Commonwealth v. Gregg ( 2018 )

PRESENT: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 170586 JUSTICE STEPHEN R. McCULLOUGH
April 5, 2018
CARROLL EDWARD GREGG, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
Carroll Edward Gregg was convicted of common law involuntary manslaughter as well
as involuntary manslaughter under Code § 18.2-154. In a published opinion, the Court of
Appeals of Virginia concluded that Gregg could not be sentenced for both offenses. See Gregg
v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447 (2017). It reversed and remanded for a new
sentencing proceeding, to be held after the Commonwealth elected which conviction it would
seek to have sentence imposed on. The Commonwealth appeals from this judgment. For the
reasons explained below, we will affirm the judgment of the Court of Appeals.
BACKGROUND
The victim, Junior Montero Sanchez, was in the process of repossessing Gregg’s truck
when Gregg shot and killed him. The autopsy report reflected that Sanchez sustained a single
gunshot wound to the back, which fatally damaged Sanchez’s lung and heart. The shooting
occurred around midnight on June 5 or 6, 2014. Gregg acknowledged shooting Sanchez, but
stated it was an accident.
A grand jury indicted Gregg for first-degree murder, use of a firearm in the commission
of murder, and shooting into an occupied vehicle and causing the death of another in violation of
Code § 18.2-154. In a jury trial, the court instructed the jury on first-degree murder, second
degree murder, common law involuntary manslaughter, as well as involuntary manslaughter
under Code § 18.2-154. The jury convicted Gregg of both common law involuntary
manslaughter and involuntary manslaughter under Code § 18.2-154. Gregg moved to dismiss
one of the charges, contending that the Double Jeopardy Clause precluded a conviction for both
manslaughter offenses. The trial court denied the motion.
On appeal, the Court of Appeals of Virginia reversed, holding that Gregg could not be
convicted of both common law involuntary manslaughter and involuntary manslaughter under
Code § 18.2-154. Gregg v. Commonwealth, 67 Va. App. 375, 387-88, 796 S.E.2d 447, 454
(2017). We granted the Commonwealth an appeal from the decision of the Court of Appeals.
ANALYSIS
We review de novo whether “multiple punishments have been imposed for the same
offense in violation of the double jeopardy clause.” Johnson v. Commonwealth, 292 Va. 738,
741, 793 S.E.2d 321, 322 (2016) (quoting Lawlor v. Commonwealth, 285 Va. 187, 227, 738
S.E.2d 847, 870 (2013)).
The Code of Virginia does not define the elements of common law involuntary
manslaughter. Under our case law,
the crime of common law involuntary manslaughter has two
elements: (1) the accidental killing of a person, contrary to the
intention of the parties; and (2) the death occurs in the defendant’s
prosecution of an unlawful but not felonious act, or in the
defendant’s improper performance of a lawful act. To constitute
involuntary manslaughter, the “improper” performance of a lawful
act must amount to an unlawful commission of that lawful act,
manifesting criminal negligence.
West v. Dir., Dep’t of Corr., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007) (citations omitted).
Code § 18.2-36 specifies that this crime is punishable as a Class 5 felony.
Code § 18.2-154 provides in relevant part:
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Any person who maliciously shoots at, or maliciously
throws any missile at or against, any train or cars on any railroad or
other transportation company or any vessel or other watercraft, or
any motor vehicle or other vehicles when occupied by one or more
persons, whereby the life of any person on such train, car, vessel,
or other watercraft, or in such motor vehicle or other vehicle, may
be put in peril, is guilty of a Class 4 felony. In the event of the
death of any such person, resulting from such malicious shooting
or throwing, the person so offending is guilty of murder in the
second degree. However, if the homicide is willful, deliberate, and
premeditated, he is guilty of murder in the first degree.
If any such act is committed unlawfully, but not
maliciously, the person so offending is guilty of a Class 6 felony
and, in the event of the death of any such person, resulting from
such unlawful act, the person so offending is guilty of involuntary
manslaughter.
(emphasis added).
The Double Jeopardy Clause of the United States Constitution provides that no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. “This constitutional provision guarantees protection against (1) a second prosecution
for the same offense after acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense.” Payne v. Commonwealth, 257
Va. 216, 227, 509 S.E.2d 293, 300 (1999). See Illinois v. Vitale, 447 U.S. 410, 415 (1980);
North Carolina v. Pearce, 395 U.S. 711, 717 (1969). “In the single-trial setting, ‘the role of the
constitutional guarantee is limited to assuring that the court does not exceed its legislative
authorization by imposing multiple punishments for the same offense.’” Blythe v.
Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 798 (1981) (quoting Brown v. Ohio, 432
U.S. 161, 165 (1977)).
“When considering multiple punishments for a single transaction, the controlling factor is
legislative intent.” Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983).
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See also Albernaz v. United States, 450 U.S. 333, 344 (1981) (“[T]he question whether
punishments imposed by a court after a defendant’s conviction upon criminal charges are
unconstitutionally multiple cannot be resolved without determining what punishments the
Legislative Branch has authorized.”) (quoting Whalen v. United States, 445 U.S. 684, 688
(1980)).
The Blockburger test, drawn from Blockburger v. United States, 284 U.S. 299 (1932), is
simply a “rule of statutory construction” used to inform the constitutional issue. Whalen, 445
U.S. at 691; see also Missouri v. Hunter, 459 U.S. 359, 366 (1983). It asks whether each
statutory offense requires proof of a fact that the other does not. “The assumption underlying the
rule is that [the legislature] ordinarily does not intend to punish the same offense under two
different statutes.” Whalen, 445 U.S. at 691-92. The very presence of dissimilar elements within
two statutory offenses, provides “a clear indication of contrary legislative intent.” Id. at 692.
“[B]efore applying the Blockburger test, we first consider whether ‘the legislative intent is clear
from the face of the statute or the legislative history,’ and if so, then ‘the Blockburger rule is not
controlling.’” Andrews v. Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010)
(quoting Garrett v. United States, 471 U.S. 773, 779 (1985)).
Where . . . a legislature specifically authorizes cumulative
punishment under two statutes, regardless of whether those two
statutes proscribe the “same” conduct . . . , a court’s task of
statutory construction is at an end and the prosecutor may seek and
the trial court or jury may impose cumulative punishment under
such statutes in a single trial.
Hunter, 459 U.S. at 368-69. If the legislature expressly declares its will to inflict multiple
punishments on the same conduct, the courts must respect its intent to do so—even if the two
statutory offenses fail the Blockburger test. Id. at 368. See also Dalo v. Commonwealth, 37 Va.
App. 156, 165-69, 554 S.E.2d 705, 709-11 (2001), aff’d, 264 Va. 431, 570 S.E.2d 840 (2002).
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The General Assembly will at times specify in the statutory text that a prosecution under
a particular Code provision does not foreclose a prosecution under a different statute. These
provisions manifest a clear legislative intent that prosecution for one crime does not foreclose
prosecution for another crime, however similar or even identical that crime might be. For
example, the carjacking statute, Code § 18.2-58.1, provides that “[t]he provisions of this section
shall not preclude the applicability of any other provision of the criminal law of the
Commonwealth which may apply to any course of conduct which violates this section.” Code §
18.2-58.1(C). Other statutes state that “[t]he provisions of this section shall not preclude
prosecution under any other statute.” See, e.g., Code § 18.2-51.7(E) (female genital mutilation);
Code § 18.2-204.1(E) (fraudulent use of birth certificates). Such language “expresses the
legislative intent for multiple punishments.” Payne v. Commonwealth, 277 Va. 531, 539, 674
S.E.2d 835, 839 (2009). See also Turner v. Commonwealth, 221 Va. 513, 530, 273 S.E.2d 36, 47
(1980) (concluding that the General Assembly intended to punish both capital murder during the
commission of robbery while armed with a deadly weapon under Code § 18.2-34(4) and the use
of a firearm in the commission of a felony under Code § 18.2-53.1, because the latter statute
expressly provided that the offense it defined “shall constitute a separate and distinct felony”
from the predicate offense).
We also note that in other statutes the General Assembly has manifested the opposite
intent, i.e. to foreclose multiple prosecutions under separate statutes. See Code § 18.2-415
(providing that “conduct prohibited under subdivision A, B or C of this section shall not be
deemed . . . to include conduct otherwise made punishable under this title.”). See Battle v.
Commonwealth, 50 Va. App. 135, 140-41, 647 S.E.2d 499, 501-02 (2007) (reversing conviction
under Code § 18.2-415 because the conduct at issue could have been prosecuted under other
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statutes). Another example is Code § 19.2-294.1, which provides that “[w]henever any person is
charged with a violation of [driving a motor vehicle while intoxicated under] § 18.2-266 . . . and
with reckless driving in violation of § 46.2-852 . . . growing out of the same act or acts and is
convicted of one of these charges, the court shall dismiss the remaining charge.”
Finally, some statutes, despite the absence of express language in the text of the statute
authorizing or forbidding multiple prosecutions, nevertheless evince a legislative intent to
impose multiple punishments. For example, in Payne, we concluded that the capital murder
statute, Code § 18.2-31, demonstrated a legislative intent to establish multiple offenses and that
“each statutory offense [should] be punished separately ‘as a Class 1 felony.’” 257 Va. at 228,
509 S.E.2d at 301. That language in question provided that “[t]he following offenses shall
constitute capital murder, punishable as a Class 1 felony.” Id. at 227, 509 S.E.2d at 300. Each
predicate, therefore, constituted a distinct “offense.”
With these principles in mind, we turn to the question before us. The General Assembly
has determined that when a person commits the acts proscribed by Code § 18.2-154 and does so
unlawfully but not maliciously, and a death results from the unlawful act, that person “is guilty
of involuntary manslaughter.” The General Assembly did not draw a distinction between species
of involuntary manslaughter – both common law involuntary manslaughter and involuntary
manslaughter under Code § 18.2-154 constitute one crime of involuntary manslaughter. The
defendant’s mental state and his acts are the same for both common law involuntary
manslaughter and manslaughter under Code § 18.2-154, and there is one victim. While not
dispositive, the General Assembly did not provide in Code § 18.2-154, as it has in other statutes,
language to the effect that “[t]he provisions of this section shall not preclude the applicability of
any other provision of the criminal law of the Commonwealth which may apply to any course of
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conduct which violates this section.” See, e.g., Code § 18.2-58.1(C). We conclude under these
circumstances that the General Assembly did not intend to permit simultaneous punishment for
both common law involuntary manslaughter and manslaughter under Code § 18.2-154.
The double jeopardy guarantee protects against being “twice put in jeopardy of life or
limb” for “the same offence.” U.S. Const. amend. V. A conviction under Code § 18.2-154, the
legislature has determined, is “involuntary manslaughter,” and common law involuntary
manslaughter also is “involuntary manslaughter.” Involuntary manslaughter under Code §
18.2-154 is the “same offence” as common law involuntary manslaughter. We therefore
conclude that Gregg was twice convicted and sentenced in the same trial of the same offense,
namely, involuntary manslaughter, in violation of the Double Jeopardy Clause. ∗
CONCLUSION
We will affirm the judgment of the Court of Appeals with instructions to remand the case
to the trial court to allow the Commonwealth to elect between the sentences for common law
involuntary manslaughter and involuntary manslaughter under Code § 18.2-154. See Andrews,
280 Va. at 288, 699 S.E.2d at 270. Following this election, the trial court shall thereafter vacate
the other sentence.
Affirmed and remanded.
∗ Ourconclusion obviates the need to undergo the Blockburger analysis of involuntary
manslaughter under Code § 18.2-154 and common law involuntary manslaughter.
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