Severance v. Commonwealth

PRESENT: All the Justices
CHARLES STANARD SEVERANCE
OPINION BY
v. Record No. 170829 JUSTICE D. ARTHUR KELSEY
JULY 19, 2018
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
A jury found Charles Stanard Severance guilty of murdering three residents of
Alexandria, Virginia. Severance received a separate punishment for each murder. He appealed
to the Court of Appeals, arguing that two of his three punishments violated the Double Jeopardy
Clause of the Fifth Amendment to the Constitution of the United States. The Court of Appeals
disagreed. See Severance v. Commonwealth, 67 Va. App. 629, 799 S.E.2d 329 (2017).
Severance now repeats that argument before this Court. 1 We likewise disagree and affirm.
I.
In December 2003, Severance murdered Nancy Dunning. In November 2013, he
murdered Ronald Kirby. In February 2014, he murdered Ruthanne Lodato. Severance
committed various other crimes in addition to these murders, 2 none of which are before us on
appeal. All of his targeted victims were, as Severance put it, members of the “enforcement
class” of society and the murders were part of his so-called “tomahawking [the] homestead” plan
1
In his Petition for Appeal, Severance also assigned error to the trial court’s denials of
his motion to sever the murder trials and his motion to strike. We awarded an appeal solely to
address his double jeopardy argument and refused the other assignments of error. See Severance
v. Commonwealth, Record No. 170829, 2017 Va. LEXIS 165, at *1 (Oct. 25, 2017).
2
Severance was found guilty of three counts of use of a firearm in the commission of a
murder, one count of malicious wounding, one count of use of a firearm in the commission of a
malicious wounding, and two counts of possession of a firearm by a felon.
for retribution. R. at 6454. His three victims included the wife of an Alexandria sheriff, a
regional transportation director, and a daughter of an Alexandria Circuit Court judge.
A grand jury issued a multi-count indictment against Severance. Two counts are relevant
to this appeal. The first charged Severance with the capital murder of Kirby in 2013. The
second charged him with the capital murder of Lodato in 2014. Both relied upon Code § 18.2-
31(8), which deems “[t]he willful, deliberate, and premeditated killing of more than one person
within a three-year period” to be capital murder. A jury found Severance guilty of both charges,
concluding that he murdered Kirby within three years of murdering Lodato and that he murdered
Lodato within three years of murdering Kirby.
Prior to the sentencing phase of his trial, Severance argued that punishing him for two
capital murder convictions under Code § 18.2-31(8) “would violate double jeopardy.” J.A. at 16.
After the trial court deferred ruling on the issue, the jury recommended life sentences for both
capital murder convictions under Code § 18.2-31(8). 3 Severance filed a motion to preclude
sentencing for both capital murder convictions “[p]ursuant to the Double Jeopardy Clause of the
Fifth Amendment.” J.A. at 46.
In that motion, like his earlier objection at trial, Severance did not assert that the text of
Code § 18.2-31(8) forbids capital murder convictions for the separate murders of Kirby and
Lodato. Instead, invoking Blockburger v. United States, 284 U.S. 299 (1932), Severance argued
that convicting him for both murders under Code § 18.2-31(8) — which the statute did not
prohibit — would be a constitutional violation of the prohibition against multiple punishments in
the Double Jeopardy Clause only if he were punished for both convictions.
3
Pursuant to Code § 19.2-163.7, the Commonwealth waived the option to seek the death
penalty for both of the capital murder convictions. See J.A. at 5.
2
At a later hearing on Severance’s double jeopardy motion, the trial court observed that
the legislature
could have said that if a second murder is committed within three
years, that second murder becomes a capital murder. In other
words, they could have put in a temporal limitation which meant
that only the second murder could be capital murder.
But by not putting in a temporal limitation, they elevated
both murders. They elevated both the first and the second murder
into capital murders. So it . . . represents a legislative judgment
that we would view that second murder as such a[n] additional
grave act in light of the first murder, and an individual who
committed that second murder . . . [is] deemed to know that the
legislature was going to treat that first murder as a capital murder
as a result.
I mean, there’s no reason for this Court to conclude that
that doesn’t represent a legislative judgment.
J.A. at 64-65. Severance’s counsel responded, “I couldn’t agree more. That is exactly
right . . . .” 4 Id. at 65.
The trial court rejected Severance’s double jeopardy argument, convicted him of two
counts of capital murder, and imposed two life sentences. In the Court of Appeals, Severance
challenged the sentencing imposed for his two capital murder convictions solely on the ground
that the constitutional “prohibition against double jeopardy precluded the trial court from
sentencing [him] for both capital murder counts.” Petition for Appeal at 60, Severance, 67 Va.
App. 629, 799 S.E.2d 329 (Record No. 0308-16-4) [hereinafter CAV Pet.] (emphasis added); see
also Appellant’s Br. at 40, Severance, 67 Va. App. 629, 799 S.E.2d 329 (Record No. 0308-16-4)
[hereinafter CAV Appellant’s Br.].
4
Severance’s counsel claimed the trial court’s interpretation was “different than [what he
was] arguing,” which was “about being twice sentenced” under Code § 18.2-31(8). J.A. at 65.
Under this view, the legislature did not intend to permit “double punishment” under Code § 18.2-
61(8) because it did not impose a temporal limitation and has not “amended the statute since the
Andrews case.” J.A. at 66-67.
3
In both his petition for appeal and opening brief before the Court of Appeals, Severance
conceded that “the Commonwealth in this case was free to seek indictments for two counts [of]
capital murder under [Code §] 18.2-31(8) for the murders of Ruthann[e] Lodato and Ronald
Kirby in order ‘to supply the numerical ingredient’ to charge capital murder of more than one
person within a three-year period.” CAV Pet. at 63 (citation omitted); see also CAV Appellant’s
Br. at 42. In his reply brief in the Court of Appeals, Severance again conceded that the
Commonwealth could “indict a defendant for multiple capital murders when those murders occur
within the same three-year period.” Reply Br. at 8, Severance, 67 Va. App. 629, 799 S.E.2d 329
(Record No. 0308-16-4) [hereinafter CAV Reply Br.]. The Commonwealth, he added, may also
“obtain[] convictions for each indictment.” 5 Id.
Despite the statute’s authorization of separate indictments and convictions for each
murder, Severance argued that the “imposition of capital sentences for both murders” violated
the multiple-punishments doctrine inherent in the Double Jeopardy Clause. CAV Pet. at 63; see
also CAV Appellant’s Br. at 42-43. The Court of Appeals disagreed and held that no double
jeopardy violation occurred because Severance was not sentenced twice for the same crime.
Instead, Severance received one sentence for one murder and another sentence for another
murder — “separate murders that were committed months apart at separate locations.”
Severance, 67 Va. App. at 651, 799 S.E.2d at 339.
5
Notwithstanding his concession, Severance argued in his reply brief in the Court of
Appeals that “when the defendant is tried for capital murder based on multiple victims, the
number of capital convictions permitted is determined by the number of acts or transactions
under [Code] § 18.2-31(7) or number of three-year periods under [Code] § 18.2-31(8).” CAV
Reply Br. at 10.
4
II.
A.
On appeal to us, Severance again concedes that “the Commonwealth in this case was free
to seek indictments for two counts of capital murder under [Code] § 18.2-31(8) for the murders”
of Kirby and Lodato “in order ‘to supply the numerical ingredient’ to charge capital murder [for
the murder] of more than one person within a three-year period.” Appellant’s Br. at 10-11
(citation omitted). He does not argue — and has never argued — that Code § 18.2-31(8) itself
forbids either charging or convicting a defendant for the capital murder of two separate victims
within the three-year period. 6 Instead, Severance claims only that “imposing capital sentences
for each murder” violates his double jeopardy rights, and thus, “the Commonwealth should have
elected which of the indictments it sought to proceed upon to seek a capital sentence.”
Appellant’s Br. at 11 (emphases added).
B.
Severance’s multiple-punishments argument fails for several reasons. The most
fundamental flaw is his reliance on Blockburger. By framing his argument this way, Severance
asks the wrong question and, as a result, arrives at the wrong answer. As the Court of Appeals
recognized, “the Blockburger test only applies when ‘the same act or transaction constitutes a
violation of two distinct statutory provisions.’” Severance, 67 Va. App. at 650-51, 799 S.E.2d at
339 (emphasis in original) (citation omitted). The Court of Appeals is correct. “The assumption
underlying the [Blockburger test] is that [the legislature] ordinarily does not intend to punish the
6
Nor does Severance argue it would violate double jeopardy principles if Code § 18.2-
31(8) expressly authorized separate indictments and convictions for separate murders within the
three-year period. His counsel disavowed this argument during oral argument before this Court.
See Oral Argument Audio at 13:56 to 14:21.
5
same offense under two different statutes.” Whalen v. United States, 445 U.S. 684, 691-92
(1980). It is only in this one-offense/two-statutes context that the problematic statutes “are
construed not to authorize cumulative punishments in the absence of a clear indication of
contrary legislative intent.” Id. at 692.
In this case, Severance committed two separate acts of murder, twice violating the same
statutory provision. In light of “the two capital murders in th[is] case,” the Court of Appeals
correctly reasoned, “it is unnecessary to apply the Blockburger test.” Severance, 67 Va. App. at
651, 799 S.E.2d at 339. “The fact that each murder provided the predicate offense for a conviction
under Code § 18.2-31(8) does not limit appellant’s liability for conviction and sentencing on both
charges.” Id. at 653, 799 S.E.2d at 340. There is “no temporal restriction mandating that the first
of the two murders is a predicate murder and only the second is a capital murder.” 7 Id.
A criminal statute, either by its text alone or with the amplification of common-law
presuppositions, determines the permissible unit of prosecution. See Johnson v. Commonwealth,
292 Va. 738, 741, 793 S.E.2d 321, 323 (2016) (determining the appropriate “unit of prosecution”
by analyzing legislative intent (citation omitted)). As Severance concedes, the Commonwealth
can charge separate murders separately under Code § 18.2-31(8), and it necessarily follows that
each charge for murder can result in a separate conviction under the statute.
Severance claims that, with or without Blockburger, overarching double jeopardy
principles permit a court to impose punishment under Code § 18.2-31(8) for only one of those
convictions for murder. We know of no precedent for this view. The Fifth Amendment to the
Constitution of the United States declares that no person shall “be subject for the same offence to be
7
In this respect, Code § 18.2-31(8) is unlike criminal statutes such as Code § 18.2-
270(C)(1), which expressly provides that if a defendant is convicted of three DUI offenses within
a ten-year period, his third offense is punishable as a Class 6 felony.
6
twice put in jeopardy of life or limb.” U.S. Const. amend. V. 8 This constitutional guarantee
provides protection against several forms of double jeopardy. See Commonwealth v. Gregg, ___
Va. ___, ___, 811 S.E.2d 254, 257 (2018). In the simultaneous-prosecution context, the
prohibition against double jeopardy protects against “multiple punishments for the same offense.”
Id. (citation omitted); see also Ex parte Lange, 85 U.S. (18 Wall.) 163, 168 (1874). “In the
prosecution for two crimes in the same trial, the double jeopardy defense does not apply unless
(a) the defendant is twice punished for one criminal act, and (b) the two punishments are either
for the same crime or one punishment is for a crime which is a lesser included offense of the
other.” Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001) (third
emphasis in original). This formulation of the doctrine tracks the historical view that “[t]o give
our constitutional provision the force evidently intended, and to render it effectual, ‘the same
offence’ must be interpreted as equivalent to the same criminal act.” 1 Joel Prentiss Bishop,
Bishop on Criminal Law § 1060, at 785 (John M. Zane & Carl Zollmann eds., 9th ed. 1923).
In this case, Severance was not punished twice for “one criminal act,” Coleman, 261 Va.
at 200, 539 S.E.2d at 734, because killing two victims at two different times in two different
places constitutes two different criminal acts. In the words of the Fifth Amendment, Severance
was not put in jeopardy “twice” for the “same offence.” U.S. Const. amend. V (emphases added).
He was put in jeopardy twice for two criminal offenses based on two criminal acts: murdering
Kirby within three years of murdering Lodato and murdering Lodato within three years of
murdering Kirby — two murders, two convictions, two punishments.
8
“Virginia’s constitutional guarantee against double jeopardy affords a defendant the
same guarantees as the federal Double Jeopardy Clause.” Stephens v. Commonwealth, 263 Va.
58, 62, 557 S.E.2d 227, 230 (2002).
7
C.
Taking a slightly different tack, Severance argues that the trial court unconstitutionally
imposed multiple punishments on him because his convictions for the murders of Kirby and
Lodato involved “the same elements,” “the same proof,” and “the same conduct.” Appellant’s
Br. at 5. He relies on cases addressing multiple punishments imposed upon “identical conduct”
or the “same act or transaction.” 9 See, e.g., id. at 9, 12 (first citing Andrews v. Commonwealth,
280 Va. 231, 278, 699 S.E.2d 237, 264 (2010); and then citing Blockburger, 284 U.S. at 304).
Our colleague in dissent, analogizing to the “commutative law” in mathematics, joins Severance
in this line of reasoning. See post at 12. 10 We respectfully disagree.
It is true that some crimes involve discrete transactions rather than discrete acts. See
generally John L. Costello, Virginia Criminal Procedure § 51.3[4], at 811 (4th ed. 2008).
Blockburger is the best-known example of this distinction. That case involved “two sales” of
illegal narcotics that the defendant claimed constituted a single transaction. The United States
Supreme Court held that each of the “several successive sales constitute[d] a distinct offense,
9
Severance also made other arguments before this Court and the Court of Appeals that
rely on Andrews, including: (1) that “the more statutorily consistent practice would be to . . .
indict both murders as one capital count,” Reply Br. at 2 n.1; and (2) that “when the defendant is
tried for capital murder based on multiple victims, the number of capital convictions permitted is
determined by the . . . number of three-year periods under [Code] § 18.2-31(8),” CAV Reply Br.
at 10. In oral argument before this Court, he expressly argued that we should interpret Code
§ 18.2-31(8) in the same manner that we have interpreted Code § 18.2-31(7). See Oral
Argument Audio at 14:30 to 14:56. None of these arguments, however, resolves the threshold
issue that the Kirby and Lodato murders are two separate criminal acts and that the related
sentences are therefore beyond the scope of a double jeopardy analysis.
10
The “commutative law,” as relevant here, states that rearranging the order in which
numbers are added does not change the sum value. See post at 12. So, “a+b” equals “b+a.” Id.
The commutative law, applied to this case, merely means that the statement that Severance
murdered Kirby and Lodato within a three-year period is every bit as true as the statement that
Severance murdered Lodato and Kirby within a three-year period. This truism sheds little light
on the legal issues in this case.
8
however closely they may [have] follow[ed] each other.” Blockburger, 284 U.S. at 302. The
sales were not a single transaction because they did not arise from a “single” impulse. Id. “If
successive impulses [were] separately given, even though all unite[d] in swelling a common
stream of action, separate indictments lie.” Id. (citation omitted). This reasoning alone
undermines any conclusion that a pattern of discrete criminal acts can be cobbled together as a
single transaction for purposes of determining whether multiple punishments were imposed in
violation of the Double Jeopardy Clause.
Despite these well-established principles, Severance asserts that our holding in Andrews
opens the door to his argument. We do not share this view of Andrews. In that case, the
defendant killed two men during a robbery. Though he was convicted and sentenced for four
capital murders, he argued that only two of the sentences violated the multiple-punishments
doctrine: a sentence for killing “more than one person as part of the same act or transaction” under
Code § 18.2-31(7) and a sentence for killing “more than one person within a three-year period”
under Code § 18.2-31(8). See Andrews, 280 Va. at 278-79, 699 S.E.2d at 264. We explained that
subsections (7) and (8) involve a predicate offense that serves to “elevate first degree murder to
capital murder.” Id. at 281, 699 S.E.2d at 265.
The gradation criterion of Code § 18.2-31(7) is proof of a predicate
felony, the commission of a murder in the same act or transaction
in which another, or several other, murders occur. The gradation
criterion of Code § 18.2-31(8) likewise requires proof of the
commission of at least two murders within a three-year period,
each of which would constitute a predicate felony. It is obvious,
however, that in many instances the same operative facts would be
sufficient to prove either offense. In this sense, both offenses can
be viewed as having gradation criteria defining the status of the
defendant as having committed multiple homicides.
Id. at 281, 699 S.E.2d at 266.
9
The issue in Andrews was whether the defendant could be sentenced for capital murder
convictions under two different statutory provisions when “all of the constituent crimes” under
one provision, Code § 18.2-31(8), “also occur[red] as part of the same act or transaction” under
the other provision, Code § 18.2-31(7). Andrews, 280 Va. at 282, 699 S.E.2d at 266. Because
the two killings occurred in the “same act or transaction” of one robbery, we held that one
criminal offense was wholly subsumed within the other. 11
Andrews made clear that double jeopardy principles do not bar capital sentences for
violations of both Code §§ 18.2-31(7) and 18.2-31(8) when at least one murder charged under
subsection (8) “occurred as part of a separate act or transaction” from any other murders charged
under subsection (7). 280 Va. at 288 n.19, 699 S.E.2d at 269 n.19. We later described our
narrow holding in Andrews in exactly these terms. “[T]he double jeopardy prohibition against
multiple punishments is violated when a defendant receives separate sentences under Code
§§ 18.2-31(7) and (8) when each of the constituent murders for both convictions occurred as
part of the same act or transaction.” Gray v. Warden of the Sussex I State Prison, 281 Va. 303,
304, 707 S.E.2d 275, 280 (2011) (emphasis added) (citing Andrews, 280 Va. at 287-88, 699
S.E.2d at 269-70).
11
Even in situations where “multiple offenses may be the ‘same,’ an accused may be
subjected to legislatively ‘authorized cumulative punishments.’ ‘It is judicial punishment in
excess of legislative intent which offends the double jeopardy clause.’” Johnson, 292 Va. at 741,
793 S.E.2d at 323 (citations omitted); see, e.g., Payne v. Commonwealth, 52 Va. App. 120, 127-
28, 661 S.E.2d 513, 516-17 (2008) (affirming convictions for felony homicide and aggravated
involuntary manslaughter for killing one person), aff’d, 277 Va. 531, 540-41, 674 S.E.2d 835,
839-40 (2009). This principle applies in the context of capital crimes no less than any other.
See, e.g., Winston v. Commonwealth, 268 Va. 564, 614-15, 604 S.E.2d 21, 49-50 (2004)
(affirming two capital murder convictions for killing one person); Payne v. Commonwealth, 257
Va. 216, 227-29, 509 S.E.2d 293, 300-01 (1999) (affirming four capital murder convictions and
four death sentences for killing two people).
10
In contrast to the situation in Andrews, Severance twice violated the same statutory
provision by murdering two victims, with each murder serving as the “gradation criterion” for
the other and neither murder occurring while he was engaged in the “same act or transaction,”
Andrews, 280 Va. at 281, 699 S.E.2d at 266. “[T]wo offenses arise out of the ‘same act or
transaction’ if they are connected so closely ‘in time, place and circumstance that a complete
account of one charge cannot be related without relating details of the other charge.’” Id. at 285,
699 S.E.2d at 268 (quoting Woodfin v. Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379
(1988)). The murders of Kirby and Lodato plainly do not fit these parameters.
In short, Severance was convicted and sentenced for two criminal acts: murdering Kirby
within three years of murdering Lodato and murdering Lodato within three years of murdering
Kirby. He committed these criminal acts at two separate dates and in two separate places, thus
warranting punishment for two capital murder convictions. He committed “distinct and separate
acts” that were “neither identical nor lesser-included [criminal offenses] for double jeopardy
purposes,” Martin v. Commonwealth, 221 Va. 720, 723, 273 S.E.2d 778, 780 (1981); see also
Ohio v. Johnson, 467 U.S. 493, 500 (1984) (holding that double jeopardy principles do not
prohibit punishment for “multiple offenses in a single prosecution”).
The disconnect in Severance’s reasoning stems from his misplaced reliance on cases
involving a single criminal act or transaction violating two criminal statutes — despite the fact
that he committed two separate criminal acts that violated the same statute. Not one of the
authorities he cites addresses this scenario, and for good reason: A criminal statute that allows
separate convictions for separate criminal acts does not implicate, much less constitutionally
offend, double jeopardy principles.
11
III.
In sum, the Court of Appeals did not err in affirming Severance’s convictions and
sentences for the capital murder of two individuals within a three-year period in violation of
Code § 18.2-31(8). We thus affirm the judgment of the Court of Appeals.
Affirmed.
JUSTICE POWELL, dissenting.
In mathematics, there is a principle known as the commutative law, which stands for the
proposition that the outcome is generally unchanged by the order in which the terms are stated. 1
Thus, a+b=b+a. Metaphorically applying this principle to the present case demonstrates that the
offense of murdering Kirby and, less than three months later, murdering Lodato is the same as
murdering Lodato less than three months after murdering Kirby. Either way it is stated, the
result is the same: “The willful, deliberate, and premeditated killing of more than one person
within a three-year period.” Code § 18.2-31(8). The majority, however, holds that by changing
the order in which the victims are identified in an indictment, a single criminal offense under
Code § 18.2-31(8) can become multiple criminal offenses under the same statutory provision
without implicating the double jeopardy provisions of the Fifth Amendment. Given that the only
actual difference between these separately charged offenses is how they are presented in the
indictment, I must respectfully dissent.
1
See Webster’s Third New International Dictionary 461 (defining “commutative law” as
“a law applicable to certain mathematical operations” in which “the order of the elements
involved is immaterial” and defining “commutative” as “a mathematical or logical operation[ ]
consisting of a step or sequence of steps in which the final result is independent of the order of
the elements or steps”).
12
My first point of disagreement with the majority concerns the interpretation of the main
thrust of Severance’s argument. As we diverge with regard to the argument being made, we
necessarily reach different conclusions. It appears to me that the majority focuses on
Severance’s alternative argument (i.e., the Blockburger analysis) and then limits its analysis of
Severance’s primary argument to a discussion of Andrews v. Commonwealth, 280 Va. 231, 699
S.E.2d 237 (2010), the case that Severance relies heavily on. The majority concludes that
Andrews is inapposite because that case involved the application of two different statutory
provisions, whereas the present case involves the application of the same statutory provision
twice.
In doing so, I believe the majority misses the thrust of Severance’s primary argument and
his reliance on Andrews. As I understand Severance’s argument, it is that the double jeopardy
prohibition against multiple punishments is violated where the same predicate act is used to
impose multiple capital punishments. He relies on Andrews because, in that case, we held that
the double jeopardy prohibition against multiple punishments is violated where the exact same
predicate act is used to impose two capital punishments under similar statutory provisions (i.e.,
Code §§ 18.2-31(7) and (8)). See, e.g., id. at 286-87, 699 S.E.2d at 269. If there is any doubt
that this is the nature of Severance’s argument, it is extinguished in his Reply Brief, where he
states:
In the present case, the nexus crime consists only of the fact that
the murders of Ruthanne Lodato and Ronald Kirby occurred within
a three-year period. No other gradation was alleged in the
indictment. Thus, to allow Mr. Severance to face capital sentences
for each of these two murders would fail to protect him from
multiple punishments for the same offense as guaranteed by the
double jeopardy clause.
13
Addressing the merits of Severance’s actual argument demonstrates that he is, in fact,
correct. First, even though Severance was charged under Code § 18.2-31(8), in my opinion, this
Court’s jurisprudence on Code § 18.2-31(7) is dispositive. As we explained in Andrews, the
gradation criterion of Code § 18.2-31(8) is similar to the gradation criterion of Code § 18.2-
31(7). 280 Va. at 281, 699 S.E.2d at 266. In fact, “in many instances the same operative facts
would be sufficient to prove either offense.” Id. Due to these similarities, the Court explicitly
held that
the Commonwealth is free to indict the defendant under Code §
18.2-31(8) for the murder of more than one person within a three-
year period when each of the constituent murders occurred as part
of the same act or transaction, and also indict the defendant for
capital murder under Code § 18.2-31(7) for the same murders.
However, if the Commonwealth obtains convictions on both
indictments it may not seek to have separate punishments imposed
for each offense. Rather it must elect which indictment it will
proceed upon in the penalty-determination phase of the trial. For
these reasons, we hold that the imposition of two death sentences
upon Andrews for the convictions under Code §§ 18.2-31(7) and -
31(8) violated the double jeopardy prohibition against multiple
punishments for the same offense.
Andrews, 280 Va. at 287-88, 699 S.E.2d at 269-70 (emphasis added).
Code §§ 18.2-31(7) and (8) are the only capital offenses that require the killing of more
than one person. In other words, these two offenses are the only ones that include a “numerical
ingredient necessary to charge capital murder.” Morris v. Commonwealth, 228 Va. 206, 210,
321 S.E.2d 633, 635 (1984). Therefore, “both offenses can be viewed as having gradation
criteria defining the status of the defendant as having committed multiple homicides.” Andrews,
280 Va. at 281, 699 S.E.2d at 266. In fact, the only significant difference between these two
offenses is in the timing within which the killings must occur. Under Code § 18.2-31(7), the
killings must occur “as a part of the same act or transaction,” whereas under Code § 18.2-31(8),
the killings must occur “within a three-year period.” Given that the offense punishable under
14
Code § 18.2-31(7) is, in effect, a subset of the offense punishable under Code § 18.2-31(8), these
differences are negligible at best. Therefore, for all intents and purposes, our jurisprudence on
Code § 18.2-31(7) also applies to Code § 18.2-31(8). Under the rationale of Andrews, it would
be anomalous to allow one capital murder sentence when two similar subsections of the Code are
implicated (i.e., Code §§ 18.2-31(7) and (8)) but allow two such sentences when only one
subsection is implicated.
In Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757 (1989), the Court explained
that the quantum of capital murder offenses punishable under Code § 18.2-31(7) is determined
by looking to the number of acts or transactions, not the number of victims. In explaining its
rationale, the Court stated:
[Code § 18.2-31(7)] describe[s] capital murder as the “willful,
deliberate, premeditated killing of more than one person as a part
of the same act or transaction.” This means that it took the killing
of at least two people as part of the same act or transaction to
constitute one capital murder under [Code § 18.2-31(7)]. Here,
four people were killed; thus, there was the theoretical possibility
that Buchanan could be convicted of two capital murders. The
critical issue is how many acts or transactions were involved. If
all four individuals were killed in one act or transaction, Buchanan
could only be convicted of one capital murder. If two individuals
were killed as part of one act or transaction and the two others
were killed as part of a second, different act or transaction, then
Buchanan could be convicted of two capital murders.
Id. at 397, 384 S.E.2d at 762.
Thus, under Buchanan, the number or acts or transactions is the dispositive factor for
Code § 18.2-31(7). Stated differently, if several killings occurred in a single act or transaction, it
doesn’t matter if two people or 100 people are killed because the number of offenses under Code
§ 18.2-31(7) remains the same: one. Id.
Applying the logic of Buchanan establishes that the critical issue in determining the
number of capital punishments that may be imposed under Code § 18.2-31(8) is not the number
15
of acts or transactions, but the timeframe in which the murders occurred. All of the murders
committed by an individual that occur within a single three-year period give rise to a single
offense under Code § 18.2-31(8). This does not mean that an individual who commits multiple
murders within a three-year period cannot be charged with or convicted of multiple counts under
Code § 18.2-31(8). See Andrews, 280 Va. at 287, 699 S.E.2d at 269. Rather, where the
indictments and convictions relate to what is functionally the same offense, the Commonwealth
“may not seek to have separate punishments imposed for each offense” without running afoul of
the double jeopardy prohibition against multiple punishments for the same offense. Id. at 287-
88, 699 S.E.2d at 269.
In its attempt to rebut Severance’s claim that he is being punished twice for the same
offense, the majority focuses on the number of acts, not offenses, that Severance committed.
Indeed, the majority bases its conclusion on its finding that Severance committed “two criminal
offenses based on two criminal acts.” Ante at 7. To a degree, I agree with the majority.
Severance did commit two separate criminal acts: he murdered Kirby and he murdered Lodato.
Where I disagree with the majority, however, is that, the clear language of the statute establishes
that a single offense under Code § 18.2-31(8) will generally require that a defendant commit two
separate acts. Under Code § 18.2-31(8), it takes the killing of at least two people within a three-
year period to constitute a single capital offense. Although two people could be murdered
through a single act within the required time period, nothing in the statute requires that the
murders occur in a single act. Indeed, given the amount of time within which the two murders
must occur, it is clearly implied that at least two acts may be necessary to complete the offense. 2
2
That is not to say that the killing of two people in a single act would not also constitute
an offense under Code § 18.2-31(8). It would; just as it would also constitute an offense under
Code § 18.2-31(7). See Andrews, 280 Va. at 281, 699 S.E.2d at 266. My point is that Code
16
Moreover, the fact that the specific acts committed by Severance would support multiple
convictions is not dispositive. According to the majority, Severance was convicted of
“murdering Kirby within three years of murdering Lodato and murdering Lodato within three
years of murdering Kirby – two murders, two convictions, two punishments.” Ante at 7. I agree
that two murders can give rise to two separate murder convictions and punishments.
Alternatively, these two murders, because they occurred within a three-year period, could give
rise to a single murder conviction and a single capital murder conviction under Code § 18.2-
31(8), along with the related punishments. Indeed, I do not dispute that these two acts could give
rise to an almost infinite combination of offenses and punishments without violating the
prohibition against double jeopardy. However, the number of combinations of convictions and
punishments that may arise from these two murders is not the issue here; rather, the issue in this
case is much more narrow, limiting the Court to determining the number of capital murders that
may be punished under Code § 18.2-31(8) for two murders that occur within a three-year period.
Here, both of Severance’s capital offenses involved the same murders of the same victims
within a single three-year period. The only difference between these offenses is the order in
which the victims are listed in the indictment, which is not an element of the crime. 3 In other
§ 18.2-31(8) contemplates that more than one act may be necessary in order to complete the
offense.
3
I simply cannot agree with the majority’s logic that a new capital offense arises simply
by changing the order in which the victims are named in the indictment. Indeed, taking this
approach to its logical conclusion would mean that the theoretical limitation on the number of
capital offenses that could be supported under either Code §§ 18.2-31(7) or (8) would be
determined by the number of victims, not the number of acts or transactions (Code § 18.2-31(7))
or the time period within which the murders occurred (Code § 18.2-31(8)). In the context of
Code § 18.2-31(7), we have clearly held otherwise. See Buchanan, 238 Va. at 397, 384 S.E.2d at
762 (recognizing that “[t]he critical issue is how many acts or transactions were involved,” not
the number of victims, for determining the number of capital offenses under Code § 18.2-31(7)).
Given the similarities between the two statutory provisions, it is hard to conceive of why we
17
words, in every aspect these two capital offenses are identical. Therefore, in my opinion, only a
single violation of Code § 18.2-31(8) occurred. 4 As the imposition of two life sentences for a
single offense violates the double jeopardy prohibition against multiple punishments, I would
reverse the decision of the Court of Appeals and remand the matter to the trial court with
instructions to vacate one of the life sentences.
would look to the number of victims for making a similar determination under Code § 18.2-
31(8).
4
To be clear, my position is limited to the number of capital offenses that occurred under
Code § 18.2-31(8). Severance was not charged with and we are not addressing any other capital
offenses that he may have committed.
18