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finding that the defendant contributed to the victim's fatal overdose death by mixing and supplying cocaine that the victim used because the substance was known to be dangerous to life and health
Summary of this case from Commonwealth v. FutrellOpinion
44723 Record No. 831830.
November 30, 1984.
Present: All the Justices.
The Supreme Court sustains defendant's conviction of second degree murder under Code Sec. 18.2-33 for feloniously distributing cocaine (a Schedule II controlled substance) to a person who ingested the cocaine and died as a result; defendant's accommodation defense on the charge of possession of cocaine with intent to distribute is rejected, but his conviction of conspiracy to distribute is reversed based upon the Commonwealth's failure to prove an underlying agreement.
(1) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — Capital Murder Defined (Code Sec. 18.2-31) First and Second Degree Murder Defined (Code Sec. 18.2-32); Felony-Homicide Defined (Code Sec. 18.2-33) — General Assembly Has Created Two Classes of Felony-Murder.
(2) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — Capital Murder Defined (Code Sec. 18.2-31); First and Second Degree Murder Defined (Code Sec. 18.2-32) — First Degree Felony-Murder Defined.
(3) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — Capital Murder Defined (Code Sec. 18.2-31); First and Second Degree Murder Defined (Code Sec. 18.2-32); Felony-Homicide Defined (Code Sec. 18.2-33) — Second Degree Felony-Murder Defined.
(4) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — First Degree and Second Degree Murder Defined (Code Sec. 18.2-32) — Malice — Malice Intrinsic to Predicate Felony is Malice Required for Felony-Murder Conviction.
(5) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — Felony-Homicide (Code Sec. 18.2-33) — Commission of Any Felonious Act During Homicide Provides Malice Required for Conviction Under Section.
(6) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — How Principals in Second Degree Punished (Code Sec. 18.2-18) — Evidence — Indicates Defendant at Least Principal in Second Degree and Punishable as Principal in First Degree.
(7) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — Felony-Homicide Defined (Code Sec. 18.2-33) — Section Includes Felonies Not Foreseeably Dangerous to Human Life.
(8) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — Distribution, Etc. Schedule I or II Controlled Substance [Code Sec. 18.2-248(a)]; Bond to Administer Article, Risk to Public Health [Code Sec. 54-524.84:1(a)(6)]; Placement of Substance on Schedule II (Code Sec. 54-524.84:5); Schedule II Controlled Substance, Coca Leaf Derivative [Code Sec. 54-524.84:6(b)(4)] — As Matter of Law, Distribution of Cocaine is Conduct Potentially Dangerous to Human Life.
(9) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Evidence — Indicates Defendant Knew or Should Have Known Narcotic He Supplied and Helped Administer Inherently Dangerous to Human Life.
(10) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Evidence — Proximate Cause — Underlying Felony Proximately Related to Death of Victim by Ingestion of Cocaine.
(11) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Co-Felon Rule — Person Ingesting Cocaine Was Victim of Crime and Not Within Co-Felon Rule.
(12) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Felony-Murder — Murder, Second Degree — Statutory Construction — Felony-Homicide Defined (Code Sec. 18.2-33) — If Death Results from Ingestion of Controlled Substance Classified as Dangerous to Human Life, Etc., and Controlled Substance Had Been Distributed to Decedent in Violation of Felony Statutes of Commonwealth, Homicide is Murder in Second Degree Under Code Sec. 18.2-33.
(13) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Accommodation Defense — Burden of Proof — Evidence — Statutory Construction — Distributing Controlled Substance, Penalty, Accommodation Distribution [Code Sec. 18.2-248(a)]; Burden of Proof Exception (Code Sec. 18.2-263) — Defendant Invoking Accommodation Defense Has Burden of Proving Elements of Defense by Preponderance of Evidence.
(14) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Accommodation Defense — Burden of Proof — Evidence — Statutory Construction — Distributing Controlled Substance, Penalty, Accommodation Distribution [Code Sec. 18.2-248(a)] — Scope of Defense Stated.
(15) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Accommodation Defense — Burden of Proof — Evidence — Statutory Construction — Distributing Controlled Substance, Penalty, Accommodation Distribution [Code Sec. 18.2-248(a)] — Evidence — Establishes Defendant was Drug Dealer, Etc., and Not Entitled to Accommodation Defense.
(16) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Conspiracy — To Distribute Controlled Substance — Conspiracy Defined.
(17) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Conspiracy — To Distribute Controlled Substance — Burden of Proof — Evidence — Commonwealth Must Prove Beyond Reasonable Doubt That Agreement Existed.
(18) Criminal Procedure — Drugs (Cocaine) — Distributing Controlled Substance — Conspiracy — To Distribute Controlled Substance — Burden of Proof — Evidence — Commonwealth Failed to Establish Agreement Beyond Reasonable Doubt.
Defendant was convicted in a bench trial of second degree murder under Code Sec. 18.2-33 (felony-homicide statute) for distributing cocaine during a party to one Wilson who ingested the cocaine and died as a result. Defendant was also convicted of possession and distribution of cocaine (a Schedule II controlled substance) and of conspiracy to distribute cocaine. The defendant appeals these convictions.
1. The General Assembly has created two classes of felony-murder.
2. First degree felony-murder is homicide in the commission of or attempt to commit arson, rape, forcible sodomy, inanimate sexual penetration, robbery, burglary, or abduction (Code Sec. 18.2-32).
3. Second degree felony-murder is the killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act other than those specified for capital murder in Code Sec. 18.2-31 and first degree murder in Code Sec. 18.2-32 (Code Sec. 18.2-33).
4. The malice intrinsic in the commission of one of the predicate felonies provides the malice prerequisite to the finding that the homicide was felony-murder under Code Sec. 18.2-32.
5. The commission of any felonious act, other than those expressly excepted in Code Sec. 18.2-33, during the prosecution of which death occurs, supplies the malice which raises the incidental homicide to the level of second degree murder.
6. Here the evidence indicates that defendant, as a principal in the second degree, is responsible as a principal in the first degree under Code Sec. 18.2-18 since he assisted in preparing the narcotic injected into the victim, it being immaterial whether the narcotic was injected by the victim or by another.
7. Code Sec. 18.2-33 encompasses all felonious acts except capital murder (Code Sec. 18.2-31) and the crimes particularly named in Code Sec. 18.2-32 and includes felonies which may not be foreseeably dangerous to human life.
8. As a matter of law, the unlawful distribution of cocaine is conduct potentially dangerous to human life [Code Sections 18.2-248(a); 54-524.84:1(a)(6); 54-524.84:5 and 54-524.84:6(b)(4)].
9. Here the evidence indicates that the defendant knew, or should have known, that injection of the narcotic he supplied and helped administer to the victim was inherently dangerous to human life.
10. The underlying felony being distribution of cocaine, which defendant should have known was inherently dangerous to human life, and the victim having died of acute intravenous cocainism by ingesting the drug, cause and effect were proximately related.
11. The decedent who ingested the cocaine was not a co-felon killed by the victim of the drug-distribution felony, but was the victim of the crime. Wooden v. Commonwealth, 222 Va. 758, 284 S.E.2d 811 (1981), distinguished.
12. If death results from the ingestion of a controlled substance, classified in law as dangerous to human life, the homicide is murder of the second degree under Code Sec. 18.2-33 if the controlled substance had been distributed to the decedent in violation of the felony statutes of the Commonwealth.
13. A defendant who invokes an accommodation defense has the burden of proving the elements of the defense by a preponderance of the evidence [Code Sections 18.2-248(a) and -263].
14. The General Assembly intended the reduced accommodation penalty to apply when the distribution was made by an individual citizen who was motivated by a desire to accommodate a friend and not to apply to unlawful distribution by a dealer in drugs, a pusher, or one normally engaged in the drug traffic [Code Sec. 18.2-248(a)].
15. Here the evidence and the reasonable inferences therefrom support a finding that defendant was a drug dealer who distributed samples to guests at a party to promote profits from future sales and thus was not an accommodation distributor within the meaning of Code Sec. 18.2-248(y).
16. Conspiracy is an agreement between two or more persons by some concerted action to commit an offense.
17. The Commonwealth has the burden to prove beyond a reasonable doubt that an agreement existed before a conspiracy can be established.
18. Here the indictment charged defendant with conspiring with guests at the party to commit the offense of distribution of cocaine, but there was no evidence of an agreement between two or more parties to act in concert. The evidence thus failed to support a conspiracy.
Appeal from a judgment of the Circuit Court of Chesterfield County. Hon. D. W. Murphey, judge presiding. Affirmed in part, reversed in part, and final judgment.
William P. Robinson, Jr. (Murray J. Janus; Robinson, Eichler, Zaleski Mason; Bremner, Baber Janus, on brief), for appellant.
James E. Kulp, Senior Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.
The principal question in this appeal is whether one who feloniously distributes cocaine is guilty of murder of the second degree when the recipient dies of an overdose. We will also consider other issues raised by the assignments of error.
The evidence is without substantial conflict. Jeff Chalkley and Audi Chaplin were hosts at a "drug party" held in their home during the early morning hours of August 16, 1981. Forrest Perry Heacock supplied a quantity of what was described as "[v]ery high quality cocaine". Heacock took the cocaine from a "baggie," laid it in separate lines on a table, and invited those present to help themselves. For a time, the group sat around the room listening to music, "snorting" cocaine, and drinking beer. Chaplin and Sharon Dryden left the party to buy more beer and, on their way to the store, stopped at the home of Karla Wilson in search of marijuana. Wilson said that she had some "reefers," and they invited her to join the party on her way to work to "smoke some" and to "do some" cocaine.
After Chaplin and Dryden left Wilson's home, they paid a visit to Steve Fuller "looking for some needles" in order to "run cocaine." Fuller produced the needles and rode with them back to the party. Wilson arrived a short time later with her marijuana. The "pot" was placed in a "bong," and the group began "hitting bong" and "running" cocaine with Fuller's needles.
Sometime later Heacock, Dryden, Chaplin, and Wilson went upstairs together. According to Dryden, she and Wilson "were sitting on the end of the bed" while Heacock and Chaplin "were putting [cocaine] in the spoon so that we could run some." Heacock watched as Wilson held Dryden's arm and Chaplin injected the mixture into a vein in Dryden's hand. Dryden suffered a sudden paralyzing seizure and fell back on the bed. When she revived, she went downstairs and "was sitting there for a while" when she heard "something thumping" upstairs. Fuller, who had remained downstairs, heard the same noise which he described as "like somebody kicking." Fuller testified that "maybe five minutes after that, [Heacock] came flying down the stairs and asked if I knew about what to do if somebody had gotten an overdose". Fuller and Dryden went upstairs where they found Wilson lying face-down under a blanket on the floor. Although Wilson "only had fifty cc's", she was experiencing periodic convulsions with "her head . . . hitting the floor." She "wasn't breathing too well", and when she failed to respond to "mouth to mouth recitation [sic]", Chaplin went to the telephone and called the rescue squad. Wilson died three days later of "acute intravenous cocainism".
Fuller testified that when Heacock learned about the telephone call he exclaimed, "[I]f I'm here when the rescue squad comes, the police are going to try and get me." The next day, Heacock gave Fuller some cocaine and told him to sell it. Sometime prior to the trial, Heacock talked with Fuller about his testimony. Fuller testified that "he was trying to get me to go along with a story" to the effect that "it was just the two girls upstairs, and that he was never up there, and that the cocaine had come from somebody else other than him."
Bruce Collie, another guest at the party, testified that he and Heacock decided to leave before the rescue squad arrived. They "grabbed a couple bongs" and "gathered up some stuff, and we left." They went first to Heacock's home where Heacock "gathered up some stuff", including "some scales", and "put it in a bag", and then the two "[j]umped on the dirt bike, and rode back in the woods" where Heacock "buried" the bag. Heacock told Collie: "Just play it cool. Don't tell anybody what happened. Said if it come down to anything, we could probably blame it on Sharon [Dryden]."
Heacock and Chaplin did not testify at trial, and the record does not show who administered the fatal injection.
The trial court, sitting without a jury, convicted Heacock of conspiring to distribute cocaine, possession and distribution of cocaine, and murder of the second degree. Heacock appeals from three judgments imposing sentences aggregating 80 years in the penitentiary, with 40 years suspended.
[1-3] We consider first the appeal from the murder conviction. The General Assembly has created two classes of felony-murder. "Murder . . . in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate object sexual penetration, robbery, burglary or abduction . . . is murder of the first degree . . ." Code Sec. 18.2-32. "The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act other than those specified in Sections 18.2-31 [capital murder] and 18.2-32, is murder of the second degree. . . . Code Sec. 18.2-33.
[4-5] While Sec. 18.2-32 contemplates a "killing with malice", the malice intrinsic in the commission of one of the predicate felonies "provides the malice prerequisite to a finding that the homicide was murder." Wooden v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981). The same imputation of malice is implicit in Sec. 18.2-33 which contemplates an accidental killing; the commission of any felonious act (other than those expressly excepted) during the prosecution of which a death occurs supplies the malice which raises the incidental homicide to the level of second-degree murder. This statute codifies ancient common law. See Whiteford v. Commonwealth, 27 Va. (6 Rand.) 721 (1828).
The indictment charged Heacock with a violation of Sec. 18.2-33 and defined the underlying "felonious act" as "Distribution of cocaine, a Schedule II controlled substance". The evidence shows that the cocaine was supplied by Heacock and that Wilson received an intravenous injection of that substance. The defendant does not challenge these facts. Instead, he argues that the evidence fails to show that he administered the fatal injection. This argument overlooks Dryden's testimony that Heacock and Chaplin jointly prepared the narcotic mixture in a spoon, the essential first step in the process of administration by syringe. Hence, it is immaterial that Chaplin may have inserted the needle or that Wilson may have injected herself. The defendant was a principal in the second degree and, as such, criminally responsible for the consequences of his conduct "as if a principal in the first degree". Code Sec. 18.2-18.
Yet, Heacock maintains that he is not criminally responsible for Wilson's death because, he says, that was not a foreseeable consequence of the criminal conduct charged in the indictment. "[A]pplication of the [felony-murder] rule to felonies not foreseeably dangerous," he reasons, "would be unsound analytically, because there is no logical basis for imputing malice from the intent to commit a felony not dangerous to human life." But nothing in Sec. 18.2-33 limits its scope to such felonies; rather, that statute encompasses all felonious acts except capital murder and the several crimes particularly named in Sec. 18.2-32.
[8-9] Even if we were disposed to interpret the statutory language to conform to the defendant's view, which we are not, the evidence defeats the premise of his analysis. Heacock knew, or should have known, that injection of the narcotic he supplied and helped to administer to Wilson was inherently dangerous to human life. Only minutes before, he had seen Dryden suffer a violent reaction to an injection of the same substance. At trial, defense counsel asked Dr. William Masselo, a forensic pathologist experienced in the diagnosis of cases of drug overdose, "how much cocaine would it take to throw somebody into cardiac arrest intravenously". Dr. Masselo replied, "Any amount could, in fact, do this to anyone." In determining how to classify a controlled substance, the State Board of Pharmacy is required to consider the "risk to the public health." Code Sec. 54-524.84:1(a)(6). Cocaine is classified as a Schedule II controlled substance, Sec. 54-524.84:6(b)(4), because the Board has found that it "has high potential for abuse" which "may lead to severe psychic or physical dependence", Sec. 54-524.84:5. And the General Assembly has recognized the human dangers associated with the unlawful distribution of cocaine. Conviction of the first offense carries a penalty of "not less than five nor more than forty years" and a fine of "not more than $25,000" and, upon a subsequent conviction, the accused may be "sentenced to imprisonment for life". Code Sec. 18.2-248(a). Accordingly, we hold, as a matter of law, that the unlawful distribution of cocaine is conduct potentially dangerous to human life.
The defendant urges us to hold that the felony-murder rule does not apply unless the underlying felony is shown to be the proximate cause of the death. It is not sufficient, he believes, that the death occurred as an incident to the commission of the felonious act. In Doane v. Commonwealth, 218 Va. 500, 502-03, 237 S.E.2d 797, 798-99 (1977), we reserved the question whether the application of the rule requires a "showing . . . of causal relationship, or whether a showing of mere nexus will suffice". We do not decide that question here, because it is foreclosed by evidence which we consider conclusive. The underlying felony was distribution of cocaine, a drug the defendant should have known was in herently dangerous to human life; Wilson ingested that drug and, as we have said, it is immaterial who made the injection; Wilson died of "acute intravenous cocainism"; thus, cause and effect were proximately interrelated.
[W]hen the homicide is within the res gestae of the initial felony and is an emanation thereof, it is committed in the perpetration of that felony. Thus, the felony-murder statute applies where the initial felony and the homicide were parts of one continuous transaction, and were closely related in point of time, place and causal connection
Haskell et al. v. Commonwealth, 218 Va. 1033, 1041, 243 S.E.2d 477, 482 (1978).
Next, the defendant contends that the felony-murder rule does not apply in this case because the decedent "was a co-felon in the sense that she was present at a 'drug party' ". Apparently, Heacock relies upon our decision in Wooden v. Commonwealth, supra, where we held that "a criminal participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony." 222 Va. at 765, 284 S.E.2d at 816. We adhere to that holding, but it is inapposite here. Wilson was not a co-felon killed by the victim of the drug-distribution felony; she was the victim of the crime.
Finding no merit in the first assignment of error, we hold that where, as here, death results from ingestion of a controlled substance, classified in law as dangerous to human life, the homicide constitutes murder of the second degree within the intendment of Sec. 18.2-33 if that substance had been distributed to the decedent in violation of the felony statutes of this Commonwealth. See generally, Annot., 32 A.L.R.3d 589 (1970).
[13-14] Heacock also assigns error to the court's failure to find that the distribution involved in this case was merely an "accommodation" as that term is used in Code Sec. 18.2-248(a). The penalty imposed for his distribution conviction was imprisonment for 40 years, with 20 years suspended. He contends that the penalty should be no greater than imprisonment for 10 years, the maximum prescribed for a Class 5 felony. Code Sec. 18.2-10.
Code Sec. 18.2-248(a) provides in part:
If [the accused] proves that he gave, distributed or possessed with intent to give or distribute a controlled substance classified in Schedule I or II only as an accommodation to another individual who is not an inmate in a penal institution . . . or in the custody of an employee thereof, and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient . . . to use or become addicted to or dependent upon such controlled substance, he shall be guilty of a Class 5 felony. [Emphasis added.]
Construing Code Sections 18.2-248(a) and -263 together, we have held that a defendant who invokes an accommodation defense has the burden of proving the elements of that defense by a preponderance of the evidence. Stillwell v. Commonwealth, 219 Va. 214, 247 S.E.2d 360 (1978). And in construing Sec. 18.2-248(a) as a whole, we have observed that the General Assembly intended the reduced penalty to apply when the unlawful distribution was made "not by a dealer in drugs, a pusher or one who was normally engaged in the drug traffic, but by an individual citizen who was motivated by a desire to accommodate a friend." Id. at 219, 247 S.E.2d at 364.
Sec. 18.2-263. Unnecessary to negative exception, etc.; burden of proof of exception, etc. — In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this article or of The Drug Control Act (Sec. 54-524.1 et seq.), it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this article or in The Drug Control Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.
Heacock argues that he supplied the cocaine free of charge and that his only purpose was to accommodate a group of people assembled at a party. While there is some evidence to this effect, other evidence tends to show that Heacock was a "dealer in drugs" whose motivation in supplying the cocaine was more than simply a "desire to accommodate a friend." The drug Heacock supplied was "[v]ery high quality cocaine", and the quantity was sufficient to distribute among a number of users, some of whom ingested the substance several times. The paraphernalia Heacock took as he fled from the police and the scales and "stuff" he retrieved from his home and buried in the woods were indicia of commercial traffic in drugs. And the day following the party, Heacock delivered a quantity of cocaine he had acquired from some source to Fuller with instructions to sell it.
Drug dealers must cultivate and maintain a familiar clientele of habitual drug users, and the users can satisfy their habit only when they know a dealer they can trust to supply a quality product promptly upon demand. A drug party, catered gratis by a dealer, is a typical public-relations tool designed to promote good will, strengthen mutual confidence and interdependence, and enhance the dealer's business prospects.
A person convicted of distributing a controlled substance is not entitled to the reduced penalty afforded by Sec. 18.2-248(a) if the distribution was made "with intent to profit thereby". The "profit" contemplated by the statute is "any consideration received or expected". We believe the evidence and the reasonable inferences it raises support a finding that Heacock was a dealer in drugs and that he distributed samples of his high-quality merchandise to the several guests at the party with the expectation of promoting profits from future sales. Consequently, we will affirm the conviction for felonious distribution and uphold the sentence imposed thereon.
Finally, the defendant challenges the sufficiency of the evidence to support his conviction of conspiracy for which he was sentenced to imprisonment for 20 years with 10 years suspended. The Attorney General believes that the circumstantial evidence was sufficient. We disagree.
"Conspiracy is defined as 'an agreement between two or more persons by some concerted action to commit an offense.' " Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)). "There can be no conspiracy without an agreement . . . and the Commonwealth must prove beyond a reasonable doubt that an agreement existed." Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978) (citations omitted).
The indictment charged Heacock with conspiring with guests at the party to commit the offense of distribution of cocaine. The distribution offense was committed, but there is nothing to show that it was the product of "an agreement between two or more persons" to act in concert. Heacock was the only source of the cocaine and the sole distributor. The distributees possessed and used the controlled substance, but, so far as the record discloses, none was a party to an agreement to commit the offense Heacock committed.
Upholding this assignment of error, we will reverse the judgment convicting him of conspiracy and enter final judgment in his favor. The judgments convicting him of felonious distribution and murder of the second degree will be affirmed.
Affirmed in part, reversed in part, and final judgment.