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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