I. STATEMENT OF THE NATURE OF THE PETITION
This petition is an appeal to the Virginia General Assembly by David Michael Bomber, hereinafter the Petitioner. The Petitioner, who is currently a prisoner in the Virginia Dept. of Corrections, seeks to amend the statue on aggravated malicious wounding, and further asks that a rider attach making the amendment retroactive.
II. STATEMENT OF FACTS
On June 5th, 2010, the Petitioner met Larry Michael Worrell for the very first time at the pool in the apartment complex where the Petitioner and Worrell both resided. A short time later Worrell and the Petitioner left the pool and went to Worrell’s apartment and began drinking. Later, Worrell and the Petitioner drove to Hardee’s and picked up Velvie Proffitt, who was the Petitioner’s 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. His behavior culminated during a discussion 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.” Following that Worrell became so distraught that he placed the Petitioner in a “military-style” chokehold to the point that the Petitioner nearly lost consciousness, which occurred inside his apartment.
It was at this point that Proffitt intervened, enabling the Petitioner to escape from Worrell’s grasp where the Petitioner then fled to his kitchen. After being pursued by Worrell the Petitioned armed himself with a steak knife and stabbed him in the chest ONE TIME. However, after the fact the Petitioner did attempt to render first aid. The only eyewitness to these events was Proffitt, who eventually testified for the defense.
Initially the Petitioner 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 from irreversible physical impairment. Then 224 days after the stabbing Worrell passed away from complications from the wound. As a result the Petitioner faced an additional indictment for second-degree murder along with the aggravated malicious wounding indictment.
Ultimately the Petitioner was tried by a jury in Roanoke County Circuit Court in a single trial setting that also included several misdemeanor indictments that stipulated that the offense conduct of all the indictments occurred on June 5th, 2010. Subsequently the jury found the Petitioner guilty on all the indictments that he plead not guilty to, including both the aggravated malicious wounding and second-degree murder indictments. As a result the judge imposed 25 years for the aggravated malicious wounding conviction and 15 years for the second-degree murder conviction. As a result the Petitioner submitted an appeal.
III. AUTHORITIES & ARGUMENT
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 the Petitioner’s convictions. In which case the Petitioner will be referencing the Court of Appeals of Virginia Memorandum Opinion, dated March 5th, 2013, and citing case law taken from the statue on second-degree murder as defined in Virginia Annotated Code Section 18.2-32 of the Code of Virginia.
A. STANDARD OF REVIEW
It is apparent from the Court’s opinion that there is a certain degree of ambiguity in the language of Code Section 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 the same conduct in either… Code Section 18.2-51.2… or Code Section 18.2-32.’ ” Please take notice that the Court of Appeals noted that they “agree that 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).
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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