Griffin v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia

JAMES EDWARD GRIFFIN, JR.
OPINION BY
v. Record No. 2131-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
SEPTEMBER 12, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge

Todd S. Baldwin (Baldwin, Molina, Escoto &
Machado, P.C., on briefs), for appellant.

Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

James Edward Griffin, Jr. (appellant) was convicted in a

jury trial of felony murder, in violation of Code § 18.2-33, use

of a firearm in the commission of felony murder, in violation of

Code § 18.2-53.1, and possession of a firearm by a convicted

felon, in violation of Code § 18.2-308.2. On appeal, he argues

that: (1) the evidence was insufficient to establish that the

accidental killing occurred within the res gestae of the

predicate felony, possession of a firearm by a convicted felon;

and (2) the use of his juvenile adjudications for purposes of

establishing his "felon" status constituted an ex post facto

application of the law. For the following reasons, we reverse

in part and affirm in part.
 I.

When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party, and the reasonable

inferences fairly deducible from that evidence support each and

every element of the charged offense. See Moore v.

Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr

v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).

"In so doing, we must discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all

the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom." Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

The jury's verdict will not be set aside unless it is plainly

wrong or without evidence to support it. See Code § 8.01-680;

Canipe v. Commonwealth, 25 Va. App. 629, 644, 491 S.E.2d 747,

754 (1997).

The evidence established that on January 21, 1994,

appellant, who was a juvenile at the time, pled guilty in the

Juvenile and Domestic Relations Court of Prince William County

to breaking and entering and grand larceny. These adjudications

were later used as the basis for his "felon" status in the

instant offenses.

In October 1998, appellant was sharing an apartment in

Prince William County with his best friend, Shaquwn Thomas

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(Thomas). The two had known each other for approximately three

and one-half years and considered themselves "like brothers."

On October 16, 1998, appellant and Thomas returned from their

jobs and were preparing to go out for the evening. Appellant

left the apartment to visit his two children, who lived in a

nearby apartment building.

When he returned to his apartment, appellant saw a gun,

which he and Thomas had previously purchased, lying on Thomas's

bed. Appellant picked up the gun and began dancing to music.

The gun discharged and a bullet hit Thomas in the chest from a

distance of three feet or less. Appellant testified as follows:

All I know is when I picked the gun up,
. . . and I don't know, I didn't notice if
the hammer was back . . . but all I remember
was I seen [sic] sparks and I heard a pop go
off and when I looked down the gun was
pointing towards where I know where I was
just talking to [Thomas].

Appellant panicked, ran out of the apartment to a nearby

wooded area, and buried the gun. Jan Quigley, who lived near

appellant's apartment, saw an individual run down the steps to

the edge of the wooded area, squat down for three to five

seconds, and then run back in the opposite direction. After

disposing of the gun, appellant returned to the apartment and

called 911.

Appellant told the 911 operator that a masked assailant had

broken into the apartment, entered Thomas's bedroom, and shot

Thomas. Appellant then called Thomas's father and told him to

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come to the apartment because someone had shot Thomas. When the

police arrived at the scene, appellant told two different

officers that he was in the bathroom when he heard the gunshot.

A police dog found the weapon in the wooded area, and a gunshot

residue test performed at the scene revealed the presence of

primer residue on appellant's hands.

At police headquarters, after learning that Thomas had

died, appellant confessed to Detective Pete Barlow (Barlow) that

the shooting was an accident. According to Barlow,

[appellant] started crying and said, "I
didn't mean to shoot him." . . .
[Appellant] picked the gun up off the bed,
was talking to [Thomas] and the gun just
went off. . . . He said he doesn't remember
if he pulled the trigger. He said he
remembered that his finger was inside the
trigger guard and on the trigger, but --

Appellant explained to Barlow that he knew they were not

"supposed to have the gun in the first place" and that he held

the gun for approximately one minute before it discharged.

Appellant was charged with first-degree murder, felony

murder, use of a firearm in the commission of a felony, and

possession of a firearm by a convicted felon. At trial, Ronald

Kovacs (Kovacs), a jailhouse informant, testified that appellant

admitted to him in jail that appellant shot Thomas during an

argument over a girl. However, two other jailhouse informants

testified that Kovacs admitted to fabricating his testimony

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against appellant in an effort to get a reduced sentence in his

pending cases.

In his defense, appellant testified that the shooting was

an accident and that he had never met Kovacs while incarcerated.

He admitted that he was "kind of feeling [the beat of the

music]" at the time the gun discharged. Appellant explained

that he had lied to the authorities because he "was in a state

of panic" and his "mind was running like . . . a hundred

thousand miles per hour."

After deliberations, the jury acquitted appellant of

first-degree murder, including the lesser-included offenses of

second-degree murder and involuntary manslaughter. However, the

jury found appellant guilty of the remaining three charges,

felony murder, use of a firearm in the commission of a felony,

and possession of a firearm by a convicted felon.

II. FELONY MURDER

In this appeal, we determine whether the evidence was

sufficient to convict appellant of felony murder, in violation

of Code § 18.2-33. That section provides:

The killing of one accidentally, contrary to
the intentions 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 and is
punishable by confinement in a state
correctional facility for not less than five
years nor more than forty years.

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Code § 18.2–33 (emphasis added). This statute and its

companion, Code § 18.2-32, defining first degree felony murder, 1

codify the common law doctrine of felony murder. See Heacock v.

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

The doctrine of felony murder was "developed to elevate to

murder a homicide committed during the course of a felony by

imputing malice to the killing." King v. Commonwealth, 6 Va.

App. 351, 354, 368 S.E.2d 704, 705 (1988). Thus, "[w]here a

person engages in felonious activity and homicide results, the

malice inherent in the original felony provides the malice

necessary to a finding that the homicide was murder." Hickman

v. Commonwealth, 11 Va. App. 369, 371, 398 S.E.2d 698, 699

(1990).

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

(1977), the Virginia Supreme Court reversed a defendant's

felony-murder conviction because the Commonwealth failed to

prove a "causal relationship" between the predicate felony of

grand larceny one day and an accidental killing while driving

1
Code § 18.2-32 provides, in part:

Murder, other than capital murder, by
poison, lying in wait, imprisonment,
starving, or by any willful, deliberate, and
premeditated killing, or in the commission
of, or attempt to commit, arson, rape,
forcible sodomy, inanimate or animate object
sexual penetration, robbery, burglary or
abduction, except as provided in § 18.2-31,
is murder of the first degree . . . .

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the stolen car the following day. See id. at 502-03, 237 S.E.2d

at 798. Although the Court recognized that the crime of larceny

is a continuing offense, this "fiction of the common law" would

not "satisfy the requirements of Code § 18.2-33 that the

accidental killing occur[red] while the defendant [was] in the

prosecution of a felonious act." Id. at 502, 237 S.E.2d at 798.

Once the Commonwealth is stripped of
the benefit of the fiction, there is neither
a showing of causal relationship nor a
showing of nexus between the larceny, which
was complete with the defendant's
asportation of the car in Richmond, and the
accidental killing of Mrs. Terry in Smyth
County the following day. Whether that
showing must be one of causal relationship,
or whether a showing of mere nexus will
suffice, is a question which we defer to
another day. 2

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

The following year, in Haskell v. Commonwealth, 218 Va.

1033, 243 S.E.2d 477 (1978), the Court adopted the res gestae

doctrine as applied to felony murder and enunciated the

following rule: "[T]he 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 1044, 243 S.E.2d at 483. See also Wooden

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

2
In Heacock, 228 Va. 397, 323 S.E.2d 90, the Court again
declined to elaborate on the degree of causal connection
required under the statute. See id. at 404, 323 S.E.2d at 94
("We do not decide that question here, because it is foreclosed
by evidence which we consider conclusive.").

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("[A]ll of the criminal participants in the initial felony may

be found guilty of the felony-murder of the victim so long as

the homicide was within the res gestae of the initial felony.").

Thus, the rule is well settled that "[n]either

premeditation nor an intent to kill is an element of

felony-murder, but malice is." Wooden, 222 Va. at 762, 284

S.E.2d at 814; see also Spain v. Commonwealth, 7 Va. App. 385,

396, 373 S.E.2d 728, 733 (1988). "[W]hen the homicide is within

the res gestae of the initial felony and emanates therefrom, it

is committed in the perpetration of that felony." King, 6 Va.

App. at 355, 368 S.E.2d at 706; see also Heacock, 228 Va. at

405, 323 S.E.2d at 94; Haskell, 218 Va. at 1041, 243 S.E.2d at

482.

In the instant case, appellant contends that the accidental

killing of Thomas was not within the res gestae of the

underlying felony because no causal connection existed between

the two events. Specifically, he argues that the accidental

shooting was not "a consequence or action which was directly

intended to further the [predicate] felony." King, 6 Va. App.

at 358, 368 S.E.2d at 708. Thus, appellant concludes, the lack

of any nexus between the "status felony" of possession of a

firearm by a convicted felon and the accidental shooting

requires reversal of his conviction.

No reported Virginia cases have addressed the felony-murder

doctrine when the predicate offense was possession of a firearm

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by a convicted felon. However, our decisions in King, 6 Va.

App. 351, 368 S.E.2d 704, and Davis v. Commonwealth, 12 Va. App.

408, 404 S.E.2d 377 (1991), are instructive. In King, we

reversed a conviction for felony murder "because the death was

not caused by an act of the felons in furtherance of the

felony." 6 Va. App. at 353, 368 S.E.2d at 705. There, the

defendant was a pilot of an airplane carrying marijuana into

Virginia. Due to heavy fog, the defendant's companion took

control of the airplane while the defendant attempted to

navigate. However, the airplane crashed into a mountain,

killing the companion. The defendant was convicted of felony

murder based upon the felony of possession of marijuana with

intent to distribute. See id. at 353-54, 368 S.E.2d at 705.

In King, we held that the accidental death did not stem

from the possession or distribution of drugs, but from "fog, low

cloud cover, pilot error, and inexperience," id. at 358, 368

S.E.2d at 708, which was insufficient to sustain the conviction.

[I]f the accidental death, in the absence of
imputed malice, would not have been a
criminal homicide, then the statute does not
elevate it to second degree murder and
impute culpability for the death to a
cofelon [sic]. Moreover, . . . a death
which results not from actions of the felons
nor from acts directly calculated to further
the felony or necessitated by the felony,
but from circumstances coincident to the
felony, is not a death for which a
felony-murder conviction will obtain. To
punish as a murderer, every man who, while
committing a heinous offense, causes death
by pure misadventure, is a course which

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 evidently adds nothing to the security of
human life.

Id. at 359, 368 S.E.2d at 708 (internal quotations and citations

omitted). Because the death was not caused by an act of the

defendant in furtherance of or necessitated by the felony, we

reversed his conviction for felony murder. See id.

More recently, we affirmed a conviction for felony murder

in Davis, 12 Va. App. 408, 404 S.E.2d 377, where the defendant,

who had been declared an habitual offender, caused an accidental

death. The accident occurred when the driver was attempting to

elude police in order to "avoid being caught committing the

felonious act of driving after being declared an habitual

offender." Id. at 413, 404 S.E.2d at 380. In applying the res

gestae theory, we held that because the habitual offender was

committing the offense and attempting to escape detection when

the accident occurred, the accident was "'a consequence or

action which was directly intended to further the felony.'" Id.

(quoting King, 6 Va. App. at 358, 368 S.E.2d at 708).

Because "the act of driving recklessly was directly

calculated to further the felonious act of driving after having

been declared an habitual offender," id. at 414, 404 S.E.2d at

380 (emphasis in original), we concluded in Davis that the

homicide caused by the defendant "was within the res gestae of

his felony and emanated from it." Id.

Here, we do not have a case where an
habitual offender was driving carefully and

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 an accidental death occurred. Instead, this
case involves an habitual offender who
accidentally killed a person while driving
in a reckless manner in order to avoid being
caught committing his felonious act of
driving after being declared an habitual
offender. The act of driving when forbidden
to do so is not inherently dangerous.
Rather, it is the act of driving while
intoxicated or recklessly that is inherently
dangerous. Consequently, a death caused by
an habitual offender who is operating a
vehicle is not necessarily necessitated by
the commission of the felony of driving when
declared an habitual offender.

Id. at 413, 404 S.E.2d at 380.

Although we found a sufficient causal relationship between

the felony and the accidental killing in Davis, such

circumstances are undeniably absent in the instant case. The

evidence, as found by the jury, failed to prove murder or

manslaughter. In short, the jury found that the death of Thomas

was accidental and but for the prior felony conviction he would

have been held blameless.

This case is analogous to our decision in King. No

evidence produced at trial established a causal connection

between the underlying felony and the accidental killing. Both

the felony-murder statute and our case law require that the

accidental killing occur "while in the prosecution of some

felonious act," Code § 18.2-33 (emphasis added), or "in

furtherance of the felony." King, 6 Va. App. at 353, 368 S.E.2d

at 705 (emphasis added). It is not enough that the killing

occur "during" the felony or "while" it is being committed;

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something more is required than mere coincidence of time and

place. See Haskell, 218 Va. at 1041, 243 S.E.2d at 482 ("[W]hen

the homicide is within the res gestae of the initial felony and

is an emanation thereof, it is committed in the perpetration of

that felony."). Discussing the res gestae principle, Professor

LaFave has explained:

The homicide must be within the res gestae
of the [predicate felony]; this means that
the homicide and the [underlying felony]
must be "closely connected in point of time,
place and causal relation."

* * * * * * *

In short, whether there is a sufficient
causal connection between the felony and the
homicide depends on whether the defendant's
felony dictated his conduct which led to the
homicide. If it did, and the matters of
time and place are not too remote, the
homicide may be "in the commission" of the
felony; but if it did not, it may not be.

Wayne R. LaFave, Criminal Law § 7.5, at 634-36 (1998) (emphasis

added). Thus, "the collateral crime and the homicide must be

integrated and related in a causal way. . . . The death must be

caused by the felonious act. The death need not be in

furtherance of the felony, but the act that caused the death

should be in furtherance of the felony." 40 Am. Jur. 2d

Homicide § 70 (1999) (emphasis added).

We hold that Code § 18.2-33 applies where the initial

felony and the accidental killing are parts of one continuous

transaction and are closely related in point of time, place and

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causal connection. The phrase "in the prosecution" requires

proof that the killing resulted from an act which was an

integral part of the felony or an act in direct furtherance of

or necessitated by the felony. Where the evidence fails to

support a finding that the killing occurred "in the prosecution

of" or "in the furtherance of" the underlying felony, as in the

present case, there is "no basis . . . to find that the

accidental death was part or a result of the criminal

enterprise." King, 6 Va. App. at 358, 368 S.E.2d at 708.

Several of our sister states have addressed whether the

"status offense" of possession of a firearm by a convicted felon

may serve as the predicate felony for felony murder. Some

jurisdictions require that the underlying felony be "inherently

dangerous to human life" and use two different approaches to

this analysis. Under the abstract approach, the elements of the

"status offense" are considered in the abstract and the factual

circumstances of the felony are not considered. See, e.g.,

People v. Satchell, 489 P.2d 1361 (Cal. 1971) (holding that the

unlawful possession of a firearm by a convicted felon, when

viewed in the abstract, is not a felony inherently dangerous to

human life and will not support a felony-murder charge); State

v. Underwood, 615 P.2d 153 (Kan. 1980) ("The unlawful possession

of a firearm . . . when considered in the abstract is not a

felony inherently dangerous to human life and will not sustain a

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conviction for murder in the first degree under the felony

murder rule.").

A second view analyzes the particular circumstances of each

case to determine whether the possession of a firearm by a

convicted felon is inherently dangerous. Compare Ford v. State,

423 S.E.2d 255, 256 (Ga. 1992) (reversing felony murder

conviction because the "status felony, . . . the possession of a

firearm by a previously convicted felon, is not inherently

dangerous"), with Metts v. State, 511 S.E.2d 508, 510 (Ga.

1999) (affirming felony-murder conviction because the

defendant's "possession of the firearm was dangerous, and

life-threatening, and had 'an undeniable connection to the

homicide . . . .'").

We decline to adopt a per se rule that the "status offense"

of possession of a firearm by a convicted felon may never serve

as the underlying felony for felony murder, or that only

"inherently dangerous" felonies may serve as the predicate for

felony murder. Indeed, the Court in Heacock rejected a similar

argument, stating the following:

Yet, Heacock maintains that he is not
criminally responsible for Wilson's death
because, he says, that was not a foreseeable
consequence of the criminal conduct charged
in the indictment. "[A]pplication of the
[felony-murder] rule to felonies not
foreseeably dangerous," he reasons, "would
be unsound analytically, because there is no
logical basis for imputing malice from the
intent to commit a felony not dangerous to
human life." But nothing in [Code]

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 § 18.2-33 limits its scope to such felonies;
rather, that statute encompasses all
felonious acts except capital murder and the
several crimes particularly named in [Code]
§ 18.2-32.

Heacock, 228 Va. at 404, 323 S.E.2d at 94 (emphasis added).

Because the evidence was insufficient to establish that the

accidental killing of Thomas occurred in furtherance of the

charge of possession of a firearm by a convicted felon, the

killing cannot be considered within the res gestae of the

underlying felony. Accordingly, we reverse and dismiss

appellant's convictions for felony murder, in violation of Code

§ 18.2-33, and use of a firearm in the commission of felony

murder, in violation of Code § 18.2-53.1.

II. EX POST FACTO APPLICATION

Next, appellant contends that when he was adjudicated

delinquent in juvenile court in 1994, his convictions did not

carry any additional consequences as proscribed by Code

§ 16.1-308. However, when the legislature amended that statute

in 1996, appellant asserts, he was no longer afforded the

juvenile protections of Code § 16.1-308 and the use of his

juvenile adjudications to establish that he was a convicted

felon constituted an impermissible ex post facto application of

the law. Essentially, appellant argues that his protected

status under Code § 16.1-308 cannot be modified by a later

legislative enactment. We disagree.

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 The United States Constitution, Article 1, § 10, and the

Virginia Constitution, Article 1, § 9, prohibit the Commonwealth

from enacting ex post facto laws. This constitutional

prohibition applies only to statutes that impose penalties, see

Collins v. Youngblood, 497 U.S. 37, 41 (1990), or where the

challenged change in the law "alters the definition of criminal

conduct." California Dept. of Corrections v. Morales, 514 U.S.

499, 506 n.3 (1995). An ex post facto law has been defined as:

"any statute which punished as a crime an
act previously committed, which was innocent
when done; which makes more burdensome the
punishment for a crime, after its
commission; or which deprives one charged
with crime of any defense available
according to law at the time when the act
was committed."

Collins, 497 U.S. at 42 (quoting Beazell v. Ohio, 269 U.S. 167,

169-70 (1925)). "The mark of an ex post facto law is the

imposition of what can fairly be designated punishment for past

acts." De Veau v. Braisted, 363 U.S. 144, 160 (1960). If "the

restriction of the individual comes about as a relevant incident

to a regulation of a present situation," the law is not ex post

facto. Id.

In the present case, when appellant pled guilty to the two

juvenile charges on January 21, 1994, Code § 16.1-308 provided:

A finding of guilty on a petition charging
delinquency under the provisions of this law
shall not operate to impose any disabilities
ordinarily imposed by conviction for a
crime, nor shall any such finding operate to

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 disqualify the child for employment by any
state or local government agency.

In 1996, the legislature amended Code § 16.1-308 to provide:

Except as otherwise provided by law for a
juvenile found guilty of a felony in circuit
court whose case is disposed of in the same
manner as an adult criminal case, a finding
of guilty on a petition charging delinquency
under the provisions of this law shall not
operate to impose any civil disabilities
ordinarily imposed by conviction for a
crime, nor shall any such finding operate to
disqualify the child for employment by any
state or local government agency.

(Amendment in emphasis).

While the 1996 amendments constituted a change in the law,

they cannot be considered either an alteration to any criminal

conduct prohibited, see Morales, 514 U.S. at 506 n.3, or a

punishment for past acts committed. See De Veau, 363 U.S. at

160. To the contrary, the amendments excepted, or exempted, a

class of individuals from the statute's protection (i.e.,

"juvenile[s] found guilty of a felony in circuit court") and

clarified the nature of disabilities prohibited upon a finding

of guilty (i.e., "any civil disabilities"). Although these

changes affected the scope of collateral disabilities for a

class of convicted juveniles, they were not intended to punish

the juvenile's past conduct.

Nevertheless, appellant argues that his firearm conviction

should be reversed because he pled guilty in juvenile court with

an understanding that under Code § 16.1-308 he would suffer no

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additional consequence for his conduct, while he is arguably

being punished for that conduct under Code § 18.2-308.2.

However, we have recognized that Code § 18.2-308.2 "does not

criminalize an act previously committed," nor does it impose

"punishment" for the underlying conduct. Dodson v.

Commonwealth, 23 Va. App. 286, 295, 476 S.E.2d 512, 516 (1996)

(holding that Code § 18.2-308.2 is not an unconstitutional ex

post facto law). Specifically, Code § 18.2-308.2 provides:

It shall be unlawful for (i) any person who
has been convicted of a felony or (ii) any
person under the age of twenty-nine who was
found guilty as a juvenile fourteen years of
age or older at the time of the offense of a
delinquent act which would be a felony if
committed by an adult, . . . to knowingly
and intentionally possess or transport any
firearm . . . .

In the instant case, appellant's conviction under Code

§ 18.2-308.2 stemmed from his unlawful possession of a firearm,

an event that occurred in October 1998. It is this conduct that

Code § 18.2-308.2 seeks to prohibit and the record demonstrates

that appellant knew he was not "supposed to have the gun" at the

time of the accidental shooting. Code § 18.2-308.2 was in

existence at the time appellant committed the crimes for which

he was tried in juvenile court, and he cannot now complain that

the firearm statute does not apply to him.

Additionally, any ambiguity between the juvenile

protections under Code § 16.1-308 and possession of a firearm by

certain persons convicted as juveniles under Code § 18.2-308.2

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must be resolved in favor of Code § 18.2-308.2. "[W]hen one

statute speaks to a subject in a general way and another deals

with a part of the same subject in a more specific manner, the

two should be harmonized, if possible, and where they conflict

the latter prevails." Thomas v. Commonwealth, 244 Va. 1, 23,

419 S.E.2d 606, 618 (1992) (citation omitted). Here, Code

§ 18.2-308.2, which applies to adult felons and juveniles of a

certain age convicted of acts that would be felonies for adults,

is the more specific statute and prevails over the general

statute concerning collateral disabilities for convicted

juveniles.

III. CONCLUSION

We hold that the evidence is insufficient to establish a

causal connection between the accidental killing and the

underlying felony and, therefore, reverse and dismiss

appellant's convictions for felony murder and use of a firearm

in the commission of felony murder. However, because we find no

ex post facto application of Code § 16.1-308, we affirm

appellant's conviction for possession of a firearm by a

convicted felon.

Affirmed, in part, and
reversed, in part.

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