Payne v. Com.

PRESENT: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.

KELLY DINELLE PAYNE
OPINION BY
v. Record No. 081258 JUSTICE S. BERNARD GOODWYN
APRIL 17, 2009
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, the primary issue is whether a criminal

defendant can be convicted and punished for both felony homicide

and aggravated involuntary manslaughter when the defendant

killed one victim.

In the Circuit Court of the City of Richmond, Kelly D.

Payne was charged with felony homicide in violation of Code

§ 18.2-33, aggravated involuntary manslaughter in violation of

Code § 18.2-36.1, and two counts of felony “hit and run” in

violation of Code § 46.2-894. Prior to trial, Payne filed a

motion to compel the Commonwealth to pursue prosecution either

under felony homicide or aggravated involuntary manslaughter.

The trial court denied the motion.

Following a jury trial, Payne was found guilty on all

charges. Payne appealed to the Court of Appeals. In a

published opinion, Payne v. Commonwealth, 52 Va. App. 120, 661

S.E.2d 513 (2008), the Court of Appeals affirmed the judgment of

the trial court. Payne appeals.
 FACTS

At approximately 9:30 a.m. on March 7, 2006, Payne arrived

at her place of employment, Auto Pawn of America (Auto Pawn),

located on Midlothian Turnpike in Richmond. She drove her

boyfriend’s white pick-up truck to work. Payne’s supervisor,

Kevin Penrose, testified that Payne arrived at work with the

smell of alcohol on her breath.

Auto Pawn was equipped with video surveillance equipment,

and the Commonwealth presented a portion of the video

surveillance recording from the day of the accident as evidence.

The video recording showed Payne at various times during the

workday holding a bottle of Crown Royal whiskey. The video

recording also showed Payne drinking from a clear plastic cup,

which contained a brown liquid.

Payne’s co-worker, Steve Messner, testified that he

observed Payne with a bottle of Crown Royal whiskey from the

office freezer and also observed her with the bottle in one hand

and a cup in the other hand. Although Messner did not see Payne

drink from the Crown Royal whiskey bottle, he saw her drinking

from the plastic cup throughout the entire day. Both Messner

and Penrose testified that Payne’s behavior changed during the

day; they testified that she became flirtatious. Due to her

“irrational and erratic” behavior, Penrose asked Payne to leave

work early. As she was leaving work, which was approximately

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4:00 p.m., Messner attempted to stop Payne by yelling her name;

however, she ignored him and “shot across” the road nearly

striking another vehicle in the parking lot.

Thereafter, Penrose discovered that approximately one third

of the whiskey was missing from his Crown Royal whiskey bottle

that he kept in the office freezer. Shortly after Payne left

Auto Pawn, she drove her vehicle into the back of a car that was

stopped at a red light. The driver of that car, Ruth Ann

Priest, testified that the truck driven by Payne “slammed” into

her car, and after the collision, Priest was bleeding and felt

dazed, dizzy, and lightheaded. Priest did not get out of the

car. However, she looked in her rear-view mirror and saw the

driver of the truck was a woman with sunglasses down around her

face who appeared “dazed” and “lethargic.” Priest called 911

and remained in her car. Approximately four minutes after the

collision and while Priest was on the telephone with the 911

operator, Payne drove away from the scene of the accident.

Priest later drove herself to a medical clinic where she was

diagnosed with a neck sprain.

Michael Foster testified that he saw someone driving away

from the location of the accident with Priest in a white pick-up

truck, which he identified as the truck Payne was driving.

Foster followed the truck and observed the driver drive onto the

curb. He further observed the driver swerve across all three

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lanes of traffic and make an abrupt right turn. The driver then

drove the truck back onto the curb striking a pedestrian,

Ashokkumar M. Patel. Foster called 911 and reported the

accident stating that the driver, later identified as Payne, was

“driving like a maniac.” Payne did not stop the truck after

hitting Patel; she continued onto Chippenham Parkway. Patel

later died from his injuries.

At approximately 4:30 p.m., Payne arrived at the Forest

Restaurant, which is about ten minutes by car from the

intersection where Patel was struck. Frances Laney, a waitress

at the restaurant, testified that Payne “seemed fine” when she

first arrived, and she served her a beer and a sandwich. Laney

conceded that she did not observe Payne walk into the restaurant

because Laney was in the kitchen at that time. Laney testified

that Payne appeared intoxicated after she made “a mess” of her

sandwich; other customers informed her that Payne had ingested

pills.

After Laney testified, Payne’s counsel moved for a

mistrial, arguing that Laney’s testimony was exculpatory

evidence that was not disclosed by the Commonwealth prior to

trial. The trial court denied the motion.

The Commonwealth introduced into evidence at trial a

transcript of a telephone call that Payne placed while she was

an inmate at the Richmond City Jail. During the telephone

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conversation, Payne stated that she was “doing shots” of liquor

during the day of her accident. She also stated that she was an

alcoholic and that she had previously attended Alcoholics

Anonymous meetings.

The Commonwealth presented Dr. Julia Pearson, a

toxicologist, to testify concerning the effects of alcohol and

the ability of alcoholics to conceal those effects. Payne’s

counsel objected to the expert testimony, arguing that the

Commonwealth had failed to lay a proper foundation for the

testimony. The trial court overruled the objection, but

excluded expert testimony regarding general information

concerning intoxication and limited Dr. Pearson’s testimony to

the effects of alcohol on an alcoholic. Dr. Pearson testified

that alcoholics are able to mask the effects of alcohol on their

psychomotor skills but not on their cognitive skills, such as

their judgment and reasoning.

Payne did not present any evidence. The jury found Payne

guilty of felony homicide, aggravated involuntary manslaughter,

and two counts of felony “hit and run”, and sentenced her to a

total of 46 years in prison. Payne filed a post-trial motion,

arguing that her sentences for both felony homicide and

aggravated involuntary manslaughter violated the prohibition

against double jeopardy. Payne also filed a motion for a new

trial, arguing that the Commonwealth had failed to disclose

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exculpatory evidence prior to trial. The trial court conducted

a hearing and denied the motions.

Payne appealed to the Court of Appeals, which granted her

petition as to her assignment of error concerning double

jeopardy. In a published opinion, the Court of Appeals affirmed

Payne’s conviction holding that the legislature intended to

impose multiple punishments. Id. at 129, 661 S.E.2d at 517.

ANALYSIS

Payne contends that the trial court erred in convicting her

for both felony murder and aggravated involuntary manslaughter.

Payne argues that pursuant to Code § 18.2-36.1(C), the

legislature has authorized prosecution under that vehicular

manslaughter statute and any other homicide statute, but not for

a common law homicide offense. She contends that felony

homicide is a common law offense and, thus, Code § 18.2-36.1(C)

does not authorize prosecution of felony homicide in addition to

vehicular aggravated involuntary manslaughter. Additionally,

Payne contends it is a violation of the double jeopardy

provision of the Fifth Amendment to the United States

Constitution to convict and sentence her twice for killing a

single person.

The Commonwealth responds that the language in Code § 18.2-

36.1(C) supports and proves that the legislature intended

multiple punishments in this instance. The Commonwealth further

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states that convictions under felony murder and aggravated

involuntary manslaughter require proof of different elements,

and do not violate the prohibition against double jeopardy. We

agree with the Commonwealth.

Resolution of the issue concerning whether the multiple

punishments imposed upon the defendant are proper requires a

determination of what punishments the legislature intended to

impose. In making such a determination, we must first examine

the statutes under which the defendant was convicted.

Code § 18.2-36.1 provides as follows:

A. Any person who, as a result of driving under the
influence in violation of clause (ii), (iii), or (iv)
of § 18.2-266 or any local ordinance substantially
similar thereto unintentionally causes the death of
another person, shall be guilty of involuntary
manslaughter.

B. If, in addition, the conduct of the defendant was
so gross, wanton and culpable as to show a reckless
disregard for human life, he shall be guilty of
aggravated involuntary manslaughter, a felony
punishable by a term of imprisonment of not less than
one nor more than 20 years, one year of which shall be
a mandatory minimum term of imprisonment.

C. The provisions of this section shall not preclude
prosecution under any other homicide statute. This
section shall not preclude any other revocation or
suspension required by law. The driver’s license of
any person convicted under this section shall be
revoked pursuant to subsection B of § 46.2-391.

Code § 18.2-33, entitled “Felony homicide defined; punishment,”

provides as follows:

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 The killing of one accidentally, contrary to the
intention of the parties, while in the prosecution of
some felonious act other than those specified in
§§ 18.2-31 and 18.2-32 is murder of the second degree
and is punishable by confinement in a state
correctional facility for not less than five years nor
more than forty years.

This Court must determine the General Assembly’s intent

from the words contained in the statutes. Washington v.

Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006).

Clearly, the language in Code § 18.2-36.1(C) stating that “[t]he

provisions of this section shall not preclude prosecution under

any other homicide statute” expresses the legislative intent for

multiple punishments. Code § 18.2-36.1(C) does not make an

exception for a prosecution under a statute that was previously

a common law crime. Code § 18.2-33 is a homicide statute; it

defines the elements and states the punishment for felony

homicide. Code § 18.2-36.1(C) specifically states that

prosecution for aggravated involuntary manslaughter does not

preclude prosecution under another homicide statute such as Code

§ 18.2-33.

We next must discern whether the convictions and

punishments for aggravated involuntary manslaughter and felony

murder, which both stem from the death of one victim, violate

the double jeopardy provision of the Fifth Amendment to the

United States Constitution. In pertinent part, this amendment

provides that “[n]o person shall . . . be subject for the same

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offense to be twice put in jeopardy of life and limb.” U.S.

Const. amend. V. “This constitutional provision guarantees

protection against (1) a second prosecution for the same offense

after acquittal; (2) a second prosecution for the same offense

after conviction; and (3) multiple punishments for the same

offense.” Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d

293, 300 (1999). In a case where both of the defendant’s

convictions occurred in a single trial, the only relevant

constitutional guarantee is protection against multiple

punishments for the same offense. Blythe v. Commonwealth, 222

Va. 722, 725, 284 S.E.2d 796, 797-98 (1981).

It is clear from the face of the statutes that the General

Assembly intended to create two distinct offenses, aggravated

involuntary manslaughter and felony homicide, which Payne

violated by her actions. Thus, we must consider the rule set

forth in Blockburger v. United States, 284 U.S. 299, 304 (1932),

that “where 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 provision requires proof of a fact which the other does

not.” See Payne, 257 Va. at 228, 509 S.E.2d at 300. In this

case, each offense requires proof of an element that the other

does not. The felony homicide statute requires the Commonwealth

to prove that the defendant unintentionally caused the death of

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another, while in the prosecution of a felonious act. Code

§ 18.2-33. The aggravated involuntary manslaughter statute

requires the Commonwealth to prove that the defendant was

driving under the influence of intoxicants, unintentionally

caused the death of another, and engaged in conduct that was “so

gross, wanton, and culpable as to show a reckless disregard for

human life.” Code § 18.2-36.1(B).

To convict under the felony homicide statute, the

Commonwealth must prove that the defendant committed the killing

in the commission of a felonious act; however, the Commonwealth

is not required to prove any level of intoxication or

recklessness. To convict under the aggravated involuntary

manslaughter statute, the Commonwealth must prove intoxication

and recklessness; however, the Commonwealth is not required to

prove that the defendant committed the killing in the commission

of a felonious act.

Each offense requires proof of an element that the other

does not. We hold that aggravated involuntary manslaughter,

Code § 18.2-36.1, and felony homicide, Code § 18.2-33, are

different offenses under the Blockburger test. The General

Assembly intended that each statutory offense be punished

separately, and Payne’s convictions and punishments do not

violate the constitutional guarantee of protection against

multiple punishments for the same offense.

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 Payne also assigns error to the trial court’s refusal to

grant her motion for a new trial on the grounds that the

Commonwealth failed to produce exculpatory evidence to the

defense prior to trial, in violation of Brady v. Maryland, 373

U.S. 83 (1963). Specifically, Payne argues that the

Commonwealth failed to disclose Laney’s testimony that Payne did

not appear intoxicated when initially arriving at the

restaurant, and that it was only after other customers informed

Laney that Payne had taken some pills that Laney noticed Payne

was intoxicated. The Commonwealth contends that it was not

required to disclose such evidence because the evidence is not

exculpatory and Payne was aware that she went to the restaurant,

that she ingested pills, and that there were other people in the

restaurant that may have observed her behavior. The

Commonwealth further asserts that the evidence was not material

for purposes of Brady.

In Brady, 373 U.S. at 87, the Supreme Court held that “the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” The defendant’s

due process rights have been violated if he does not receive

such evidence or if he receives the evidence at a point when he

cannot effectively use it. Bowman v. Commonwealth, 248 Va. 130,

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133, 445 S.E.2d 110, 111 (1994). “Exculpatory evidence is

material if there is a reasonable probability that the outcome

of the proceeding would have been different had the evidence

been disclosed to the defense. A ‘reasonable probability’ is

one which is sufficient to undermine confidence in the outcome

of the proceeding.” Id. at 133, 445 S.E.2d at 112.

Assuming, without deciding, that Laney’s testimony was

exculpatory, it was not material because there is no reasonable

probability that pretrial disclosure of Laney’s testimony would

have resulted in a different outcome. Payne was charged with

killing Patel while driving under the influence, and evidence

that she ingested pills after the accident was not relevant to

her level of intoxication at the time she hit Patel. The

Commonwealth presented overwhelming evidence that Payne was

intoxicated before she killed Patel. Payne smelled of alcohol

when she arrived at work, and there was testimony and a video

recording depicting Payne’s behavior at work as “erratic.” The

videotape showed Payne holding a Crown Royal whiskey bottle and

a cup. After she left work, one third of the Crown Royal

whiskey was missing, and the jury could have inferred she drank

it. An eyewitness reported that Payne was “driving like a

maniac” right before and right after she hit Patel.

Additionally, during a telephone call Payne placed from jail,

Payne admitted that she was “doing shots” of liquor the entire

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day of her accident. Thus, there is not a reasonable

probability that the outcome of the trial would have been

different had the Commonwealth disclosed Laney’s testimony

pretrial, and denial of Payne’s motion for a new trial was not

erroneous.

Payne also argues that the trial court erred in allowing

expert testimony concerning general information of intoxication.

The Commonwealth asserts the expert testimony concerned the

behavior of alcoholics and that a proper foundation was laid by

introducing the telephone call where Payne admitted she was an

alcoholic and that she attended Alcoholics Anonymous meetings.

A trial court’s admission of expert testimony is in the

sound discretion of the trial court. Commonwealth v. Miller,

273 Va. 540, 549, 643 S.E.2d 208, 213 (2007). Expert testimony

is admissible when it concerns matters not within the ordinary

knowledge of the jury. Compton v. Commonwealth, 219 Va. 716,

726, 250 S.E.2d 749, 755-56 (1979). The purpose of expert

testimony is to assist the trier of fact in understanding the

evidence. Velazquez v. Commonwealth, 263 Va. 95, 103, 557

S.E.2d 213, 218 (2002). In addition, expert testimony must be

based on an adequate foundation; “expert testimony is

inadmissible if it is founded on assumptions that have an

insufficient factual basis.” Keesee v. Donigan, 259 Va. 157,

161, 524 S.E.2d 645, 647-48 (2000).

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 In this case, the trial court specifically excluded expert

testimony regarding general information concerning intoxication

and limited the expert’s testimony to that concerning how

alcoholics are able to conceal certain effects of alcohol. The

Commonwealth had previously introduced the transcript of Payne’s

telephone conversation when she admitted that she was an

alcoholic and attended Alcoholics Anonymous meetings. Dr.

Pearson’s testimony concerning how an alcoholic may be able to

mask certain symptoms of intoxication was not within the

ordinary knowledge of a layperson, and it assisted the jury in

understanding why Payne may not have appeared drunk at times.

We hold that the expert testimony was based on an adequate

foundation and that the trial court did not abuse its discretion

in admitting such expert testimony.

Payne further contends that the evidence was insufficient

to support her convictions for aggravated involuntary

manslaughter, felony murder, and the felony “hit and run”

involving Priest. Regarding the aggravated involuntary

manslaughter conviction, Payne argues that the evidence was

insufficient to prove that she was intoxicated at the time she

hit Patel. Payne asserts that this Court should reverse her

conviction for the felony “hit and run” involving Priest because

the evidence was insufficient to prove that Payne knew or should

have known that the collision resulted in an injury.

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Consequently, as that conviction was the predicate felony for

the conviction of felony murder, Payne argues that her

conviction for felony murder should be reversed also.

When a defendant challenges the sufficiency of the evidence

on appeal, this Court reviews the evidence in the light most

favorable to the Commonwealth and will reverse the judgment of

the trial court only if it is plainly wrong or without

evidentiary support. Jones v. Commonwealth, 277 Va. 171, 182,

670 S.E.2d 727, 734 (2009). We hold that the evidence, viewed

in the light most favorable to the Commonwealth, was sufficient

to support Payne’s convictions.

The Commonwealth presented sufficient evidence that Payne

was intoxicated prior to hitting Patel to support her conviction

of aggravated involuntary manslaughter. Her employer smelled

alcohol on her breath, and Payne was asked to leave work early

because of her “irrational and erratic” behavior. After she

left work, whiskey kept there was found to be missing. Payne

admitted that she was “doing shots” of liquor the entire day of

her accident, and immediately before and after Payne hit Patel,

an eyewitness observed Payne driving erratically. Thus, the

Commonwealth presented sufficient evidence to support the trial

court’s finding that Payne was intoxicated when she hit Patel,

and, accordingly, Payne’s conviction for aggravated involuntary

manslaughter is affirmed.

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 Payne was also convicted of felony “hit and run” under Code

§ 46.2-894, which provides in part:

The driver of any vehicle involved in an accident
in which a person is killed or injured or in which an
attended vehicle or other attended property is damaged
shall immediately stop as close to the scene of the
accident as possible . . . .

. . . .

Any person convicted of a violation of this
section is guilty of (i) a Class 5 felony if the
accident results in injury to or the death of any
person . . . .

In addressing a predecessor statute to Code § 46.2-894, this

Court stated the following in regards to the elements of the

crime of “hit and run”:

Knowledge necessarily is an essential element of the
crime. This does not mean that the person should have
positive knowledge of the extent of the damage or
injuries inflicted. It does mean that, in order to be
guilty of violating the statute, "the driver must be
aware that harm has been done; it must be present in
his mind that there has been an injury; and then, with
that in his mind, he must deliberately go away without
making himself known. If an injury is inflicted under
such circumstances as would ordinarily superinduce the
belief in a reasonable person that injury would flow,
or had flowed, from the accident or collision, then it
is the duty of the operator to stop his vehicle."

Herchenbach v. Commonwealth, 185 Va. 217, 220, 38 S.E.2d 328,

329 (1946). “[T]he Commonwealth must prove that the defendant

possessed actual knowledge of the occurrence of the accident,

and such knowledge of injury which would be attributed to a

16
reasonable person under the circumstances of the case.” Kil v.

Commonwealth, 12 Va. App. 802, 811, 407 S.E.2d 674, 679 (1991).

In this case, there was evidence that Payne knew or should

have known that Priest was injured during the collision. Priest

testified that Payne “slammed” into the back of Priest’s car and

the collision “jerked [Priest] forward pretty hard.” The

collision left Priest “bleeding,” “dazed,” “dizzy,” “light

headed” and resulted in a sprained neck. Further, the collision

caused Payne’s glasses to fall down around her face and left

Payne sitting in her vehicle “dazed” and “lethargic.” Payne was

clearly aware of the extent of the accident as the collision was

significant enough that Payne waited at the accident scene for

over four minutes before deciding to flee. During the time

Payne was at the scene after the collision, Payne never went to

Priest’s vehicle to check on her injury status, even though

Priest remained in her vehicle. Thus, the evidence was

sufficient to support a finding that Payne knew of the

collision, and knew or should have known of Priest’s injury,

and, accordingly, Payne’s conviction for the felony “hit and

run” involving Priest is affirmed. Consequently, Payne’s

argument that the circuit court erred in finding her guilty of

felony murder because there was insufficient evidence to prove

she was guilty of felony “hit and run” in the accident involving

Priest must fail.

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 For these reasons, the judgment of the Court of Appeals is

affirmed.

Affirmed.

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