Davis v. Commonwealth of Va..

• Decision Date: 11 January 2011
• Docket Number: Record No. 2581–09–2.
• Citation: 57 Va.App. 446,703 S.E.2d 259
• Parties: Michael Rashe DAVISv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

57 Va.App. 446

703 S.E.2d 259

Michael Rashe DAVIS

v.COMMONWEALTH of Virginia.

Record No. 2581–09–2.

Court of Appeals of Virginia, Richmond.

Jan. 11, 2011.

From the Circuit Court of Lunenburg County, Leslie M. Osborn, Judge.¹Rocco P.T. Columbus (Mokris & Dunning, P.L.C., on brief), for appellant.Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FRANK, BEALES and POWELL, JJ.FRANK, Judge.

Michael R. Davis, appellant, was convicted in a jury trial of vehicular aggravated involuntary manslaughter, in violation of Code § 18.2–36.1(B). Appellant contends the trial court erred in failing to dismiss the manslaughter indictment because that conviction violates both the Double Jeopardy Clause of the United States Constitution and § 19.2–294 of the Code of Virginia. He also contends the evidence was not sufficient to prove causation and criminal negligence. Finding no error, we affirm the trial court.

BACKGROUND

Under well established principles of appellate review, we view the evidence and all reasonable inferences deducible from that evidence in the light most favorable to the Commonwealth, the party prevailing below. Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, on the evening of January 6, 2009, appellant attended a birthday party along with his cousins, Lawanda Rainey and Ronald White. Both White and appellant drank alcohol at the party. White left the party on foot before appellant, and Rainey left in appellant's car.

As Davis drove on an unlit stretch of Mecklenburg Avenue, he was sending text messages on his cellular phone. Appellant testified his headlights illuminated the road. Rainey saw something in the road and yelled to appellant to “watch out.” Seconds later, appellant hit White, who was lying in the road. Rainey never indicated appellant took any evasive action prior to striking White. Appellant lost control of his car and crashed into a ditch.

Officers arrived at the scene. White was declared dead at the scene. Virginia State Trooper Joseph Landry observed that there were no skid marks leading to the decedent's body.² He also observed damage to the front undercarriage of appellant's car. Landry detected a slight odor of alcohol on appellant. Landry testified appellant appeared to be under the influence of alcohol. Landry put appellant into the police car and advised him of his Miranda³ rights. Appellant stated:

I'm going to be honest with you. Me and my cousin was coming down the road. I was sitting there texting on my phone and I did not realize he was laying in the road. And I ran over top of him. And after I ran over top of him, that's when I realized I had ran over top of something. And that's when I swerved and hit the bank and everything.

Appellant admitted to drinking alcohol, so Landry administered field sobriety tests. Appellant did not perform satisfactorily. At the sheriff's office, a breath test revealed appellant's blood alcohol level to be .15.

On April 8, 2009, appellant was convicted in general district court of driving under the influence, in violation of Code § 18.2–266. Immediately after his conviction, appellant was served with an indictment, returned by the grand jury on April 6, 2009, charging him with aggravated involuntary manslaughter, in violation of Code § 18.2–36.1(B).

Appellant filed a motion to dismiss the indictment on July 8, 2009. On July 21, 2009, the trial court conducted a hearing on appellant's motion. The trial court found no double jeopardy violation under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and no violation of Code § 19.2–294.

A jury heard the aggravated involuntary manslaughter case on August 11, 2009. Melissa Kennedy, a forensic scientist who is a supervisor in the Breath Alcohol Department of Forensic Science, testified as an expert in toxicology. She stated that concentration and divided attention problems begin when the blood alcohol level reaches .05.⁴ Kennedy explained that divided attention is the most important part of safe driving. At a .05 blood alcohol level, one begins to lose judgment and the ability to think coherently. She also testified that visual difficulties begin at a blood alcohol level of about .10. Alcohol consumption impairs reaction time such that an impaired driver takes longer to recognize an emergency and to take evasive action. Kennedy stated that while appellant's blood alcohol level was .15 at the time it was tested, it would have been .19 to .21 at the time of the accident.

At trial, appellant testified that when Rainey told him something was in the road, he “immediately” put his phone down and swerved to avoid the object. Appellant denied not looking at the road. He explained, “I was looking down and looking up at the same time. I wasn't on my cell phone the whole entire time.” When asked if he could have seen the object in the road sooner had he had not been texting, but looking forward, appellant replied in the negative, because it was dark. He further admitted that after seeing the object in the road, he had time to swerve around it. At trial, appellant denied hitting White.

The jury convicted appellant of aggravated involuntary manslaughter.

This appeal followed.

ANALYSIS

Appellant contends the trial court erred in failing to dismiss the aggravated involuntary manslaughter indictment because that conviction violates both the Double Jeopardy Clause of the United States Constitution and § 19.2–294 of the Code of Virginia. Specifically, he argues he was improperly convicted and punished twice for committing one offense. He also argues the Commonwealth did not prove that White's death was caused by appellant driving under the influence of alcohol, nor did the Commonwealth prove the requisite criminal negligence.

Double Jeopardy

Standard of Review

In reviewing a double jeopardy claim, or a claim based on statutory interpretation, this Court shall conduct a de novo review. See Dalo v. Commonwealth, 37 Va.App. 156, 164–65, 554 S.E.2d 705, 709 (2001).

Our inquiry is whether the convictions and punishments for driving while intoxicated and aggravated involuntary manslaughter, both of which arose from the same incident, violate the double jeopardy provision of the Fifth Amendment of the United States Constitution. In pertinent part, this amendment states that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

“This constitutional provision guarantees protection against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999).⁵

To determine whether two charges constitute the same offense, we must consider the rule enunciated in Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.⁶ “[W]here 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.” Id. A double jeopardy violation exists only if the offenses always require proof of the same elements. See Illinois v. Vitale, 447 U.S. 410, 419–20, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228 (1980). “In applying the Blockburger test, we look at the offenses charged in the abstract, without referring to the particular facts of the case under review.” Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001).

An analysis of whether the multiple convictions and punishments imposed upon appellant are proper requires a determination of legislative intent. Thus, we must first examine the statutes under which appellant was convicted.

Code § 18.2–266 (driving while intoxicated) provides, in relevant part:

It shall be unlawful for any person to drive or operate any motor vehicle ... (i) while such person has a blood alcohol concentration of 0.08 percent or more ... (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle ... (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle....

Code § 18.2–36.1 (aggravated involuntary manslaughter) provides, in relevant part:

A. Any person who, as a result of driving under the influence in violation of clause (ii), (iii), or (iv) of § 18.2–266 ... causes the death of another person, shall be guilty of involuntary manslaughter.

B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.

The driving while intoxicated and involuntary manslaughter statutes contain different elements. An element of driving while intoxicated is having a blood alcohol concentration of 0.08 or more. Code § 18.2–266(i) requires no evidence of erratic driving, performance on sobriety tests, or any other evidence that the defendant is “intoxicated.” See Code § 4.1–100 (defining “intoxicated” as “a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior”). Blood alcohol concentration is not an element of involuntary manslaughter. While aggravated involuntary manslaughter requires proof of driving under the...