COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
HOMER D. MONTAGUE, SOMETIMES KNOWN AS
HOMER DONTE MONTAGUE
OPINION BY
v. Record No. 2003-98-2 JUDGE ROBERT P. FRANK
DECEMBER 21, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Gregory W. Franklin, Assistant Public
Defender (David J. Johnson, Public Defender,
on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
In a jury trial, Homer D. Montague (appellant) was
convicted of grand larceny, attempting to elude a police
officer, and felony murder. On appeal, appellant contends:
1) the evidence was insufficient to support his conviction of
felony murder because the underlying felony was complete before
the homicide occurred; 2) the court erred in instructing the
jury that they could return a conviction for felony murder
solely upon finding a causal relationship between the underlying
felony and the accidental killing; and 3) the court erred in
instructing the jury that they could find that appellant was
committing grand larceny at the time of the victim's death. In
finding the evidence insufficient to support appellant's
conviction for felony murder, we do not reach issues two and
three. We, therefore, reverse appellant's conviction of felony
murder and remand for further proceedings if the Commonwealth be
so advised.
I. BACKGROUND
On August 23, 1997, between eleven o'clock in the morning
and noon, Leslie Louick parked her red Dodge Shadow on Grayland
Avenue in Richmond. Around noon the next day, she discovered
that her car was not where she parked it the day before. Ms.
Louick reported to the police that the car had been stolen.
Later that evening, officers from the Richmond police
department set up a traffic checkpoint on the north end of the
Fourth Street Bridge. Officer Chester Roberts was positioned on
the median as the southbound "chase car." He was assigned to
apprehend any vehicle that attempted to avoid the checkpoint.
Between ten and eleven o'clock, Officer Roberts observed
two cars turn onto the bridge at the south end of the bridge.
One was a large, dark sedan, and the other was a red car. The
red car was later identified as the car belonging to Ms. Louick.
The cars traveled for approximately one hundred feet on the
bridge and then made U-turns across the solid, double, center
lines. Officer Roberts activated his emergency lights and siren
and pursued the vehicles. After several blocks, the sedan
turned left at an intersection and the red car continued
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travelling straight. Officer Roberts followed the red car into
the Gilpin Court community, a residential area. The red car
attempted to make a left turn, went into a skid by an apartment
building, and then jumped the curb and crashed into a large
rock. The red car came to a stop, and the driver exited the
vehicle and fled on foot.
Officer Roberts started to pursue the driver when he heard
a young girl screaming about her friend. At that time, Officer
Roberts saw the victim, a ten-year-old boy. The girl and the
victim were riding their bikes when the red car jumped the curb
and struck the victim. The girl testified that she saw
appellant driving the red car earlier that day.
Officer Duncan Pence arrived at the scene of the accident.
Officer Roberts remained with the victim, and Officer Pence
pursued and apprehended appellant. The victim suffered a brain
injury and died when he was removed from a life support system
at the Medical College of Virginia. The jury convicted
appellant of grand larceny, attempting to elude a police
officer, and felony murder.
II. ANALYSIS
Under familiar principles, we view the evidence in the
light most favorable to the Commonwealth, the party prevailing
below, granting to it all reasonable inferences fairly deducible
therefrom. See Clifton v. Commonwealth, 22 Va. App. 178, 180,
468 S.E.2d 155, 156 (1996). We will not reverse the judgment of
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the trial court unless it is plainly wrong or without evidence
to support it. See Code § 8.01-680.
Code § 18.2-33 defines felony murder as "[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."
The Supreme Court of Virginia has adopted the res gestae
theory in applying the felony murder statute. See Haskell v.
Commonwealth, 218 Va. 1033, 243 S.E.2d 477 (1978). Under the
res gestae theory, the felony murder doctrine applies when the
"initial felony and the homicide [are] parts of one continuous
transaction, and [are] closely related in point of time, place,
and causal connection." Id. at 1041, 243 S.E.2d at 482. We
have held that the "[d]eath must be directly related in time,
place, and causal connection to the commission of the felony;
the felony or acts in furtherance thereof must contribute to
cause the death to constitute a 'killing' within the
felony-murder statute." King v. Commonwealth, 6 Va. App. 351,
357, 368 S.E.2d 704, 707 (1988).
In Davis v. Commonwealth, 12 Va. App. 408, 404 S.E.2d 377
(1991), we affirmed a conviction for felony murder where a
motorist, 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
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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. The felony was the act of driving after having
been declared an habitual offender, a continuing offense, which
the driver was committing at the time of the accidental death.
In King, we applied the res gestae theory and found no
causal connection between an airplane crash, which resulted in
an accidental death, and the defendant's possession of marijuana
with the intent to distribute. See King, 6 Va. App. at 358, 368
S.E.2d at 707-08. The defendant and his copilot were
transporting over five hundred pounds of marijuana by airplane
when they encountered heavy cloud cover and fog. See id. at
353-54, 368 S.E.2d at 705. They flew the plane at a lower
altitude in order to follow U.S. Route 52. See id. at 354, 368
S.E.2d at 705. The plane crashed into a mountain, and the
copilot was killed. See id. In applying the res gestae
analysis to determine whether the defendant was accountable for
the felony murder of the copilot, we wrote:
In the present case, King and Bailey
were in the airplane to further the felony
of possession of marijuana with the intent
to distribute. They were flying over the
mountains while committing the felony. The
time and the place of the death were closely
connected with the felony. However, no
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causal connection exists between the felony
of drug distribution and the killing by a
plane crash. Thus, no basis exists to find
that the accidental death was part or a
result of the criminal enterprise.
Id. at 358, 368 S.E.2d at 707-08.
In Doane v. Commonwealth, 218 Va. 500, 502, 237 S.E.2d 797,
798 (1977), the Supreme Court of Virginia held that the theory
of larceny as a continuing offense is a fiction created in the
common law and declined to extend the fiction to satisfy the
felony murder statute. The Court held that the Commonwealth did
not demonstrate a nexus between the larceny of the vehicle and
the traffic accident because the larceny of the vehicle was
completed in Richmond while the fatal traffic accident occurred
in Smyth County the following day. See id. Therefore, larceny
is not a continuing offense for the purpose of determining
whether a killing occurred during the prosecution of a felonious
offense.
In this case, Ms. Louick testified that she parked her car
on Grayland Avenue on August 23 between eleven o'clock in the
morning and noon. She discovered that it was stolen around noon
the next day. Therefore, the latest time that her car could
have been stolen was noon on August 24, almost eleven hours
before the accident that resulted in the death of the victim in
this case.
Applying the res gestae theory, which requires the
accidental death to be related in time, place, and causal
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connection to the underlying felony, we hold that the accidental
killing of the victim was not related in time to the larceny of
Ms. Louick's car. 1 In Doane, the Supreme Court of Virginia held
that larceny is not a continuing offense for the purposes of
applying the felony murder statute. Under the facts of this
case, the larceny of Ms. Louick's vehicle was completed at the
latest by noon on August 24, 1997, and, therefore, was not
related in time to the accidental killing. At the time of the
accident, appellant was not prosecuting the felonious act of
larceny.
III. CONCLUSION
For these reasons, we find the evidence insufficient to
support appellant's conviction of felony murder. We, therefore,
reverse the judgment of the trial court and remand for further
proceedings if the Commonwealth be so advised.
Reversed and remanded.
1
In the absence of one of the elements in the res gestae
analysis, the conviction for felony murder fails. See King, 6
Va. App. at 358, 368 S.E.2d at 708. Therefore, having
determined that the accidental killing of the victim in this
case was not related in time to the grand larceny of Ms.
Louick's vehicle, we do not discuss whether the accidental death
was related in place and causal connection.
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