Summary
In Harrison, the defendant had been indicted and convicted for capital murder in commission of an armed robbery under Code Sec. 18.2-31(d).
Summary of this case from Simpson v. CommonwealthOpinion
43847 Record No. 781259.
August 30, 1979
Present: All the Justices.
Defendant's conviction for armed robbery under Code Sec. 18.2-58 is not barred by double jeopardy because defendant was convicted of first degree murder under Code Sec. 18.2-32, both charges stemming from same transaction; reference to Code Sec. 18.2-31(d) (capital murder — commission of robbery when armed with deadly weapon) in conviction order does not preclude finding that defendant was convicted under Code Sec. 18.2-32.
(1) Criminal Procedure — Defendant Convicted under Code Sec. 18.2-32 (murder in first degree) rather than Code Sec. 18.2-31(d) (capital murder — commission of robbery when armed with deadly weapon).
(2) Criminal Procedure — Defendant's Conviction under Code Sec. 18.2-32 Grounded not only upon Felony — Murder Concept but also upon Finding that Killing was Willful, Etc. — Conclusion Supported by Oral Opinion of Trial Court, Evidence, Etc.
(3) Constitutional Law — Double Jeopardy — Test in Imposition of Cumulative Punishment for Two Offenses — Defendant not Subject to Double Jeopardy.
During a robbery of a filling station by defendant and his accomplice, the station manager was shot and killed. Defendant was tried in a single bench trial on separate indictments for capital murder in the commission of armed robbery [Code Sec. 18.2-31(d)] and for robbery (Code Sec. 18.2-58). The Trial Court, finding that the accomplice was the triggerman, acquitted defendant of a charge of using a firearm in the commission of a felony, but convicted him of the robbery; and, as the conviction order reads "of murder in the commission of a robbery at least as a principal of the second degree (Virginia Code Section 18.2-31(d), as charged in [the] indictment." Defendant was sentenced to 40 years on the murder conviction with 20 years suspended and to a like term and suspension on the robbery conviction. Defendant contends on appeal that his conviction of robbery under Code Sec. 18.2-58 is barred by the double jeopardy provision since proof of the underlying felony — robbery with a firearm — was needed to sustain his murder conviction.
1. While the Trial Court refers in its conviction order to Code Sec. 18.2-31(d) [capital murder], defendant could not have been convicted under that section since Sec. 18.2-18 provides in pertinent part that except in the case of a killing for hire an accessory before the fact or principal in the second degree to capital murder shall be indicted, tried, convicted and punished as though the offense was murder in the first degree. and the conviction order refers to conviction "at least as a principal of the second degree". Moreover, the 40-year sentence imposed is only appropriate for a Class 2 felony, the only homicide classified as a Class 2 felony being murder of the first degree. Rather than being convicted under Code Sec. 18.2-31(d) (capital murder), defendant was convicted under Code Sec. 18.2-32 (murder of the first degree). The references to Code Sec. 18.2-31(d) in the conviction order are to emphasize that defendant was not the triggerman and thus could not be convicted as a principal in the first degree while that status could have arisen only if, as Code Sec. 18.2-31(d) required, the killing at issue occurred in the commission of an armed robbery and was willful, deliberate and premeditated.
2. While Code Sec. 18.2-32 embodies the felony-murder concept, this section also contains separate grounds for supporting a first degree murder conviction including the situation where the killing is shown to be willful, deliberate and premeditated, Here the indictment, conviction order, Trial Court's oral opinion and the evidence demonstrate that defendant's murder conviction was grounded not only upon the felony-murder concept but also upon the proposition that the killing was willful, deliberate and premeditated. Here proof of the underlying felony (robbery with firearm) is not needed to prove the intent necessary for the murder conviction, this intent being supplied by the independent showing that the killing was willful, deliberate and premeditated. Harris v. Oklahoma, 433 U.S. 682 (1977) distinguished.
3. To determine whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment for double jeopardy purposes the test is whether each crime requires proof of an element which the other does not even though there is a substantial overlap in proof offered to establish the crimes. Brown v. Ohio, 432 U.S. 161 (1977); Iannelli v. United States, 420 U.S. 770 (1975); Blockburger v. United States, 284 U.S. 299 (1932). Here the test set forth in Brown is satisfied. Willful, deliberate and premeditated murder requires proof of a specific intent to kill and a killing. Armed robbery requires proof of theft or intent to steal from the victim, there being no requirement to show an intent to kill or a killing. Defendant was not put in double jeopardy.
Appeal from a judgment of the Circuit Court of Henrico County. Hon. Edmund W. Hening, Jr., judge presiding.
Affirmed.
Jay J. Levit (John B. Mann; Levit Mann, on briefs), for appellant.
Jerry P. Slonaker, Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.
In this case involving a claim of double jeopardy, the record shows that on September 5, 1977, the defendant, Roy Harrison, and a companion, Howard Judson Gillespie, drove together to a service station in Henrico County. There, the pair participated in robbing the station manager. During the course of the robbery, the manager was shot three times and fatally wounded.
In a single bench trial, the defendant was tried upon separate indictments for capital murder in the commission of armed robbery [Code Sec. 18.2-31(d)] and for robbery (Code Sec. 18.2-58). At the trial, testifying for the Commonwealth, Gillespie named the defendant as the triggerman in the victim's death. Testifying in his own behalf, the defendant cast Gillespie in the role of triggerman. Finding that Gillespie was "the principal in the first degree" in the case, the court convicted the defendant, in the words of the conviction order, "of murder in the commission of a robbery at least as a principal of the second degree (Virginia Code Section 18.2-31(d)), as charged in [the] indictment." The court also convicted the defendant of robbery. For the murder conviction, the defendant received a sentence of 40 years in the penitentiary, with 20 years suspended, and, for the robbery conviction, a like term and suspension.
Because of this finding, the trial court acquitted the defendant of a charge of using a firearm in the commission of a felony. Code Sec. 18.2-53.1.
Relying upon Harris v. Oklahoma, 433 U.S. 682 (1977), the defendant contends that his conviction of robbery was barred by his conviction of murder in the commission of armed robbery because "proof of the underlying felony, robbery with a firearm, was needed to sustain [his] murder conviction." In Harris, the accused and a companion robbed a grocery store clerk and the companion killed the clerk. The defendant was convicted of felony-murder in connection with the death. Thereafter, the defendant was convicted of robbery. In a brief per curiam opinion, the Supreme Court first noted that the concession in the state appellate court's opinion that "[i]n a felony murder case, the proof of the underlying felony [here robbery with firearms] is needed to prove the intent necessary for a felony murder conviction." Then, reversing the robbery conviction, the Supreme Court stated:
"When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. . . . '[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence' " (footnote and citations omitted). 433 U.S. at 682-83.
At first blush, it might seem that Harris supports the defendant's position that his conviction of robbery was barred, on double jeopardy grounds, by his conviction of murder. Closer analysis of the situation, however, clearly prompts a different view.
In this analysis, it is important to focus upon the nature of the defendant's conviction for homicide. As has been noted, the defendant was indicted for murder under Code Sec. 18.2-31, which, in pertinent part, provides as follows:
"The following offenses shall constitute capital murder, punishable as a Class 1 felony:
". . . .
"(d) The willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon. . . ."
As has been further noted, the trial court found the defendant guilty, as the conviction order states, "of murder in the commission of a robbery at least as a principal of the second degree (Virginia Code Section 18.2-31(d)), as charged in [the] indictment. "This statement had dual effects. First, it recognized, as this court later held in Johnson v Commonwealth, 220 Va. 146, 149, 255 S.E.2d 525, 527 (1979), that only the triggerman can be a principal in the first degree to capital murder under Sec. 18.2-31(d); accordingly, because the trial court found that Gillespie, and not the defendant, was the triggerman in the present case, the defendant was not convicted as a principal in the first degree, and to this extent, but this extent only, he was acquitted of participation in the victim's death.
The indictment charged that the defendant did "willfully, deliberately and with premeditation kill and capital murder [the victim] in the commission of a robbery while armed with deadly weapon."
Second, the statement necessarily constituted a finding not only that the victim's murder occurred in the commission of armed robbery but also that the killing was willful, deliberate, and premeditated. This follows because, if there was such a status as that ascribed to the defendant by the trial court, viz., a principal in the second degree to capital murder, that status could have arisen only if, as Sec. 18.2-31(d) required and as the indictment alleged, the killing at issue was shown both to have occurred in the commission of armed robbery and to have been willful, deliberate, and premeditated.
[1-2] While the conviction order has these effects, we do not believe that the defendant could have been or, indeed, was convicted of murder under Code Sec. 18.2-31(d). We say this for several reasons. Code Sec. 18.2-18, in pertinent part, provides that "except in the case of a killing for hire under the provisions of Sec. 18.2-31(b) an accessory before the fact or principal in the second degree to a capital murder shall be indicted, tried, convicted and punished as though the offense were murder in the first degree" (emphasis added). Further, the punishment imposed upon the defendant for his murder conviction, a term of 40 years, is not an appropriate sentence under Sec. 18.2-31(d). Capital murder under Sec. 18.2-31(d) is a Class 1 felony, punishable by death or life imprisonment. Code Sec. 18.2-10(a). The 40-year sentence actually imposed in this case is appropriate only for a Class 2 felony. Code Sec. 18.2-10(b). The only homicide classified as a Class 2 felony is murder of the first degree. Code Sec. 18.2-32.
Sec. 18.2-31 -___. The following offenses shall constitute capital murder, punishable as a Class 1 felony:
"(b) The willful, deliberate and premeditated killing of any person by another for hire. . . . "
We believe, therefore, that, despite the conviction order's reference to capital murder under Sec. 18.2-31(d), the defendant was convicted of murder of the first degree under Code Sec. 18.2-32. In pertinent part, this section provides:
"Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson: rape, robbery, burglary or abduction, except as provided in Sec. 18.2-31, is murder of the first degree, punishable as a Class 2 felony."
Admittedly, Sec. 18.2-32 embodies the felony-murder concept And, concededly, the conviction order entered in this case, the oral opinion rendered by the trial court, and the evidence presented below all show that the felony-murder concept was employed to support the defendant's conviction of murder. But Sec. 18.2-32 also contains other separate grounds for supporting a first degree murder conviction, including the situation where the killing is shown to be willful, deliberate, and premeditated. And, here, the indictment upon which the defendant was tried, the conviction order entered below, the trial court's oral opinion, and the evidence all clearly demonstrate that the defendant's murder conviction was grounded not only upon the felony-murder concept but also upon the proposition that the killing was willful, deliberate, and premeditated.
The trial court found that the victim was killed only because it was "expedient. . . . to eliminate" him as a possible source of identification of his assailants.
Supporting the trial court's finding set forth in note 4, the evidence reveals cold-blooded murder committed for no other apparent reason than to mask the identity of the assailants.
In these circumstances, we do not believe that there exists in this case the double jeopardy problem the Supreme Court dealt with in Harris v. Oklahoma, supra. Unlike the state appellate court in Harris, we need not concede that "proof of the underlying felony [here robbery with firearms] is needed to prove the intent necessary" for this defendant's murder conviction. In our situation, as we analyze it, proof of the intent necessary for the defendant's murder conviction is supplied by the independent showing that the killing was willful, deliberate, and premeditated. This is not a case, therefore, where, as with Harris, "conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms." Conviction of the murder here can be had, without resort to the evidence concerning armed robbery, simply by relying upon the independent proof that the killing was willful, deliberate, and premeditated.
By the same analysis, we do not believe that, under the circumstances of this case, the defendant's conviction for armed robbery involves a conviction of a "lesser included" offense, of the "same" offense, or of "an incident included in" a greater offense. We reach this conclusion by application of the test set forth in Brown v. Ohio, 432 U.S. 161 (1977), a case cited in Harris and relied upon by the defendant here.
In Brown, the Supreme Court stated:
"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 (1932):
'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . .'
This test emphasizes the elements of the two crimes. 'If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes . . . .' Iannelli v. United States, 420 U.S. 770, 785n. 17 (1975)." 432 U.S. at 166.
Believing firmly, as we do, that the present defendant's conviction of homicide is for first degree murder and that this conviction is supported independently by proof and by a factual finding that the killing was willful, deliberate, and premeditated, we are of opinion that the present case satisfies the test set forth in Brown. The two offenses involved here — on the one hand, willful, deliberate, and premeditated murder, and, on the other, armed robbery —" 'each requires proof of a fact that the other does not' ". Willful, deliberate, and premeditated murder requires proof of specific intent to kill and of a killing, without the necessity of showing theft or intent to steal from the victim. Armed robbery requires proof of theft or intent to steal from the victim, without the necessity of showing an intent to kill or a killing.
Finding no violation of the defendant's rights concerning double jeopardy, we will affirm the judgments appealed from.
Affirmed.