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Commonwealth v. Gregg

Supreme Court of Virginia

April 5, 2018

COMMONWEALTH OF VIRGINIA
v.
CARROLL EDWARD GREGG, JR.

          OPINION

          STEPHEN R. MCCULLOUGH JUSTICE

         FROM THE COURT OF APPEALS OF VIRGINIA

         Carroll Edward Gregg was convicted of common law involuntary manslaughter as well as involuntary manslaughter under Code § 18.2-154. In a published opinion, the Court of Appeals of Virginia concluded that Gregg could not be sentenced for both offenses. See Gregg v. Commonwealth, 67 Va.App. 375, 796 S.E.2d 447 (2017). It reversed and remanded for a new sentencing proceeding, to be held after the Commonwealth elected which conviction it would seek to have sentence imposed on. The Commonwealth appeals from this judgment. For the reasons explained below, we will affirm the judgment of the Court of Appeals.

         BACKGROUND

         The victim, Junior Montero Sanchez, was in the process of repossessing Gregg's truck when Gregg shot and killed him. The autopsy report reflected that Sanchez sustained a single gunshot wound to the back, which fatally damaged Sanchez's lung and heart. The shooting occurred around midnight on June 5 or 6, 2014. Gregg acknowledged shooting Sanchez, but stated it was an accident.

         A grand jury indicted Gregg for first-degree murder, use of a firearm in the commission of murder, and shooting into an occupied vehicle and causing the death of another in violation of Code § 18.2-154. In a jury trial, the court instructed the jury on first-degree murder, second degree murder, common law involuntary manslaughter, as well as involuntary manslaughter under Code § 18.2-154. The jury convicted Gregg of both common law involuntary manslaughter and involuntary manslaughter under Code § 18.2-154. Gregg moved to dismiss one of the charges, contending that the Double Jeopardy Clause precluded a conviction for both manslaughter offenses. The trial court denied the motion.

         On appeal, the Court of Appeals of Virginia reversed, holding that Gregg could not be convicted of both common law involuntary manslaughter and involuntary manslaughter under Code § 18.2-154. Gregg v. Commonwealth, 67 Va.App. 375, 387-88, 796 S.E.2d 447, 454 (2017). We granted the Commonwealth an appeal from the decision of the Court of Appeals.

         ANALYSIS

         We review de novo whether "multiple punishments have been imposed for the same offense in violation of the double jeopardy clause." Johnson v. Commonwealth, 292 Va. 738, 741, 793 S.E.2d 321, 322 (2016) (quoting Lawlor v. Commonwealth, 285 Va. 187, 227, 738 S.E.2d 847, 870 (2013)).

         The Code of Virginia does not define the elements of common law involuntary manslaughter. Under our case law,

the crime of common law involuntary manslaughter has two elements: (1) the accidental killing of a person, contrary to the intention of the parties; and (2) the death occurs in the defendant's prosecution of an unlawful but not felonious act, or in the defendant's improper performance of a lawful act. To constitute involuntary manslaughter, the "improper" performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence.

West v. Dir., Dep't of Corr., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007) (citations omitted).

         Code § 18.2-36 specifies that this crime is punishable ...


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