Virginia Lawyers Weekly VA Lawyers Weekly
The Double Jeopardy Clause prohibits a conviction and punishment for both second-degree murder and first-degree felony murder when there is only one victim, and the Court of Appeals reverses the lesser conviction of second-degree murder along with its attendant conviction for use of a firearm in the commission of a felony.
Under the common law of homicide, the units of prosecution are dead bodies, not theories of aggravation. If the common-law rule remains the law of Virginia, defendant cannot be convicted of two murders for a single killing.
The legislative intent behind the passage of the statute that later became Va. Code § 18.2-32 is clear. In enacting this statute, the General Assembly did not intend to set aside the common law rules for a single homicide’s punishment by making that punishment more severe. To the contrary, the General Assembly acted to mitigate the harshness of the common law’s punishment for murder. That intent appears in the language of the original enactment and in precedent interpreting this statute. In Fitzgerald v. Commonwealth, 223 Va. 615 (1982), the Supreme Court observed that the General Assembly enacted the predecessor to Code § 18.1-32 to mitigate the harshness of the common law which punished murder and numerous other crimes with death. The General Assembly’s intent was to graduate the punishment of each murder by a scale to be established by itself, according to the circumstances under which it should be committed.
Our examination of the legislative intent behind the enactment of the statute that ultimately became Code § 18.2-32 leads us to conclude that the General Assembly did not intend to displace the common law’s conception of homicide as a unitary crime with regard to murder and felony murder. Instead, the provision was enacted to mitigate the harshness of the common law’s punishment for the crime of homicide. Further, the enactment of a capital murder statute, Code § 18.2-331, does not displace common law principles. Although the overriding purpose of both Code § 18.2-31 and Code § 18-2-32 is gradation, the legislative intent behind the two statutes differs. The intent animating the passage of Code § 18.2-32 was to mitigate the harshness of the common law, whereas the purpose behind Code § 18.2-31 was to ensure that the worst murderers remained eligible for the ultimate sanction. This differing legislative purpose drives our resolution of the double jeopardy question.
We conclude defendant cannot be convicted for both first-degree murder on a felony homicide theory and second-degree murder for the killing of a single person. We vacate the conviction for second-degree murder, and affirm the first-degree murder and firearms convictions.
Holley v. Commonwealth (McCullough) No. 0939-13-1, Dec. 23, 2014; Portsmouth Cir.Ct. (Morrison) Dianne G. Ringer for appellant; Virginia B. Theisen, Sr. AAG, for appellee. VLW 014-7-376, 9 pp.
