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Coleman v. Commonwealth

Court of Appeals of Virginia

July 20, 1999

IRVIN E. COLEMAN
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG. James F. D'Alton, Jr., Judge.

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: Judges Benton, Bumgardner and Frank.

MEMORANDUM OPINION [1]

ROBERT P. FRANK, JUDGE.

Irvin E. Coleman (appellant) appeals his conviction for attempted murder after a jury trial. The jury also found appellant guilty of robbery, malicious wounding and three counts of use of a firearm during the commission of a felony. The trial court ordered that the sentences for each offense run consecutively. On appeal, appellant asserts that his conviction for attempted murder is barred by the constitutional protection against double jeopardy contained in the Fifth Amendment to the United States Constitution. I. BACKGROUND

Reginald Vincent testified that he was driving home from his job at United Parcel Service (UPS) on the night of January 12, 1997 when he saw appellant in his backyard. As Vincent slowly drove past, appellant waved to Vincent. Vincent stopped the car, and appellant asked him for a ride to Pegram Street. When appellant got into Vincent's car, he asked Vincent where he lived and if he lived alone. Vincent pointed to his house and told appellant that he had a roommate but the roommate was not at home. During the ride, appellant asked Vincent about his UPS uniform and asked Vincent if he made good money.

After dropping off appellant on Pegram Street, Vincent went home. Vincent heard a knock at the door, looked through the peephole and saw appellant. He opened the door and appellant asked him for a ride to Halifax Street. Vincent agreed to take appellant to Halifax Street, but told appellant that it would be a few minutes, he needed to go to the restroom.

Appellant came to the restroom door and pointed a gun at Vincent's face. Appellant told Vincent to get on the floor, and appellant held the gun on Vincent while he searched for Vincent's money.

Then, appellant told Vincent to stand up and push his pants down around his ankles. Appellant began backing away, and when he went around the corner, Vincent pulled his pants up and started into the hallway. As Vincent entered the hallway, appellant began firing at him from a distance of eight to ten feet. Vincent took two steps toward appellant in an attempt to knock the gun away, but he was shot in the arm, the wrist, the hand, both thighs and the groin. After the shot to the groin, Vincent fell face first into the kitchen and the shooting stopped. Ten seconds passed, during which there was no movement or sound, and, then, appellant walked up to Vincent. Appellant stood over Vincent, straddled him, put the gun to Vincent's neck and fired the gun, shooting Vincent in the back of the head.

II. ANALYSIS

Appellant challenges his conviction for attempted murder on grounds that it violates the constitutional guarantee against double jeopardy found in the Fifth Amendment to the United States Constitution. [2]

The Double Jeopardy Clause insures that an accused is not " subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. " This constitutional guarantee is applicable to the States through the Due Process Clause of the Fourteenth Amendment." Illinois v. Vitale, 447 U.S. 410, 415, 65 L.Ed.2d 228, 100 S.Ct. 2260 (1980) (citing Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056 (1969)).

The United States Supreme Court has interpreted the Double Jeopardy Clause to include three protections for an accused: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969). " Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165, 53 L.Ed.2d 187, 97 S.Ct. 2221 (1977) (citing Gore v. ...


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