PRESENT: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette,
JJ., and Lacy, S.J.
DOUGLAS MICHAEL BROWN, JR.
v. Record No. 090013 OPINION BY
JUSTICE BARBARA MILANO KEENAN
November 5, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal from a defendant’s conviction for
involuntary manslaughter, we consider whether the evidence was
sufficient to establish that the defendant was a proximate cause
of the death of a driver who was killed when his car was struck
by a police cruiser during a high-speed chase to apprehend the
defendant.
Douglas Michael Brown, Jr. was convicted in a bench trial
in the Circuit Court of the City of Colonial Heights of leaving
the scene of an accident, in violation of Code § 46.2-894;
feloniously eluding a police officer, in violation of Code
§ 46.2-817(B); driving after having been declared an habitual
offender, second offense, in violation of Code § 46.2-357(B);
and involuntary manslaughter. In this appeal, we consider only
Brown’s involuntary manslaughter conviction, for which he was
sentenced to ten years’ imprisonment, with five years suspended.
The evidence at trial showed that Officer Mark Bowen of the
Chesterfield County Police Department was investigating the
scene of an automobile accident when he heard “squealing” tires
as a vehicle approached from around a corner. Officer Bowen
used his flashlight to signal to the driver, whom he later
identified as Brown, that he should stop the vehicle.
Brown stopped the vehicle at an intersection, and Officer
Bowen approached the driver’s side window. When Officer Bowen
directed Brown to move his vehicle to the side of the road,
Brown instead accelerated toward Officer Bowen. Brown’s vehicle
passed within five feet of Officer Bowen, and made the next
available turn onto Route 1 in a southbound direction.
Officer Avery James, II, of the Chesterfield County Police
Department, who was investigating the nearby accident, received
a radio dispatch from Bowen. Officer Bowen described the “van”
driven by Brown, and warned that Brown may be “a drunk driver.”
Officer James soon observed the van, which was traveling at a
speed of about 70 miles per hour in a 45 mile-per-hour zone. He
activated his police cruiser’s emergency lights and siren, and
began pursuing Brown’s vehicle.
The two vehicles traveled toward Colonial Heights at speeds
ranging between 80 and 110 miles per hour. The van weaved
abruptly through traffic, forcing Officer James to “take evasive
action” to avoid hitting other cars in the southbound lanes of
Route 1.
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Another driver, Rhonda Watts, was traveling eastbound
toward Route 1 in Colonial Heights. When she entered the
intersection at Route 1, she saw a “big flash” and a “big
vehicle” move through the intersection in front of her. Officer
James’ police car followed behind that vehicle.
Officer James swerved to avoid hitting Watts’ vehicle, lost
control of his police car, and struck another car that was
approaching the intersection from the opposite direction. The
driver of the other car, James H. Sears, was killed in the
collision. The police later apprehended Brown.
Following his conviction in the circuit court, Brown
appealed only his involuntary manslaughter conviction to the
Court of Appeals. In an unpublished order, the Court of Appeals
affirmed Brown’s conviction, holding that the evidence was
sufficient to support the circuit court’s judgment. Brown v.
Commonwealth, Record No. 1274-08-2 (Nov. 25, 2008). The Court
held that Brown was criminally negligent and that because he
“set the course of events in motion” that resulted in the
collision, he proximately caused Sears’ death. Id., slip op. at
4. The Court also determined that “it was foreseeable that
there was an inherent risk that a police officer could lose
control of his vehicle while pursuing [Brown], posing a danger
to others.” Id. We awarded Brown this appeal.
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Brown argues that his actions did not directly cause Sears’
death, but that Sears died solely because of Officer James’
decision to continue the high-speed chase into a populated area.
Brown asserts that despite his own actions in attempting to
elude the police, he is not criminally responsible for Sears’
death because it was not foreseeable that Officer James would
continue to chase Brown’s vehicle at the speeds involved. We
disagree with Brown’s arguments.
On appeal, we consider the evidence in the light most
favorable to the Commonwealth, the prevailing party in the
circuit court, and we accord the Commonwealth the benefit of all
reasonable inferences deducible from the evidence. Britt v.
Commonwealth, 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008); Jay
v. Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008);
Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586
(2008). When a defendant challenges the sufficiency of the
evidence, we give the judgment of a circuit court sitting
without a jury the same weight as a jury verdict. Britt, 276
Va. at 573-74, 667 S.E.2d at 765; Tarpley v. Commonwealth, 261
Va. 251, 256, 542 S.E.2d 761, 763 (2001); Hickson v.
Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645 (1999). We
will affirm the circuit court’s judgment unless it is plainly
wrong or without evidence to support it. Code § 8.01-680;
Britt, 276 Va. at 574, 667 S.E.2d at 765; Jay, 275 Va. at 524,
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659 S.E.2d at 319; Bolden, 275 Va. at 148, 654 S.E.2d at 586;
Tarpley, 261 Va. at 256, 542 S.E.2d at 763.
The common law crime of involuntary manslaughter consists
of two elements: 1) the accidental killing of a person, contrary
to the intention of the parties; and 2) the death occurs during
the defendant’s performance of an unlawful but not felonious
act, or in the defendant’s improper execution of a lawful act.
West v. Director, Dep’t of Corrs., 273 Va. 56, 63-64, 639 S.E.2d
190, 195 (2007); Dowden v. Commonwealth, 260 Va. 459, 470, 536
S.E.2d 437, 443 (2000); Cable v. Commonwealth, 243 Va. 236, 240,
415 S.E.2d 218, 220 (1992). To constitute involuntary
manslaughter, the “improper” execution of a lawful act must
amount to an unlawful commission of that lawful act,
demonstrating criminal negligence. West, 273 Va. at 64, 639
S.E.2d at 195; Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v.
Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).
In cases involving the operation of a motor vehicle, we
generally have defined involuntary manslaughter as an accidental
killing that is proximately caused by criminal negligence
involving conduct “so gross, wanton, and culpable as to show a
reckless disregard of human life.” Greenway v. Commonwealth,
254 Va. 147, 154, 487 S.E.2d 224, 228 (1997) (quoting King v.
Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)); see
also Riley v. Commonwealth, 277 Va. 467, 483-84, 675 S.E.2d 168,
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177 (2009); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d
780, 784 (1984). Criminal negligence is judged according to an
objective standard and, thus, may be found when the defendant
either knew or should have known the probable consequences of
his acts. Riley, 277 Va. at 483-84, 675 S.E.2d at 177; see
Gallimore v. Commonwealth, 246 Va. 441, 445-46, 436 S.E.2d 421,
424 (1993); Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d
218, 220 (1992).
We also have defined criminal negligence with reference to
gross negligence. We have stated that gross negligence is
punishable as criminal negligence when acts of a wanton or
willful character, committed or omitted, show “a reckless or
indifferent disregard of the rights of others, under
circumstances reasonably calculated to produce injury, or which
make it not improbable that injury will be occasioned, and the
offender knows, or is charged with the knowledge of, the
probable result of his acts.” Riley, 277 Va. at 484, 675 S.E.2d
at 177 (quoting Cable, 243 Va. at 240, 415 S.E.2d at 220); see
also Bell v. Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675,
681 (1938). To convict a defendant of involuntary manslaughter
based on such acts of criminal negligence, the Commonwealth must
also prove that the defendant’s criminally negligent conduct was
a proximate cause of the victim’s death. Gallimore, 246 Va. at
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445-46, 436 S.E.2d at 424; Cable, 243 Va. at 240, 415 S.E.2d at
220; King, 217 Va. at 607, 231 S.E.2d at 316.
Established principles of proximate causation are
applicable in both civil and criminal cases. Robinson v.
Commonwealth, 274 Va. 45, 53, 645 S.E.2d 470, 474 (2007);
Gallimore, 246 Va. at 447, 436 S.E.2d at 425. A proximate cause
is “an act or omission that, in natural and continuous sequence
unbroken by a superseding cause, produces a particular event and
without which that event would not have occurred.” Williams v.
Joynes, 278 Va. 57, 62, 677 S.E.2d 261, 264 (2009); accord
Williams v. Le, 276 Va. 161, 167, 662 S.E.2d 73, 77 (2008); see
Coyle v. Commonwealth, 50 Va. App. 656, 666, 653 S.E.2d 291, 296
(2007). Because an event can have more than one proximate
cause, criminal liability can attach to each actor whose conduct
is a proximate cause unless the causal chain is broken by a
superseding act that becomes the sole cause of the death. See
Gallimore, 246 Va. at 447, 436 S.E.2d at 425; O’Connell v.
Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006).
When a defendant’s criminally negligent conduct “put[s]
into operation” an intervening cause of a death, the defendant
remains criminally responsible for that death. See Commonwealth
v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265-66 (1998);
Gallimore, 246 Va. at 447, 436 S.E.2d at 425. Thus, an
intervening cause of such death that is a probable consequence
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of the defendant’s own conduct will not constitute a superseding
cause breaking the chain of proximate causation. See Gallimore,
246 Va. at 447, 436 S.E.2d at 425; Delawder v. Commonwealth, 214
Va. 55, 58, 196 S.E.2d 913, 915 (1973). In contrast, an
independent, intervening act that alone causes the victim’s
injury or death is recognized as a superseding cause that will
exempt the defendant from criminal responsibility for his or her
conduct. Hubbard v. Commonwealth, 243 Va. 1, 14, 413 S.E.2d
875, 882 (1992); O’Connell, 48 Va. App. at 728-29, 634 S.E.2d at
384; see Joynes, 278 Va. at 63, 677 S.E.2d at 264.
Applying these principles, we first observe that Brown has
not assigned error to the Court of Appeals’ holding that his
driving conduct was criminally negligent. Therefore, that
holding is binding on appeal, and we consider only the remaining
issue of proximate causation. ∗ See Rule 5:17(c); Ortiz v.
Commonwealth, 276 Va. 705, 713, 667 S.E.2d 751, 756 (2008). The
issue of proximate causation before us is whether Officer James’
actions were a superseding cause of Sears’ death, relieving
Brown of criminal responsibility for his driving conduct, or
∗
We also observe that Brown’s other convictions that are
not challenged in this appeal may qualify as unlawful acts for
purposes of an involuntary manslaughter analysis. However, we
need not consider them here, because the Court of Appeals based
its holding on Brown’s criminal negligence, which constitutes an
independent basis for involuntary manslaughter when accompanied
by proof of proximate causation. See Greenway, 254 Va. at 154,
487 S.E.2d at 228; King, 217 Va. at 607, 231 S.E.2d at 316.
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whether Brown remains criminally responsible for his driving
conduct because he “put into operation” Officer James’ acts.
The record shows that Officer James acted in direct
response to Brown’s decision to flee from Officer Bowen, and to
Officer Bowen’s warning that Brown might be intoxicated. Brown
continued to drive at speeds reaching 110 miles per hour,
executing dangerous driving maneuvers, with full knowledge that
the police were chasing him. Based on these facts, Officer
James’ high-speed chase to apprehend Brown and Sears’ death were
a direct result of Brown’s reckless driving. See Gallimore, 246
Va. at 447, 436 S.E.2d at 425; Hubbard, 243 Va. at 14, 413
S.E.2d at 882; Delawder, 214 Va. at 57-58, 196 S.E.2d at 915.
Because Brown’s actions “put into operation” the high-speed
chase, Officer James’ intervening actions were not a superseding
cause that alone caused Sears’ death. See Joynes, 278 Va. at
63, 677 S.E.2d at 264-65; Jenkins, 255 Va. at 521, 499 S.E.2d at
265-66; Gallimore, 246 Va. at 447, 436 S.E.2d at 425; Hubbard,
243 Va. at 14, 413 S.E.2d at 882. Thus, we hold that Brown is
criminally responsible for Sears’ death because his conduct was
a proximate cause of that death, and was a cause without which
Sears’ death would not have occurred. See Joynes, 278 Va. at
262-63, 677 S.E.2d at 264; Gallimore, 246 Va. at 447, 436 S.E.2d
at 425; O’Connell, 48 Va. App. at 728-29, 634 S.E.2d at 383-84.
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In reaching this conclusion, we observe that the
reasonableness of Officer James’ actions is not an issue before
us. See Mayo v. Commonwealth, 218 Va. 644, 647, 238 S.E.2d 831,
833 (1977). Officer James’ driving conduct is relevant only to
the issue whether that conduct was a superseding cause of Sears’
death or, as we have decided, was an intervening act “put into
operation” by Brown’s acts.
Finally, we find no merit in Brown’s request that we alter
our analysis to add a principle from the felony-murder rule,
namely, that responsibility for an accidental death occurring
during the commission of a felony will be placed on a defendant
only if the death is inflicted by the defendant or by a third-
party acting in furtherance of the defendant’s crime. See
Bailey v. Commonwealth, 229 Va. 258, 262, 329 S.E.2d 37, 40
(1985); Wooden v. Commonwealth, 222 Va. 758, 763-65, 284 S.E.2d
811, 814-16 (1981); Rivers v. Commonwealth, 21 Va. App. 416,
426, 464 S.E.2d 549, 554 (1995). Citing this principle, Brown
argues that he is not criminally responsible for Sears’ death,
because Officer James did not act in furtherance of Brown’s
crime but was working to thwart Brown’s criminal conduct. We
disagree with Brown’s analysis.
Under the felony-murder rule, the law distinguishes those
acting in furtherance of a felony from those acting to thwart
the commission of that crime, because the element of malice is
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supplied under the rule and is assigned only to criminal actors.
See Bailey, 229 Va. at 264, 329 S.E.2d at 41; Wooden, 222 Va. at
762, 284 S.E.2d at 814. This distinction is irrelevant here,
however, because malice is not an element of involuntary
manslaughter. See Rhodes v. Commonwealth, 238 Va. 480, 485, 384
S.E.2d 95, 98 (1989). Thus, regardless whether Officer James
was acting to thwart Brown’s criminally negligent conduct when
the fatal accident occurred, the issue before us remains whether
Brown’s criminally negligent conduct caused Sears’ death,
unbroken by a superseding cause. See Gallimore, 246 Va. at 445-
46, 436 S.E.2d at 424; Cable, 243 Va. at 240, 415 S.E.2d at 220;
King, 217 Va. at 607, 231 S.E.2d at 316.
Accordingly, we hold that the Court of Appeals did not err
in concluding that the evidence supports the circuit court’s
judgment. The evidence was sufficient to establish the crime of
involuntary manslaughter because Officer James’ actions did not
break the chain of proximate causation between Brown’s
criminally negligent conduct and Sears’ death.
For these reasons, we will affirm the Court of Appeals’
judgment.
Affirmed.
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