Lampkins v. Com., Record No. 0253-04-3.

• Decision Date: 18 January 2005
• Docket Number: Record No. 0253-04-3.
• Citation: 44 Va. App. 709,607 S.E.2d 722
• Parties: Avery Martez LAMPKINS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

607 S.E.2d 722

44 Va. App. 709

Avery Martez LAMPKINS v. COMMONWEALTH of Virginia.

Record No. 0253-04-3.

Court of Appeals of Virginia, Salem.

January 18, 2005.

John W. Swezey, Martinsville, for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BUMGARDNER and FRANK, JJ.

ROBERT P. FRANK, Judge.

Avery Martez Lampkins (appellant), a juvenile, was convicted by a jury of first-degree murder in violation of Code § 18.2-32. On appeal, he contends the trial court erred in finding that 1) an immunity agreement between the Commonwealth and appellant was not binding so as to bar this prosecution, and 2) the circuit court had subject matter jurisdiction. For the reasons stated, we reverse the judgment of the trial court.

BACKGROUND

On May 15, 2002 Delvin Hairston was killed during a drive-by shooting. On May 20, 2002 appellant gave a statement to police implicating himself in the shooting. On November 19, 2002 appellant, his parents, the Commonwealth's Attorney, and the lead investigating officer signed a "Contingency Agreement for Consideration" granting immunity to appellant in exchange for his cooperation in providing substantial assistance in the investigation and prosecution of other named participants in the shooting. No charges were pending against appellant at the time the agreement was entered. The relevant portion of the agreement provided that the Commonwealth would "consider this matter closed and not file charges against or prosecute Avery Lampkins" if he cooperated and assisted the Commonwealth.

After signing the agreement, appellant appeared each time he was summoned to court by the Commonwealth. Lead Investigator Johnson testified that after the agreement was signed the appellant was "tough to talk to." Appellant would appear to get upset when he had to repeat facts which he had already communicated to the investigator. On two occasions appellant slumped down in his chair and his mother had to tell him to sit up and answer questions. Although Johnson testified that appellant's statements remained consistent throughout the investigation, Johnson felt as though appellant did not cooperate.¹

On February 18, 2003, the Commonwealth informed appellant that he was not being truthful and he was going to be charged with Hairston's murder. Appellant suggested the other witnesses in the case take a polygraph test. Instead, the Commonwealth requested that appellant take a polygraph test, and appellant agreed. The record reveals only that appellant got angry and walked out of the police station after submitting to the test. The record does not disclose the results of the test.

On March 26, 2003, the Martinsville police obtained petitions in the juvenile and domestic relations district court against appellant, age 17, for charges related to the murder of Delvin Hairston in violation of Code § 18.2-32. Appellant filed a Motion to Dismiss and Require Specific Performance of the Immunity Agreement. The juvenile court concluded that the appellant complied with the agreement, the Commonwealth's Attorney is bound by the agreement, and the agreement shall be specifically enforced against the Commonwealth. The court dismissed all charges.

The Commonwealth obtained direct indictments in the circuit court against appellant for Hairston's murder. Appellant filed a Motion to Quash Indictment and Motion to Dismiss and Require Specific Performance of the Immunity Agreement. After taking evidence and hearing arguments of counsel, the court overruled both motions. Appellant was tried and convicted of first-degree murder of Hairston.

ANALYSIS

JURISDICTION

Appellant contends the circuit court had no subject matter jurisdiction to try him for murder since he was not afforded a transfer hearing in juvenile court. Essentially, appellant contends that the Commonwealth had no authority to seek a direct indictment for murder after the juvenile and domestic relations district court dismissed the petitions due to the Commonwealth's failure to comply with the immunity agreement. Under Code § 16.1-269.1(B), appellant argues he had a right to a preliminary hearing in juvenile and domestic relations district court.² He concludes that since he was not afforded a transfer hearing under Code § 16.1-269.1(A) or a preliminary hearing under Code § 16.1-269.1(B) on the murder charge, the circuit court had no subject matter jurisdiction. We disagree.

To the extent appellant argues he was deprived of due process for not being allowed a preliminary hearing, he is barred from pursuing this argument. Appellant, by filing his motion to dismiss, sought to have the petitions dismissed, not on the merits of the case, but because the Commonwealth was barred from prosecuting the charges. Appellant was successful in that motion in the juvenile and domestic relations district court, and he now complains the results he requested deprived him of due process. "No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate — to invite error, as [appellant] admittedly did here, and then to take advantage of the situation created by his own wrong." Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988).

We must review the various statutes dealing with transferring juveniles to the circuit court to be tried as adults to determine the rights of the losing party in these transfer proceedings.

Either the juvenile or the Commonwealth may appeal an adverse transfer decision. If the juvenile and domestic relations district court transfers the charges to the circuit court, the juvenile may appeal. If the juvenile court fails to transfer and retains jurisdiction of a juvenile fourteen years of age or older, the Commonwealth can appeal as well. Code § 16.1-269.3. However, there are other situations where the Commonwealth may seek a direct indictment upon an adverse ruling. Code § 16.1-269.1(D) states, in part, that where the juvenile is charged with certain specified violent offenses:

If the court does not find probable cause to believe that the juvenile has committed the violent juvenile felony as charged in the petition or warrant or if the petition or warrant is terminated by dismissal in the juvenile court, the attorney for the Commonwealth may seek a direct indictment in the circuit court. If the petition or warrant is terminated by nolle prosequi in the juvenile court, the attorney for the Commonwealth may seek an indictment only after a preliminary hearing in juvenile court.

(Emphasis added).

Under Code § 16.1-269.1(D), there are two circumstances where the Commonwealth is not required to appeal an adverse decision but can seek a direct indictment: (1) where the juvenile court does not find probable cause; or (2) where the petition or warrant is terminated by dismissal in the juvenile court.

Appellant argues we must interpret the language of Code § 16.1-269.1(D) in context of the mandates of subsections (B) and (C) requiring a preliminary hearing. Appellant concludes that the language of Code § 16.1-269.1(D) only applies after the preliminary hearing has been conducted and the result is a dismissal of the charges. Again, we disagree. This argument ignores the plain language of the statute. "A primary rule of statutory construction is that courts must look first to the language of the statute. If a statute is clear and unambiguous, a court will give the statute its plain meaning." Loudoun County Dep't of Social Servs. v. Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993). "Generally, the words and phrases used in a statute should be given their ordinary and usually accepted meaning unless a different intention is fairly manifest." Woolfolk v. Commonwealth, 18 Va.App. 840, 847, 447 S.E.2d 530, 534 (1994).

The operative language is in the disjunctive. The Commonwealth may seek a direct indictment where the juvenile court finds no probable cause or the petition or warrant is terminated by dismissal. Generally, phrases separated by a comma and the disjunctive "or" are independent. Smoot v. Commonwealth, 37 Va.App. 495, 501, 559 S.E.2d 409, 412 (2002) (citing Ruben v. Secretary of HHS, 22 Cl.Ct. 264, 266 (1991) (finding that the word "or" connects two parts of a sentence, "but disconnects their meaning")). Appellant invites us to read the two phrases in the conjunctive, such that the dismissal language is modified by the first phrase which implicitly requires a preliminary hearing. We conclude that each of the two phrases is independent of each other.

Clearly, the first circumstance requires a preliminary hearing in order for the juvenile court to find no probable cause. However, the second circumstance does not require a preliminary hearing, but only a dismissal. As in the case at bar, there can be a number of situations where the petition may be dismissed on procedural grounds without a preliminary hearing.

If appellant's analysis is correct, the second condition would be superfluous and the disjunctive language irrelevant. If the court found no probable cause, then the charges would be dismissed. We must conclude that the dismissal language of the second condition has an application different from the first condition. "We must assume that the legislature did not intend to do a vain and useless thing." Williams v. Commonwealth, 190 Va. 280, 293, 56 S.E.2d 537, 543 (1949).

"It is a well established rule of construction that a statute ought to be interpreted in such a manner that it may have effect, and not found to be vain and elusive. Every interpretation that leads to an absurdity ought to be rejected. It is our duty to give effect to the wording of the statute, and allow the legislative intention to be followed."

Barnett v. D.L. Bromwell, Inc., 6 Va.App. 30, 34, 366 S.E.2d 271, 273 (1988) (en banc) (quoting McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952)). Thus, we conclude that the...