Gregg v. Commonwealth

• Decision Date: 28 February 2017
• Docket Number: Record No. 0047-16-4
• Citation: 67 Va.App. 375,796 S.E.2d 447
• Court: Virginia Court of Appeals
• Parties: Carroll Edward GREGG, Jr. v. COMMONWEALTH of Virginia

67 Va.App. 375

796 S.E.2d 447

Carroll Edward GREGG, Jr.

v.COMMONWEALTH of Virginia

Record No. 0047-16-4

Court of Appeals of Virginia, Alexandria.

FEBRUARY 28, 2017

Blair D. Howard (Christopher T. Whelan ; T. Brooke Howard, II ; Howard, Morrison, Ross and Whelan, Warrenton; Howard & Howard, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Alston, Chafin and Senior Judge Annunziata

OPINION BY JUDGE TERESA M. CHAFIN

Following a jury trial, Carroll Edward Gregg, Jr. ("appellant") was convicted of common law involuntary manslaughter and involuntary manslaughter in violation of Code § 18.2–154, or "unlawfully shooting at an occupied vehicle wherein death resulted."¹ The jury fixed appellant's punishment at ten years in prison for each conviction, and the trial court sentenced appellant accordingly. On appeal, appellant argues that his rights against double jeopardy were violated because he was convicted of and sentenced for both statutory involuntary manslaughter and common law involuntary manslaughter. For the reasons that follow, we reverse the trial court's imposition of consecutive sentences for each offense and remand for proceedings consistent with this opinion.

Background

On appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below, and "accord [it] the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth , 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004).

So viewed, the evidence is as follows. On the night of June 4, 2014, L&K Recovery attempted to repossess a truck on behalf of appellant's creditors pursuant to a repossession order. Junior Montero Sanchez ("Sanchez"), an employee of L&K Recovery, drove a tow truck to appellant's home. Alex Marin ("Marin"), also employed by L&K Recovery, drove a separate vehicle to that location. The two men verified the VIN number on the truck and then connected it to the tow truck.

When Marin used a lockout tool to open the door of the truck, its alarm system was activated. Marin heard a man yell out the window, "You better get the F out of here." Sanchez drove the tow truck down the driveway, with Marin following in the other vehicle, and stopped at the end of the driveway to check his GPS for directions. As Sanchez was turning out of the driveway, Marin heard "a loud bang, and right after that, [he] heard [Sanchez] screaming." He then "[saw Sanchez] throw his hands up and ... [slump] over the steering wheel, and ... the tow truck going into the ditch."

When Sergeant Darrell Shores spoke with appellant, he stated that he had accidentally shot the tow truck driver. Appellant stated that he "shot [at the tow truck], then he fell, then he shot again." He also stated that "[repossession teams] should not be allowed to do this in the middle of the night."

Appellant was charged with murder, without express designation of degree, use of a firearm in the commission of murder, and involuntary manslaughter by shooting into an occupied vehicle causing death in violation of Code § 18.2–154. Appellant moved to dismiss the indictment, contending that convictions of both the homicide offenses would violate the Double Jeopardy Clause. Specifically, appellant argued that the charges were not separate offenses under Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Appellant also argued that the legislature had not established that it intended to impose separate punishments for each offense when they were based on the same underlying conduct. The trial court heard argument on the motion and withheld its ruling "until after the determination of guilt or innocence by the jury."

At the conclusion of the evidence, the jury was instructed on the offense of "maliciously shooting at an occupied vehicle with death resulting." Instruction No. 15 provided for a second-degree murder conviction if the jury found that the Commonwealth had proven:

1. That the defendant shot at a vehicle; and

2. That such vehicle was occupied by one or more persons; and

3. That, as a result, the life of a person in such vehicle may have been put in peril; and

4. That the act was done with malice; and

5. That the death resulted from such malicious shooting.

The instruction additionally provided that if the jury found that the Commonwealth had proven the first three elements, but found "that the act was done unlawfully and not maliciously, and, further that death resulted from such unlawful shooting," the jury should find appellant guilty of involuntary manslaughter.

Instruction No. 20 addressed the charge of common law murder and provided for a first-degree murder conviction if the jury found that the Commonwealth had proven that appellant killed Sanchez intentionally, maliciously, willfully, deliberately, and with premeditation. It further instructed that if the jury found that the Commonwealth had established that the killing "although unintended, was the direct result of the negligence of the defendant, and so gross, wanton and culpable as to show a callous disregard of human life," it should find appellant guilty of involuntary manslaughter.

The jury determined that appellant was guilty of involuntary manslaughter and "unlawfully shooting at an occupied vehicle wherein death resulted, involuntary manslaughter." The jury fixed appellant's sentence at ten years in prison for each of the involuntary manslaughter convictions.

Appellant filed a post-trial double jeopardy motion. Appellant acknowledged that Code § 18.2–154 did not use the term "criminal negligence." He argued, however, that every case involving a non-malicious violation of Code § 18.2–154 always involved criminal negligence. Thus, appellant argued that every violation of Code § 18.2–154 that did not involve malice was also a violation of common law involuntary manslaughter.

The Commonwealth countered that the elements of the two crimes were different when analyzed under the double jeopardy test articulated in Blockburger . The Commonwealth noted that common law involuntary manslaughter was an accidental killing with criminal negligence. Under Code § 18.2–154, however, there was no requirement to prove criminal negligence. Further, the Commonwealth argued that Code § 18.2–154 required proof of shooting at a vehicle.

The trial court concluded that the two offenses contained different elements under Blockburger and denied the motion.

Appellant then filed a motion to reconsider the trial court's double jeopardy ruling, contending that under this Court's en banc decision in Holley v. Common w ealth , 64 Va.App. 156, 765 S.E.2d 873 (2014) (en banc ), the two involuntary manslaughter convictions could not stand. He argued that a Blockburger analysis was unnecessary where legislative intent could be discerned by looking at the language in the statutes or the legislative history of the statutes in question. He further argued that under a common law unitary prosecution theory, wherein one victim and one death equal one offense, only one punishment could have been imposed. Appellant maintained, as he does on appeal, that the legislative history of Code § 18.2–154 established that the General Assembly did not intend for cumulative punishments under Code § 18.2–154 and common law involuntary manslaughter.

In response, the Commonwealth argued that Holley was not controlling. Holley , the Commonwealth contended, involved separate provisions of a single statute that adopted common law homicide. Thus, unlike Code § 18.2–154, the statute implicated the common law unitary theory of homicide. The Commonwealth also argued that separate punishments were permitted because the two offenses contained different elements under Blockburger .

The trial court determined that Holley was distinguishable and denied the motion.

Analysis

On appeal, appellant contends that the trial court erred in imposing separate sentences for his convictions of common law involuntary manslaughter and statutory involuntary manslaughter under Code § 18.2–154. To resolve this question, we must first determine whether the General Assembly intended for multiple sentences to be available in this instance.

I. Double Jeopardy

The Fifth Amendment guarantees that no person "shall ... for the same offense ... be twice put in jeopardy of life or limb." U.S. Const. amend. V. "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." ’ " Blythe v. Commonwealth , 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981) (alterations in original) (quoting Illinois v. Vitale , 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980) ).

See also Clagett v. Commonwealth , 252 Va. 79, 95–96, 472 S.E.2d 263, 272–73 (1996). Appellant's argument on appeal involves the third protection, prohibiting multiple punishments for a single offense. "[T]he 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." Blythe , 222 Va. at 725, 284 S.E.2d at 798 (quoting Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) ). When both of a defendant's convictions occur in a single trial, the question of whether multiple punishments are unconstitutional "cannot be resolved without determining what punishments the Legislative Branch has authorized." Id. (quoting Whalen v. United States , 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980) ). "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...