Virginia Code Section 18.2-32 provides as follows: 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, inaminate or
animate object sexual penetration, robbery, burglary, or abduction,
except as provided in Section 18.2-31, is murder of the first degree,
punishable as a Class 2 felony.
All murder other than capital murder and murder in the first degree is
murder of the second degree and is punishable by confinement in a
state correctional center for not less than five years nor more than
In examing both statues, it is evident that both malice and intent are the common thread. “Malicious intent is an element of both first-degree murder and second-degree murder. What elevates the lesser crime to the greater grade and invokes the heavier penalty is the element of premeditation.” Baker v. Commonwealth, 218 Va. 193; 237 S.E.2d 88 (1977). Yet, the Court noted that, “Aggravated malicious wounding requires proof of a specific intent, whereas second-degree murder requires no specific intent.” Here, the Court neglects there is a slew of case law that dictates otherwise; i.e. Epperly v. Commonwealth, 224 Va. 214; 294 S.E.2d 882 (1982) (where the exact state of defendant’s mind at the time of the killing is the crucial factor in determining intent). It is noteworthy to point out that was the Commonwealth’s exact argument to the trial court for the admissibility of the misdemeanor indictments I also faced to be included in the felony trial. In other words, intent is only suitable when it appeals to my accusers, at least what the Court of Appeals and Supreme Court of Virginia are saying. See opinion from the Court of Appeals of Virginia, dated June 11, 2012.
Furthermore, “the test of the criminal intent in the use of a deadly weapon is to be found, not in the manner in which or the purpose for which the previous possession of the weapon was acquired, but in its deliberate use for a deadly purpose.” Adams v. Commonwealth, 163 Va. 1053, 178 S.E. 29 (1935).
Although the appellate courts viewed my case in the abstract, it can be gleaned from the reading of the statues that it was clearly not the legislative intent for a scenario such as mine to be punished cumulatively. That is easily demonstrated by the language in Code 18.2.-51.2 that states in relevant part, the “intent to maim, disfigure, disable, or kill.” (emphasis added on the word OR). Notice that the vocabulary of the statue. If the framer of this particular statue intended multiple punishments, it would read having the “intent to maim, disfigure, disable, AND kill.” Therefore, if the use of a deadly weapon constitutes intent, what was my exact intent when I stabbed the victim ONE time? Was it to maim, disfigure, disable, OR kill?
See also Clark v. Commonwealth, 90 Va. 360; 18 S.E. 441 (1893) (If the prisoner willfully inflicted upon the deceased a dangerous wound, one that was calculated to endanger and destroy a life, and death ensued therefrom within a year and a day, the prisoner is nonetheless responsible for the result although it may appear that the deceased might have recovered but for the aggravation of the wound by unskilled or improper treatment).
It is also noteworthy to point out that the Court stated, “The murder may be accomplished through any of the same methods as a malicious wounding, or others, such as poisoning, strangulation, and starvation.” Here the Court erred by referencing poisoning, strangulation, and starvation, as these are deliberate acts found in first degree murder in Code 18.2-31. However, the Court dismisses that under the conditions set forth in Code 18.2-32 that the ONLY way to commit second-degree murder is by a malicious wounding of the victim.
Therefore, I am respectfully requesting that a bill be presented to the General Assembly, amending Virginia Code 18.2-51.2 to include a clause that in the event that the victim passes away during their lifetime prior to trial from the result of a wounding, the accused is precluded from being tried for any sort of malicious wounding, but however is subject to prosecution for murder. Again, I ask that this be made retroactive.
Should it become necessary, I am more than willing to provide you with other documentation pertaining to my case, including DVD’s of my motion’s hearings as well as my trial.
Thank you for your kind assistance.
Contact me via snail mail @
David Bomber #1130793
Nottoway Correctional Center
P.O. Box 488
Burkeville, Va. 23922
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