehicle ... person while such has blood alcohol (ii) percent concentration 0.08 or more ... while such (iii) person alcohol, is under the influence of while such person is under the any influence of narcotic drug any or other self-administered drug intoxicant or of whatsoever nature, any or combination of such drugs, degree to a which impairs ability his to drive operate any or motor vehicle ... (iv) person while such is under the combined influence of any alcohol and drug drugs or to a degree impairs which his ability to drive or operate any motor vehicle.... 18.2-36.1 (aggravated involuntary manslaughter) provides, in relevant part: who,

A. Any person as a result of under (iv) (ii), (iii), influence violation of clause or of 18.2- judicial economy, providing resorting an answer without to a more legislative detailed examination of intent.” Id. at 554 S.E.2d at be person, another shall ... the death of causes manslaughter. involuntary of

guilty addition, the defendant was so If, in the conduct of B. reckless disre- as to show a culpable wanton and gross, life, aggravated of guilty he shall be for human gard aby a manslaughter, felony punishable involuntary nor more of not less than one term of imprisonment mandatory a one of which shall be years, year than 20 imprisonment. minimum term of man involuntary intoxicated and driving The while An of different elements. element statutes contain slaughter concentra having is a blood alcohol driving while intoxicated 266(i) evidence requires § no tion of 0.08 or more. Code 18.2— tests, any other sobriety or driving, performance of erratic § 4.1- “intoxicated.” See Code that the defendant is evidence person “a in which a (defining “intoxicated” as condition affect his observably enough beverages drunk alcoholic has movement, manner, general ap muscular disposition, speech, behavior”). an concentration is not or Blood alcohol pearance in manslaughter. aggravated While involuntary element of under the of voluntary manslaughter requires proof influence, criminal and death. requires negligence it also require § 18.2-266 does not these elements. Viewed Code abstract, passes under these two statutes conviction test. Blockburger of requires proof we find that each statute

Because other, constituting in the therefore additional facts not found offenses, jeopar there no constitutional double two distinct is violation.7 dy § § 18.2- prosecution a violation of Code 18.2-36.1 or Code In a for (iv), 266(ii), (iii), presumption § a rebuttable or Code 18.2-269 creates has a blood under the influence when the accused that the accused was However, higher. applicability of or alcohol concentration of 0.08 by or briefed us was never raised below the statute to the issue before 18.2-269, § inquired parties. judge panel whether Code A of this 182, context, established that Blockburger, at 52 S.Ct. at a 284 U.S. presumption was an element common concentration the blood alcohol Attorney responded General §§ and 18.2-36.1. The to Code 18.2-266

Code 19.2-29í Standard Review also Appellant contends the trial court erred in deny ing his motion to dismiss because he was twice tried and convicted for the same act. argues He his convictions violate the statutory against bar prosecution. double noted, previously

As considering claim based on statuto- ry interpretation, this Court conducts a de novo review. See Dalo, 164-65, Va.App. 554 S.E.2d at 709. states, 19.2-294 in relevant part:

If the same act be a statutes, violation of two or more or of ordinances, two or more or of one or more statutes and also ordinances, one or more conviction under one of such stat- utes or ordinances shall be a bar a prosecution to or proceeding under the other or others.8

“Although the language of [this statute] does not state that provides it a defense of jeopardy, former ‘it amounts ” to such a defense in purpose and desired effect.’ Londono v. Commonwealth, 377, 393, 40 Va.App. 641, 579 S.E.2d 648 (2003) (quoting Epps Commonwealth, v. 150, 155, 216 Va. 216 64, (1975)). S.E.2d 68 This statute “speaks to ‘acts’ of the accused, not elements of the offense.” Wade v. Common ‘ wealth, 359, 365, 9 Va.App. 277, (1990). 388 S.E.2d 280 “if So two offenses separate involve “two acts,” and distinct convic ” tion of one does not bar a prosecution for the other.’ John Commonwealth, son v. 137, 145, 38 Va.App. 341, 562 S.E.2d (2002) 345 (quoting Henrico, Lash v. County 14 Va.App. (1992) (en 851, banc)). 421 S.E.2d 853 18.2~266(i), § that under Code the blood alcohol concentration is an offense, § element of the only while Code 18.2-269 creates a method of proving intoxication. It is not an element of Code 18.2-36.1. We agree with the Commonwealth. inapplicable 19.2-294 is prosecutions. to simultaneous See Commonwealth, 137, 2, 341, Johnson v. Va.App. 38 145 n. 562 S.E.2d (2002). stated, 345 n. 2 previously As we have we assume without deciding prosecutions. that these were successive sustaining acts separate are whether there The test of to required evidence is the same is whether several offenses test, the “same evidence” In applying them. sustain examined to deter- must be transaction criminal particular situs, time, in terms of are the same the acts mine whether act itself. victim, nature of the and the (internal Johnson, at at Va.App. omitted).9 Thus we must com- marks quotation citations and conviction was manslaughter acts which upon pare for the conviction underlying the acts based with the influence. under by cannot be sustained If the two convictions “ relate to evidence, charges fact that several ‘then the

same does not make transaction or occurrence grow and out of one are two acts or offenses separate act or offense where single ” Londono, 40 579 S.E.2d Va.App. by defined statute.’ Va. (quoting Hundley at 649 (1952)). 336, 337 69 S.E.2d Londono, both state and charged with appellant transporting stemmed from charges

federal offenses. The intent to drugs those with the Virginia, possessing into drugs distribute, do This Court found that conspiring and for to so. The were different. appellant’s the time and situs of acts heroin with the intent to distribute charges, possessing federal distribute, heroin intent to possess with conspiring train drugs of those at the possession were based on his contrast, charges, The state were station Richmond. Commonwealth, into the transporting drugs based on his Virginia the moment he crossed into with which occurred 394-95, 579 at 649-50. drugs. Id. at S.E.2d 361, 597 Va.App. In Jefferson (2004), carrying weapon found to be a the defendant was Johnson, is not Va.App. 562 S.E.2d demonstrated it Johnson, present. necessary four factors must be In to establish that all coincided, stated, time, situs, "assuming and victim this Court peculiar prosecution Id. specific to each is distinct.” nature of the act 562 S.E.2d at 346. during stop. traffic He was charged and convicted of both carrying a weapon concealed and possession of a weapon by a convicted time, situs, felon. This Court found assuming that same, and victim were the the nature of the act was different prosecution. each For the conviction, concealed weapon Commonwealth had to prove that the defendant had a hand- gun person, on his hidden observation, from common without the legal authority 368-69, to do so. Id. at 597 S.E.2d at 294. prove But to guilt his for the charge, second the Common- wealth had to show that he prior had a felony conviction and that he knowingly intentionally possessed or transported the gun. Id. case,

In this appellant’s conduct supported convictions for both driving under the influence and aggravated involuntary manslaughter.

First, the time and situs of the acts were different for each offense. The appellant moment began to operate his vehicle intoxicated, while he guilty was of driving under the influence. § See Code 18.2-266. It was not until he struck and killed White, some distance from where he began driving, that he committed Londono, manslaughter. 40 Va.App. at Cf. 579 S.E.2d at 649-50 (holding the appellant was guilty of transporting illegal substances into the Commonwealth the moment he crossed the border Virginia, into which took place discovered). well before they were Next, each act had a distinct victim. The victim of driving under the influence was the Commonwealth. The victim of manslaughter was Ronald White.

Finally, the nature of the act specific to each prosecution is distinct. Appellant’s act of driving with a blood alcohol con- centration atof least .15 but not more than predicated .20 his conviction and sentencing for driving under the influence. the conviction order for driving influence, under the it is clear appellant was convicted 18.2-266(i), under Code “while person such has a blood alcohol concentration of 0.08 or more.” Appellant 18.2-270, sentenced under Code pro- which vides an additional mandatory minimum period days five concentration blood alcohol if the defendant’s incarceration Thus, required the act not more than .20. at least .15 but appellant’s intoxicated is not driving of while for a conviction tests, etc., but sobriety driving, performance manner of contrast, In alcohol concentration. only rather his blood 1) of alcohol under the influence act of appellant’s (where to observ- beverages alcoholic enough he “has drunk manner, move- speech, muscular disposition, his ably affect 4.1-100) behavior,” and ment, or general appearance 2) was the impaired driving of his someone as a result killing involuntary man- him of aggravated used to convict evidence was the conduct common Although driving slaughter. time, situs, victim, offense,10 and nature necessary to each this, evidence of different the act were distinct. Because of needed to sustain each conviction. could be Therefore, aggravated for involun- appellant’s prosecution does not violate Code 19.2-294. tary manslaughter Sufficiency Standard Review sufficiency to the of the examining challenge evidence, light courts will review the evidence appellate to the at trial and consider party prevailing most favorable facts. Zimmer any proven reasonable inferences from Commonwealth, 384, 386, 538, 539 man v. 266 Va. 585 S.E.2d (2003). presumed The of the trial court is to be judgment if only “plainly wrong correct and will be reversed it is or Commonwealth, 269 support Viney without evidence to it.” (2005). 299, 609 S.E.2d Va. did not

Appellant prove contends Commonwealth driving under the by appellant’s White’s death was caused also the evidence did not estab- Appellant argues influence. for human life. disregard lish he acted with a reckless give "driving may rise to is established law that an automobile It 212 Va. several acts and offenses.” Estes v. (1971). A proximate that, cause “an is act or omission in natural and continuous sequence by unbroken a superseding cause, produces a particular event and without which that Commonwealth, event would not have occurred.” Brown v. 529, 523, 43, (2009); 278 Va. 685 46 see Doherty also Aleck, 421, 428, (2007). 93, 273 Va. 641 S.E.2d 97 “There can be more than proximate one cause an and liability [of incident] person attaches to each negligent whose act in results injury Commonwealth, victim’s or death.” Gallimore v. 246 441, 447, (1993). 421, Va. 436 S.E.2d Causation is a factual issue left jury to the to decide. Hall v. Common wealth, 616, 632, Va.App. 829, (2000) (en 529 S.E.2d banc).

Appellant contends that his sending messages, text rather than driving his under alcohol, the influence of caused him to strike and kill However, White. this is by belied the record by appellant’s and testimony. own appellant When was asked if he might have seen object in the road sooner had he not been texting, appellant responded negatively, because it was dark. Appellant also stated that he was not at looking his cell phone time, the entire but rather he was looking at his phone and at looking the road. Appellant testified that when Rainey alerted him object road, to an in the he immediately put down phone his and swerved, looked at the road. He said he began weaving forth, back and and lost control of the Appel- car. lant’s own words any contradict contention that sending text messages caused the accident.11

While appellant’s act of sending text messages while driving under the reckless, influence was foolhardy and it was not an intervening cause of the accident. “To be an intervening cause ... [an incident] must have been an event which [the could Gallimore, defendant] not have foreseen.” See 246 Va. 436 S.E.2d at 425. Any reasonably prudent person would have realized the inherent risk involved with sending messages text driving while under the influence of alcohol. parties 11. The Court directed the to argument, address this issue at oral they and did so. messages did to send text phone of cellular use his Appellant’s while initiated his by events the chain of not break his recklessness. merely aggravated It intoxicated. testify appellant not that did appellant’s passenger,

Rainey, testimony Her hitting to avoid White. evasive action any took something appellant there was that once she warned road, hit within a few seconds. appellant White accept party’s to required The trier of fact is not Commonwealth, 231 Va. entirety, Barrett v. evidence its (1986), but is free believe 341 S.E.2d witness, any testimony or in whole the part disbelieve Va.App. 11 399 S.E.2d Rollston v. (1991). 823, reject appellant’s was entitled to jury 830 The White, that to miss and conclude testimony that he swerved action, of his take evasive but because appellant had time to state, failed to do so. intoxicated supported is appellant’s of alcohol on behavior impact

The Kennedy, toxicology expert, the by the evidence. Melissa high was that blood alcohol concentration appellant’s testified concentration, attention, vision, judgment, that his enough and, negatively reaction time would all be importantly, most affected. itself, it unlawful but only

“Drunken is not dangerous the conduct more dan tends to make defendant’s Commonwealth, 273, 283, 322 Essex v. 228 Va. gerous.” (1984). 216, 221 intoxication set in motion Appellant’s S.E.2d Gallimore, that led to death. See a chain of events White’s 447, clearly The demon 246 436 S.E.2d at 425. record Va. operate intoxication caused him to his appellant’s strates that lying in an unsafe fashion. His failure to see White vehicle cause of to take evasive action was the White’s any the road or that appellant’s fact finder could infer properly death. The object the inattention to texting appellant’s did not cause Therefore, find there was sufficient evidence for the road. we influ appellant’s driving under the jury to conclude accident, as well as White’s result ence of alcohol caused death. ing

464

Appellant also alleges the Commonwealth failed to prove negligence. criminal This argument is without merit. “Conduct ‘gross, that is wanton and culpable’ demonstrating a ‘reckless disregard for human is synonymous life’ with ‘crimi ” Commonwealth, nal negligence.’ Riley 467, 483, 277 Va. 168, (2009) 675 Commonwealth, S.E.2d 177 (quoting Jones v. 692, 701, 403, (2006)). 272 Va. 636 S.E.2d

A defendant’s “level of intoxication is ‘relevant to a determination degree of the of the defendant’s negligence: ” ordinary, 484, whether gross, or wanton.’ Id. at 675 S.E.2d Essex, at 177-78 (quoting atVa. 221- S.E.2d at 22). may “It serve to elevate the defendant’s conduct to the wanton, level of ‘negligence gross, so culpable and as to show a ” disregard reckless of human life.’ Id. at 675 S.E.2d at Essex, 178 (quoting 222). 228 Va. at 322 S.E.2d at In case, the instant we look appellant’s high blood alcohol concentration, which higher was than legal limit. This fact by itself demonstrates criminal negligence justifies and finding that appellant’s wanton, conduct gross, culpa- ble. See Stevens v. 272 Va. (2006) (concluding high that a level of intoxi-

cation supported a finding of criminal negligence). addition, the record contains numerous other facts to support jury’s finding. Appellant was driving under the influence and sending dark, text messages on a rainy night. He failed to any take evasive action to avoid hitting White. His behavior demonstrated a disregard for human life. The jury correctly found evidence of criminal negligence.

CONCLUSION Driving under the influence aggravated involuntary manslaughter are not the same offense. There was no viola- tion of double jeopardy or Code 19.2-294. The trial court properly appellant’s denied motion to dismiss the indictment. Further, the evidence was prove sufficient to appellant that drove under the influence and that this was a cause of the accident and decedent’s death. Finally, the record supports

465 jury’s finding Therefore, of criminal negligence. we af- firm.

Affirmed.

POWELL, J., concurring.

I in separately write this I opinion because concur in the result respectfully but disagree majority’s -with the double jeopardy analysis pertains as it to the prosecu- nature of the tion. In 5 footnote of its opinion, majority assumes without that deciding prosecutions Davis’s were successive rather than I simultaneous. would prosecu- hold Davis’s tions were simultaneous. person

“No shall be ... subject for the same offence to be limb____” Const, twice put jeopardy of life or U.S. amend. “The V. constitutional prohibition of double jeopardy has (1) been held to consist of three separate guarantees: ‘It protects against prosecution second for the same offense (2) acquittal. after protects against prosecution [ It] a second (3) for the same offense after conviction. And it protects [ ] ” against multiple punishments for the same offense.’ Illinois Vitale, 410, 415, v. 2260, 2264, U.S. 100 S.Ct. 65 L.Ed.2d (1980) Pearce, (quoting North Carolina v. 395 U.S. (1969) (footnotes S.Ct. 23 L.Ed.2d 656 omitted)). The first and guarantees second only are applica- ble to a second proceeding brought after an acquittal or conviction, i.e., a successive prosecution. The guarantee, third however, is relevant prosecutions. Thus, simultaneous I believe that we must begin analysis our by determining wheth- er the prosecutions were successive or simultaneous before we determine whether Davis was twice subjected prosecution for the same offense following a conviction or whether he multiple received punishments for one offense. Phillips 548, 549-50, 257 Va. (1999), the Supreme Virginia Court of consid-

ered “whether 19.2-294 a defendant’s bar[red] convic- tion felony on two charges of selling marijuana on school property, after he had been general convicted district

466 marijua- of distribution of charges on two misdemeanor

court There, two arrest warrants na on the same acts.”12 based him of- felony with the appellant charging were issued for 550, Id. at 514 marijuana grounds. on school selling fenses of at 341. S.E.2d later, were issued two more arrest warrants

One week of him with misdemeanor offenses against Phillips charging ..., marijuana than a half-ounce of distributing less 18.2-248.1, the acts as of Code based on same violation felony charges. the 1996, in the General Phillips appeared

On October on four At County charges. District Court of Russell all was tried and convicted on the two hearing, Phillips charges preliminary hearing misdemeanor and waived a jury The later indicted felony charges. grand the two felony on the Phillips charges. two Phillips’s prosecutions Id. whether were suc- determining simultaneous, de- Supreme Virginia cessive or the Court of “the an accused is “prosecution” process fined as which justice to the time a formal accusation is made brought from judgment trial and final in a court of through appropriate 343; jurisdiction.” Sigmon Id. at S.E.2d see (1958) Va. (defining “prosecution” adopted bring as “the means a justice by criminal to due of supposed punishment course law, proceedings and consists of a series of from the time warrant, by swearing formal accusation is made out a court, of an indictment or information in a criminal finding trial, judgment”).13 Supreme and final The Court held: Although Phillips appellant only argued prosecutions that his statutory jeopardy were successive and thus constituted double under 19.2-294, defining analysis or what is successive simulta- prosecution logically regardless neous would be the same of whether challenge statutory jeopardy is a or one as the double constitutional prosecution. something either is or is not a successive jurisdictions applied 13. Numerous other have similar definitions "prosecution.” Corp., See Florida ex rel. Shevin v. Exxon 526 F.2d (5th Cir.1976) (citing "prosecution” the definition of used in

467 procurement The of arrest warrants different on dates does automatically not the trigger prosecution successive bar of 19.2-294. the bar is intended protect Since to an vexatious, accused from the “hazards of multiple prosecu- tions,” preclude prosecution the bar does not of charges the in single, evidentiary a even the hearing, though arrest warrants were obtained on different dates. such a situation, the accused is not subjected greater to a burden than charges when the are brought simultaneously and together. heard The accused conducts his defense based on the trial sequence same and faces the same potential for anxiety, expense, punishment. and Phillips, 257 Va. at 553, 514 S.E.2d at 343. The Court ruled simultaneous, that Phillips’s “prosecutions successive, were not they joined because were in a single evidentiary hearing in the Id. The Court reached this conclu- general district court.” Gonware, 82, Sigmon); (9th Cir.1969) United States v. 415 F.2d 84 (defining "prosecution" following up carrying as "the or of an action already or suit remedy commenced until the be attained" and conclud ing "[p]rosecution completed that a is not in a criminal case until the sentence”); Bank, begins defendant Lupton to serve his v. Chase Nat. 89 393, (D.Neb.1950) F.Supp. (considering 397 "prose three definitions of ((1) instituting carrying cution” judicial proceed "The and forward of a ing 2) right punish to obtain some or wrong[;]” to redress and some "commencing, conducting carrying and a suit to a conclusion in a court 3) justice[;]” following up carrying of "the or on of an action or suit attained; already remedy commenced until the conducting be the act of court; waging proceeding or a carrying the institution and on of a equity, suit in a right, court of law or to obtain some or redress some wrong”) determining "prosecution” ... before that a terminates when final); Cardwell, 370, 1230, an award is State v. 187 Mont. 609 P.2d (1980) (quoting "prosecution” 1232-33 Sig the definition of used in mon); 1, 706, (1972) Harvey, (defining State v. 281 N.C. 187 S.E.2d "prosecution” proceedings bringing as "the series of had in the of an person justice, accused to from the time when the formal accusation is made, by filing the of an affidavit or a bill of indictment or information court, terminated”); in Wiese, proceedings the criminal until the are State 734, (Iowa 1972) (citing 201 N.W.2d the definition of ); Williams, "prosecution” Sigmon used in State v. 192 La. 189 So. (1939) (defining "prosecution” a proceedings as “the series of bringing person justice, had in the of an accused from the time when made, by the formal filing accusation is anof affidavit or a bill of court, proceedings indictment or information in the criminal until the terminated”). are hearing a on the though Phillips preliminary waived sion even “Thus, Id. the later events the circuit felony charges. two of the felony charges merely were continuation court on Id. prosecution.” same time, the Supreme the course of this Court and Court

Over along decided various factual scenarios Virginia of have satisfying continuum as the definition simulta- prosecution Commonwealth, 228 neous See Bradshaw v. Va. prosecutions. (1984) 484, 491-92, (felony charges 323 S.E.2d 571-72 separate judgments initiated at times but final reached 514 S.E.2d at 343 proceeding); Phillips, same Va. (misdemeanor at felony charges separate and initiated times general misdemeanor resolved in district court and with the hearing felony); the waived on the Freeman v. preliminary Commonwealth, 126, 128-29, 871, 14 414 Va.App. S.E.2d 873 (1992) (misdemeanor felony charges and initiated at the same time, necessity, but out of the misdemeanor was concluded court). the was concluded in circuit case felony before Davis’s facts, i.e., another misdemeanor presents yet charges set felony at one time and brought charges brought separately in prior judgment but to final the misdemeanor case.14 Based “prosecution” employed on the broad definition of in Phillips “ cases, i.e., process and other is the in which an ‘prosecution’ brought justice accused is to from the time a formal accusation in through judgment appro- is made trial and final a court of 553, 343, priate jurisdiction!;,]” 257 Va. at 514 S.E.2d at I as prosecutions believe Davis’s were simultaneous his for prosecution aggravated involuntary manslaughter com- by grand jury prose- menced with his indictment a before his driving cution for while intoxicated concluded with the final in judgment general district court. Just as the “simultaneous charges initiation of criminal is not the exclusive factor in have been in determining charges whether those resolved a 552, 342-43, simultaneous id. at at prosecution!]]” Here, grand jury aggravated involuntary 14. indicted Davis for man- 6, Thereafter, slaughter April driving 2009. he was convicted for April while intoxicated on single evidentiary hearing the of the offenses in a prosecution Therefore, an but not exclusive factor. I would “overriding” is any find that the two time prosecutions overlap where simul- judgment, prosecutions before one reaches final are taneous and not successive. simultaneous, prosecutions

Because Davis’s were our hold- ing Va.App. Dalo 554 S.E.2d 705 (2001), Dalo, In controls. appellant similarly charged driving with while intoxicated and involuntary manslaughter 160-61, prosecution. a simultaneous Id. at 554 S.E.2d at 707. States, This held that Blockburger Court v. United 284 U.S. (1932), 76 L.Ed. 306 not controlling S.Ct. is where 163-64, intent legislative is clear. Id. at 554 S.E.2d at 708-09. This Court Assembly concluded that the General intended allow multiple punishments involuntary for man- 166-69, slaughter driving and while intoxicated. Id. at S.E.2d at 709-11. case, correctly this Davis conceded that “the case law is

clear that when 18.2-266 and 18.2-36.1 are tried simulta- neously at any point proceedings, there is no Fifth Therefore, Amendment violation.” I would hold that Davis’s argument multiple that his convictions for aggravated involun- tary manslaughter while intoxicated constitute constitutional double jeopardy is without merit. that I Given simultaneous, would hold that the prosecutions are I would conclude that because, 19.2-294 has no applicability by terms, its it only applies when the are charges tried succes- sively. Phillips, 257 Va. S.E.2d at 342 (stating terms, “[b]y its the statute apply does not to simultaneous prosecutions, only prior because conviction for the violation act”). of an prosecution act will bar a later for the I join same majority analyzing sufficiency of the evidence.

Case Details

Case Name: Davis v. Commonwealth

Court Name: Court of Appeals of Virginia

Date Published: Jan 11, 2011

Citation: 703 S.E.2d 259

Docket Number: 2581092

Court Abbreviation: Va. Ct. App.