Quindell Montrae Kirby v. Commonwealth of Virginia ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Alston and Decker
PUBLISHED
Argued at Richmond, Virginia
QUINDELL MONTRAE KIRBY
OPINION BY
v. Record No. 2307-12-2 JUDGE ROSSIE D. ALSTON, JR.
SEPTEMBER 2, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Harold W. Burgess, Jr., Judge
Todd M. Ritter (Daniels, Williams, Tuck & Ritter, on brief), for
appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney
General, on brief), for appellee.
Quindell Kirby (“appellant”) was tried and convicted of second-degree murder and use of
a firearm in the commission of a felony. On appeal, he contends that the trial court erred when it
denied his motion objecting to venue in Chesterfield County. He argues that venue was
appropriate in the City of Richmond under Code § 19.2-247,1 because the evidence did not
1
Code § 19.2-247 states,
Where evidence exists that a homicide has been committed either
within or without this Commonwealth, under circumstances which
make it unknown where such crime was committed, the offense shall
be amenable to prosecution in the courts of the county or city where
the body of the victim may be found . . . as if the offense has been
committed in such county or city.
establish the location of the offenses and the victim’s body was found in the City of Richmond.2
Finding venue appropriate in Chesterfield County, we affirm the trial court.
BACKGROUND
On the morning of October 18, 2011, Richmond police officers discovered the body of a
man who had been shot and killed. The victim’s body was found in the City of Richmond but
only 160 feet from the Chesterfield County border. The murder investigation was later
transferred to the Chesterfield County Police Department, and appellant was indicted in
Chesterfield County for murder and use of a firearm in the commission of a felony.
At trial, the Commonwealth was unable to present evidence establishing the location of
the murder.3 Appellant therefore raised a motion objecting to venue in Chesterfield County.
Citing Code § 19.2-247, which establishes venue for homicide prosecutions in the county or city
where “the body of the victim [was] found” when it is otherwise “unknown where such crime
was committed,” appellant argued that Chesterfield County was not the proper venue for trial.
He asserted that Code § 19.2-247 mandated venue in Richmond.
While acknowledging that the victim’s body was found in Richmond, the Commonwealth
argued that venue was appropriate in Chesterfield County because Code § 19.2-250(B) extends
2
For the first time on appeal, appellant contends that venue for the charge of use of a
firearm in the commission of a felony was improper in Chesterfield County because Code
§ 19.2-247 is “specific to the crime of homicide and does not, by its language, embrace other
attendant crimes.” This argument was not raised before the trial court. Indeed, appellant argued
just the opposite at trial, asserting that Code § 19.2-247 controlled his prosecution and mandated
venue in the City of Richmond. See Clark v. Commonwealth, 30 Va. App. 406, 411-12, 517
S.E.2d 260, 262 (1999) (making one specific argument on an issue does not preserve a separate
legal point on the same issue for review). Because this argument was not presented to the trial
court, we will not consider it for the first time on appeal. See Rule 5A:18 (stating that “[n]o
ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling”). Accordingly, we consider only
appellant’s claim that Code § 19.2-247 mandated venue in Richmond.
3
The Commonwealth concedes this point on brief.
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Chesterfield County’s “jurisdiction . . . in criminal cases involving offenses against the
Commonwealth . . . one mile beyond the limits of such county into the City of Richmond.”
Relying on the fact that the victim’s body was found within Chesterfield County’s extended
jurisdiction, the Commonwealth argued that the trial court should construe Code §§ 19.2-247 and
19.2-250(B) interdependently and determine that appellant was amenable to prosecution in
Chesterfield County.
The trial court denied appellant’s motion objecting to venue. Appellant was subsequently
convicted of second-degree murder and use of a firearm in the commission of a felony. He was
sentenced to seventeen years’ imprisonment for the charge of second-degree murder and three
years’ imprisonment for the charge of use of a firearm in the commission of a felony.
This appeal followed.
ANALYSIS
Appellant contends that Code § 19.2-247 mandates venue in Richmond, as that is where
the victim’s body was located. Code § 19.2-247 provides a specialized venue rule for homicide
prosecutions where “it [is] unknown where such crime was committed.” In those circumstances,
appellant states, Code § 19.2-247 establishes venue in the city or county where the body was
found. Because the evidence at trial did not prove where the victim was murdered, appellant
contends that Code § 19.2-247 controls and venue was appropriate where the victim’s body was
located. This conclusion, appellant asserts, is dictated by the “plain reading of the statute[],”
which “limit[s] prosecution to Richmond alone, and not Chesterfield [County].”
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The Commonwealth, on the other hand, asks this Court to read Code § 19.2-247 “in pari
materia” with Code § 19.2-250(B) and find venue appropriate in Chesterfield County.4 Code
§ 19.2-250(B) states that in criminal cases “the jurisdiction of the authorities of Chesterfield
County . . . shall extend one mile beyond the limits of such county into the City of Richmond.”
Thus, notwithstanding that the victim’s body was found within the City of Richmond, the
Commonwealth contends that prosecution was appropriate in Chesterfield County because the
victim’s body was within the one-mile border addressed in Code § 19.2-250.
We review questions of statutory construction de novo. See Lynchburg Div. of Soc.
Servs. v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (quoting Parker v. Warren, 273
Va. 20, 23, 639 S.E.2d 179, 181 (2007)). Our review is guided by oft-stated rules of statutory
construction. “‘When statutory construction is required, we construe a statute to promote the end
for which it was enacted, if such an interpretation can reasonably be made from the language
used.’” O’Neil v. O’Neil, 60 Va. App. 156, 157-58, 724 S.E.2d 247, 248 (2012) (quoting
Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 533-34 (1994)). We
determine the purpose of a statute by taking and comparing together “‘the whole and every part
of the statute . . . , giving to every word and every part of the statute, if possible, its due effect
and meaning[.]’” Epps v. Commonwealth, 46 Va. App. 161, 187, 616 S.E.2d 67, 80 (2005)
(quoting Posey v. Commonwealth, 123 Va. 551, 553 S.E. 771, 771 (1918)), rev’d on other
grounds, 47 Va. App. 687, 626 S.E.2d 912 (2006) (en banc). And, when multiple “statutes
concern[] the same subject,” we construe them together “to avoid conflict between them and to
permit each of them to have full operation according to their legislative purpose.” Eastlack v.
Commonwealth, 282 Va. 120, 125-26, 710 S.E.2d 723, 726 (2011) (citations omitted).
4
In pari materia “is a canon of construction that statutes that [concern the same subject]
may be construed together, so that inconsistencies in one statute may be resolved by looking at
another statute on the same subject.” Black’s Law Dictionary 911 (10th ed. 2014).
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Guided by these principles of statutory construction, we consider whether appellant’s
offense was amenable to prosecution in Chesterfield County. As a general rule, a crime must be
tried where it occurred. See Code § 19.2-244. Code § 19.2-247, however, provides an exception
for homicide prosecutions to which this general rule is inapposite. See Code § 19.2-247
(establishing venue for homicides where it is unknown where the crime occurred). But even so,
Code § 19.2-247 underscores the general preference that crimes be tried where they were
committed by treating homicides that occur “under circumstances which make it unknown where
such crime was committed,” as if they were committed in the city or county in which the victim’s
body was located. Code § 19.2-247 thereby creates an identifiable venue in which to try
homicides committed “under circumstances” similar to this case.
The plain language of Code § 19.2-250(B) also is clear. It is a specific grant of territorial
jurisdiction to the courts of Chesterfield County. See Smith v. Commonwealth, 56 Va. App.
351, 359, 693 S.E.2d 765, 769 (2010) (defining territorial jurisdiction as “‘authority over
persons, things, or occurrences located in a defined geographic area’” (quoting Ghameshlouy v.
Commonwealth, 279 Va. 379, 388-89, 689 S.E.2d 698, 703 (2010))). The statute extends the
geographic boundary of Chesterfield County to one mile within the corporate limits of the City
of Richmond and confers on the courts of Chesterfield County the power to enforce the law of
the area in question.5 See Brietbach v. Commonwealth, 35 Va. App. 604, 607-08, 546 S.E.2d
5
Appellant argues that the term jurisdiction, as it is used in Code § 19.2-250, refers to the
circuit court’s “authority . . . to adjudicate concerning the subject matter of a given case,” thus
rendering Code § 19.2-250 a statute conferring subject matter jurisdiction on the Circuit Court of
Chesterfield County.
We disagree. The jurisdiction referenced in Code § 19.2-250 is a grant of territorial
jurisdiction. See Smith, 56 Va. App. at 359, 693 S.E.2d at 769 (defining territorial jurisdiction as
“authority over persons, things, or occurrences located in a defined geographic area”). It is
distinct from the subject matter jurisdiction conferred on circuit courts under Code § 17.1-513.
See Code § 17.1-513 (stating that the circuit courts shall have “original jurisdiction of all
indictments for felonies and of presentments, informations and indictments for misdemeanors”).
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764, 766 (2001) (stating that the purpose of Code § 19.2-250(A) is to “confer on the . . . courts
. . . power to enforce the . . . law of the area involved”). In effect, the statute grants Chesterfield
County “concurrent criminal jurisdiction” within the one-mile boundary. See Garza v.
Commonwealth, 228 Va. 559, 566, 323 S.E.2d 127, 131 (1984) (interpreting Code § 17.1-126.2,
which grants Roanoke County territorial jurisdiction -i.e., venue - over criminal offenses
committed on property or buildings within the City of Salem that are owned or operated by
Roanoke County, as conferring concurrent criminal jurisdiction on Roanoke County). Thus,
offenses committed within the statutory boundary may be prosecuted within Chesterfield
County. See Brietbach, 35 Va. App. at 607-08, 546 S.E.2d at 766 (applying Code § 19.2-250(A)
and stating that “[t]he relevant question is whether the offense occurred within the . . . [defined]
jurisdiction”).
Appellant concedes this general interpretation of Code § 19.2-250(A) but maintains that
it does not follow that Chesterfield County has authority to prosecute homicides that were not
proven to have occurred in the statutory boundary simply because the victim’s body was located
there. Appellant asserts that Code § 19.2-250 refers only to crimes “committed in the City of
Richmond, but within [one] mile of the Chesterfield [County] Border,” but not crimes committed
“at an unknown location.” Appellant misconstrues Code § 19.2-247. Code § 19.2-247 does not
simply establish venue in the city or county in which the body of the victim was located; it treats
the homicide as if it was committed there. This consideration is critical to the resolution of the
matter presented. It highlights where Code §§ 19.2-247 and 19.2-250(B) converge and explains
As the Supreme Court of Virginia has explained in response to a similar argument, “if Code
[§ 19.2-250] dealt with subject matter jurisdiction, such a construction would render the Code
§ 17.1-513 grant of ‘original jurisdiction of all . . . felonies’ to all circuit courts to be meaningless
and superfluous. Such a construction is to be avoided.” Porter v. Commonwealth, 276 Va. 203,
230, 661 S.E.2d 415, 427 (2008). Accordingly, we decline appellant’s invitation to read Code
§ 19.2-250 as conferring subject matter jurisdiction.
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why the statutes must be read together. Because the parties concede that the victim’s body was
located in “the City of Richmond, but within [one] mile of the Chesterfield [County] Border,” we
must treat the homicide as if it occurred there. That conclusion renders this case straightforward.
If Code § 19.2-250 permits prosecution in Chesterfield County for offenses committed in the
City of Richmond but within the one-mile border (which appellant concedes), then it must also
permit prosecution in Chesterfield County for those offenses that Code § 19.2-247 treats as if
they were committed within the same area.6 In either case, the relevant code sections make the
offense amenable to prosecution in Chesterfield County. Thus, when we construe together Code
§§ 19.2-247 and 19.2-250(B), it is plain that Chesterfield County was the appropriate venue in
which to prosecute appellant.
Because we find that Code §§ 19.2-247 and 19.2-250 when read together permit
prosecution of appellant in Chesterfield County, we affirm the trial court.
Affirmed.
6
Appellant dismisses such reasoning, contending that construing together Code §§ 19.2-
247 and 19.2-250 enlarges the authority of Chesterfield County to prosecute criminal cases under
Code § 19.2-250, in violation of the “cardinal principle of law” that penal statutes are to be
strictly construed. Code § 19.2-250, however, is not penal in nature. See Klitz v.
Commonwealth, 23 Va. App. 213, 216, 475 S.E.2d 830, 832 (1996) (“‘If [a] statute imposes a
disability for the purpose of punishment – that is, to reprimand the wrongdoer, to deter others,
etc., it has been considered penal.’” (quoting Trop v. Dulles, 356 U.S. 86, 96 (1958) (plurality
opinion))). Rather, the statute simply prescribes Chesterfield County’s jurisdiction involving
criminal cases as extending one mile into the City of Richmond from its border with Chesterfield
County. Thus, this “cardinal principle of law” is not applicable.
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