Hall v. Com.

• Decision Date: 28 July 1992
• Docket Number: No. 0828-89-1,0828-89-1
• Citation: 421 S.E.2d 455,14 Va.App. 892
• Parties: Anthony HALL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 455

421 S.E.2d 455

14 Va.App. 892

Anthony HALL v. COMMONWEALTH of Virginia.

Record No. 0828-89-1.

Court of Appeals of Virginia.

July 28, 1992.

Carl E. Eason, Jr., Suffolk (Pretlow, Eason & Pretlow, on brief), for appellant.

Katherine B. Toone, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on briefs), for appellee.

Present: KOONTZ, C.J., and Judges BARROW, BENTON, COLEMAN, DUFF, MOON, WILLIS, ELDER and BRAY, JJ.

UPON HEARING EN BANC

COLEMAN, Judge.

In this appeal, we overrule that part of our decision in Lash v. Henrico County, 13 Va.App. 251, 260-61, 410 S.E.2d 689, 694 (1991), which held that Code § 19.2-294 ¹ bars multiple convictions arising from the "same act," even where the convictions are obtained in a single trial. ² We hold that Code § 19.2-294 does not bar multiple convictions for the "same act" when those convictions are obtained in a single trial. Multiple convictions and punishments for the "same act" may be precluded by the double jeopardy clause, even though obtained in a single trial. See Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Code § 19.2-294 bars the Commonwealth from securing multiple convictions for the "same act" through successive "prosecution[s] or proceeding[s]" after having previously obtained a conviction. Unlike the double jeopardy clause, the statute operates only to successive prosecutions following a conviction. We further hold that the trial judge did not err regarding the evidence he considered in determining the role which Hall played in committing the crimes, and the court did not err in refusing to declare a mistrial.

Anthony Hall, the appellant, was convicted in a single bench trial of two counts of armed robbery in violation of Code § 18.2-58, unlawfully stabbing during the commission of a felony in violation of Code § 18.2-53, two counts of malicious wounding in violation of Code § 18.2-51, and one count of aggravated malicious wounding in violation of Code § 18.2-51.2. Hall was sentenced to a life term in the penitentiary plus consecutive terms aggregating sixty-six years. He raises three issues on appeal. First, he contends that the former jeopardy protection of the fifth amendment and Code § 19.2-294 prohibit several of the multiple convictions which arose out of the "same act" committed against the same victim. Second, he contends that the evidence was insufficient to identify him as one of the perpetrators of the crimes. Third, he contends that the trial court erred in not declaring a mistrial when the prosecutor improperly gestured toward him to assist a witness in identifying him as the perpetrator. We find the contentions to be without merit and affirm Hall's convictions.

On October 24, 1988, at 6:30 p.m., Lottie Goodman and the other employees of Dailey's Supermarket were preparing to close. Three men entered the market. One of the men was noticeably shorter than the other two. The two taller men approached Lottie Goodman's register, and one handed her a beer for purchase. The other pointed a handgun at her and removed approximately $500 in cash from her register.

At that time, Christopher Dailey, the twenty-one-year-old son of one of the owners, came to the front of the store where the register was located. The first of the two men in Goodman's register line, later identified as Anthony Hall, opened a long pocket knife and stabbed Christopher Dailey three times in the lower chest area. Judy Dailey, Christopher's mother and co-owner of the store, witnessed the stabbing and ran to help her son. When she intervened, Hall cut her, severing the end of Mrs. Dailey's nose. The man who was second in Goodman's line then shot Christopher Dailey in the back, causing a spinal injury that rendered him a paraplegic. The three criminals then fled from the store.

Later, Anthony Hall was arrested. Christopher Dailey identified Hall from a lineup as the man who had stabbed him. Hall was indicted and prosecuted in a single bench trial for the various offenses; however, significant for purposes of this appeal are the offenses of malicious wounding in violation of Code § 18.2-51 (two counts, stabbing Christopher Dailey and cutting Judy Dailey), and stabbing in the commission of a felony in violation of Code § 18.2-53 (two counts for the stabbing and cutting of Christopher and Judy Dailey). These convictions for malicious wounding and stabbing arose out of the same acts of stabbing Christopher Dailey and cutting Judy Dailey. Also relevant is the offense of aggravated malicious wounding in violation of Code § 18.2-51.2 (as a principal in the second degree for shooting Christopher Dailey).

At trial, Robert Wright testified that he lived near Dailey's Market and that shortly before the robbery, Anthony Hall, Clinton Powell, and Donald Norman were at his residence playing cards. He testified that Norman is substantially shorter than the other two men. He testified that just before 6:30 p.m. on October 24, 1988, the three men left his home to buy beer. While the men were gone, Horace Simon, Jr. arrived at Wright's home. Soon thereafter, Hall, Powell, and Norman returned. Simon testified that when the three men returned, Hall told him to turn off the stereo and television and to pull the shades, that he (Hall) "had just cut a man and woman and Clinton Powell had just shot a man at Dailey's." Simon testified that the three men went into a bedroom. He further testified that two days later, he and Wright found a knife that Hall regularly carried. The knife was found under the mattress in the bedroom where the three men had gone. Christopher Dailey identified Hall as the person who had stabbed him and who had cut off his mother's nose. Lottie Goodman described the man who stabbed Christopher and cut Judy Dailey as the first man in her register line and the one middle in height.

I.

Hall contends that the trial court erred by convicting him in a single bench trial for two counts of unlawful stabbing in the commission of a felony after having already found him guilty of two counts of malicious wounding of the same victims. He argues that he could only have committed one offense by the same act of stabbing each victim. Hall asserts that multiple convictions for the same act are barred by Code § 19.2-294 and the double jeopardy protections in the fifth amendment. Additionally, Hall contends that his convictions in a single trial for malicious wounding of Christopher Dailey caused by the stabbing and for the aggravated malicious wounding of Christopher caused by the shooting also violate Code § 19.2-294 and the double jeopardy clause. He contends that the infliction of multiple wounds on the same victim, even if by separate means, constitutes only one offense when it arises out of a single, continuous act.

We reject the argument that Code § 19.2-294 applies to multiple convictions obtained in a single trial. Code § 19.2-294 is "a bar to a prosecution or proceeding" where one "act [may] be a violation of two or more statutes," and when there has been a "conviction under one of such statutes." By its terms, the statute only bars "prosecution[s] or proceeding[s]" after there has been a "conviction." A "prosecution or proceeding" after a "conviction," by definition requires multiple or successive proceedings or prosecutions. Thus, we reject Hall's contention that his multiple convictions for the "same act" offenses committed upon Christopher Dailey and Judy Dailey are barred by Code § 19.2-294 or by the constitution.

Code § 19.2-294 provides, in pertinent part: "If the same act be a violation of two or more statutes, ... conviction under one of such statutes ... shall be a bar to a prosecution or proceeding under the other or others." Hall's contention that Code § 19.2-294 applies to convictions obtained in a single trial presents a question that was recently considered for the first time in Virginia by a panel of this Court in Lash, 13 Va.App. at 260-61, 410 S.E.2d at 694, and in this case. Previous cases which have considered Code § 19.2-294 have found it necessary only to decide whether the multiple offenses being prosecuted arose out of the "same act." Thus, earlier cases never addressed the "single trial" versus "successive trial" question because the multiple convictions did not arise out of the "same act," see Martin v. Commonwealth, 221 Va. 720, 273 S.E.2d 778 (1981) (held robbery and grand larceny were not the "same act" where different sums of money were stolen); Jones v. Commonwealth, 218 Va. 757, 240 S.E.2d 658 (1978) (robbery of money and larceny of automobile are not the "same act"); Jones v. Commonwealth, 208 Va. 370, 157 S.E.2d 907 (1967) (breaking and entering and attempted robbery not the same act); Fitzgerald v. Commonwealth, 11 Va.App. 625, 401 S.E.2d 208 (1991) (breaking of door as offense of destruction of property is not "same act" as breaking and entering for burglary offense), or because the statute applies only to statutory offenses and not common law crimes. Blythe v. Commonwealth, 222 Va. 722, 284 S.E.2d 796 (1981).

We turn to the issue whether Hall's multiple convictions for malicious wounding and stabbing satisfy the threshold requirement that they must arise from the "same act" to implicate Code § 19.2-294. In determining whether the conduct underlying the convictions is based upon the "same act," the particular criminal transaction must be examined to determine whether the acts are the same in terms of time, situs, victim, and the nature of the act itself. See Martin, 221 Va. at 723-25, 273 S.E.2d at 780-82; Jones, 218 Va. at 760-61, 240 S.E.2d at 661-62; Fitzgerald, 11 Va.App. at 628, 401 S.E.2d at 210-11; Wade v. Commonwealth, 9 Va.App. 359, 363-65, 388 S.E.2d 277, 279-80 (1990). Hall's act of stabbing Christopher Dailey clearly was the identical act that was used to convict him of malicious wounding and of stabbing in the commission of a felony. Also, Hall's act in cutting Judy Dailey was the same act...