Bundy v. Com.

• Decision Date: 21 November 1979
• Docket Number: No. 790246,790246
• Citation: 220 Va. 485,259 S.E.2d 826
• Parties: Latney BUNDY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 826

259 S.E.2d 826

220 Va. 485

Latney BUNDY v. COMMONWEALTH of Virginia.

Record No. 790246.

Supreme Court of Virginia.

Nov. 21, 1979.

Lee W. Albrecht, Warrenton (Jonathan S. Lynn, Martin, Walker & Lawrence, P. C., Warrenton, on brief), for appellant.

Jerry P. Slonaker, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

In separate indictments, the defendant, Latney Bundy, was charged with the murder of Emily Parker, Code § 18.2-32, and with the "use (of) a rifle while committing murder," Code § 18.2-53.1. Tried by a jury on both indictments in a single trial, the defendant was convicted of voluntary manslaughter and of "the use of a firearm in the commission of a felony." Sentenced to 12 months in jail and 1 year in the penitentiary, respectively, the defendant is here on an appeal involving only his firearms conviction.

The record shows that on the evening of June 4, 1978, the defendant attended a dance at the "Music Note," a nightclub in Stafford County. There, he engaged with several others in a dice game outside the dance hall. At a point in the game, the defendant accused another participant, Ernest Pollard, of taking $10 of the defendant's winnings. When Pollard denied taking the money, the defendant said, "I know which road you are going to take and you are going to die tonight." The defendant left the game and drove away in his car.

Later, accompanied by Rosa Lee, Emily Parker, and Virginia Parker, Pollard left the dance and drove into Fauquier County en route to the Parker home. As the vehicle passed a fire tower, Rosa Lee saw the defendant's car "sitting back" in a side road a "few feet" from the tower. Then, "a shot was fired and it hit (the) rear tire on the left side" of the automobile operated by Pollard. A second shot struck the rear of the car, travelled through the trunk and the rear seat, and struck Emily Parker. She was mortally wounded.

Police investigators discovered "an empty cartridge, a 30-30," in a mudhole in the side road where Rosa Lee had observed the defendant's automobile. Laboratory tests indicated that a bullet removed from the vehicle occupied by Emily Parker "could originally have been loaded" in the cartridge case.

On appeal, the sole question for decision is whether the defendant's firearms conviction is proper. As has been noted, the defendant was indicted for the use of a firearm while committing Murder. The verdict returned by the jury, however, found the defendant guilty of the use of a firearm in the commission of a Felony.

Construing the verdict returned by the jury as tantamount to a finding that he used a firearm while committing murder, the defendant contends that the verdict is invalid because it is "legally inconsistent" with the voluntary manslaughter verdict returned on the homicide indictment. The defendant says also that under the doctrine of collateral estoppel, as enunciated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), his acquittal of the underlying murder charge, inherent in his conviction of the lesser charge of voluntary manslaughter, is "binding" upon the Commonwealth and bars his conviction of the use of a firearm in the commission of murder.

We do not agree with the defendant, however, on the possible application of the concepts of legal inconsistency and collateral estoppel. These concepts could apply in any event only if the verdict on the weapons indictment is interpreted as a finding of guilt that the defendant used a firearm while committing murder. We cannot interpret the verdict in this...