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January 12, 2001

Record No. 000143

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Whiting, S.J.







In this appeal, we decide whether the
defendant’s convictions and punishments for the malicious
wounding and attempted murder of the same victim subjected the
defendant to double jeopardy in violation of the Fifth Amendment
to the federal constitution.


A jury in the City of Petersburg convicted
Irvin E. Coleman of the attempted murder, robbery, and malicious
wounding of Reginald O. Vincent and of three charges of
displaying or using a firearm while in the course of committing
the first three felonies. The circuit court entered judgment on
the verdicts and imposed the jury recommended sentences totaling
46 years, to be served consecutively.

On appeal, Coleman’s convictions were affirmed
in an unpublished memorandum opinion by the Court of Appeals, one
judge dissenting. Coleman v. Commonwealth, Record No.
2871-92-2 (July 20, 1999). On a hearing by that Court en banc,
the convictions were affirmed by an equally divided court, one
judge concurring in the result. Coleman v. Commonwealth,
Record No. 2871-92-2 (December 21, 1999). Coleman appeals.



In accordance with well-established appellate
principles, we will state the evidence in the light most
favorable to the Commonwealth, the party prevailing in the trial
court. The following dispositive evidence appears in the
testimony of Vincent, the victim.

Following Coleman’s armed robbery of Vincent in
the bathroom of Vincent’s apartment in the City of Petersburg,
Coleman ordered Vincent to push his trousers down around his
ankles and Coleman "slowly back[ed] up." After Coleman
"got round the corner," Vincent pulled his trousers up,
and went toward the front room where he heard Coleman. When
Vincent stepped "out of the door," the two men were
about eight feet apart, and Coleman started shooting at Vincent.
As Vincent was "trying to get to" Coleman, Coleman shot
him several times in the arms and legs and finally knocked
Vincent to the floor with a sixth shot, which was to his groin.
As Vincent lay face down on the kitchen floor, "ten seconds
went past, and there was nothing said, no movement." Vincent
thought "it was all over."

Coleman, however, walked over to Vincent’s
recumbent body, "straddled" it and "put the gun
right at [Vincent’s] neck," and then shot him a seventh
time. After Vincent heard Coleman exit the apartment, Vincent,
though disabled by his wounds, was able to leave the apartment,
attract attention, and get help.


The circuit court and the Court of Appeals
concluded that the defendant’s acts of shooting the victim six
times in the arms and legs were separate and distinct from the
defendant’s acts, ten seconds later, of walking over to the
victim’s body and shooting the victim in the head. The defendant
contends that (1) the evidence established that his conduct
constituted one continuous act and (2) the crime of attempted
murder is a lesser included offense of malicious wounding, and,
therefore, he is entitled to the benefit of the double jeopardy
provisions contained in the Fifth Amendment to the United States
[1] As pertinent, this amendment
provides that "no person . . . shall
. . . be subject for the same offense to be twice put
in jeopardy of life and limb." U.S. Const. amend. V. The
Commonwealth responds that the defendant was convicted of
separate and distinct criminal offenses, and, therefore, he was
not "twice put in jeopardy" in contravention of the
Fifth Amendment.

We review the following basic principles in
considering the defense of double jeopardy before considering the
argument of the parties. The Fifth Amendment guarantees
protection against a second prosecution for the same offense
after either an acquittal or a conviction of that offense and
against multiple punishments for the same offense. Illinois v.
, 447 U.S. 410, 415 (1980); North Carolina v. Pearce,
395 U.S. 711, 717 (1969); Blythe v. Commonwealth, 222 Va.
722, 725, 284 S.E.2d 796, 797 (1981). Because this appeal
concerns convictions of malicious wounding and attempted murder
occurring in a single trial, " ‘the role of the
constitutional guarantee is limited to assuring that the court
does not exceed its legislative authorization by imposing
multiple punishments for the same offense.’ " Payne
v. Commonwealth of Virginia
, 257 Va. 216, 227, 509 S.E.2d
293, 300 (1999) (quoting Brown v. Ohio, 432 U.S. 161, 165

In the prosecution for two crimes in the same
trial, the double jeopardy defense does not apply unless (a) the
defendant is twice punished for one criminal act, and (b)
the two punishments are either for the same crime or one
punishment is for a crime which is a lesser included offense of
the other. See Brown v. Ohio, 432 U.S. at 169-70.

Without deciding, we will assume the evidence
established that defendant’s course of conduct was a continuous
act, as the defendant contends. See id. at 169.
Since the two convictions of malicious wounding and attempted
murder occurred in a single trial, we must decide whether the
trial court exceeded "its legislative authorization by
imposing multiple punishments for the same offense." Payne,
257 Va. at 227, 509 S.E.2d at 300. When "the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or only one is whether each [offense charged] requires proof of an additional fact which the other does
not." Blockburger v. United States, 284 U.S. 299, 304

In applying the Blockburger test, we
look at the offenses charged in the abstract, without referring
to the particular facts of the case under review. Blythe,
222 Va. at 726-27, 284 S.E.2d at 798–799 (citing Whalen
v. United States
, 445 U.S. 684, 694 n.8 (1980)). Looking at
the elements of the two crimes in the abstract, the parties agree
the required proof that the defendant shot, stabbed, cut, or
wounded the victim for a malicious wounding conviction is not
required for an attempted murder conviction. They disagree,
however, whether the proof of a specific intent to kill required
in an attempted murder case, Merritt v. Commonwealth, 164
Va. 653, 660, 180 S.E. 395, 398 (1935), is also required in a
malicious wounding case.

Contrary to the Commonwealth’s position, the
defendant contends that such proof is required. In considering
the crime in the abstract, the defendant overlooks the plain
language of the malicious wounding statute, which describes the
required intent as that of "the intent to maim, disfigure,
disable, or kill." Code ? 18.2-51 (emphasis
added). Noting the use of the disjunctive "or" in the
statute, we agree with the Commonwealth that a malicious
wounding charge does not require proof of the specific intent to
kill. Thus, each of the convictions involved in this appeal
contains required elements of proof not contained in the other
conviction as required in the Blockburger test.

The defendant, relying upon Brown v.
, 222 Va. 111, 279 S.E.2d 142 (1981), asserts
that "attempted murder and malicious wounding convictions
cannot arise from one transaction." The defendant’s reliance
is misplaced. In Brown, the defendant was indicted for
attempted murder and malicious wounding. The jury, however,
convicted him of assault and battery under an indictment charging
attempted murder and of unlawful wounding under an indictment
charging malicious wounding. On appeal, this Court held that it
was improper for the jury to return a verdict finding the
defendant guilty of assault and battery under the indictment
charging attempted murder. Assault and battery and unlawful
wounding each are lesser included offenses of malicious wounding.
Therefore, the defendant’s conviction for unlawful wounding
barred his further conviction "of all other offenses of a
higher grade and of any lesser included offense encompassed by
the malicious wounding indictment." We reversed the assault
and battery conviction and dismissed the indictment charging the
defendant with attempted murder. Id. at 116, 279 S.E.2d at

Additionally, defendant relies on the following
statement in Brown v. Commonwealth, 222 Va. at 116, 279
S.E.2d at 145-146:

It is our conclusion that the court should have
instructed the jury that if it found the defendant guilty under
either the indictment which charged attempted murder or that
which charged malicious wounding, it should not consider further
the other indictment.

In Brown, the parties apparently agreed
that assault and battery was a lesser-included offense of
attempted murder since there was no apparent objection to the
jury verdict form permitting such a finding. The parties were
wrong. Since assault and battery requires proof of a battery, it
is not a lesser-included offense of attempted murder. See Jones
v. Commonwealth
, 218 Va. 757, 759, 240 S.E.2d 658, 660, cert.
denied, 435 U.S. 909 (1978)(if second offense contains element of
proof not contained in first offense, second offense not
lesser-included offense).

We decline to apply the quoted language from Brown
in the broad manner suggested by the defendant. We regard it as
limited to the issue erroneously framed by the parties in Brown.

We reject the defendant’s contention that an
attempted murder in which there was a wounding is a
lesser-included crime of malicious wounding under the Blockburger
test. This contention is based upon the particular facts of this
specific case and not upon a consideration of the crimes in the
abstract, which, as we have noted, is the manner in which we
apply the Blockburger test. In sum, we conclude that a
malicious wounding charge does not require the element of a
specific intent to kill as is required in an attempted murder
charge and thus satisfies the Blockburger test in this
case as a matter of law.

Even though attempted murder is not a
lesser-included offense of malicious wounding, as we have held,
the defendant argues that the lighter punishment specified by the
legislature for an attempted murder conviction than that for a
malicious wounding conviction indicates a legislative intent
"to distinguish attempted murders which resulted in
significant bodily harm to the victim from other attempted
murders." He cites, and we find, no authority in support of
this statement.

For all the above reasons, the judgment of the
Court of Appeals will be



[1] Contrary to the
Commonwealth’s assertions, the defendant raised this issue
in the trial court, and, therefore, the issue is not procedurally

[2] The same principle applies in comparing the offenses of
malicious wounding and attempted murder, as we have noted earlier
in this opinion.