In The United States Supreme Court, Oct. 2014
Bomber v. Commonwealth of Virginia
1. WAS THE DOUBLE JEOPARDY CLAUSE VIOLATED WHEN MULTIPLE
PUNISHMENTS WERE IMPOSED FOR SECOND-DEGREE MURDER AND
AGGRAVATED MALICIOUS WOUNDING OF THE SAME VICTIM WHEN
THE DEFENDANT COMITTED ONE DISTINCT ACT?
This appeal is about the Defendant committing one distinct act at one distinct moment in time at one distinct location against one distinct victim. The Defendant’s conduct is indivisible.
This unity is what makes the analysis of Blockburger v. U.S., 284 U.S. 299 (1932) and its prgency inapplicable. Because the Blockburger analysis was erroneously applied in this case it was concluded that any defendant can be punished separately and consecutively for some degree of assault/wounding and homicide arising out of the same undifferentiated conduct – even though there is no explicit or implicit legislative authorization for imposing multiple punishments for the same conduct in Virginia Code § 18.2-32 or Virginia Code 18.2-51.2. “Multiple convictions and punishmentd for the ‘same act’ may be precluded by the double jeopardy clause, even though obtained in a single trial.” Missouri v. Hunter, 459 U.S. 359 (1983).
“The assumption underlying the Blockburger Rule is that Congress ordinarily does not intend to punish the same offense under two statues.” Ball v. U.S., 432 U.S. 161 (1927).
The indictment in Case No. CR10-1020-01 alleges that the Defendant committed aggravated malicious wounding “|o|n or about June 5th, 2010.” (J.A. Volume 1, Page 1). The indictment in Case No. CR11-338-01 alleges that the Defendant committed second-degree murder “|o|n or about June 5th, 2010.” (J.A. Volume 1, Page 2).
It is undisputed that the Defendant stabbed the victim ONE TIME on June 5th, 2010. It is also undisputed that this single wound caused the victim’s death on January 15th, 2011. The Defendant received two separate punishments for his undifferentiated conduct.
2. IS AGGRAVATED MALICIOUS WOUNDING NOT THE
LESSER-INCLUDED OFFENSE OF SECOND-DEGREE MURDER WHEN
MURDER HAS A PREREQUISITE OF BODILY INJURY?
During the jury trial, the Commonwealth relied on the Blockburger analysis, arguing that when “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied is whether each |offense charged| requires proof of an additional fact which the other does not.” Blockburger v. U.S. 284 U.S. 299 (1932).
In support of the position, the Commonwealth in the Circuit Court argued that because second-degree murder requires proof of an additional fact, the death of the victim, which aggravated malicious wounding does not, the Defendant committed two offenses for which he can receive separate, consecutive sentences.
This approach is what makes the Blockburger analysis inapplicable in the instant case.
The common thread of aggravated malicious wounding and second-degree murder is malice aforethought. See Commonwealth of Va. v. Gibson, 4 Va. (2 Va Cas. ) 80 (1817); Wooden v. Commonwealth of Va., 222 Va. 758, 284 S.E. 2d 811 (1981). Aggravated malicious wounding clearly specifies the intent to kill, likewise second-degree murder is a malicious killing without premeditation. The two crimes share a common mental state, and both by necessity have bodily injury as a result.
Because second-degree murder can only be achieved by means of a bodily injury, in this case was a single stab wound that culminated in the victim’s death. This would make aggravated malicious wounding the lesser-included offense of second-degree murder. As Dr. Tharp, the medical examiner who performed the autopsy explained at trial: “If you kill off enough brain cells… you lose function in the ability to think, to speak, to move…” (J.A. Volume 1, Page 44). On autopsy, Dr. Tharp found “obvious damage” to the “upper parts” of the victim’s brain… “and without the initial injury that caused his brain injury… hr wouldn’t have died.” (J.A. Volume 1, Page 46; J.A. Volume II, Pages 239-243).
Practically, there is always a passage of some amount of time from the infliction of the mortal wound until the complete cessation of life, even when it is a medical impossibility to resuscitate the victim. This amount of time can be, and oftentimes is very short, perhaps only a matter of minutes. In this case, the victim lived 224 days after he was stabbed. Not to sound crass, but surely the death of the victim constitutes a “permanent and significant impairment” |as the statue on aggravated malicious wounding implies|. Typically when the victim dies, whether expected or not, the assault/wounding charge will be dropped in favor of a homicide charge.
“It has long been understood that separate statutory crimes need not be identical — either in constitutent elements or in actual proof — in order to be the same within the meaning of the constitutional prohibition.” 1 J. Bishop, New Criminal Law, Section 1051, (8th Ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 268-269 (1965); quoting Brown v. Ohio, 432 U.S. 161 (1977).
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