Commonwealth v. Montague

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, S.J.

COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 000130 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 3, 2000
HOMER D. MONTAGUE

FROM THE COURT OF APPEALS OF VIRGINIA

The sole issue in this appeal is whether the felony-murder

statute applies to the facts of this case.

I

Tried by a jury in the Circuit Court of the City of

Richmond, Homer D. Montague was convicted of felony murder in

violation of Code § 18.2-33. ∗ The trial court sentenced Montague

to imprisonment for 15 years, with seven years suspended.

Montague appealed his felony-murder conviction to the Court of

Appeals, which reversed the trial court's judgment and remanded

the case. Montague v. Commonwealth, 31 Va. App. 187, 522 S.E.2d

379 (1999). We awarded the Commonwealth this appeal.

II

The facts are undisputed. On August 23, 1997, between

11:00 a.m. and noon, Leslie Louick parked her red 1991 Dodge

Shadow automobile in the City of Richmond, on Grayland Avenue,

∗
Montague also was convicted of grand larceny and of
eluding the police for which he received sentences of three
years' imprisonment, with two years suspended, and 12 months in
jail, with six months suspended, respectively.
near Boulevard. The following day, around noon, Louick

discovered that her car had been stolen. During the daytime on

August 24, a witness saw Montague driving Louick's car in the

Jackson Ward area of the City.

On the evening of August 24, Richmond City police officers

set up a routine traffic checkpoint on the Fourth Street Bridge.

Officer Chester Roberts, Jr., was authorized to operate the

southbound chase car and to pursue any vehicles that attempted

to evade the checkpoint.

Between 10:00 and 11:00 p.m., Officer Roberts saw two

automobiles approach the bridge from the south. One car was a

large sedan. The other car was Louick's, driven by Montague.

The two cars had traveled approximately 100 feet onto the bridge

when each made an illegal U-turn across double yellow lines and

headed south.

Officer Roberts immediately activated his vehicle's

emergency lights and siren and pursued the fleeing cars. At an

intersection, the sedan turned left, and the car driven by

Montague continued forward. The officer pursued Montague into

the Gilpin Court neighborhood.

After Montague entered Gilpin Court, Roberts saw the car's

illuminated brake lights. Roberts also could see and hear that

the car was skidding as Montague was attempting to negotiate a

left turn onto St. Paul Street. Montague failed to make the

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turn, and the car traveled over the curb and struck ten-year-old

Antoine Lamont Lewis, who was riding his bicycle on the

sidewalk.

Montague exited the car and ran, and another police officer

apprehended him less than a block away. Montague later gave a

statement to Officer Roberts in which he admitted that he was

the driver of Louick's car and that he had stolen it.

Antoine Lewis died at the Medical College of Virginia

Hospitals. His death was the result of trauma to his brain

caused by the collision.

III

Code § 18.2-33 provides that "[t]he killing of one

accidentally, contrary to the intention of the parties, while in

the prosecution of some felonious act other than those specified

in §§ 18.2-31 and 18.2-32, is murder of the second degree." The

felony-murder doctrine originated at common law and, when

supported by the evidence, operates to elevate to second-degree

murder a homicide committed during the commission of a felony by

imputing malice to the killing. F.P. Heacock v. Commonwealth,

228 Va. 397, 403, 323 S.E.2d 90, 93 (1984); Wooden v.

Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981).

Although the homicide in the present case did not occur

until at least eleven hours after the grand larceny was

completed, the Commonwealth contends that the felony-murder

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statute applies. The Commonwealth asserts that Montague's

flight from police in an effort to avoid detection of his crime

established a causal connection between the larceny and the

homicide.

Montague contends, on the other hand, that the felony-

murder statute does not apply because the homicide and the

underlying felony "were widely and distinctly separated in time,

distance and continuity of action, and were not parts of the

same criminal enterprise." Montague relies mainly on our

decisions in Doane v. Commonwealth, 218 Va. 500, 237 S.E.2d 797

(1977), and Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d

477 (1978).

In Doane, the defendant, who was charged with felony

murder, had stolen an automobile in the City of Richmond around

noon on July 7, 1976. The following day, around 6:15 p.m., the

defendant, while operating the stolen car, ran a stop sign and

killed a passenger in another vehicle. The accident occurred in

Smyth County, approximately 280 miles from the City of Richmond.

218 Va. at 501, 237 S.E.2d at 798. The Commonwealth contended

that larceny is a continuing offense, and, therefore, the

homicide occurred during the commission of a felony. The trial

court agreed and convicted the defendant of second-degree

murder. Id. at 501-02, 237 S.E.2d at 798. We, however,

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reversed the judgment of the trial court. Id. at 503, 237

S.E.2d at 799.

We noted, in Doane, that "[t]he concept of larceny as a

continuing offense is a fiction of the common law, . . . which

allows a thief who steals within a jurisdiction to be tried for

the offense in any venue of that jurisdiction to which he

transports, or wherein he possesses, the fruits of the larceny."

Id. at 502, 237 S.E.2d at 798. Although we recognize this legal

fiction in support of venue considerations, we declined, in

Doane, to extend the fiction to satisfy the requirements of the

felony-murder statute. Id.

We also said, in Doane, that, without the benefit of the

fiction, there was "neither a showing of causal relationship nor

a showing of nexus between the larceny . . . and the accidental

killing." Id. We further stated, however, that we would defer

to another day the issue "[w]hether that showing must be one of

causal relationship, or whether a showing of mere nexus will

suffice." Id. at 502-03, 237 S.E.2d at 798-99.

Approximately six months after the Doane decision, we

decided Haskell, another felony-murder case. In Haskell, the

three defendants and their companion attacked, beat, and

searched an intoxicated sailor in an attempt to rob him. When

the defendants and their companion discovered that the sailor

had no money, they tried to leave in their automobile. The

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beaten sailor, however, sought to prevent his assailants'

escape, and, during a scuffle, the defendants' companion shot

and killed the sailor. 218 Va. at 1036-37, 243 S.E.2d at 478-

79. The defendants contended that, as a matter of law, the

homicide did not occur during the commission of a felony because

the attempt to rob had been abandoned by them before the

altercation between their companion and the sailor ended in the

fatal shooting. Id. at 1039, 243 S.E.2d at 480.

In Haskell, we affirmed the three defendants' convictions

for felony murder. In doing so, we adopted the so-called res

gestae rule, which represents the prevailing view among other

jurisdictions. The rule provides that "the felony-murder

statute applies where the killing is so closely related to the

felony in time, place, and causal connection as to make it a

part of the same criminal enterprise." Id. at 1043-44, 243

S.E.2d at 483. We found, in Haskell, that the killing of the

sailor was closely related in time, place, and causal connection

to the attempted robbery of him, and, therefore, the underlying

felony and the homicide were parts of the same criminal

enterprise. Id. at 1043, 243 S.E.2d at 483.

It is important to note that the required elements of the

rule, i.e., time, place, and causal connection, are stated in

the conjunctive. Therefore, all three elements must be

established for the felony-murder statute to apply.

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 In the present case, the grand larceny occurred at least

eleven hours before the homicide. Thus, we agree with the Court

of Appeals' conclusion that "the accidental killing of the

victim was not related in time to the larceny." 31 Va. App. at

192, 522 S.E.2d at 381-82. We also conclude that the place

element has not been established as the larceny and the homicide

transpired in different parts of the City, and Montague had been

seen driving Louick's car in still another part of the City in

the interim. We hold, therefore, that the grand larceny and the

homicide were not parts of the same criminal enterprise as

required by the res gestae rule and that the felony-murder

statute does not apply to the facts of this case.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

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