David Bomber

IN THE COURT OF APPEALS OF VIRGINIA – Part 2 by David Bomber

The Commonwealth defended based upon a Blockburger analysis. However, the Supreme Court noted that a condition precedent to application of that analysis is a determination that the legislature, in enacting a statue or statues, did, or did not, intend that each violation be a separate offense. Andrews 280 Va. at 284; 699 S.E.2d at 267. If that legislative intent cannot be ascertained, Blockburger becomes the default analytic tool. Reviewing the legislative history, the Supreme Court found that in enacting subsection (8) of Code 18.2-31 “the General Assembly could not have intended to create a desperate offense of capital murder under which a defendant could be punished for the same conduct for which he also could be punished under Code 18.2-31(7).” Id. at 287; 699 S.E.2d at 269. Thus, the Andrews Court concluded Blockburger analysis was not appropriate. The Supreme Court held that while an individual could be indicted and convicted under both subsections, the imposition of two death sentences under both “violated the double jeopardy prohibition against multiple punishments for the same offense.” Id. at 288; 699 S.E.2d at 269-70. Accordingly, upon remand, the Commonwealth was required to elect which conviction it chose to pursue in a new penalty determination proceeding.
On brief in the instant case, Bomber writes that there “is no explicit or implicit legislative authorization for imposing multiple punishments for the same conduct in either… Code 18.2-51.2 or… Code 18.2-32.” Appellant’s Br. at 5, 8. We agree there is no explicit legislative authorization. Likewise, however, there is no explicit legislative prohibition on imposing multiple punishments in, or applicable to, either statue. They are separate statues, not subsections of the same statue as in Andrews, and they authorize different degrees of punishment. We cannot ascertain the legislative intent as to the double jeopardy issue before us by a plain reading of the statues or by the legislative history. Therefore, we must apply the Blockburger test and compare the elements of proof for each offense.
Viewing the offenses in the abstract, second-degree murder and aggravated malicious wounding have distinct elements of proof. Both offenses require proof of malice. However, the two offenses have no other other elements in common. Aggravated malicious wounding must be by stabbing, cutting, shooting, or other wound or injury. Code 18.2-51.2. A prosecution for second-degree murder does not require proof of means. The murder may be accomplished through any of the same methods as a malicious wounding, or others, such as poisoning, strangulation, and starvation. Blythe, 222 Va. at 726; 284 S.E.2d at 798. Aggravated malicious wounding requires proof of the “intent to maim, disfigure, disable, or kill.” Code 18.2-51.2 (emphasis added). Second-degree murder does not require proof of any specific intent. Tizon v. Commonwealth, 60 Va. App. 1, 11; 723 S.E. 2d 260, 265 (2012). Finally, aggravated malicious wounding requires proof of “permanent and significant physical impairment,” Code 18.2-51.2, and second-degree murder requires proof of death. These elements for each offense are thus distinct. Indeed, on brief, Bomber writes: “Obviously a person cannot be charged with some degree of homicide until his victim dies.” Appellant’s Br. at 9.
Bomber’s contention that the only difference for the prosecution of one crime over the other being the passage of time, is a fact specific argument which is not relevant in a Blockburger analysis. The two offenses require elements of proof that the other does not. Much like in Blythe (multiple punishments intended with voluntary manslaughter and unlawful wounding in the commission of a felony), the aggravated malicious wounding statue prohibits certain methods of violence resulting in severe and permanent injury. The murder statue punishes the taking of life without regard to the method. Aggravated malicious wounding requires proof of a specific intent, whereas second-degree murder requires no specific intent. With different elements of proof, aggravated malicious wounding is not a lesser-included offense of second-degree murder. Similarly, the Coleman Court determined malicious wounding was not a lesser-included offense of attempted murder and the legislature intended multiple punishments. Where there are distinct elements of proof, the facts of the particular case have no bearing on the abstract analysis of the statues.
The offenses, having separate and distinct elements, allow for prosecution under both statues. Thus, we conclude the legislature authorized separate punishments for these acts. Accordingly, we affirm Bomber’s convictions for both aggravated malicious wounding and second-degree murder. *

* During oral argument counsel for Bomber candidly and admirably acknowledged that a Blockburger analysis would defeat his double jeopardy argument and for that reason primarily based his argument upon Andrews.

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