COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Barrow, * Benton, Koontz,
Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
STACY MYERS
MEMORANDUM OPINION** BY
v. Record No. 1780-92-1 JUDGE RICHARD S. BRAY
MAY 16, 1995
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
J. Ashton Wray, Jr., for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On July 26, 1994, a panel of this Court, in an unpublished
memorandum opinion, reversed and remanded defendant's conviction
for second-degree murder. We subsequently granted the
Commonwealth's petition for rehearing en banc and stayed the
mandate of the opinion. Upon rehearing en banc, we affirm the
judgment of the trial court and vacate the mandate of the panel
opinion.
The parties are fully conversant with the record, and a
recitation of the facts is unnecessary to this memorandum
opinion.
The order of conviction recites that defendant was convicted
*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the concurring opinion prior
to his death.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of "murder - 2nd degree, as charged in the indictment. . . ."
The referenced indictment alleged that defendant "did unlawfully
and feloniously kill and murder . . ., in violation of Section
18.2-32. . . ." However, in defendant's petition for appeal, she
framed the sole "[q]uestion [p]resented as '[w]hether the
evidence was sufficient as a matter of law to support a finding
of felony murder; to wit: murder in the second degree,'" a
violation of Code § 18.2-33. See Rule 5A:12(c). Cf. Rule
5:17(c).
A recital of proceedings in a judicial order
is an "absolute verity . . . ." Where a
defendant does not object to the accuracy of
an order within 21 days after its entry, an
appellate court may "presume that the order,
as the final pronouncement on the subject,
. . . accurately reflects what transpired."
Kern v. Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400
(1986) (citations omitted). The final order of the trial court
in this instance convicted defendant for a violation of
Code § 18.2-32, the offense at indictment. With certain
statutory exceptions not applicable here, felony murder is a
violation of Code § 18.2-33 and, consistent with her petition for
appeal, appellant's brief and argument addresses only that
offense. Although a violation of Code § 18.2-33 constitutes
murder in the second degree, it is a crime separate and distinct
2
from that proscribed by Code § 18.2-32. Therefore, no challenge
to appellant's conviction for a violation of Code § 18.2-32 was
appealed to this Court, and the issue may not be undertaken at
this juncture. Rule 5A:12(c). Cf. Hamilton Dev. Co. v. Broad
Rock Club, Inc., 248 Va. 40, 44, 445 S.E.2d 140, 143 (1994).
Accordingly, for the reasons stated, we affirm the judgment
of the trial court.
Affirmed.
3
Barrow, J., with whom Moon, C. J., and Elder, J., join,
concurring.
While I do not agree that we are barred from considering the
sufficiency of the evidence, in my opinion, the evidence
sufficiently supported the defendant's conviction, and I agree
that the conviction should be affirmed.
4
BENTON, J., dissenting.
The record clearly establishes that at the conclusion of the
evidence the trial judge made an explicit finding that Myers was
"guilty of the charge of . . . felony murder . . . second
degree." Without any explanation or indication that a finding of
malice was made, the final order recites "violation of Section
18.2-32 (Murder - 2nd degree)." Myers' petition and brief on
appeal raised the issue "whether the evidence was sufficient
. . . to support a finding of felony murder; to wit: murder in
the second degree." In view of the trial record, the dismissal
of this appeal on a procedural ground (that the appeal raises an
issue not decided at trial) is reminiscent of the consequences of
the dilemma encountered in the following fictional situation:
There was only one catch and that was
Catch-22, which specified that a concern for
one's own safety in the face of dangers that
were real and immediate was the process of a
rational mind. Orr was crazy and could be
grounded. All he had to do was ask; and as
soon as he did, he would no longer be crazy
and would have to fly more missions. . . .
If he flew them he was crazy and didn't have
to; but if he didn't want to he was sane and
had to. . . . "That's some catch, that
Catch-22," . . . [Yossarian] observed. "It's
the best there is," Doc Daneeka agreed.
Joseph Heller, Catch-22 ch.5 (1955).
The record establishes that Myers was indicted and tried on
the offenses of "murder . . . in violation of [Code §] 18.2-32"
and felony child abuse in violation of Code § 18.2-371.1. In her
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opening statement, the prosecutor informed the trial judge that
"[t]his is murder in the first degree." In response to the
motion to strike the evidence at the close of the Commonwealth's
case, the prosecutor argued that the evidence proved felony child
neglect, first degree murder, and, alternatively, "felony murder
by statute by definition on the facts of the case." After the
trial judge denied defense counsel's motion to strike the
evidence, defense counsel offered no evidence and renewed the
motion to strike the evidence. The prosecutor then argued that
"whether you look at it as a case of premeditated first degree
murder or whether you look at it as a felony murder as a result
of a felony neglect charge, . . . either theory is supported by
the evidence."
The trial judge found that the evidence proved child neglect
and ruled as follows:
I think she's guilty of the charge of the
felony murder. Not -- not first degree. I
don't think there's -- Commonwealth
established first degree murder in the case,
but I do think its second degree. And I find
her guilty.
Although the trial judge found that the evidence proved the
felony of child neglect, the trial judge further found, however,
that the legislature had not expressed an intent to impose
multiple punishments for felony murder and the underlying felony.
Thus, he ruled that Blockburger v. United States, 284 U.S. 299
(1932), required dismissal of the felony child neglect charge.
The record unambiguously establishes that the prosecutor's
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theory of prosecution was first degree murder or, alternatively,
felony murder. The trial judge made findings consistent with the
prosecutor's alternative theory. Despite the prosecutor's theory
of prosecution (i.e., felony murder as a result of death caused
by felonious neglect) and the trial judge's pronouncements of the
basis for the conviction (i.e., second degree felony murder), the
final order entered by the clerk of the circuit court states that
Myers was "convicted of a felony, to wit: violation of Section
18.2-32 (Murder - 2nd degree)."
In Myers' petition for appeal the question presented is
"[w]hether the evidence was sufficient as a matter of law to
support a finding of felony murder; to-wit: murder in the second
degree." The petition argues that the evidence did not prove
either that the child died as a result of Myers' criminal act or
malice; thus, it asserts that the evidence was insufficient to
support a murder conviction. The Commonwealth responded to the
petition by arguing that the evidence was sufficient to prove
that Myers was "guilty of felony child neglect . . . and [the]
conviction for felony murder should stand." Myers' petition was
granted by a judge of this Court. Myers' brief on appeal stated
the same question and the same arguments in support of the
questions that were contained in the petition. The Commonwealth
in its response again argued that the evidence was sufficient to
prove "that Myers was guilty of the felony murder of her
daughter."
7
In its request for a rehearing en banc, the Commonwealth
raised for the first time the issue that the majority opinion now
decides as a basis for dismissing the appeal. Nothing in either
Rule 5A:12(c) or Hamilton Development Co. v. Broad Rock Club,
Inc., 248 Va. 40, 445 S.E.2d 140 (1994), bars our consideration
of the question presented by this appeal. The record is clear
that the trial judge announced from the bench a finding of guilt
of second degree felony murder, which could only be a finding of
a violation of Code § 18.2-33. Although the final order recited,
contrary to the judge's finding, a conviction under Code
§ 18.2-32, both the trial judge's oral statement of the basis for
the conviction and the written order's recitation of the basis
for the conviction are specified by statute to be second degree
murder.
The issue that Myers raises challenges the sufficiency of
the evidence to support "murder in the second degree." Whether
Myers' conviction was based on a violation of Code § 18.2-32, as
the final order recites, or Code § 18.2-33, as the trial judge's
findings recite, the conviction was for second degree murder and
in either instance "is punishable as a Class 3 felony." Although
the prosecutor tried this case, in part, on a theory not
supported by the indictment and the trial judge made findings
consistent solely with that theory, the conviction was for murder
and the issue, simply put, is whether the evidence was sufficient
to prove murder. Myers challenges the absence of proof beyond a
8
reasonable doubt of willful conduct or malice. Thus, the issues
squarely before this Court are whether Myers' criminal conduct
killed the child and whether malice was proved. No purpose is
served by forcing this litigant to seek judicial redress through
the process of habeas corpus.
The evidence in this case failed to prove that the baby died
as a result of a malicious act or of a willful act of commission
or omission by Myers. The assistant medical examiner, Dr. Bush,
testified that she could not tell how long the baby lived after
delivery. Although she concluded the baby was born alive, she
made that conclusion only because the autopsy revealed oxygen in
the baby's lungs and stomach. She admitted that oxygen could
have entered the baby's lungs and stomach while it was still
attached to the umbilical cord and that the baby may have been
"gulping" for air while still attached to the mother by the
umbilical cord.
Dr. Bush admitted that she could not state the "real
physiological cause" of the baby's death and, further, she did
not know whether the baby was physiologically alive when she was
placed in the plastic bag. She could not state that the baby
died of hypothermia or asphyxiation. She could only conclude
that the baby died as a result of abandonment, which she
described as follows:
We use the term abandonment to indicate that
had the baby received proper and usual care
that would normally accompany a birth such
as, you know, feeding, cleaning, being
wrapped up, kept warm, etc., . . . the baby
9
would be alive today.
Dr. Bush explained on cross-examination that her testimony
on direct examination (that the cause of death was related to the
baby being placed in the plastic bag) was based upon an
assumption that the baby was alive when placed in the bag and
that her assumption was not based on any physiological finding
she had made. She was unable to say the baby was alive when
placed in the bag. She added further that she was unable to tell
whether the umbilical cord had been cut when "the child took
air."
In any prosecution for killing a newborn baby, the
Commonwealth is required to prove beyond a reasonable doubt (1)
that the child was born alive, (2) that the child had reached an
independent and separate existence apart from its mother, and (3)
that the accused was the criminal agent causing the infant's
death. Lane v. Commonwealth, 219 Va. 509, 514, 248 S.E.2d 781,
783 (1978); Vaughan v. Commonwealth, 7 Va. App. 665, 671, 376
S.E.2d 801, 804 (1989).
To prove that Myers was guilty of second degree murder, it
was incumbent upon the Commonwealth to prove that the child was
born alive. No evidence proved that prior to its death the baby
had established an independent and separate existence from its
mother. No evidence proved that the baby did not die during the
birthing process. Moreover, neither Dr. Bush nor any other
witness testified as to the actual cause of the child's death.
10
Because the evidence failed to prove beyond a reasonable
doubt that the child had achieved an independent and separate
existence from its mother and did not prove the cause of its
death, I would hold consistent with the prior opinion by the
panel in this case, see Myers v. Commonwealth, Record No. 1780-
92-1 (Unpublished - July 26, 1994), that the corpus delicti was
not proved and the evidence was insufficient to prove beyond a
reasonable doubt that appellant was guilty of second degree
murder. For these reasons, I dissent.
11