Payne v. Com.

• Decision Date: 17 April 2009
• Docket Number: Record No. 081258.
• Citation: 674 S.E.2d 835
• Parties: Kelly Dinelle PAYNE v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

674 S.E.2d 835

Kelly Dinelle PAYNE v. COMMONWEALTH of Virginia.

Record No. 081258.

Supreme Court of Virginia.

April 17, 2009.

Dean C. Marcus (Marks & Harrison, on brief), for appellant.

Virginia B. Theisen, Sr. Asst. Atty. Gen. (Robert F. McDonnell, Atty. Gen.; Joanne V. Frye, Asst. Atty. Gen., on brief), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO, S.J.

OPINION BY Justice S. BERNARD GOODWYN.

In this appeal, the primary issue is whether a criminal defendant can be convicted and punished for both felony homicide and aggravated involuntary manslaughter when the defendant killed one victim.

In the Circuit Court of the City of Richmond, Kelly D. Payne was charged with felony homicide in violation of Code § 18.2-33, aggravated involuntary manslaughter in violation of Code § 18.2-36.1, and two counts of felony "hit and run" in violation of Code § 46.2-894. Prior to trial, Payne filed a motion to compel the Commonwealth to pursue prosecution either under felony homicide or aggravated involuntary manslaughter. The trial court denied the motion.

Following a jury trial, Payne was found guilty on all charges. Payne appealed to the Court of Appeals. In a published opinion, Payne v. Commonwealth, 52 Va.App. 120, 661 S.E.2d 513 (2008), the Court of Appeals affirmed the judgment of the trial court. Payne appeals.

FACTS

At approximately 9:30 a.m. on March 7, 2006, Payne arrived at her place of employment, Auto Pawn of America (Auto Pawn), located on Midlothian Turnpike in Richmond. She drove her boyfriend's white pick-up truck to work. Payne's supervisor, Kevin Penrose, testified that Payne arrived at work with the smell of alcohol on her breath.

Auto Pawn was equipped with video surveillance equipment, and the Commonwealth presented a portion of the video surveillance recording from the day of the accident as evidence. The video recording showed Payne at various times during the workday holding a bottle of Crown Royal whiskey. The video recording also showed Payne drinking from a clear plastic cup, which contained a brown liquid.

Payne's co-worker, Steve Messner, testified that he observed Payne with a bottle of Crown Royal whiskey from the office freezer and also observed her with the bottle in one hand and a cup in the other hand. Although Messner did not see Payne drink from the Crown Royal whiskey bottle, he saw her drinking from the plastic cup throughout the entire day. Both Messner and Penrose testified that Payne's behavior changed during the day; they testified that she became flirtatious. Due to her "irrational and erratic" behavior, Penrose asked Payne to leave work early. As she was leaving work, which was approximately 4:00 p.m., Messner attempted to stop Payne by yelling her name; however, she ignored him and "shot across" the road nearly striking another vehicle in the parking lot.

Thereafter, Penrose discovered that approximately one third of the whiskey was missing from his Crown Royal whiskey bottle that he kept in the office freezer. Shortly after Payne left Auto Pawn, she drove her vehicle into the back of a car that was stopped at a red light. The driver of that car, Ruth Ann Priest, testified that the truck driven by Payne "slammed" into her car, and after the collision, Priest was bleeding and felt dazed, dizzy, and lightheaded. Priest did not get out of the car. However, she looked in her rear-view mirror and saw the driver of the truck was a woman with sunglasses down around her face who appeared "dazed" and "lethargic." Priest called 911 and remained in her car. Approximately four minutes after the collision and while Priest was on the telephone with the 911 operator, Payne drove away from the scene of the accident. Priest later drove herself to a medical clinic where she was diagnosed with a neck sprain.

Michael Foster testified that he saw someone driving away from the location of the accident with Priest in a white pick-up truck, which he identified as the truck Payne was driving. Foster followed the truck and observed the driver drive onto the curb. He further observed the driver swerve across all three lanes of traffic and make an abrupt right turn. The driver then drove the truck back onto the curb striking a pedestrian, Ashokkumar M. Patel. Foster called 911 and reported the accident stating that the driver, later identified as Payne, was "driving like a maniac." Payne did not stop the truck after hitting Patel; she continued onto Chippenham Parkway. Patel later died from his injuries.

At approximately 4:30 p.m., Payne arrived at the Forest Restaurant, which is about ten minutes by car from the intersection where Patel was struck. Frances Laney, a waitress at the restaurant, testified that Payne "seemed fine" when she first arrived, and she served her a beer and a sandwich. Laney conceded that she did not observe Payne walk into the restaurant because Laney was in the kitchen at that time. Laney testified that Payne appeared intoxicated after she made "a mess" of her sandwich; other customers informed her that Payne had ingested pills.

After Laney testified, Payne's counsel moved for a mistrial, arguing that Laney's testimony was exculpatory evidence that was not disclosed by the Commonwealth prior to trial. The trial court denied the motion.

The Commonwealth introduced into evidence at trial a transcript of a telephone call that Payne placed while she was an inmate at the Richmond City Jail. During the telephone conversation, Payne stated that she was "doing shots" of liquor during the day of her accident. She also stated that she was an alcoholic and that she had previously attended Alcoholics Anonymous meetings.

The Commonwealth presented Dr. Julia Pearson, a toxicologist, to testify concerning the effects of alcohol and the ability of alcoholics to conceal those effects. Payne's counsel objected to the expert testimony, arguing that the Commonwealth had failed to lay a proper foundation for the testimony. The trial court overruled the objection, but excluded expert testimony regarding general information concerning intoxication and limited Dr. Pearson's testimony to the effects of alcohol on an alcoholic. Dr. Pearson testified that alcoholics are able to mask the effects of alcohol on their psychomotor skills but not on their cognitive skills, such as their judgment and reasoning.

Payne did not present any evidence. The jury found Payne guilty of felony homicide, aggravated involuntary manslaughter, and two counts of felony "hit and run", and sentenced her to a total of 46 years in prison. Payne filed a post-trial motion, arguing that her sentences for both felony homicide and aggravated involuntary manslaughter violated the prohibition against double jeopardy. Payne also filed a motion for a new trial, arguing that the Commonwealth had failed to disclose exculpatory evidence prior to trial. The trial court conducted a hearing and denied the motions.

Payne appealed to the Court of Appeals, which granted her petition as to her assignment of error concerning double jeopardy. In a published opinion, the Court of Appeals affirmed Payne's conviction holding that the legislature intended to impose multiple punishments. Id. at 129, 661 S.E.2d at 517.

ANALYSIS

Payne contends that the trial court erred in convicting her for both felony murder and aggravated involuntary manslaughter. Payne argues that pursuant to Code § 18.2-36.1(C), the legislature has authorized prosecution under that vehicular manslaughter statute and any other homicide statute, but not for a common law homicide offense. She contends that felony homicide is a common law offense and, thus, Code § 18.2-36.1(C) does not authorize prosecution of felony homicide in addition to vehicular aggravated involuntary manslaughter. Additionally, Payne contends it is a violation of the double jeopardy provision of the Fifth Amendment to the United States Constitution to convict and sentence her twice for killing a single person.

The Commonwealth responds that the language in Code § 18.2-36.1(C) supports and proves that the legislature intended multiple punishments in this instance. The Commonwealth further states that convictions under felony murder and aggravated involuntary manslaughter require proof of different elements, and do not violate the prohibition against double jeopardy. We agree with the Commonwealth.

Resolution of the issue concerning whether the multiple punishments imposed upon the defendant are proper requires a determination of what punishments the legislature intended to impose. In making such a determination, we must first examine the statutes under which the defendant was convicted.

Code § 18.2-36.1 provides as follows:

A. Any person who, as a result of driving under the influence in violation of clause (ii), (iii), or (iv) of § 18.2-266 or any local ordinance substantially similar thereto unintentionally causes the death of another person, shall be guilty of involuntary manslaughter.

B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.

C. The provisions of this section shall not preclude prosecution under any other homicide statute. This section shall not preclude any other revocation or suspension required by law. The driver's license of any person convicted under this section shall be revoked pursuant to subsection B of § 46.2-391.

Code § 18.2-33, entitled "Felony homicide defined; punishment," provides as follows:

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...