PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, S.J.
IRVIN E. COLEMAN
OPINION BY
v. Record No. 000143 SENIOR JUSTICE HENRY H. WHITING
January 12, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
I
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.
II
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unpublished memorandum opinion by the Court of Appeals, one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.
III
A
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."
2
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.
B
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
Constitution. 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
1
Contrary to the Commonwealth’s assertions, the defendant raised
this issue in the trial court, and, therefore, the issue is not
procedurally barred.
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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. Vitale, 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 (1977)).
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.
4
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 (1932).
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,
5
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. Commonwealth, 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
6
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 145-46.
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
7
(1978)(if second offense contains element of proof not contained
in first offense, second offense not lesser-included offense). 2
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
2
The same principle applies in comparing the offenses of
malicious wounding and attempted murder, as we have noted
earlier in this opinion.
8
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
Affirmed.
9