Dalo v. Com.

• Decision Date: 20 November 2001
• Docket Number: Record No. 2524-00-1.
• Parties: Mario Udasco DALO v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

554 S.E.2d 705

37 Va. App. 156

Mario Udasco DALO v. COMMONWEALTH of Virginia.

Record No. 2524-00-1.

Court of Appeals of Virginia at Chesapeake.

November 20, 2001.

Steven C. Frucci (Brydges, O'Brien & Frucci, on briefs), Virginia Beach, for appellant.

Virginia B. Theisen, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellee.

Present: BRAY, FRANK and CLEMENTS, JJ.

FRANK, Judge.

Mario Udasco Dalo (appellant) was convicted in a bench trial of involuntary manslaughter, in violation of Code § 18.2-36.1(A). On appeal, he contends this conviction violated the principles of double jeopardy because he also was convicted of driving while under the influence (DUI), in violation of Code § 18.2-266, based on the same evidence. After consideration of the legislative scheme and implicit intentions of the General Assembly, we affirm the involuntary manslaughter conviction.

BACKGROUND

The facts are not in controversy.

On the evening of October 5, 1999, appellant was driving on Shore Drive in the City of Virginia Beach when he struck James Cone and Kathy Phelan, who were walking beside the road. Cone was injured, but not fatally. Phelan was alive at the scene, but later died from her injuries.

When Virginia Beach Police Officer Scott Bishop arrived at the scene, he found appellant's speech was slurred, his eyes were glassy, and he swayed as he stood. Appellant also smelled of alcohol and could not pass a number of field sobriety tests. Appellant admitted he had consumed alcohol that evening. A breath test revealed his blood alcohol level was .11.

Appellant was charged with involuntary manslaughter under Code § 18.2-36.1(A)¹ and with DUI. The preliminary hearing and trial for these charges were held together in general district court on December 9, 1999. The DUI warrant originally recited a violation of the Virginia Beach City Code. The prosecutor amended the warrant to reflect a violation of Code § 18.2-266(ii), (iii), or (iv). The language on the DUI warrant that referred to Code § 18.2-266(i), allowing convictions based on a blood alcohol concentration of .08 or more, was struck by the prosecutor. The district court convicted appellant of the amended DUI charge and certified the manslaughter charge to the grand jury. The grand jury returned a true bill of indictment on January 4, 2000.

In the circuit court, appellant moved to dismiss the indictment on double jeopardy grounds. After both parties briefed the issue, the trial court heard argument on March 14, 2000. During the hearing, the Commonwealth "stipulated" that "these two offenses don't pass [the Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),] test." On May 2, 2000, the trial court denied the motion to dismiss.

In ruling that double jeopardy principles did not bar prosecution of the involuntary manslaughter charge under Code § 18.2-36.1, the trial court found the General Assembly intended to impose multiple punishments "for the unlawful killing of another in violation of Code § 18.2-36.1 and for the crime of driving while intoxicated in violation of Code § 18.2-266(ii), (iii) and (iv)." The trial court further found that the reference in Code § 18.2-36.1 to Code § 18.2-266(ii), (iii) and (iv) served only to "grade this offense of manslaughter, distinguishing it from the offense of common law involuntary manslaughter."

ANALYSIS

Appellant contends he was twice placed in jeopardy for the same offense when he was convicted of involuntary manslaughter following his DUI conviction. Essentially, appellant argues that his DUI conviction, which the Commonwealth at trial conceded is a lesser-included offense of involuntary manslaughter under Code § 18.2-36.1, precludes prosecution of the greater offense. The Fifth Amendment protection against double jeopardy includes "three separate guarantees: (1) `It protects against a second prosecution for the same offense after acquittal. [(2) I]t 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, 65 L.Ed.2d 228 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). This appeal involves only the question of whether appellant received multiple punishments for the same offense.²

Generally, to determine whether charges are for the "same offense," courts turn to the test established in Blockburger. For example, the Supreme Court noted:

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we stated the principal test for determining whether two offenses are the same for purposes of barring successive prosecutions. Quoting from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), which in turn relied on Gavieres v. United States, 220 U.S. 338, 342-343, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911), we held that "`[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'" 432 U.S., at 166, 97 S.Ct., at 2225.

Vitale, 447 U.S. at 416, 100 S.Ct. 2260.

However, in this case, the Commonwealth conceded "these two offenses don't pass that test." Therefore, the Commonwealth is barred from arguing Blockburger on appeal, and this Court will not apply that test here.³ See Johnson v. Commonwealth, 26 Va.App. 674, 683, 496 S.E.2d 143, 147 (1998)

(finding the Commonwealth conceded at trial that an exception to the warrant requirement for searches did not apply and, therefore, the exception could not form the "basis for affirmance on appeal").

This concession does not mandate the outcome of this appeal, however, because Blockburger is not controlling. "[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes." Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). As the Supreme Court explained:

The rule stated in Blockburger was applied as a rule of statutory construction to help determine legislative intent. Significantly, after setting out the rule, the Court cited a paragraph in Albrecht [v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 71 L.Ed. 505 (1927)], which included the following statement: "There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction" (emphasis added). We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980). Indeed, it would be difficult to contend otherwise without converting what is essentially a factual inquiry as to legislative intent into a conclusive presumption of law.

Garrett v. United States, 471 U.S. 773, 778-79, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (emphasis in original). See also Brown v. Commonwealth, 230 Va. 310, 313-14, 337 S.E.2d 711, 713 (1985)

. A Blockburger analysis is preferred by courts generally as it maximizes judicial economy, providing an answer without resorting to a more detailed examination of legislative intent. However, the Commonwealth here agreed with appellant that the Blockburger test did not allow multiple punishments here.

In this case, therefore, the issue is whether "the General Assembly has `clearly indicated its intent to impose multiple punishments.'" Fitzgerald v. Commonwealth, 223 Va. 615, 635, 292 S.E.2d 798, 810 (1982) (quoting Turner v. Commonwealth, 221 Va. 513, 530, 273 S.E.2d 36, 47 (1980)). The structure of the Code, the language of the statutes, legislative history, and the logical implications of each interpretation assist in making this determination.⁴ See Garrett, 471 U.S. at 779

& 785, 105 S.Ct. 2407; Fitzgerald, 223 Va. at 636-37,

292 S.E.2d at 810-11.

Although determining legislative intent is "a factual inquiry," Garrett, 471 U.S. at 779, 105 S.Ct. 2407, this analysis involves an examination of the offenses "in the abstract, rather than with reference to the facts of the particular case under review," Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981). Therefore, de novo review of the trial court's ruling is appropriate. Contrast Robinson v. Commonwealth, 17 Va.App. 551, 555, 439 S.E.2d 622, 624-25, aff'd en banc, 18 Va.App. 814, 447 S.E.2d 542 (1994)

(deferring to a trial court's factual finding of no prosecutorial misconduct in deciding whether double jeopardy principles prevented retrial of a defendant) with Stephens v. Commonwealth, 35 Va.App. 141, 145-47, 543 S.E.2d 609, 611 (2001) (discussing the double jeopardy prohibition against multiple punishments for the same offense without deference to the trial court's ruling) and Spain v. Commonwealth, 7 Va.App. 385, 391-92, 373 S.E.2d 728, 731-32 (1988) (determining the General Assembly's intent without deference to the trial court's ruling in a case involving multiple punishments). See also Gatlin Oil Co., Inc. v. United States, 169 F.3d 207, 210 (4th Cir.1999) ("Because, at this stage of the proceedings, this case turns on the proper interpretation of the Act, we review the district court's judgment de novo."); People v. Dillard, 246 Mich.App. 163, 631 N.W.2d 755, 757 (2001) ("A double jeopardy...