FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH. Johnny E. Morrison, Judge.
Dianne G. Ringer (Bierowicz & Ringer, P.C., on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Katherine Quinlan Adelfio, Assistant Attorney General, on briefs), for appellee.
Present: Chief Judge Felton, Judges Frank, Humphreys, Kelsey, Petty, Beales, Alston, McCullough, Huff, Chafin and Decker. OPINION BY JUDGE STEPHEN R. McCULLOUGH.
[64 Va.App. 158] UPON A HEARING EN BANC
STEPHEN R. McCULLOUGH,
Jonathan Marquis Holley argues that the Double Jeopardy Clause precludes a conviction and punishment for both second-degree murder and first-degree felony murder when there is only one victim. We agree and reverse the lesser conviction of second-degree murder along with its attendant conviction for use of a firearm in the commission of a felony.
Holley, with the help of an accomplice, burst into a residence in Portsmouth in the early morning of January 27, 2010. The evidence suggests that the man inside the residence, Reginald J. Buffington, Jr., was dealing drugs. Buffington defended himself, and a violent struggle ensued. Buffington shot and wounded Holley, but Holley survived. Buffington was shot several times. When police arrived at the scene, they found Holley lying on the floor, moaning and bleeding profusely. Buffington's lifeless body was leaning against a couch. He died of his gunshot wounds.
[64 Va.App. 159] Holley was charged with both first-degree felony murder and second-degree murder. Holley was also charged with four counts of use of a firearm in the commission of a felony, abduction, armed statutory burglary, and possession of a firearm by a convicted felon. The trial court instructed the jury on both theories of murder and convicted Holley on both. Following the jury verdicts, defense counsel argued that appellant could not be sentenced for two separate murders when there was only one victim and that doing so would violate the Double Jeopardy Clause. Following additional briefing, the trial court sustained both convictions. This appeal followed.
Appellant argues that he cannot be convicted of both first-degree felony murder and second-degree murder when there is a single murder victim. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall " be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The constitutional prohibition against double jeopardy " had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon." United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). The constitutional right " derived from English common law, which followed then, as it does now, the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittal -- after a complete trial." Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). And while there are " an exceptionally large number of cases" interpreting the Double Jeopardy Clause, most of the leading United States [64 Va.App. 160] Supreme Court decisions " have found more guidance in the common-law ancestry of the Clause than in its brief text." Yeager v. United States, 557 U.S. 110, 117, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009).
It is now well recognized that this clause affords an accused three distinct constitutional guarantees. " It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."
Brown v. Commonwealth,
230 Va. 310, 312-13, 337 S.E.2d 711, 712-13 (1985) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). It is ...