SARAH ELIZABETH FLANDERS v. COMMONWEALTH OF VIRGINIA
Record No. 181228
SUPREME COURT OF VIRGINIA
February 13, 2020
JUSTICE WILLIAM C. MIMS
PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and Koontz, S.J.
FROM THE COURT OF APPEALS
In this appeal, we consider as a matter of first impression whether felony hit and run may serve as a predicate offense for a felony-homicide conviction.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Vasquez v. Commonwealth, 291 Va. 232, 236 (2016) (quoting Bowman v. Commonwealth, 290 Va. 492, 494 (2015)). So viewed, the evidence established that while a utility crew conducted overnight repair work, a man walked through the job site causing them to suspend work until he cleared the area. Five or ten minutes later, a woman later identified as Sarah Flanders “abruptly” pulled up to the job site in a red Dodge Durango and asked the workers to call 911 because it “looked like someone had been run over behind” the neighboring school and “the person was bleeding to death.” She then “sped away” and “quickly left the scene.”
The utility crew’s supervisor drove behind the school to investigate. He found an injured man, who he recognized as the same person who had passed through earlier. He was conscious but visibly in “a lot of pain.” He had difficulty breathing and was bleeding from abrasions on his head and knees. He told the supervisor that he had been hit. The supervisor immediately called 911. By the time first responders arrived five minutes later, the man had lost consciousness. A police officer observed that the man’s clothes and backpack had blаck marks “like soot” on them and that there were visible tire tracks in the pine needles and soil of the median where he was lying. The man eventually regained consciousness and identified himself as Rick Pentz. Pentz was transported to a hospital where he died approximately four hours later from blunt force trauma to his torso.
Police collected various personal items belonging to Pentz from the scene, including a cell phone whose call log reflected a 19-second call to Flanders approximately an hour before the incident. During an interview with investigators the next day, Flanders denied any involvement in Pentz’ death. She did, however, admit that she drove a red Dodge Durango on thе date of the incident. She also said that she knew Pentz and had been friends with him for around six years. The two of them had once lived together in a residence close to where the incident occurred. When asked whether she had been with Pentz lately, she replied that she had last seen him earlier in the week when she dropped him off at work. Investigators eventually told Flanders that Pentz had died, then left her alone in the interview room where she was overheard saying aloud to herself that “she thought that this was crazy
Investigators seized and forensically examined the Durango they suspected Flanders drove during the incident. They identified Pentz’ blood on the front bumper. In addition, the investigators found yellow paint сonsistent with the yellow paint on the median curb where Pentz was found inside of the front and rear driver’s side tires. Mail addressed to Flanders was in the passenger seat, and her DNA was on the steering wheel and gear shift knob.
Flanders was ultimately charged with felony hit and run, in violation of
Counsel for Flanders moved to strike the felony-homicide charge at the close of the Commonwealth’s evidence. The crux of his argument was that a hit and run in violation of
Flanders filed motions to set aside the verdict renewing the arguments made at trial and additionally asserting that the evidence at trial was insufficient to support her convictions. Following argument at sentencing, the trial court denied the motions and imposed an active sentence of 22 years’ imprisonment. The Court of Appeals affirmed by unpublished opinion, holding that the evidence established that Pentz’ death was within the res gestae of the hit and run.
We awarded Flanders this appeal.
II. ANALYSIS
Flanders’ sole assignment of error argues that the evidence was insufficient to support her felony-homicide conviction. Resolving this assignment of error requires a two-step inquiry. The first issue, whether felony hit and run may serve as a predicate offense for a felony-homicide conviction, presents a question of law we review de novo. See AGCS Marine Ins. Co. v. Arlington Cty., 293 Va. 469, 473 (2017) (“[W]e review all сonclusions of law de novo.”); see also, e.g., Mulford v. Walnut Hill Farm Grp., LLC, 282 Va. 98, 106 (2011) (“[T]he ultimate conclusion as to whether [a] roadway [is] a public road is reviewed de novo.”). If felony hit and run can be a predicate offense, then the second step is to determine whether the evidence in this case was sufficient to establish that Pentz’ death was within the res gestae of the hit and run, and thus was an appropriate predicate offense for Flanders’ felony-murder conviction. We apply a familiar standard of review to that inquiry:
“When reviewing the sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’” This Court “does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” “Rather, the relevant question is, upon review of the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Yoder v. Commonwealth, 298 Va. 180 (2019) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). To the extent this case involves issues of statutory interpretation, we review them de novo. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007).
A. Development of the Felony-Homicide Doctrine in Virginia
We begin our consideration of felony homicide under
Thus, although Virginia law recognizes capital murder, first-degree murder, and second-degree murder and punishes each with different ranges of penalties corresponding to “prevailing societal and legal views of what is appropriate and procedurally fair,” Fitzgerald, 223 Va. at 636, all three gradations punish the same offense of common-law murder.
Among the forms of common-law murder punishable as first-degree murder under
In 1975, the General Assembly created the offense of felony homicide. The statute codifying this offense,
It is arguable that the statutory creation of the offense of felony homicide in 1975 departed from thе tradition that the Virginia murder statutes only graded the common law of murder for punishment purposes and did not create any new types of murder. . . . [F]elony murder at common law could be predicated only upon a dangerous felony. Felonies which endangered people manifested legal malice and an unintentional killing by the felon in the perpetration of one of them was murder. The Virginia statute is clearly broader than that in its terms.
Costello, supra, at § 3.5[1], 66. In light of this apparent disconnect between the General Assembly’s centuries-long practice of not expanding upon the common law of murder by statute on the one hand, and
As an initial matter, the legislative history is unhelpful. The General Assembly enacted
of the Code, and a note in the Code Commission’s report explains only that the statute was “designed to correct an omission in Virginia criminal law.” Report of the Virginia Code Commission, Revision of Title 18.1 of the Code of Virginia 27–28 (1973). The report, however, did not explain what the omission was or how the creation of felony homicide was calculated to fill the gap.
Nevertheless, it can reasonably be inferred from
Our treatment of prior felony-homicide cases suggests that there are limits to the circumstances under which feloniеs may serve as predicates for
1. Malice and Dangerousness of Underlying Felony
As noted above, the mechanism by which the felony-murder doctrine in
As we have often observed, “the authorities are replete with definitions of malice.” Essex v. Commonwealth, 228 Va. 273, 280 (1984). “At common law, malice was defined ‘as any evil design in general: the dictate of a wicked, depraved, and malignant heart: un disposition a faire un male chose [a disposition or inclination to do a bad thing].’” Watson-Scott v. Commonwealth, 298 Va. 251 (2019) (quoting 4 William Blackstone, Commentaries *198). This Court has long employed a volitional definition of mаlice requiring that the “wrongful act be done ‘willfully or purposefully.’” Essex, 228 Va. at 280 (quoting Williamson v. Commonwealth, 180 Va. 277, 280 (1942)); see also Dawkins v. Commonwealth, 186 Va. 55, 61 (1947) (defining malice as “the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will”).
Malice may be either express or implied, but the requisite malice for a felony-homicide conviction will almost invariably be implied from the defendant’s conduct because the felony-homicide doctrine contemplates an unintentional killing incidental to the underlying felony. Implied malice “exists where a defendant lacks the deliberate intent to kill, but the circumstances of the defendant’s actions are ‘so harmful that the law punishes the act as though malice did in fact exist.’” Watson-Scott, 298 Va. at 256 (quoting Pugh v. Commonwealth, 223 Va. 663, 668 (1982)). In determining whether malice may be implied from conduct, we look for actions reflecting “a species of reckless behavior so willful and wanton, so heedless of foreseeable consequences, and so indifferent to the value of human life that it supplies the element of malice.” Id. (quoting Essex, 228 Va. at 288 (Poff, J., concurring)). In addition, malice may be implied from use of a deadly weapon, id., and we have recognized that “[a] motor vehicle, wrongfully used, can be a weapon as deadly as a gun or a knife,” Essex, 228 Va. at 281.
A nuanced approach to this malice inquiry is apparent in Heacock, which gives effect to the General Assembly’s broad formulation of the felony-homicide doctrine while recognizing the common-law limitations on the circumstances under which offenses may be predicates for a felony-hоmicide conviction. In that case, the felony underlying Heacock’s felony-homicide conviction was his distribution of cocaine to the victim who died after being injected with the drug. 228 Va. at 403. Heacock protested that because he did not administer the injection and cocaine distribution is not itself a foreseeably dangerous felony, no logical basis existed for imputing malice to the victim’s death. Id. at 404. We disagreed. After reviewing
The citation to Whiteford is significant because it supports the proposition that
2. Res Gestae
The doctrine of res gestae provides an additional limitation on what offenses may serve as predicates for felony-homicide convictions. In essence, the res gestae rule requires that there be a connection between the predicate felony and the death, giving effect to the statutory requirement that the death occur “while in the prosecution of” the underlying felony. See Montague, 260 Va. at 701; Heacock, 228 Va. at 405 (“[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.” (quoting Haskell v. Commonwealth, 218 Va. 1033, 1041 (1978))). Thus, the felony-homicide statute “applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise.” Haskell, 218 Va. at 1044; see Montano v. Commonwealth, 61 Va. App. 610, 616 (2013) (“When the homicide ‘resulted from an act which was an integral part of the felony or an act in direct furtherance of оr necessitated by the felony,’ felony [homicide] is established.” (quoting Griffin v. Commonwealth, 33 Va. App. 413, 425 (2000))). The required elements of the res gestae rule—time, place, and causal connection—are stated in the conjunctive. As such, all three must be proven for the felony-homicide statute to apply. Montague, 260 Va. at 702; see 7 Ronald J. Bacigal & Corinna Barrett Lain, Virginia Practice Series: Criminal Offenses and Defenses 351–52 (2019–200 ed.) (“When the death occurs at the time and place of the felony and the felony itself is inherently dangerous, or the felony, not inherently dangerous, is factually committed in a dangerous way, the death is within the res gestae of the felony.”).
Whether these elements are proven in a particular case is a case-specific inquiry for the fact finder to decide. Haskell, 218 Va. at 1043. For instance, in Haskell, several assailants attacked an intoxicated sailor in an effort to rob him. Id. at 1036. Finding the sailor had
In contrast, all three elements were absent in Montague. In that case, the defendant stole a car one day, then struck and killed a pedestrian while evading police in a different location the next. Montague, 260 Va. at 699–700. The Commonwealth argued that despite the time elapsing between the grand larceny and the accidental killing, the defendant’s flight from police to avoid detection of the larceny established the requisite causal connection between the larceny and the homicide. Id. at 700. We disagreed, finding that the eleven-hour period between the larceny’s discovery and the homicide meаnt that the accidental killing “was not related in time to the larceny.” Id. at 702. Additionally, the fact that the larceny and homicide occurred in different parts of the same city defeated the place element. Id. In light of these conclusions, we held that “the grand larceny and the homicide were not parts of the same criminal enterprise as required by the res gestae rule,” rendering the felony-homicide statute inapplicable. Id.
These cases illustrate the fact-intensive nature of the res gestae inquiry. A finder of fact must look to the particular aspects of each felony-homicide case to determine whether the death occurred within the res gestae of the underlying fеlony without relying on rigid formulas. The analysis in Haskell indicates that a killing may be within the res gestae even if it does not occur while the predicate felony is ongoing. This result is consistent with the General Assembly’s use of the broad phrase, “in the prosecution of some felonious act,” which contemplates a killing occurring before, during, or after the underlying felony, provided it shares a causal connection sufficient to make the killing part of the same criminal enterprise. Haskell, 218 Va. at 1044; cf. Harward v. Commonwealth, 229 Va. 363, 366 (1985) (interpreting the phrase “in the commission of” in
Taken together, the principles of imputed malice and res gestae provide guidance regarding when felonies may serve as predicates under
person “while in the
B. Hit and Run as a Predicate Offense to Felony Homicide
As an initial matter, Flanders urges this Court to categorically reject the crime of felony hit and run as a predicate offense because recognizing it as such would have substantial negative policy implications. She contends that permitting hit and run to be a predicate would open the door for the Commonwealth to bring felony-homicide charges against every driver involved in a hit and run death case. She argues that “would inexorably result in the two charges being paired in every case.”
Whether a given offense can serve as a predicate for a felony-homicide conviction under
Turning to the specific facts of this case, the evidence viewed in the light most favorable to the Commonwealth demonstrated that Flanders knew Pentz well and had some degree of animosity toward him. Mere days before the hit and run, police were summoned to an incident involving an altercation between the two in which Flanders appeared to have attempted to strike Pentz with her Durango. Telephone records show that Pentz called Flanders roughly an hour before the early morning hit and run. She then navigatеd to his location in a school’s rear parking lot where she struck him with the Durango, a large sport utility vehicle, with enough force to cause fatal injuries. She
Taken together, the evidence is sufficient to establish that malice can be implied from Flanders’ actions and that the killing fell within the res gestae of that felony. Although Flanders’ statement that she thought Pentz would survive suggests that she did not intend to kill him, hеr actions nevertheless reveal that she “willfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm” to Pentz. Essex, 228 Va. at 280–81. Unlike typical hit and run incidents, in which the accident is between strangers and occurs on a thoroughfare of some sort, the incident in this case took place in a school’s rear parking lot during the early morning hours, a setting in which Flanders had no reason to be. This atypical setting, coupled with the similar altercation involving the Durango just two days earlier, yields an inference that Flanders’ conduct was intentionally designed to place Pentz in danger—the essence of malice.
Flanders, however, contends that Pentz’ death could not have occurred within the res gestae of the hit and run and that his death was not causally connected to the hit and run. She bases her argument on two cases from the Court of Appeals.
In the first, King v. Commonwealth, 6 Va. App. 351, 353–54 (1988), a drug-smuggling airplane crewed by King and a co-felon crashed in adverse weather conditions, killing the co-felon. King was convicted of felony homicide. Id. at 354. On appeal, the Court of Appeals held that although the death was close in time and place to the underlying felony, it was not causally connected to drug-smuggling and therefore fell outside the res gestae. Id. at 358. It reversed King’s conviction because “fog, low cloud cover, pilot error, and inexperiencе” rather than “an act of the felons in furtherance of the felony” caused the death. Id. at 353, 358.
The second, Griffin, involved a defendant who accidentally shot his roommate while “dancing to music.” 33 Va. App. at 418. He was charged with felony homicide. Id. Possession of a firearm by a convicted felon was the predicate felony. Id. at 422. The Court of Appeals reversed his conviction, ruling that “no evidence produced at trial established a causal connection between the underlying felony and the accidental killing,” which occurred neither in the prosecution of a felonious act nor in furtherance of the felony. Id. at 424.
Based on her reading of these cases, Flanders argues that no requisite causal connection exists between the hit and run and the dеath. The death, she argues, was not a consequence of the felony, nor was it calculated to further the felony. Rather, the death was merely coincident to the hit and run and would have occurred regardless of whether she left the scene. At most, she concedes, the death was close in time and place to the felonious act, just as in King.
Flanders’ arguments are unpersuasive and the cases upon which she relies are readily distinguished from the case at bar. In this case, Pentz’ death was not merely the result of coincident circumstances, but was inextricably connected to the underlying felony because the injury-causing collision is “an integral part of the felony” of hit and run. Griffin, 33 Va. App. at 425; see Clarke v. Galdamez, 292 Va. 228, 236 (2016). Unlike King and Griffin, in which the underlying felonies were minimally connected to the death, Pentz’ death was the direct result of the felony hit and run. Flanders’ actions—striking Pentz, recognizing that his injuries were severe enough to endanger his life, and fleeing the scene without providing aid—caused the injuries and subsequent death four hours later. The “killing was closely related in time, place and causal connection to the [hit and run]. Indeed, the two crimes were inextricably interwoven.” Haskell, 218 Va. at 1043.
III. CONCLUSION
Because it is possible for felony hit and run to have been committed with malice and for the resulting death to fall within the res gestae of that offense, felony hit and run may serve as a predicate offense for felony homicide upon such facts. In this case, the evidence viewed in the light most favorable to the Commonwealth established that Flanders intentionally acted in a manner endangering Pentz such that malice could be implied from her conduct, and that Pentz’ death was sufficiently related to the hit and run in time, place, and causal connection such that it was within the res gestae of the felony hit and run. Accordingly, we will affirm the Court of Appeals’ judgment based on the conclusion that the evidenсe was sufficient to sustain Flanders’ conviction for felony homicide.
Affirmed.