David Bomber

IN THE COURT OF APPEALS OF VIRGINIA – Part 1 by David Bomber

David Michael Bomber

v. Record No. 2451-11-3

Commonwealth of Virginia

Memorandum opinion by Judge James W. Haley, Jr. March 5, 2013

In a single trial, a jury convicted David Michael Bomber of aggravated malicious wounding (Code 18.2-51.2) and second-degree murder (Code 18.2-32). The trial court imposed the jury’s recommended sentences on each conviction.
Bomber maintains the trial court erred in refusing to strike the second-degree murder indictment, and, further erred in denying his motion to vacate the conviction for aggravated malicious wounding.
These assignments of error are premised upon Bomber’s contention that his conviction of and sentencing for both aggravated malicious wounding and second-degree murder in a single trial violate the Fifth Amendment prohibition against double jeopardy.
We affirm the trial court.

The relevant facts may be succinctly stated. On June 5, 2010, Bomber stabbed the victim. On January 15, 2011, the victim died. Bomber does not challenge the sufficiency of the evidence supporting either conviction, nor does he challenge the casual relation between the wounding and the death.
Bomber contends there was one criminal act of stabbing which resulted in multiple punishments in violation of the Fifth Amendment protections against double jeopardy. The Fifth Amendment guarantees that no person “shall… for the same offense… be twice put in jeopardy of life or limb.” “The constitutional provision concerning double jeopardy embodies three guarantees: ‘(1) “It protects against a second prosecution for the same offense after acquittal. (2) It protects against a second prosecution for the same offense after conviction. (3) And it protects against multiple punishments for the same offense.'” Blythe v. Commonwealth, 222 Va. 722, 725; 284 S.E.2d 796, 797 (1981) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980)). Appellant’s argument encompasses the third protection, prohibiting multiple punishments for a single offense in a single trial.

In a single trial setting, “the role of the constitutional guarantee
is limited to assuring that the court does not exceed its legislative
authorization by imposing multiple punishments for the same
offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977). And, “the
question whether punishments imposed by a court after a
defendant’s conviction upon criminal charges are
unconstitutionally multiple cannot be resolved without determining
what punishments the Legislative Branch has authorized.” Whalen
v. United States, 445 U.S. 684, 688 (1980)….

The question resolves itself, therefore, into one of legislative intent
where the issue is whether ” the Legislative Branch” has provided
that two offenses may be punished cumatively.

Id. at 725, 26, 284 S.E.2d at 798. Appellate courts must “first consider whether the ‘legislative intent is clear from the face of the statue or the legislative history…'” Andres v. Commonwealth, 280 Va. 231, 284; 699 S.E.2d 237, 267 (2010) (quoting Garrett v. United States, 471 U.S. 773, 779 (1985)). In the absence of explicit or implicit statements of legislative intent, reviewing courts must determine the legislative authorization by examining the relevant statues.

When “the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one is whether each [offense
charged] requires proof of an additional fact which the other does
not.” Blocker v. United States, 284 U.S. 299, 304 (1932).

Coleman v. Commonwealth, 261 Va. 196, 200; 539 S.E.2d 732, 734 (2001). “[I]n applying this test, the two offenses are to be examined in the abstract, rather than with reference to the facts of the particular case under review.” Blythe, 222 Va. at 726; 284 S.E.2d at 798.
During oral argument before the panel, counsel for Bomber based his argument primarily upon Andrews. We accordingly review that case.
Andrews killed Romano A. Head and Robert I. Morrison on January 2, 2002, in an apartment, at approximately the same time, during what is fairly characterized as the same act or transaction. Prior to these murders, an individual named Clayton K. Breeden had been killed on December 13, 2001. Andrews was indicted for the capital murder of all three. The indictments for the murder of Head, Morrison, and Breeden charged a violation of subsection (8) of Code 18.2-31, “killing of more than one person withing a three year period.” In a single trial, a jury acquitted Andrews of the murder of Breeden, but convicted of the murders of Head and Morrison under both subsector of Code 18.2-31. Following the jury recommendation, the trial court imposed four death sentences for the killing of Head and Morrison; two death sentences under both subsections for both victims.
Andrews maintained that two of the death sentences violated the Double Jeopardy Clause because both convictions were necessarily based on the concurrent murders of Head and Morrison. Thus, he argued, he had been subjected to multiple punishments for the same offense.

Next in the series: In the Court of Appeals of Virginia – Part 2

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