COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
IRVIN E. COLEMAN
MEMORANDUM OPINION * BY
v. Record No. 2871-97-2 JUDGE ROBERT P. FRANK
JULY 20, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D’Alton, Jr., Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Irvin E. Coleman (appellant) appeals his conviction for
attempted murder after a jury trial. The jury also found
appellant guilty of robbery, malicious wounding and three counts
of use of a firearm during the commission of a felony. The
trial court ordered that the sentences for each offense run
consecutively. On appeal, appellant asserts that his conviction
for attempted murder is barred by the constitutional protection
against double jeopardy contained in the Fifth Amendment to the
United States Constitution.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Reginald Vincent testified that he was driving home from
his job at United Parcel Service (UPS) on the night of January
12, 1997 when he saw appellant in his backyard. As Vincent
slowly drove past, appellant waved to Vincent. Vincent stopped
the car, and appellant asked him for a ride to Pegram Street.
When appellant got into Vincent’s car, he asked Vincent
where he lived and if he lived alone. Vincent pointed to his
house and told appellant that he had a roommate but the roommate
was not at home. During the ride, appellant asked Vincent about
his UPS uniform and asked Vincent if he made good money.
After dropping off appellant on Pegram Street, Vincent went
home. Vincent heard a knock at the door, looked through the
peephole and saw appellant. He opened the door and appellant
asked him for a ride to Halifax Street. Vincent agreed to take
appellant to Halifax Street, but told appellant that it would be
a few minutes, he needed to go to the restroom.
Appellant came to the restroom door and pointed a gun at
Vincent’s face. Appellant told Vincent to get on the floor, and
appellant held the gun on Vincent while he searched for
Vincent’s money.
Then, appellant told Vincent to stand up and push his pants
down around his ankles. Appellant began backing away, and when
he went around the corner, Vincent pulled his pants up and
started into the hallway. As Vincent entered the hallway,
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appellant began firing at him from a distance of eight to ten
feet. Vincent took two steps toward appellant in an attempt to
knock the gun away, but he was shot in the arm, the wrist, the
hand, both thighs and the groin. After the shot to the groin,
Vincent fell face first into the kitchen and the shooting
stopped. Ten seconds passed, during which there was no movement
or sound, and, then, appellant walked up to Vincent. Appellant
stood over Vincent, straddled him, put the gun to Vincent’s neck
and fired the gun, shooting Vincent in the back of the head.
II. ANALYSIS
Appellant challenges his conviction for attempted murder on
grounds that it violates the constitutional guarantee against
double jeopardy found in the Fifth Amendment to the United
States Constitution. 1
The Double Jeopardy Clause insures that an accused is not
“subject for the same offense to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. “This constitutional
guarantee is applicable to the States through the Due Process
Clause of the Fourteenth Amendment.” Illinois v. Vitale, 447
1
Appellant’s Question Presented was: “Was the evidence
sufficient to support convictions of malicious wounding and
attempted murder arising from one transaction?” Since the
thrust of appellant’s argument centered on a double jeopardy
challenge and he included the “single transaction” language in
his Question Presented, we find that he has not defaulted on
this issue.
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U.S. 410, 415 (1980) (citing Benton v. Maryland, 395 U.S. 784
(1969)).
The United States Supreme Court has interpreted the Double
Jeopardy Clause to include three protections for an accused:
(1) protection against a second prosecution for the same offense
after acquittal, (2) protection against a second prosecution for
the same offense after conviction, and (3) protection against
multiple punishments for the same offense. See North Carolina
v. Pearce, 395 U.S. 711, 717 (1969). “Where consecutive
sentences are imposed at a single criminal 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.” Brown v. Ohio, 432
U.S. 161, 165 (1977) (citing Gore v. United States, 357 U.S. 386
(1958); Bell v. United States, 349 U.S. 81 (1955); Ex parte
Lange, 18 Wall. 163 (1874)).
Appellant argues that the sentences for his convictions of
attempted murder and malicious wounding are multiple punishments
for the same offense, and, therefore, invokes the third
protection under Pearce.
The “same offense” analysis set forth in Blockburger v.
United States, 284 U.S. 299 (1932), is the proper test for
constitutional double jeopardy. In United States v. Dixon, 509
U.S. 688, 704 (1992), the United States Supreme Court rejected
and overruled the “same conduct” test adopted in Grady v.
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Corbin, 495 U.S. 508 (1990). The Court held that, unlike the
Blockburger test, the Grady test lacks “constitutional roots”
and “is wholly inconsistent with earlier Supreme Court precedent
and with the clear common-law understanding of double jeopardy.”
Id.
In Blockburger, the United States Supreme Court held the
“test to be applied to determine whether there are two offenses
or only one is whether each [statutory] provision requires proof
of an additional fact which the other does not.” Blockburger,
284 U.S. at 304 (citing Gavieres v. United States, 220 U.S. 338,
342 (1911)). The application of the Blockburger test involves
an abstract comparison of the two offenses independent of the
specific facts of the particular case. See Blythe v.
Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981)
(citing Whalen v. United States, 445 U.S. 684, 694 n.8 (1979)).
“It is the identity of the offense, and not the act, which is
referred to in the constitutional guaranty against double
jeopardy.” Epps v. Commonwealth, 216 Va. 150, 153-54, 216
S.E.2d 64, 67 (1975) (citing Miles v. Commonwealth, 205 Va. 462,
467, 138 S.E.2d 22, 27 (1964)). Therefore, under the
Blockburger analysis, a defendant may not be convicted of both a
greater and lesser included offense because the lesser-included
offense “requires no proof beyond that which is required for
conviction” of the greater offense. Brown, 432 U.S. at 168.
The Blockburger test applies to simple statutory and common law
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crimes. See United States v. Jeffers, 532 F.2d 1101, 1109
(1976).
The elements of attempted murder are “a specific intent to
kill the victim and an overt but ineffectual act committed in
furtherance of this criminal purpose.” Nobles v. Commonwealth,
218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). The required
elements to establish malicious wounding are a malicious
shooting, stabbing, cutting or wounding or bodily injury by any
other means with the intent to maim, disfigure, disable or kill.
Code § 18.2-51. Therefore, in order to obtain a conviction for
attempted murder the Commonwealth must establish that there was
specific intent to kill and some overt but ineffectual act in
furtherance of the intent to kill. No wounding or bodily injury
is required to establish attempted murder. On the other hand,
some type of injury, specifically a stabbing, shooting, cutting,
or wounding, is required to prove malicious wounding. Under the
Blockburger test, the two offenses have different elements and,
therefore, we hold that appellant’s convictions of both
attempted murder and malicious wounding are not violative of the
constitutional protection against double jeopardy.
Appellant relies on Brown v. Commonwealth, 222 Va. 111,
116, 279 S.E.2d 142, 145-46 (1981), for the proposition that
malicious wounding is a lesser-included offense of attempted
murder. Brown was charged with malicious wounding and attempted
murder. See id. at 113, 279 S.E.2d at 143. The evidence, as
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recited by the Court, was that Brown shot Dennis Keen once in
the leg. See id. at 113, 279 S.E.2d at 144. Then, Brown’s
friend, Wilson, ground Keen’s wounded leg into the dirt, shot
and beat him. See id. The Court’s recitation of the facts did
not indicate that Brown fired more than one shot at Keen. 2 See
id. It was the Commonwealth’s Attorney, at trial, who argued
that Brown fired more than one shot. See id.
The jury returned a conviction for assault and battery
under the attempted murder indictment and a conviction for
unlawful wounding under the malicious wounding indictment. See
id. at 113, 279 S.E.2d at 143. Brown challenged his convictions
on the basis that both offenses arose out of the single shooting
by Brown. See id. at 112, 279 S.E.2d at 143. On appeal, the
Attorney General argued that the attempted murder charge arose
from Brown’s shooting of the victim and the malicious wounding
charge arose from Brown’s status as a principal in the second
degree to Wilson’s actions. See id. at 114-15, 279 S.E.2d at
144-45. The Supreme Court rejected the Attorney General’s
argument and stated that it was clear that at trial the
Commonwealth relied on the same facts to convict Brown of both
charges. See id.
2
Additionally, in its dictum, the Court presupposed that
Brown only fired one shot. See id. at 116, 279 S.E.2d at
145-46.
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The Supreme Court reversed the conviction of assault and
battery and affirmed the conviction of unlawful wounding on the
basis that both assault and battery and unlawful wounding are
lesser-included offenses of malicious wounding. See id. at 116,
279 S.E.2d at 145. The conviction of unlawful wounding “barred
the defendant’s further conviction of all other offenses of a
higher grade and of any lesser included offense encompassed by
the malicious wounding indictment.” See id.
Brown, therefore, is consistent with the constitutional
protection against double jeopardy in that Brown’s conviction of
the lesser-included offense of unlawful wounding precluded
conviction of any greater or lesser-included offense of
malicious wounding, including assault and battery.
Appellant’s reliance on Brown is based on the Court’s
dictum following the lesser-included offense analysis. The
Court stated, “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.” Id. at 116, 279 S.E.2d at 145-46.
We do not believe the Court’s dictum is relevant to its
holding that the conviction of one lesser-included offense
precludes additional convictions of all other lesser and greater
included offenses. Further, we believe that any implication
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derived from the dictum was resolved by the Court six months
later in Blythe, 222 Va. 722, 284 S.E.2d 796.
In Blythe, the defendant was charged with unlawful wounding
and murder after he stabbed his mother’s boyfriend during a
domestic dispute. See id. at 724, 284 S.E.2d at 797.
A jury convicted the defendant of voluntary manslaughter and
unlawful wounding. See id. The trial court ordered that the
defendant serve the sentences for the two convictions
consecutively. See id. Blythe argued that constitutional and
statutory double jeopardy protections applied since he was
convicted of and sentenced for both charges. See id. The Court
rejected the statutory double jeopardy argument based on Code
§ 19.2-294 because manslaughter is a common law, not statutory,
offense. See id. at 724-25, 284 S.E.2d at 797. Blythe’s
constitutional argument was grounded in the “singularity of his
criminal act” and the “sameness of the evidence supporting his
convictions.” Id. at 725, 284 S.E.2d at 797. Blythe argued
that the unlawful wounding charge was a lesser-included offense
of the murder charge and his conviction of voluntary
manslaughter satisfied the “same evidence” test for determining
the identity of offenses under a constitutional double jeopardy
analysis. See id. The Court applied the Blockburger test to
determine if it was the legislature’s intent to punish the
offenses cumulatively, and held that the charges were separate
offenses and one was not a lesser-included offense of the other.
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See id. at 726, 284 S.E.2d at 798. The Court’s rationale was
that the unlawful wounding charge required evidence of a
shooting, stabbing, cutting or wounding, but the murder charge
did not require such proof because murder may be accomplished by
other means. See id.
We believe that the holding in Blythe is dispositive of
this case as attempted murder does not require evidence of a
shooting, stabbing, cutting or wounding.
In his Question Presented and in his brief, appellant
asserts that the charges for attempted murder and malicious
wounding were part of the “same transaction,” and are barred on
the basis of double jeopardy. As discussed above, the Grady
“same conduct” test for constitutional double jeopardy was
overruled by the United States Supreme Court; therefore, we
believe appellant is attempting to invoke the statutory
protection afforded an accused under Code § 19.2-294. Code
§ 19.2-294 in pertinent part states:
If the same act be a violation of two or
more statutes, or of two or more ordinances,
or of one or more statutes and also one or
more ordinances, conviction under one of
such statutes or ordinances shall be a bar
to a prosecution or proceeding under the
other or others. Furthermore, if the same
act be a violation of both a state and
federal statute a prosecution under the
federal statute shall be a bar to a
prosecution under the state statute.
Code § 19.2-294 is limited to violations of two or more
statutory offenses. See Blythe, 222 Va. at 725, 284 S.E.2d at
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797. Appellant was charged with a violation of a statutory
offense, malicious wounding, and a common law offense, attempted
murder. Therefore, we hold that Code § 19.2-294 is inapplicable
to appellant’s case.
For these reasons, we hold that appellant’s convictions for
malicious wounding and attempted murder are not barred by the
constitutional protections against double jeopardy. We also
find that the statutory protection found in Code § 19.2-294 is
inapplicable because attempted murder is a common law crime.
We, therefore, affirm the convictions.
Affirmed.
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Benton, J., dissenting.
In Brown v. Commonwealth, 222 Va. 111, 279 S.E.2d 142
(1981), the defendant was separately indicted for “the attempted
murder of Dennis Ellis Keen, . . . the malicious wounding of
Dennis Ellis Keen,” and other offenses. Those charges flowed
from an incident in which the defendant fired “two shots . . .
at Keen” during an altercation. See id. at 113, 279 S.E.2d at
143. Following convictions on lesser-included offenses under
both the attempted murder indictment and the malicious wounding
indictment, the Supreme Court reversed one of the convictions.
The Court ruled as follows:
It is our conclusion that the [trial judge]
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. Therefore, we will affirm the
defendant’s conviction of unlawful wounding
[, which was the lesser-included conviction
under the malicious wounding indictment,]
and reverse his conviction of assault and
battery [, which was the lesser-included
conviction under the attempted murder
indictment]. The indictment charging
defendant with the attempted murder of
Dennis Ellis Keen will be dismissed, and
Brown’s conviction of assault and battery
thereunder will be vacated, and the jail
sentence and fine imposed on him will be set
aside.
Id. at 116, 279 S.E.2d at 145-46.
The evidence in this case proved Irvin E. Coleman shot
Reginald Vincent seven times after robbing him of his property.
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Among other charges, Coleman was indicted for malicious wounding
and attempted murder. Over Coleman’s objection, the trial judge
entered the jury’s verdict on both convictions.
The malicious wounding statute provides as follows:
If any person maliciously shoot, stab, cut,
or wound any person or by any means cause
him bodily injury, with the intent to maim,
disfigure, disable, or kill, he shall . . .
be guilty of a Class 3 Felony.
Code § 18.2-51. “To sustain a conviction of attempted murder,
the evidence must establish both a specific intent to kill the
victim and an overt but ineffectual act committed in furtherance
of this criminal purpose.” Nobles v. Commonwealth, 218 Va. 548,
551, 238 S.E.2d 808, 810 (1977). Thus, every wounding
accomplished in the same transaction with the intent to kill
constitutes an offense containing the same elements as attempted
murder. See Brown, 222 Va. at 116, 238 S.E.2d at 145-46. See
also Buchanan v. Commonwealth, 238 Va. 389, 414-15, 384 S.E.2d
757, 772-73 (1989).
“[T]he Double Jeopardy Clause prohibits successive
prosecutions as well as cumulative punishment.” Brown v. Ohio,
432 U.S. 161, 166 (1977) (footnote omitted). In Virginia, the
elements of malicious wounding and attempted murder clearly
establish that those crimes constitute the same offense for
purposes of the Double Jeopardy Clause. “For it is clearly not
the case that ‘each [statute] requires proof of a fact which the
other does not.’” Brown, 432 U.S. at 168 (citation omitted).
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Indeed, the Supreme Court of Virginia’s decision in Brown
establishes that proposition. See 222 Va. at 116, 279 S.E.2d at
145-46.
As is invariably true of a greater and
lesser included offense, the lesser offense
. . . requires no proof beyond that which is
required for a conviction of the
greater . . . . The greater offense is
therefore by definition the "same" for
purposes of double jeopardy as any lesser
offense included in it.
Brown, 432 U.S. at 168.
For these reasons, I would hold that the trial judge should
have imposed the fourteen-year sentence and $5,000 fine on the
malicious wounding conviction and set aside the ten-year
sentence for attempted murder.
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