Present: All the Justices
ALPHONSO STEPHENS
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 010852 January 11, 2002
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
I.
In this appeal, we consider whether a defendant was
subjected to multiple punishments for the same offense in
contravention of the Double Jeopardy Clauses in the Fifth
Amendment to the Constitution of the United States and Article
I, § 8 of the Constitution of Virginia.
A.
Alphonso Stephens was tried by a jury in the County of
Pittsylvania for two counts of shooting at an occupied vehicle
in violation of Code § 18.2-154, and two counts of discharging
a firearm while in a motor vehicle in violation of Code
§ 18.2-286.1. The jury found the defendant guilty of these
crimes and fixed his punishment at a total of four years and
12 months imprisonment plus $2,000 in fines.
The defendant argued in the circuit court that his two
convictions for shooting at an occupied vehicle and his two
convictions for shooting from a vehicle constitute violations
of his right not to be placed in jeopardy twice for the same
offense. The circuit court disagreed with the defendant and
entered a judgment confirming the verdicts. The defendant
appealed that judgment to the Court of Appeals, which affirmed
the judgment. Stephens v. Commonwealth, 35 Va. App. 141, 543
S.E.2d 609 (2001). The defendant appeals the judgment of the
Court of Appeals.
B.
As required by established principles of appellate
review, we will recite the evidence presented at trial in the
light most favorable to the Commonwealth, the prevailing party
in the circuit court, and we will accord the Commonwealth the
benefit of all inferences fairly deducible from that evidence.
Remington v. Commonwealth, 262 Va. 333, 338, 551 S.E.2d 620,
624 (2001). During the evening of May 7, 1999, Calvin Fitz
was driving a Ford automobile on State Route 360 in
Pittsylvania County. Bernard Fitz, III, Calvin Fitz' cousin,
was in the front passenger seat of the car. Rontrell Petty
was in the back seat of the car.
As Calvin Fitz was driving his car, he saw a car with
blinking lights approach him from the rear. Calvin Fitz
"slowed down a little bit," and the other car, driven by the
defendant, "pulled beside" Fitz' car. The defendant, who had
problems in the past with Bernard Fitz, "yelled" and "waved
his hands." Bernard Fitz told Calvin Fitz to "hit the gas and
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keep on going." Calvin Fitz "hit the gas," and the defendant
pursued Fitz' vehicle.
During the ensuing chase, Calvin Fitz drove his car at
speeds between 85 and 90 m.p.h. The defendant turned his car
lights off and began to shoot his pistol in the direction of
Calvin Fitz' car. Christopher Jones, a passenger in the
defendant's car, testified that he saw the defendant shoot the
pistol approximately twice at Calvin Fitz' car.
Calvin Fitz testified that he saw the defendant shoot the
pistol twice. He stated:
"Q: Do you know whether or not any of these
shots hit the car?
"A: Yes sir.
"Q: Was anyone in your car hit?
"A: No sir, but me.
"Q: Where were you hit?
"A: In my back twice.
"Q: Okay. Do you know about how fast you were
going when you saw the gun shots?
"A: Well, I was probably going 'bout maybe 85-
90. I mean, the speeds varied at times 'cause we
was going around curves, and I was going, I mean at
one time I could have been going 80. At one time I
could have been going 85. Another time I could have
been going 90. I mean, it depends on like if I was
in a curve or not. I mean, I really couldn't like,
I could tell you, but I couldn't tell you.
"Q: Were you speeding?"
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"A: Yes sir, I was speeding. I could tell you
that much.
"Q: When the car, when the gun shots happened,
did the car stay with you or did it fall back at any
point?
"A: Every time he shot, every time I heard a
shot and I looked back and I saw the shots the car
would drop back a little bit. Then it would speed
back up and then shoots again to drop back a little
bit."
II.
Code § 18.2-154 states in part:
"Any person who maliciously shoots at . . . any
motor vehicle or other vehicles . . . occupied by
one or more persons, whereby the life of any person
. . . in such motor vehicle . . . may be put in
peril, shall be guilty of a Class 4 felony. . . .
"If any such act is committed unlawfully, but
not maliciously, the person so offending shall be
guilty of a Class 6 felony and, in the event of the
death of any such person, resulting from such
unlawful act, the person so offending shall be
deemed guilty of involuntary manslaughter."
Code § 18.2-286.1 states:
"Any person who, while in or on a motor
vehicle, intentionally discharges a firearm so as to
create the risk of injury or death to another person
or thereby cause another person to have a reasonable
apprehension of injury or death shall be guilty of a
Class 5 felony. Nothing in this section shall apply
to a law-enforcement officer in the performance of
his duties."
The defendant argues that his two separate convictions
for shooting into an occupied vehicle and his two separate
convictions for shooting from a vehicle violate his double
jeopardy guarantees. The defendant asserts that his acts of
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firing a pistol repeatedly from his car constituted a single
act and not a series of separate and distinct acts that would
warrant separate indictments and separate punishments. The
defendant "maintains that in the absence of a showing that the
shots constituted separate and distinct acts performed at
separate times," he cannot be convicted of two counts of
violating Code § 18.2-154 and two counts of violating Code
§ 18.2-286.1. We disagree with the defendant's contentions.
The federal constitutional provision concerning double
jeopardy embodies three guarantees: "[i]t protects against a
second prosecution for the same offense after acquittal[; i]t
protects against a second prosecution for the same offense
after conviction[; a]nd it protects against multiple
punishments for the same offense." North Carolina v. Pearce,
395 U.S. 711, 717 (1969) (footnotes omitted), overruled on
other grounds by Alabama v. Smith, 490 U.S. 794 (1989); accord
Illinois v. Vitale, 447 U.S. 410, 415 (1980); Whalen v. United
States, 445 U.S. 684, 688 (1980); Brown v. Ohio, 432 U.S. 161,
165 (1977); Blythe v. Commonwealth, 222 Va. 722, 725, 284
S.E.2d 796, 797 (1981). Virginia's constitutional guarantee
against double jeopardy affords a defendant the same
guarantees as the federal Double Jeopardy Clause. Bennefield
v. Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311
(1996); Peterson v. Commonwealth, 5 Va. App. 389, 394, 363
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S.E.2d 440, 443 (1987); see, e.g., Walton v. City of Roanoke,
204 Va. 678, 682, 133 S.E.2d 315, 318 (1963).
The litigants agree that in this case the defendant's
convictions occurred in a single trial and the only double
jeopardy guarantee pertinent to this appeal is the guarantee
against multiple punishments. * See Blythe, 222 Va. at 725, 284
S.E.2d at 797-98. We have stated:
"In the single-trial setting, '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.' Brown v. Ohio, 432 U.S. 161, 165
(1977). And, 'the question whether punishments
imposed by a court after a defendant's conviction
upon criminal charges are unconstitutionally
multiple cannot be resolved without determining what
punishments the Legislative Branch has authorized.'
Whalen v. United States, 445 U.S. 684, 688 (1980).
Or, stated another way, 'the question of what
punishments are constitutionally permissible is not
different from the question of what punishments the
Legislative Branch intended to be imposed.' Whalen,
445 U.S. at 698 (Blackmun, J., concurring). See
also Busic v. United States, 446 U.S. 398, 413
(1980) (Blackmun, J., concurring)."
Blythe, 222 Va. at 725-26, 284 S.E.2d at 798. Additionally,
the Supreme Court has stated that "[w]ith respect to
*
The defendant does not dispute the established principle
that "two or more distinct and separate offenses may grow out
of a single incident or occurrence, warranting the prosecution
and punishment of an offender for each." Jones v.
Commonwealth, 208 Va. 370, 375, 157 S.E.2d 907, 910 (1967).
We also note that the test in Blockburger v. United States,
284 U.S. 299 (1932) is not implicated in this appeal because
the statutes at issue and the charged offenses require "proof
of a fact which the other does not." Id. at 304.
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cumulative sentences imposed in a single trial, the Double
Jeopardy Clause does no more than prevent the sentencing court
from prescribing greater punishment than the legislature
intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983);
accord Jones v. Thomas, 491 U.S. 376, 381 (1989).
Upon our review of the record, we conclude that the
defendant did not receive multiple punishments for the same
offense. Instead, the record demonstrates that each shot that
the defendant discharged from his firearm was a separate,
identifiable act. For example, as we have already stated, the
victim testified that each time the defendant "shot" the
pistol, the defendant's "car would drop back a little bit.
Then [the car] would speed back up and then [the defendant]
shoots again." And, the defendant essentially concedes in his
brief that his double jeopardy guarantees would not be
abridged if his acts of discharging the firearm constituted
"separate and distinct acts performed at separate times."
The defendant also argues that our decision in Holly's
Case, 113 Va. 769, 75 S.E. 88 (1912), supports his contention
that his acts of firing a pistol constitute a single violation
of Code §§ 18.2-154 and -286.1. We disagree.
In Holly's Case, we stated the following rule: "The
theft of several articles at one and the same time constitutes
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an indivisible offense, and a conviction or acquittal of any
one or more of them is a bar to a subsequent prosecution for
the larceny of the others." Id. at 772, 75 S.E. at 89. This
rule is not applicable here because it "applies only to a case
involving multiple larceny prosecutions predicated upon the
theft of multiple articles stolen contemporaneously." Jones
v. Commonwealth, 218 Va. 757, 761, 240 S.E.2d 658, 661, cert.
denied, 439 U.S. 892 (1978).
III.
We conclude that the defendant's right not to be placed
twice in jeopardy for the same offense was not violated in
this case. Accordingly, we will affirm the judgment of the
Court of Appeals.
Affirmed.
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