Circuit Court of the City of Virginia Beach, Edward W. Hanson, Jr., Judge
Baker, J. Barrow, J., and Cole, J., concurred.
[9 VaApp Page 192] Michael Joseph Diehl (appellant) appeals from judgments of the Circuit Court of the City of Virginia Beach (trial court) which approved jury verdicts convicting him of first degree murder, abduction, simple assault and felony child neglect. He presents six issues for our consideration. As stated by appellant the issues are: (1) whether a legal, custodial parent of the victim/child may be found guilty of abduction and felony murder of that child pursuant to § 18.2-47 of the Code of Virginia; (2) whether
the Commonwealth's Exhibit 5 was irrelevant and therefore inadmissible; (3) whether the Commonwealth proceeded against him upon indictments returned by a biased grand jury; (4) whether cameras may be allowed in a courtroom pursuant to Code § 19.2-266 where the defendant demonstrates good cause for their exclusion; (5) whether Code § 19.2-266, on its face, violates the equal protection clause of the United States Constitution; and (6) whether Code § 19.2-266, as applied to this case, violated the appellant's right to equal protection of law.
Michael and Karen Diehl were the custodial, natural parents of four children and the custodial, adoptive parents of thirteen other children. One of the adopted children was thirteen year old Andrew Dominick Diehl (victim).*fn1 In September 1986, traveling in a converted school bus, the Diehls and their seventeen children moved to Virginia and settled in Virginia Beach. Their only dwelling place was the bus in which they arrived. The Diehls believed the victim needed discipline due to misbehavior. From the day the Diehls arrived in Virginia to the day of the victim's death the victim almost continuously was shackled to the floor of the bus, totally without clothing. He was restrained by a pipe clamp on one hand, a handcuff on the other and by a rope around his feet. While thus shackled both parents from time to time paddled the victim's bare buttocks until they bled, administering as many as two hundred blows per session. In addition, in appellant's presence, Karen Diehl struck the victim as many as twenty blows to his head with the same instrument used to paddle his naked buttocks. She also forced the victim to eat his feces and drink his urine.
When rescue workers came to the bus on October 24, 1986, they found the victim on the floor of the bus, unconscious and without a pulse. The victim was taken to a hospital where he died five days later. An autopsy was performed on the victim and the cause of death was stated to be multiple, forceful blows to the head.
Appellant argues that a custodial parent may not be prosecuted for the felony murder of his or her child, using abduction as
the underlying felony as set forth in Code § 18.2-47. He concedes that the evidence was sufficient to sustain a conviction of one who is not such parent. See Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572 (1984); Simms v. Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986). As applied to the facts contained in this record, we construe the statute to authorize the prosecution of a custodial parent for abduction of his child and also to allow use of that abduction as the underlying felony for prosecution of felony murder.
In Scott, 228 Va. at 526, 323 S.E.2d at 576, the Court reviewed Code § 18.2-47 and held that it superseded the common law and should be construed according to its plain meaning and evident intent. The statute provides that any person, except a law enforcement officer in the performance of his duty, may be prosecuted for violation of its provisions.*fn2 If one is to be excluded from prosecution, the exclusion must be found in the statute.*fn3 Here, no such exclusion may be found.
Appellant further argues that a fair reading of the second paragraph of the statute discloses that even if the facts permit him to be prosecuted under Code § 18.2-47, he could be punished only as a misdemeanant if convicted; therefore, he argues, the conviction would not be an underlying felony which would support his felony murder conviction. We disagree. The provision of Code § 18.2-47 on which appellant predicates that argument is contained in the second paragraph and provides that if the offense is "committed by the parent of the person abducted and punishable as contempt of court in any proceeding then pending," the offense is punishable as a Class 1 misdemeanor. There was no "proceeding then pending" at the time of this offense; therefore, the misdemeanor provision is inapplicable.
Appellant further argues that in cases where detention and physical punishment are inflicted by a custodial parent for disciplinary reasons, "the courts are going to be hard pressed to determine when ...