Hudgins v. Com.

• Decision Date: 08 June 2004
• Docket Number: Record No. 0078-02-1.
• Citation: 43 Va.App. 219,597 S.E.2d 221
• Parties: Tarik H. HUDGINS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

597 S.E.2d 221

43 Va.App. 219

Tarik H. HUDGINS v. COMMONWEALTH of Virginia.

Record No. 0078-02-1.

Court of Appeals of Virginia, Richmond.

June 8, 2004.

James L. Grandfield, Senior Assistant Public Defender, for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Before: FITZPATRICK, C.J., BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON and KELSEY, JJ.

UPON REHEARING EN BANC

WALTER S. FELTON, JR., Judge.

This matter comes before the Court on a rehearing en banc from a panel decision, Hudgins v. Commonwealth, 40 Va.App. 1, 577 S.E.2d 505 (2003). In that decision, a divided panel held that Tarik H. Hudgins's acquittal on a prior robbery indictment acted as a bar to his subsequent indictment and prosecution for grand larceny from the person based on the same theft. Reversing his conviction, the panel held that collateral estoppel protections of the Double Jeopardy Clause barred the Commonwealth's subsequent attempt to convict Hudgins of grand larceny from the person of the same property from the same victim.¹

Upon rehearing en banc, we hold that Hudgins's acquittal on the robbery indictment acted as an acquittal of the lesser-included offense of larceny and that the Double Jeopardy Clause barred the Commonwealth's subsequent attempt to convict appellant of grand larceny from the person of that same bicycle from the person of the same victim. To the extent that the holding in Graves v. Commonwealth, 21 Va.App. 161, 462 S.E.2d 902 (1995), aff'd on reh'g en banc, 22 Va.App. 262, 468 S.E.2d 710 (1996),

is in conflict with our decision here, we overrule that holding. Accordingly, we reverse the conviction and dismiss the indictment.

I. BACKGROUND

On October 1, 2000, Hudgins pushed an eleven-year-old boy (the victim) from his bicycle and took the bicycle from him.

On February 28, 2001, the grand jury returned an indictment charging that, "On or about Sunday, October 1, 2000," Hudgins "did rob [the victim] of U.S. Currency or other personal property, in violation of Code § 18.2-58." The value of the property taken was not alleged in the indictment. In a bench trial on March 16, 2001, Hudgins was tried on the robbery indictment and acquitted of robbery. The record of the present trial reflects that before acquitting Hudgins of robbery, the trial court had indicated its belief that the evidence was sufficient to support a conviction for larceny from the person, but that it could not convict Hudgins of that offense because larceny from the person was not a lesser-included offense of robbery. See Graves, 21 Va.App. at 166,

462 S.E.2d at 904 (holding that grand larceny from the person was not a lesser offense included within the robbery specification of the indictment).

The record does not reflect whether the Commonwealth asked the trial court to find Hudgins guilty of larceny of the bicycle or whether, in reliance on our holding in Graves, the trial court concluded the Commonwealth could seek a subsequent indictment for grand larceny from the person. Whatever the Commonwealth's intention, it does not impact our decision of whether the acquittal of robbery at the first trial necessarily acted as an acquittal of the larceny of the bicycle.

On March 26, 2001, ten days after Hudgins's acquittal of robbery, the grand jury returned an indictment alleging that, "On or about Sunday, October 1, 2000," Hudgins "did steal property having a value of five dollars ($5) or more from the person of [the victim], in violation of Code § 18.2-95."

Hudgins moved to dismiss the indictment on grounds of former jeopardy because of his prior acquittal of robbery based on the same facts. In a memorandum in support of that motion, he conceded that this Court held in Graves, under an indictment charging robbery, that it was impermissible to instruct the jury that it could convict the accused of the offense of grand larceny from the person. Hudgins argued that in obtaining the second indictment, the Commonwealth impermissibly relied on the same theft from the same person as the basis for the subsequent indictment that had been the basis of the first indictment on which he was acquitted. The Commonwealth conceded in the trial court that, "the `same conduct' by [Hudgins] resulted in the two indictments, one for Robbery of which he was acquitted, and one for Grand Larceny from the Person," of which he was convicted.

Relying on Graves, the trial court denied the motion to dismiss the second indictment, holding that "[l]arceny from the person is not a lesser-included offense of robbery" and, therefore, is not a bar to a second prosecution after an acquittal of robbery. It also held that "while the act alleged — the theft of a bicycle — may be the same, robbery and larceny from the person are not identical offenses."

After hearing evidence, the trial court convicted Hudgins of grand larceny from the person, and he noted this appeal.

II. ANALYSIS

On appeal, Hudgins contends the trial court erroneously ruled that his prosecution and conviction for grand larceny from the person, after his previous acquittal for robbery arising out of the same theft, did not violate double jeopardy principles. He argues that the offense of larceny from the person, the offense for which he was convicted, is a lesser-included offense of robbery, the offense for which he was acquitted, and that the subsequent prosecution for larceny from the person violated his protections against double jeopardy.

The double jeopardy protections of the Virginia and United States Constitutions provide that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Commonwealth v. Washington, 263 Va. 298, 304, 559 S.E.2d 636, 638 (2002); see U.S. Const. amend V;² Va. Const. art. I § 8.³ These protections prevent prosecution under successive indictments "when (1) the two offenses involved are identical, (2) the former offense is lesser-included in the subsequent offense; and (3) the subsequent offense is lesser-included in the former offense." Martin v. Commonwealth, 221 Va. 720, 722, 273 S.E.2d 778, 780 (1981) (citing Roderick Cecil Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660 (1978)); see Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733-34 (2001)

. Likewise, the double jeopardy protections prevent multiple punishments for the same offense in a single trial. Jordan v. Commonwealth, 2 Va.App. 590, 347 S.E.2d 152 (1986).

"It is well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged." Bullington v. Missouri, 451 U.S. 430, 437, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

An acquittal is accorded special weight. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, for the public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation. If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair. The law attaches particular significance to an acquittal.

United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (citations omitted). Put simply, "the Fifth Amendment guarantee against double jeopardy ... surely protects a man who has been acquitted from having to `run the gantlet' a second time." Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (citation omitted).

In Graves, which did not involve a double jeopardy challenge, this Court held that grand larceny from the person was not a lesser-included offense of robbery, at least under the specific language of the robbery indictment in that case. Graves, 21 Va.App. at 167, 462 S.E.2d at 905. This Court determined that because robbery and grand larceny from the person each had elements of proof that the other did not, grand larceny from the person could not be a lesser-included offense of robbery. Id. at 164, 462 S.E.2d at 903. The Court concluded, however, that petit larceny is a lesser-included offense of robbery. Id. at 167, 462 S.E.2d at 905.

When Hudgins was acquitted of the robbery in which the bicycle was taken, he was necessarily acquitted of petit larceny of the same bicycle. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Myers v. Commonwealth, 148 Va. 725, 729-30, 138 S.E. 483, 484 (1927). The Commonwealth could not later, consistent with double jeopardy protections, prosecute him for larceny, whether grand or petit, of the same bicycle after he was acquitted of the petit larceny of the bicycle in the first trial. To hold otherwise would suggest that Hudgins could not be convicted of petit larceny, but could be convicted of the greater offense of grand larceny of the same bicycle.

The Commonwealth urges that our holding in Graves compels us to conclude that robbery and grand larceny from the person are separate offenses under the "same elements" test and that the acquittal of Hudgins of robbery is not a bar to his subsequent prosecution of grand larceny from the person.

In determining whether one offense is the "same offense" as another offense for double jeopardy purposes, the Supreme Court developed the "Blockburger" or "same elements" test. This analysis concludes that an offense is not a lesser-included offense in another offense if it contains an element of proof that the greater offense does not. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)

; see also Brown, 432 U.S. at 168,

97 S.Ct. 2221 (holding that "[t]he greater offense is ... by definition the `same' for purposes of double jeopardy as any lesser offense included in it" and, thus, a conviction for a lesser offense prevented a subsequent conviction...