Blythe v. Com., 810338

• Decision Date: 04 December 1981
• Docket Number: No. 810338,810338
• Court: Virginia Supreme Court
• Parties: James Calvin BLYTHE v. COMMONWEALTH of Virginia. Record

Page 796

284 S.E.2d 796

222 Va. 722

James Calvin BLYTHE v. COMMONWEALTH of Virginia.

Record No. 810338.

Supreme Court of Virginia.

Dec. 4, 1981.

John D. Eure, Jr., Suffolk (Eure & Johnson, Suffolk, on brief), for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

CARRICO, Chief Justice.

The defendant, James Calvin Blythe, was indicted separately for murder and the unlawful shooting, stabbing, cutting, or wounding of another in the commission of a felony (Code § 18.2-53). In a single jury trial, the defendant was convicted of voluntary manslaughter, with punishment fixed at ten years' imprisonment, and of the wounding charge, with punishment fixed at five years' imprisonment. The trial court imposed the prison terms fixed by the jury and ordered that the defendant serve the sentences consecutively.

The charges against the defendant grew out of a domestic dispute on June 18, 1980, during which the defendant stabbed his mother's boyfriend, Earl Rivers. Medical evidence showed Rivers died from stab wounds to the neck and chest.

On appeal, the defendant contends that to convict and sentence him for both voluntary manslaughter and unlawful wounding violates statutory and constitutional prohibitions against multiple punishments for the same offense. The statutory argument is based upon Code § 19.2-294, which provides, in 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.

The defendant maintains that, because his single act of stabbing Rivers violated both Code § 18.2-35, ¹ relating to voluntary manslaughter, and § 18.2-53, ² concerning unlawful wounding, conviction under the first statute bars conviction under the other.

Section 19.2-294, however, applies only where two or more statutory offenses are involved. While the unlawful shooting, stabbing, cutting, or wounding of another is a statutory offense, voluntary manslaughter is not; manslaughter is a common law offense. Section 18.2-35, cited by the defendant and quoted in footnote 1, merely fixes the punishment for voluntary manslaughter; the section does not define the offense. Therefore, § 19.2-294 does not bar the defendant's conviction and punishment for both voluntary manslaughter and unlawful wounding.

In his constitutional argument, the defendant focuses upon the provision that no person "shall ... for the same offense ... be twice put in jeopardy of life or limb." U.S.Const., amend. V. The defendant reiterates his view concerning the singularity of his criminal act and emphasizes the sameness of the evidence supporting his convictions. The defendant asserts that the wounding charge was a lesser included offense of the murder charge, upon which he was convicted of voluntary manslaughter, and, thus, that his case satisfies the "same evidence" test formulated to determine the identity of offenses for double jeopardy purposes.

The constitutional provision concerning double jeopardy embodies three guarantees: "(1) 'It protects against a second prosecution for the same offense after acquittal. [(2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.' " Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Because both the defendant's convictions occurred in a single trial, only the third guarantee, viz., that against multiple punishments is pertinent to resolution of the present appeal. Turner v. Commonwealth, 221 Va. 513, 529, 273 S.E.2d 36, 46-47 (1980).

In the single-trial setting, "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, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). And, "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). Or, stated another way, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Whalen, 445 U.S. at 698, 100 S.Ct. at 1441 (Blackmun, J., concurring). See also Busic v. United States, 446 U.S. 398, 413, 100 S.Ct. 1747, 1756, 64 L.Ed.2d 381 (1980) (Blackmun, J., concurring).

The question resolves itself, therefore, into one of legislative intent where the issue is whether "the Legislative Branch" has provided that two offenses may be punished cumulatively. In divining this intent, the test to be applied is "whether each [offense] requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). And, in applying this test, the two offenses are to be examined in the abstract, rather than with reference to the facts of the particular case under review. Whalen, 445 U.S. at 694 n. 8, 100 S.Ct. at 1439 n. 8.

We believe that, when viewed in the abstract,...