b. THE PROVISIONS SET FORTH IN VIRGINIA CODE SECTION 18.2-51.2
DISTINGUISH THAT THE LEGISLATIVE BODY DID NOT INTEND
Although the appellate courts viewed the Petitioner’s 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 the Petitioner’s to be punished cumatively. That is easily demonstrated by the language in Code Section 18.2-2-51.2(A) that states in relevant part, “the intent to maim, disfigure, disable, or kill” (emphasis added on the word OR).
Notice the vocabulary of the statue. If the framer of this particular statue intended multiple punishments it would most likely read having “the intent to maim, disfigure, disable, and kill.” Therefore, if the use of a deadly weapon constitutes intent as defined by established case law, then what was the Petitioner’s exact intent when he stabbed the victim ONE TIME. Was it to maim, disfigure, disable, or kill?
Likewise, the language in Code Section 18.2-51.2(B) is quite similar. Again, we see that under this particular provision of the statue that it is clear from its face that the legislative body did not intend multiple punishments. Their distinction is easily made by the language stating, “the intent to maim, disfigure, disable, OR kill the pregnant woman, OR cause the involuntary termination of her pregnancy.” Again, you will notice that the framer of this provision in the statue consistently used the word OR to define the elements.
Interestingly, the assailant who commits the same act or transaction [against a pregnant woman] can theoretically violate this provision in the statue in several ways. It is entirely possible that the mother could survive but the unborn fetus does not. As the Court of Appeals and the Supreme Court of Virginia has maintained towards the Petitioner, it cannot be ascertained from the face of this particular statue what the legislative body intended in such situations. From their stance it must default to a Blockburger analysis.
Using the same analogy of a surviving mother, it demonstrates why a Blockburger analysis is not appropriate when it is compared to Virginia’s aggravated malicious wounding and second-degree murder statues. In an example of this, let’s just say that the surviving mother is now permanently disabled in addition to suffering from the loss of her unborn fetus. The obvious question is what sort of indictments would the accused face in this situation? Indeed when the legislative intent cannot be discerned a Blockburger analysis is conducted to demonstrate that there is proof of an additional fact to sustain multiple punishments.
Here, an argument can be made that the additional fact is either the permanent disability of the mother, or the involuntary termination of her pregnancy. However, convictions for both aggravated malicious wounding and second-degree murder cannot be supported in this instance when Blockburger is used as an analytical mechanism. See Roe v. Wade, 410 U.S. 113 (1973)(where the Court held that a fetus is not a person under the Fourteenth Amendment). However, because the statue distinguishes whether the intent was to disable the pregnant woman, or cause the involuntary termination of her pregnancy demonstrates why a Blockburger analysis is inappropriate in this instance.
Arguably, the best example of why a Blockburger analysis is not appropriate in instances of indictments for both aggravated malicious wounding and second-degree murder is demonstrated in Virginia Code Section 18.2-51.2(C). It is found in the manner that the legislative body treats the involuntary termination of a woman’s pregnancy under that particular provision.
Under this provision an unborn fetus’ demise by an individual accused of a malicious assault is treated as a “severe injury and a permanent and significant impairment.” The statue suggests that this is implicit and only applicable to a surviving mother, and is further supported by Roe v. Wade.
Therefore in an instance when an expecting mother perishes from the hands of an assailant during the commission of a single act, convictions for both aggravated and second-degree murder cannot be sustained here since the decision in Roe v. Wade wasn’t designed to protect the unborn fetus. With that in mind it begs the question, how could the mother suffer permanent and significant physical impairment [from the loss of her pregnancy] when she is no longer alive?
In comparison, there is no difference when considering the instant matter with the Petitioner. In fact it demonstrates just how disproportionately different Virginia Code 18.2-51.2 can be applied to defendants when the victim’s gender and ability to carry a child is taken into consideration. Obviously this creates a situation that offends both the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and the Constitution of Virginia.
Next in the series: Petition to amend Virginia Code Section 18.2-51.2 – Part 4.
Thank you for taking the time to read this. As always, all feedback is encouraged and welcomed! And of course, I always encourage direct communication with any of my readers.
Please feel free to share or repost this entry along with my contact info with others – thanks!
Contact me via snail mail:
David Bomber #1130793
Nottoway Correctional Center
P.O. Box 488
Burkeville, Va. 23922
Email me submitting my name or Virginia state ID number (1130793)
To make a donation to support my legal defense:
Categories: David Bomber