Christopher Head, Delegate for the 17th District of Virginia
P.O. Box 19130
Roanoke, Va. 24019
I am writing in hopes of persuading you to present a bill to the General Assembly during the next session to amend the statue on aggravated malicious wounding, Virginia Code Section 18.2-51.2. Moreover, I am also asking that a rider attach making the amendment retroactive.
The relevant facts of my case are as follows:
On June 5, 2010, I met Larry Michael Worrell for the very first time at the apartment complex where we both resided. A short time later, Worrell and I left the pool and went to Worrell’s apartment and began drinking. Later, Worrell and I drove to Hardee’s and picked up Velvie Proffitt, whom was my girlfriend at the time, who also met Worrell for the first time that day.
During this, Worrell drank heavily throughout the day and exhibited erratic behavior. Worrell’s behavior culminated during a discussion of his experiences as a combat marine, when he became agitated and claimed that he suffered from Post Traumatic Stress Disorder from witnessing his buddies “being blown up in a helicopter crash” during combat. Following that, Worrell became so distraught that he placed me in a “military style” chokehold to the point that I nearly lost conciousness, which occurred inside of my apartment. It was at this point that Proffitt intervened, thus allowing me to escape from Worrell’s grasp where I then to fled to my kitchen. After being pursued by Worrell, I armed myself with a steak knife and stabbed Worrell in the chest ONE time. However, after the fact I did attempt to render first aid. The only eyewitness to this was Proffitt, who eventually testified for the defense.
Initially, I was charged with malicious wounding. However, that charge was nolle prosequi in favor of aggravated malicious wounding when Worrell’s condition worsened to the point that he suffered irreversible physical impairment. Then 224 days after the stabbing, Worrell passed away from complications from the wound. As a result, I faced an additional indictment for second-degree murder along with the aggravated malicious wounding indictment.
Ultimately, I was tried by a jury in a single trial setting that also included several misdemeanor indictments that stipulated that the offense conduct date of all the indictments stemmed from June 5, 2010. Subsequently, the jury found me guilty on all the indictments that I plead not guilty to, including both the aggravated malicious wounding and second-degree murder. As a result, the judge imposed 25 years for the aggravated malicious wounding conviction and 15 years for the second-degree murder conviction that he based on the jury’s recommendation. As a result, I submitted an appeal.
It is the decisions by both the Court of Appeals, Record No. 2451-11-3 and the Supreme Court of Virginia, Record No. 130572, where a genuine issue lies concerning my convictions. In which case, I will be referencing the Court of Appeals of Virginia Memorandum Opinion, dated March 5, 2013 and citing case law taken from Va. Code Annotated Section 18.2-32 of the Code of Virginia.
It is apparent from the Court’s opinion that there is a certain degree of ambiguity in the language of Code 18.2-51.2. The Court noted that, “Appellate courts must ‘first consider whether the legislative intent is clear from the face of the statue or the legislative history…'” The Court however went on to note that, “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.'” Please take notice that the Court of Appeals noted that they “agree there is no explicit legislative authorization.” The Court further stated that they “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.” Then further added, “If that legislative intent cannot be ascertained, Blockburger becomes the default analytical tool.”
Under the Blockburger Rule, “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.” Blockburger v. U.S., 284 U.S. 299, 304; 52 S. Ct. 180, 182; 76 L. Ed. 306, 309 (1932).
Interestingly, the Court noted that “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.” In that regard, I ask that you examine both the aggravated malicious wounding and second degree murders statues closely.
Virginia Code Section 18.2-51.2 provides in relevant part as follows:
A. If any person maliciously shoots, stabs, cuts, or wounds any other
person, or by any means causes bodily injury with the intent to maim,
disfigure, disable, or kill, shall be guilty of a Class 2 felony if the victim is
thereby severely injured and is caused to suffer permanent and
significant physical impairment.
Next in the series: Petition to amend Virginia Code Section 18.2-51.2 – Part 2
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Contact me via snail mail:
David Bomber #1130793
Nottoway Correctional Center
P.O. Box 488
Burkeville, Va. 23922
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