Martin v. Com., 891532

Decision Date07 June 1991
Docket NumberNo. 891532,891532
PartiesWallace Elwood MARTIN v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

Jean L. Willis, Fredericksburg, for appellant.

Oliver L. Norrell, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

In this appeal involving convictions of attempted murder and use of a firearm in the commission of attempted murder, we consider the Supreme Court's new "same conduct" rule for determining whether the second of two successive prosecutions is barred by principles of double jeopardy. See Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Finding that the Corbin rule does not apply here, we will affirm the convictions.

The following scenario spawned the question for decision in this case: On October 31, 1987, Larry Berry, a member of the police department of the City of Manassas Park in Prince William County, responded to a call concerning a disturbance at a Hardee's restaurant. Upon arrival, Officer Berry observed the defendant, Wallace Elwood Martin, emerging from the restaurant in an apparently intoxicated condition. Berry asked Martin for identification and inquired about what had happened inside the restaurant. Martin became "very loud and boisterous," and Berry placed him under arrest for being drunk in public.

When Berry, who was in full uniform, attempted to "walk [Martin] over to the police car," Martin "turned ... and shoved" Berry. The two fell against Berry's cruiser and then to the ground, with Martin atop Berry. They struggled on the ground for "quite a while" until Berry was able to get Martin "off of [him]." Martin broke away and stepped "on to the sidewalk," some seven feet from Berry.

Then, as Berry "was pulling [himself] up off the ground" and had gotten "almost in an upright position," he looked up and saw that Martin was pointing a gun at him. Martin pulled the trigger and Berry heard a "click," but the gun did not fire. Berry ran behind a parked vehicle and heard another "click" from Martin's gun. Berry pulled his weapon out and shot at Martin, but missed. Still pointing his gun at Berry, Martin began to run, and Berry fired again, this time hitting Martin in the right shoulder.

When other police officers arrived, Martin's gun was discovered, unloaded, on the ground about ten feet from where he lay. He was transported to a hospital for treatment. He told a police officer the next day that he "would have shot the bastard if [he] had a gun."

As a result of his encounter with Berry, Martin was charged with three misdemeanor offenses, viz., obstructing justice by threats or force, drunk in public, and carrying a concealed weapon. Martin was also charged with two felonies, viz., attempted capital murder of a law enforcement officer for the purpose of interfering with the performance of his official duties and use of a firearm in the commission of attempted capital murder.

At a single hearing in general district court, Martin was convicted of the three misdemeanor offenses and held for the grand jury on the two felony charges. After he was indicted for attempted capital murder and use of a firearm, he filed a plea of former jeopardy. In a pretrial ruling, the trial court granted the plea and dismissed the two felony indictments, holding that the charge of obstructing justice was a lesser included offense of the charge of attempted capital murder of a law enforcement officer.

The grand jury then indicted Martin for attempted murder and use of a firearm in the commission of attempted murder. To these indictments, Martin filed a "Plea of Former Jeopardy and Res Judicata." The trial court denied this plea, a jury convicted Martin of both offenses, and the trial court confirmed the convictions.

Martin filed a petition for appeal in the Court of Appeals which focused principally upon the denial of his plea of former jeopardy and res judicata. The Court refused the petition. Martin filed in this Court a petition for appeal with the same principal focus, and we refused that petition.

Martin sought certiorari from the Supreme Court of the United States. The Supreme Court granted certiorari, 498 U.S. 801, 111 S.Ct. 28, 112 L.Ed.2d 7, vacated this Court's judgment, and remanded the case "for further consideration in light of Grady v. Corbin, 495 U.S. [508, 110 S.Ct. 2084, 109 L.Ed.2d 548] (1990)." Upon return of the case, we granted Martin an appeal to consider the question whether, in light of Corbin, the trial court erred in denying his "Plea of Former Jeopardy and Res Judicata."

In Corbin, the Supreme Court held that, even though the second of two successive prosecutions may not be barred by the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the second prosecution is barred "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S. at ----, 110 S.Ct. at 2087.

Under Blockburger, the second of two prosecutions is not barred if each offense "requires proof of a fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182. The second prosecution involved in this case passes the Blockburger test. While attempted murder requires proof of an intent to kill, Epps v. Commonwealth, 216 Va. 150, 154, 216 S.E.2d 64, 68 (1975), obstruction of justice does not. And, while obstruction of justice requires proof of the intimidation or impediment of a judge, magistrate, justice, juror, witness, or law enforcement officer, Code § 18.2-460(A) (now Code § 18.2-460(B)), attempted murder does not.

The crucial question, therefore, is whether Corbin's "same conduct" rule bars Martin's prosecution for attempted murder. Martin argues that the prosecution is barred under Corbin because, in establishing an essential element of the charge of attempted murder, the Commonwealth proved he obstructed justice by threats or force, and this was conduct constituting an offense for which he had already been prosecuted.

We disagree with Martin. We do not think this case is controlled by Corbin. There, Corbin, the accused, drove across the center line of a New York highway while intoxicated and struck two oncoming vehicles, causing the death of one person and the serious injury of another.

Corbin was issued two traffic tickets charging him with the misdemeanors of driving while intoxicated and failing to keep to the right of the median. He plead guilty to both charges in town justice court, but the judge was not informed that a fatality had occurred and the prosecutors who were conducting a homicide investigation were not made aware of the misdemeanor prosecutions.

Later, Corbin was indicted on homicide and assault charges. A bill of particulars filed by the state identified three acts the prosecution intended to rely on to prove the charges: (1) driving while intoxicated, (2) failing to keep to the right of the median, and (3) driving at an excessive speed. 495 U.S. at ----, 110 S.Ct. at 2089.

Corbin's motion to dismiss on double jeopardy grounds was denied by the appellate division of the New York trial court, but that state's Court of Appeals reversed. The Supreme Court of the United States affirmed this latter decision. Referring to its new "same conduct" standard, the Court stated: "This is not an 'actual evidence' or 'same evidence' test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct." 495 U.S. at ----, 110 S.Ct. at 2093 (footnote omitted).

The Court noted Corbin's concession that Blockburger did not bar prosecution of the homicide and assault offenses. The Court held, however, that the prosecution was barred because in its ...

To continue reading

Request your trial
19 cases
  • Commonwealth v. Washington
    • United States
    • Virginia Supreme Court
    • March 1, 2002
    ...impaneled and sworn. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); see also Martin v. Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991). The Double Jeopardy Clause not only protects the accused from retrial after being acquitted, but also gives the ac......
  • State v. Turner
    • United States
    • Ohio Supreme Court
    • May 11, 2005
    ...to kill, as the Virginia Supreme Court has held. "[A]ttempted murder requires proof of an intent to kill * * *." Martin v. Commonwealth (1991), 242 Va. 1, 5, 406 S.E.2d 15. "[I]n order to prove the crime of attempted murder, the evidence must show a specific intent to kill the victim * * * ......
  • Powell v. Kelly
    • United States
    • U.S. District Court — Eastern District of Virginia
    • January 11, 2008
    ...cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them"). 10. Cf. Martin v. Commonwealth, 242 Va. 1, 406 S.E.2d 15, 18 (1991) (noting that "jeopardy attaches only after a jury is empaneled and sworn"); Wade v. Commonwealth, 9 Va.App. 359, 388 S.......
  • Turner v. Hudson
    • United States
    • U.S. District Court — Southern District of Ohio
    • February 15, 2012
    ...to kill, as the Virginia Supreme Court has held. "[A]ttempted murder requires proof of an intent to kill *** ." Martin v. Commonwealth (1991), 242 Va. 1, 5, 406 S.E.2d 15, 7 Va. Law Rep. 2757"[I]n order to prove the crime ofattempted murder, the evidence must show a specific intent to kill ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT