Johnson v. Com., 800372

• Decision Date: 16 January 1981
• Docket Number: No. 800372,800372
• Citation: 273 S.E.2d 784,221 Va. 736
• Parties: Major Henry JOHNSON, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 784

273 S.E.2d 784

221 Va. 736

Major Henry JOHNSON, Jr. v. COMMONWEALTH of Virginia.

Record No. 800372.

Supreme Court of Virginia.

Jan. 16, 1981.

Clifford R. Weckstein, Roanoke (Lichtenstein, Weckstein & Raney, Roanoke, on briefs), 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, POFF, COMPTON and THOMPSON, JJ.

HARRISON, Justice.

This case is the sequel to Johnson v. Commonwealth, 220 Va. 146, 255 S.E.2d 525 (1979). A judgment was entered by the court below in accordance with a jury's verdict, finding Major Henry Johnson, Jr., guilty of capital murder in violation of Code § 18.2-31(d), and sentencing him to life imprisonment. The appeal is limited to a consideration of defendant's claim that his prosecution for capital murder in the commission of armed robbery was barred by the doctrines of collateral estoppel, double jeopardy, and autrefois acquit for the reason that a jury in the Circuit Court of Roanoke had previously acquitted him of robbery growing out of the same incident.

Johnson was originally tried in Roanoke under a three-count indictment charging him (1) with the robbery of John N. Gardner of United States currency, (2) with the felonious killing and murdering of John N. Gardner while committing robbery while armed with a deadly weapon, and (3) with using a pistol while committing murder. At the conclusion of the evidence, the trial court, without objection and at the request of the defendant, granted an instruction which stated that "if, under Count II (capital murder) of the indictment, you find the defendant guilty of capital murder, then you must find him not guilty under Count I (robbery) of the indictment." The court, without objection, also granted an instruction which in pertinent part told the jury that "if you find the defendant guilty of capital murder, then you must find the defendant not guilty of robbery, inasmuch as the elements of robbery are integral parts of the elements of the offense of capital murder in this case." The jury was told that capital murder is the "wilful, deliberate and premeditated killing of any person while in the commission of robbery while armed with a deadly weapon" and further that the jury must find beyond a reasonable doubt that "at the time of any such killing the defendant was committing robbery while armed with a deadly weapon" in order to convict for capital murder.

The record of defendant's first trial discloses that the jury initially returned a verdict finding Johnson guilty of capital murder under Count II of the indictment. The court thereupon instructed the jury to return to the jury room for a further consideration of Counts I and III. Thereafter the jury returned its verdicts finding the defendant guilty of capital murder, guilty of using a pistol in the commission of murder, and not guilty of robbery. The trial being bifurcated, the jury then considered the issue of punishment and returned its unanimous verdict fixing defendant's punishment at death. The verdict was subsequently approved and affirmed by the trial court. The order of the trial court recites that "(i)n view of the fact that robbery is an integral part of Capital Murder, it is Ordered that Robbery, Count 1 ... be dismissed." The defendant voiced no objection to the form of the orders entered by the court.

The defendant appealed his capital murder conviction, seeking a new trial. At that time he raised no issues of double jeopardy, collateral estoppel, autrefois acquit, or inconsistent verdicts. The defendant's conviction for capital murder was reversed and the case remanded for retrial because of error in the form of the instructions as compounded by improper argument of the prosecutors. The jury was not instructed that to convict the defendant of capital murder, it must have found that he was "the triggerman." Following a remand of the case, and on motion of the defendant, a change of venue was granted to the Circuit Court of the City of Alexandria.

Prior to his second trial, the defendant sought to have the trial court dismiss or reform the capital murder indictment, alleging grounds of double jeopardy, collateral estoppel, and autrefois acquit. Specifically, defendant contended there, and argues on this appeal, that since he was "acquitted" of robbery at the first trial he could not be tried for capital murder because the elements of an armed robbery are integral to a conviction of murder in the commission of armed robbery. The trial court overruled defendant's motion, and upon a retrial the jury convicted the defendant of capital murder. Because the jury was unable to agree on the imposition of the death penalty, the defendant was sentenced by the trial court to life imprisonment. Code § 19.2-264.4(E).

The facts of the case are set forth in our opinion in Johnson v. Commonwealth, supra. It suffices to say that on December 9, 1977, John Gardner of Roanoke was shot and killed. At the same time money and property were taken from Gardner's person and office. The defendant and his brother David A. Johnson were the perpetrators of this crime. The verdicts finding defendant guilty of capital murder are amply supported by the evidence. There were no eyewitnesses to the murder and robbery other than the two Johnson brothers. The prosecution of the case was not without difficulty and to meet the exigencies of proof the Commonwealth's Attorney framed one three-count indictment charging the defendant with capital murder, robbery, and the use of a pistol while committing murder.

Virginia Code § 18.2-31 provides, in pertinent part, as follows:

The following offenses shall constitute capital murder, punishable as a Class 1 felony:

(d) The willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon; ...

Therefore, to convict of capital murder under subdivision (d) of Code § 18.1-31, the Commonwealth must establish all the elements necessary to convict of first degree murder, i. e., that the killing was willful, deliberate and premeditated and, in addition, all the elements necessary to convict of an armed robbery.

The origin, history, and purpose of the double jeopardy clause of the Fifth Amendment are hardly a matter of dispute. In the recent case of Turner v. Commonwealth, Va., 273 S.E.2d 36 (1980), we enumerated the three separate guarantees assured by the constitutional prohibition of double jeopardy to be the protection against a second prosecution for the same offense after acquittal or after conviction and the protection against multiple punishments for the same offense. We referred to Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), where it was said that "the test to be applied to determine whether there are two offenses or only one, is whether each (statutory) provision requires proof of a fact which the other does not." See also Harrison v. Commonwealth, 220 Va. 188, 257 S.E.2d 777 (1979); Jones v. Commonwealth, 218 Va. 757, 240 S.E.2d 658, cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978).

We are conscious of our holding in Jones, supra, that the double jeopardy clauses of the federal Constitution and of the Virginia Constitution "forbid not only subsequent punishment but subsequent prosecution. (Citation omitted.) Those clauses apply not only when the two offenses are identical, but also when the former offense is lesser-included in the subsequent offense. (Citations omitted.) The guarantees also apply when the subsequent offense is lesser-included in the former offense." (Citations omitted.) 218 Va. at 759, 240 S.E.2d at 660.

The defendant argues that at his first trial he could not, due to double jeopardy protections, have been convicted of both capital murder and robbery. The answer to this argument is that had defendant been found guilty of both capital murder and robbery in the first trial, the issue of "same offense" would not arise because the convictions arose from a single criminal trial. However, if defendant, after being convicted of both crimes, had been subjected to punishment for both, an issue of double jeopardy with regard to multiple punishments would arise. Turner, Va., 273 S.E.2d at 47.

Defendant also claims that robbery is a lesser-included offense of capital murder and that since every element necessary to establish the corpus delicti of robbery is relevant and essential to the proof of capital murder, the reciprocal nature of the double jeopardy clause prohibits his conviction of capital murder based on robbery when the defendant had previously been acquitted of that robbery.

Significantly, counsel for defendant concedes that the jury may in fact have acquitted, not on merit but because it was so instructed by the court. The defendant nevertheless contends that on the robbery count he has been discharged "without day" and that his subsequent prosecution for any offense which includes the elements of robbery is barred.

There is not the slightest confusion or doubt about what occurred at Johnson's first trial before the Circuit Court of Roanoke. He was indicted on a single indictment which contained three counts, a matter within the discretion of the prosecution. The Commonwealth's Attorney had no way of knowing in advance how the testimony...