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Gregg v. Commonwealth

Court of Appeals of Virginia

February 28, 2017


         FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Herman A. Whisenant, Jr., Judge Designate

          Blair D. Howard (Christopher T. Whelan; T. Brooke Howard, II; Howard, Morrison, Ross and Whelan; Howard & Howard, on briefs), for appellant.

          Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Alston, Chafin and Senior Judge Annunziata Argued at Alexandria, Virginia


         Following a jury trial, Carroll Edward Gregg, Jr. ("appellant") was convicted of common law involuntary manslaughter and involuntary manslaughter in violation of Code § 18.2-154, or "unlawfully shooting at an occupied vehicle wherein death resulted."[1] The jury fixed appellant's punishment at ten years in prison for each conviction, and the trial court sentenced appellant accordingly. On appeal, appellant argues that his rights against double jeopardy were violated because he was convicted of and sentenced for both statutory involuntary manslaughter and common law involuntary manslaughter. For the reasons that follow, we reverse the trial court's imposition of consecutive sentences for each offense and remand for proceedings consistent with this opinion.


         On appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below, and "accord [it] the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004).

         So viewed, the evidence is as follows. On the night of June 4, 2014, L&K Recovery attempted to repossess a truck on behalf of appellant's creditors pursuant to a repossession order. Junior Montero Sanchez ("Sanchez"), an employee of L&K Recovery, drove a tow truck to appellant's home. Alex Marin ("Marin"), also employed by L&K Recovery, drove a separate vehicle to that location. The two men verified the VIN number on the truck and then connected it to the tow truck.

         When Marin used a lockout tool to open the door of the truck, its alarm system was activated. Marin heard a man yell out the window, "You better get the F out of here." Sanchez drove the tow truck down the driveway, with Marin following in the other vehicle, and stopped at the end of the driveway to check his GPS for directions. As Sanchez was turning out of the driveway, Marin heard "a loud bang, and right after that, [he] heard [Sanchez] screaming." He then "[saw Sanchez] throw his hands up and . . . [slump] over the steering wheel, and . . . the tow truck going into the ditch."

         When Sergeant Darrell Shores spoke with appellant, he stated that he had accidentally shot the tow truck driver. Appellant stated that he "shot [at the tow truck], then he fell, then he shot again." He also stated that "[repossession teams] should not be allowed to do this in the middle of the night."

         Appellant was charged with murder, without express designation of degree, use of a firearm in the commission of murder, and involuntary manslaughter by shooting into an occupied vehicle causing death in violation of Code § 18.2-154. Appellant moved to dismiss the indictment, contending that convictions of both the homicide offenses would violate the Double Jeopardy Clause. Specifically, appellant argued that the charges were not separate offenses under Blockburger v. United States, 284 U.S. 299 (1932). Appellant also argued that the legislature had not established that it intended to impose separate punishments for each offense when they were based on the same underlying conduct. The trial court heard argument on the motion and withheld its ruling "until after the determination of guilt or innocence by the jury."

         At the conclusion of the evidence, the jury was instructed on the offense of "maliciously shooting at an occupied vehicle with death resulting." Instruction No. 15 provided for a second-degree murder conviction if the jury found that the Commonwealth had proven:

1. That the defendant shot at a vehicle; and
2. That such vehicle was occupied by one or more persons; and
3. That, as a result, the life of a person in such vehicle may have been put in peril; and
4. That the act was done with malice; and
5. That the death resulted from such malicious shooting.

         The instruction additionally provided that if the jury found that the Commonwealth had proven the first three elements, but found "that the act was done unlawfully and not maliciously, and, further that death resulted from such unlawful shooting, " ...

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