King v. Com.

• Decision Date: 17 May 1988
• Docket Number: No. 0998-86-3,0998-86-3
• Citation: 6 Va.App. 351,368 S.E.2d 704
• Parties: Nelson James KING v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 704

368 S.E.2d 704

6 Va.App. 351

Nelson James KING v. COMMONWEALTH of Virginia.

Record No. 0998-86-3.

Court of Appeals of Virginia.

May 17, 1988.

Thomas M. Jackson, Jr. (McGrady & Jackson, Hillsville, on brief), for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

We consider whether the facts in this case constitute a violation of the felony-murder statute, Code § 18.2-33. Nelson James King appeals his conviction of second degree murder under the statute. He argues that he could not be convicted of second degree murder for the accidental death of a cofelon occurring during the commission of a felony. He also argues that the trial court erred in instructing the jury on the elements of the offense. We hold that because the death was not caused by an act of the felons in furtherance of the felony, appellant is not criminally liable for the death.

On October 17, 1984, King and his copilot, Mark Lee Bailey, were flying a Beechcraft Bonanza airplane carrying over five hundred pounds of marijuana to the New River Valley airport in Dublin, Virginia. They were flying for Wallace Thrasher, who owned the airplane and ran the drug smuggling operation. King was a licensed pilot; Bailey was not. The two encountered heavy cloud cover and fog near Mt. Airy, North Carolina and apparently became lost. In an effort to navigate through the cloud cover and fog, they flew the plane to a lower altitude in order to follow U.S. Route 52. Bailey was piloting the plane at this time. As Bailey flew, King was examining navigation maps in an attempt to determine the plane's whereabouts. The airplane crashed into Fancy Gap Mountain killing Bailey almost instantly. King was thrown from the plane and survived. King was charged with felony homicide under Code § 18.2-33 for Bailey's death. A jury convicted King of second degree murder under the statute and recommended a six-year penitentiary sentence.

Code § 18.2-33 defines second degree felony homicide: "The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act other than those specified in §§ 18.2-31 and 18.2-32, is murder of the second degree and is punishable as a Class 3 felony." This statute and its companion, § 18.2-32, defining first degree felony-murder, codify the common law doctrine of felony-murder. Heacock v. Commonwealth, 228 Va. 397, 403, 323 S.E.2d 90, 93 (1984) (citation omitted). The doctrine was developed to elevate to murder a homicide committed during the course of a felony by imputing malice to the killing. The justification for imputing malice was the theory that the increased risk of death or serious harm occasioned by the commission of a felony demonstrated the felon's lack of concern for human life. See generally Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50 (1956). The doctrine was originally limited, therefore, to felonies that were inherently or foreseeably dangerous. The purpose of the doctrine was to deter inherently dangerous felonies by holding the felons responsible for the consequences of the felony, whether intended or not. While the range of felonies which may be a predicate for the felony-murder conviction has changed, the function of the doctrine is still to elevate to murder a homicide resulting from a felony by imputing malice. See Heacock, 228 Va. at 403, 323 S.E.2d at 93.

Criminal statutes are to be "strictly construed against the Commonwealth and in favor of [a] citizen's liberty." Martin v. Commonwealth, 224 Va. 298, 300, 295 S.E.2d 890, 892 (1982). Strict construction, however, does not justify nullification of the evident purpose and meaning of a statute. See Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). A penal statute must be construed so as to proscribe only conduct which the legislature clearly intended to be within the statute's ambit. Berry v. City of Chesapeake, 209 Va. 525, 526, 165 S.E.2d 291, 292 (1969).

The second degree felony-murder statute in Virginia contemplates a killing with malice. Heacock, 228 Va. at 403, 323 S.E.2d at 93. Indeed, "the commission of any felonious act ... supplies the malice which raises the incidental homicide to the level of second-degree murder." Id. It does not follow, however, that any death of any person which occurs during the period in which a felony is being committed will subject the felon to criminal liability under the felony-murder rule. To construe our statute to encompass every accidental death occurring during the commission of a felony, regardless of whether it causally relates to or results from the commission of the felony, is to make felons absolutely liable for the accidental death of another even though such death is fortuitous and the product of causes wholly unrelated to the commission of the felony. Recognizing the potentially harsh and far reaching effects of such a construction of the felony-murder doctrine, the Virginia courts, as well as others, have limited its application. In order for the incidental accidental killing to be murder, the homicide must be criminal in nature and must contain the elements or attributes of criminal homicide cognizable at common law.

One of the most significant factors in defining the scope of the felony-murder involves the causation required between the felony and the death. Previous decisions of the Virginia Supreme Court have found it unnecessary to decide whether "a mere nexus" between the death and predicate felony is sufficient to satisfy the statute or whether a more direct causal relationship is required. See, e.g., Heacock, 228 Va. 397, 323 S.E.2d 90 (1984). We must address that issue at this time.

In Virginia, it is clear when the homicide is within the res gestae of the initial felony and emanates therefrom, it is committed in the perpetration of that felony. Haskell v. Commonwealth, 218 Va. 1033, 1041, 243 S.E.2d 477, 482 (1978). The Court explained that "the felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise." Id. at 1044, 243 S.E.2d at 483. Thus, the court in Haskell affirmed first degree murder convictions when the murder of a robbery victim was within five feet of the site of the robbery, within moments of the robbery, and was to facilitate the robbers' escape without being identified. Under these circumstances, the killing was obviously causally related to the robbery and was part of the same enterprise. Id. at 1043, 243 S.E.2d at 483. The Court did not elaborate on the degree of causal connection required under the statute.

In a more recent case, the Virginia Supreme Court affirmed a conviction under the felony-murder rule when a death by cocaine overdose was charged to the person who distributed the cocaine. Heacock, 228 Va. at 401-02, 323 S.E.2d at 92-93. In that circumstance, the court declined to address whether the felony-murder rule required a showing of causal relationship flowing from the felony to the homicide or whether a "mere nexus" would suffice because the death was a direct result of the felony of distribution of cocaine. Id. at 405, 323 S.E.2d at 94.

In a leading case involving the felony-murder doctrine, which the Virginia Supreme Court has cited with approval, the Pennsylvania Supreme Court addressed the causation problem at length. Rejecting their previous standard of proximate cause, the court stated:

In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine.... "Death must be a consequence of the felony ... and not merely coincidence."

Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472, 476 (1958) (citations omitted). The court noted further: "[T]he 'causation' requirement for responsibility in a felony-murder is that the homicide stem from the commission of the felony." Id. at 505, 137 A.2d at 481. The Redline court noted that the malice of the underlying felony attaches to whatever else the criminal may do in connection with the felony. Therefore, "the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking." Id. at 495-96, 137 A.2d at 476. (emphasis omitted).

The implications of this reasoning are threefold. First, only acts causing death which are committed by those involved in the felony can be the basis for a conviction. Second, the act causing death must result from some effort to further the felony before malice can be imputed to that act. Third, there must be some act attributable to the felons...