Dalo v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia

MARIO UDASCO DALO
OPINION BY
v. Record No. 2524-00-1 JUDGE ROBERT P. FRANK
NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge

Steven C. Frucci (Brydges, O'Brien & Frucci,
on briefs), for appellant.

Virginia B. Theisen, Assistant Attorney
General (Randolph A. Beales, Acting Attorney
General, on brief), for appellee.

Mario Udasco Dalo (appellant) was convicted in a bench

trial of involuntary manslaughter, in violation of Code

§ 18.2-36.1(A). On appeal, he contends this conviction violated

the principles of double jeopardy because he also was convicted

of driving while under the influence (DUI), in violation of Code

§ 18.2-266, based on the same evidence. After consideration of

the legislative scheme and implicit intentions of the General

Assembly, we affirm the involuntary manslaughter conviction.

BACKGROUND

The facts are not in controversy.

On the evening of October 5, 1999, appellant was driving on

Shore Drive in the City of Virginia Beach when he struck James
Cone and Kathy Phelan, who were walking beside the road. Cone

was injured, but not fatally. Phelan was alive at the scene,

but later died from her injuries.

When Virginia Beach Police Officer Scott Bishop arrived at

the scene, he found appellant's speech was slurred, his eyes

were glassy, and he swayed as he stood. Appellant also smelled

of alcohol and could not pass a number of field sobriety tests.

Appellant admitted he had consumed alcohol that evening. A

breath test revealed his blood alcohol level was .11.

Appellant was charged with involuntary manslaughter under

Code § 18.2-36.1(A) 1 and with DUI. The preliminary hearing and

trial for these charges were held together in general district

court on December 9, 1999. The DUI warrant originally recited a

violation of the Virginia Beach City Code. The prosecutor

amended the warrant to reflect a violation of Code

§ 18.2-266(ii), (iii), or (iv). The language on the DUI warrant

that referred to Code § 18.2-266(i), allowing convictions based

1
A defendant found guilty under Code § 18.2-36.1(A) is
"guilty of involuntary manslaughter" and can be sentenced to up
to ten years of imprisonment with no mandatory minimum. See
Code §§ 18.2-10(e) (a defendant convicted of a Class 5 felony
can be sentenced to no "more than ten years"); 18.2-36
(involuntary manslaughter is a Class 5 felony); 18.2-36.1(A)
(defining a violation of this section as "involuntary
manslaughter"). Under Code § 18.2-36.1(B), "[i]f, in addition
[to the elements in (A)], 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 twenty years, one year of which
shall be a mandatory, minimum term of imprisonment."

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on a blood alcohol concentration of .08 or more, was struck by

the prosecutor. The district court convicted appellant of the

amended DUI charge and certified the manslaughter charge to the

grand jury. The grand jury returned a true bill of indictment

on January 4, 2000.

In the circuit court, appellant moved to dismiss the

indictment on double jeopardy grounds. After both parties

briefed the issue, the trial court heard argument on March 14,

2000. During the hearing, the Commonwealth "stipulated" that

"these two offenses don't pass [the Blockburger v. United

States, 284 U.S. 299 (1932),] test." On May 2, 2000, the trial

court denied the motion to dismiss.

In ruling that double jeopardy principles did not bar

prosecution of the involuntary manslaughter charge under Code

§ 18.2-36.1, the trial court found the General Assembly intended

to impose multiple punishments "for the unlawful killing of

another in violation of Code § 18.2-36.1 and for the crime of

driving while intoxicated in violation of Code § 18.2-266(ii),

(iii) and (iv)." The trial court further found that the

reference in Code § 18.2-36.1 to Code § 18.2-266(ii), (iii) and

(iv) served only to "grade this offense of manslaughter,

distinguishing it from the offense of common law involuntary

manslaughter."

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 ANALYSIS

Appellant contends he was twice placed in jeopardy for the

same offense when he was convicted of involuntary manslaughter

following his DUI conviction. Essentially, appellant argues

that his DUI conviction, which the Commonwealth at trial

conceded is a lesser-included offense of involuntary

manslaughter under Code § 18.2-36.1, precludes prosecution of

the greater offense.

The Fifth Amendment protection against double jeopardy

includes "three separate guarantees: (1) 'It protects against a

second prosecution for the same offense after acquittal. [(2)

I]t protects against a second prosecution for the same offense

after conviction. [(3)] And it protects against multiple

punishments for the same offense.'" Illinois v. Vitale, 447

U.S. 410, 415 (1980) (quoting North Carolina v. Pearce, 395 U.S.

711, 717 (1969)). This appeal involves only the question of

whether appellant received multiple punishments for the same

offense. 2

Generally, to determine whether charges are for the "same

offense," courts turn to the test established in Blockburger.

For example, the Supreme Court noted:

2
The charges were instituted at the same time; therefore,
this appeal does not involve successive prosecutions. See
Phillips v. Commonwealth, 257 Va. 548, 551-52, 514 S.E.2d 340,
342 (1999).

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 In Brown v. Ohio, 432 U.S. 161 (1977), we
stated the principal test for determining
whether two offenses are the same for
purposes of barring successive prosecutions.
Quoting from Blockburger v. United States,
284 U.S. 299, 304 (1932), which in turn
relied on Gavieres v. United States, 220
U.S. 338, 342-343 (1911), we held that
"'[t]he applicable rule is 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.'"
432 U.S., at 166.

Vitale, 447 U.S. at 416.

However, in this case, the Commonwealth conceded "these two

offenses don't pass that test." Therefore, the Commonwealth is

barred from arguing Blockburger on appeal, and this Court will

not apply that test here. 3 See Johnson v. Commonwealth, 26 Va.

App. 674, 683, 496 S.E.2d 143, 147 (1998) (finding the

Commonwealth conceded at trial that an exception to the warrant

requirement for searches did not apply and, therefore, the

exception could not form the "basis for affirmance on appeal").

This concession does not mandate the outcome of this

appeal, however, because Blockburger is not controlling.

"[S]imply because two criminal statutes may be construed to

proscribe the same conduct under the Blockburger test does not

3
Because the Commonwealth at trial conceded DUI was a
lesser-included offense, we do not address whether DUI is a
lesser-included offense of involuntary manslaughter under Code
§ 18.2-36.1. However, this concession is not determinative of
our analysis. See infra.

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mean that the Double Jeopardy Clause precludes the imposition,

in a single trial, of cumulative punishments pursuant to those

statutes." Missouri v. Hunter, 459 U.S. 359, 368 (1983). As

the Supreme Court explained:

The rule stated in Blockburger was applied
as a rule of statutory construction to help
determine legislative intent.
Significantly, after setting out the rule,
the Court cited a paragraph in Albrecht [v.
United States, 273 U.S. 1, 11 (1927)], which
included the following statement: "There is
nothing in the Constitution which prevents
Congress from punishing separately each step
leading to the consummation of a transaction
which it has power to prohibit and punishing
also the completed transaction" (emphasis
added). We have recently indicated that the
Blockburger rule is not controlling when the
legislative intent is clear from the face of
the statute or the legislative history.
Missouri v. Hunter, 459 U.S. 359, 368
(1983); Albernaz v. United States, 450 U.S.
333, 340 (1981); Whalen v. United States,
445 U.S. 684, 691-92 (1980). Indeed, it
would be difficult to contend otherwise
without converting what is essentially a
factual inquiry as to legislative intent
into a conclusive presumption of law.

Garrett v. United States, 471 U.S. 773, 778-79 (1985) (emphasis

in original). See also Brown v. Commonwealth, 230 Va. 310,

313-14, 337 S.E.2d 711, 713 (1985). A Blockburger analysis is

preferred by courts generally as it maximizes judicial economy,

providing an answer without resorting to a more detailed

examination of legislative intent. However, the Commonwealth

here agreed with appellant that the Blockburger test did not

allow multiple punishments here.

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 In this case, therefore, the issue is whether "the General

Assembly has 'clearly indicated its intent to impose multiple

punishments.'" Fitzgerald v. Commonwealth, 223 Va. 615, 635,

292 S.E.2d 798, 810 (1982) (quoting Turner v. Commonwealth, 221

Va. 513, 530, 273 S.E.2d 36, 47 (1980)). The structure of the

Code, the language of the statutes, legislative history, and the

logical implications of each interpretation assist in making

this determination. 4 See Garrett, 471 U.S. at 779 & 785;

Fitzgerald, 223 Va. at 636-37, 292 S.E.2d at 810-11.

Although determining legislative intent is "a factual

inquiry," Garrett, 471 U.S. at 779, this analysis involves an

examination of the offenses "in the abstract, rather than with

reference to the facts of the particular case under review,"

Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798

(1981). Therefore, de novo review of the trial court's ruling

is appropriate. Contrast Robinson v. Commonwealth, 17 Va. App.

551, 555, 439 S.E.2d 622, 624-25, aff'd en banc, 18 Va. App.

814, 447 S.E.2d 542 (1994) (deferring to a trial court's factual

finding of no prosecutorial misconduct in deciding whether

double jeopardy principles prevented retrial of a defendant)

4
The failure of the General Assembly to include specific
language indicating prosecution of both DUI and involuntary
manslaughter arising out of the same incident is permissible
does not control our analysis. See Garrett, 471 U.S. at 793.
The failure to find any direct legislative history is not
controlling either. See, e.g., Whalen, 445 U.S. at 690 (noting
"legislative history . . . sheds no light on [this double
jeopardy] question" and then continuing the analysis).

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with Stephens v. Commonwealth, 35 Va. App. 141, 145-47, 543

S.E.2d 609, 611 (2001) (discussing the double jeopardy

prohibition against multiple punishments for the same offense

without deference to the trial court's ruling) and Spain v.

Commonwealth, 7 Va. App. 385, 391-92, 373 S.E.2d 728, 731-32

(1988) (determining the General Assembly's intent without

deference to the trial court's ruling in a case involving

multiple punishments). See also Gatlin Oil Co., Inc. v. United

States, 169 F.3d 207, 210 (4th Cir. 1999) ("Because, at this

stage of the proceedings, this case turns on the proper

interpretation of the Act, we review the district court's

judgment de novo."); People v. Dillard, 631 N.W.2d 755, 757

(Mich. Ct. App. 2001) ("A double jeopardy challenge involves a

question of law that this Court reviews de novo.").

For this analysis, "[the] starting point must be the

language of the statutes." Albernaz, 450 U.S. at 336. Code

§ 18.2-36.1(A), initially enacted in 1989, reads: "Any person

who, as a result of driving under the influence in violation of

clause (ii), (iii), or (iv) of Code § 18.2-266 or any local

ordinance substantially similar thereto unintentionally causes

the death of another person, shall be guilty of involuntary

manslaughter." (Emphasis added.) We presume the legislature

was aware of similar language within the Code and the courts'

interpretations of that language when drafting this statute.

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 Legislative intent may also be gleaned by
consulting other statutes "using the same
phraseology," [Gilliam v. Commonwealth, 21
Va. App. 519, 523, 465 S.E.2d 592, 594
(1996)], and "statutes which relate to the
same subject matter should be read,
construed and applied together . . . ."
Alger v. Commonwealth, 19 Va. App. 252, 256,
450 S.E.2d 765, 767 (1994).

Rasmussen v. Commonwealth, 31 Va. App. 233, 238, 522 S.E.2d 401,

403 (1999). See also United States v. Johnson, 32 F.3d 82, 86

(4th Cir. 1994) ("We may 'assume that our elected representatives

. . . know the law.'" (quoting Cannon v. Univ. of Chicago, 441

U.S. 677, 696-97 (1979))).

A comparison of the language in Code § 18.2-36.1 and the

language of several Virginia murder statutes indicates the

General Assembly intended to allow multiple punishments for

violations of this manslaughter section and the DUI statute.

The language in Code § 18.2-36.1 is similar to the language

used in several murder statutes that reference other crimes as

an element of the murder offense. For example, the first degree

murder statute requires, in similar language, proof that the

killing was committed "in the commission of, or attempt to

commit, arson, rape, forcible sodomy, inanimate or animate

object sexual penetration, robbery, burglary or abduction."

Code § 18.2-32 (emphasis added). The felony murder statute also

uses similar language, requiring that the killing occur "while

in the prosecution of some felonious act other than those

specified in §§ 18.2-31 and 18.2-32." Code § 18.2-33 (emphasis

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added.) Clearly, the language of Code § 18.2-36.1 is similar to

the language of these murder statutes.

None of these statutes expressly allows multiple

punishments for the underlying offenses. However, Virginia case

law has interpreted this type of language to allow the

simultaneous prosecution and conviction of felony murder as well

as the underlying felony upon which the murder charge is based.

In Fitzgerald, for example, the Supreme Court, without relying

on Blockburger, found the General Assembly did not intend to

eliminate punishment of the underlying offenses when it enacted

the capital murder statute. 223 Va. at 635-37, 292 S.E.2d at

810-11. This Court then applied the analysis in Fitzgerald to

"conclude that double jeopardy was not violated when [a

defendant] was convicted, in a single trial, of both felony

murder in violation of Code § 18.2-32 and the underlying

felony." Spain, 7 Va. App. at 391-92, 373 S.E.2d at 731-32.

Additionally, the purpose behind this language is the same

in the felony murder statutes and in Code § 18.2-36.1. For a

conviction under Code §§ 18.2-32 and –33, the Commonwealth is

not required to prove malice, a traditional element of murder,

but need only prove the commission of the underlying felony to

supply this criminal intent element. As the Supreme Court

explained:

While § 18.2-32 contemplates a "killing with
malice", the malice intrinsic in the
commission of one of the predicate felonies

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 "provides the malice prerequisite to a
finding that the homicide was murder."
Wooden v. Commonwealth, 222 Va. 758, 762,
284 S.E.2d 811, 814 (1981). The same
imputation of malice is implicit in
§ 18.2-33 which contemplates an accidental
killing . . . .

Heacock v. Commonwealth, 228 Va. 397, 403, 323 S.E.2d 90, 93

(1984). See also Montague v. Commonwealth, 260 Va. 697, 700,

536 S.E.2d 910, 912 (2000) (discussing Code § 18.2-33).

Likewise, while the Commonwealth is required to prove

criminal negligence for a common law involuntary manslaughter

conviction, 5 Darnell v. Commonwealth, 6 Va. App. 485, 491, 370

S.E.2d 717, 720 (1988) (holding "that criminal negligence is an

essential element of involuntary manslaughter"), under Code

§ 18.2-36.1(A), no proof of criminal negligence is required. 6

Clearly, the purpose of both the felony murder statute and Code

§ 18.2-36.1 is to allow the Commonwealth to prove a traditional

element of the offenses, the mindset or intent of the accused,

by substituting the violation of a different statute for direct

proof of the element. Given the similar purpose and the similar

language in these statutes, we must conclude the General

Assembly similarly intended to allow multiple punishments for

5
Code § 18.2-36 establishes the penalty for involuntary
manslaughter but does not define the crime.
6
Under Code § 18.2-36.1(B), if the Commonwealth can prove
criminal negligence as well as a violation of Code
§ 18.2-266(ii), (iii), or (iv), then a defendant can be
convicted of aggravated involuntary manslaughter.

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violations of both Code § 18.2-36.1 and the underlying DUI, just

as it did for felony murder and the underlying felony. See

Spain, 7 Va. App. at 391-92, 373 S.E.2d at 731-32.

Additionally, the language of Code § 18.2-36.1 indicates the

legislature did not intend to preclude prosecution of drunk

driving charges. This section refers only to subsections (ii),

(iii), and (iv) of Code § 18.2-266 7 ; subsection (i), which

establishes a .08 percent blood alcohol concentration as a per se

violation of the DUI statute, is not mentioned. Under Code

§ 18.2-36.1, therefore, the Commonwealth cannot rely on the

presumption in Code § 18.2-266(i) to convict a defendant, but

7
Code § 18.2-266 reads, in part,

It shall be unlawful for any person to drive
or operate any motor vehicle, engine or
train (i) while such person has a blood
alcohol concentration of 0.08 percent or
more by weight by volume or 0.08 grams or
more per 210 liters of breath as indicated
by a chemical test administered as provided
in this article, (ii) while such person is
under the influence of alcohol, (iii) while
such person is under the influence of any
narcotic drug or any other self-administered
intoxicant or drug of whatsoever nature, or
any combination of such drugs, to a degree
which impairs his ability to drive or
operate any motor vehicle, engine or train
safely, or (iv) while such person is under
the combined influence of alcohol and any
drug or drugs to a degree which impairs his
ability to drive or operate any motor
vehicle, engine or train safely. A charge
alleging a violation of this section shall
support a conviction under clauses (i),
(ii), (iii) or (iv).

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instead must prove he was under the influence as proscribed in

subsections (ii), (iii), (iv).

Accordingly, as appellant concedes, a defendant who was

convicted of DUI under Code § 18.2-266(i) clearly can be

convicted of involuntary manslaughter in violation of Code

§ 18.2-36.1 without violating double jeopardy principles. We

find no indication that the legislature intended to allow

multiple punishments when subsection (i) is violated, but not

when subsections (ii), (iii), or (iv) are violated. Such

disparate results are not warranted, especially given the

legislative purpose of these statutes is to provide the maximum
8
deterrent to drunk drivers. See State v. McCovey, 803 P.2d

1234, 1239 (Utah 1990) (explaining that to apply double jeopardy

principles to felony murder and aggravated robbery convictions

allows a "windfall" to a defendant who is charged with felony

murder as opposed to another type of killing). We do not

believe the General Assembly intended to give appellant such a

"windfall."

The General Assembly clearly intended to allow multiple

punishments in this case. For the reasons stated above, we

affirm the conviction.

Affirmed.

8
Appellant conceded this legislative purpose during oral
argument.

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