Simpson v. Com., 791275

• Docket Nº: No. 791275
• Citation: 267 S.E.2d 134, 221 Va. 109
• Case Date: June 06, 1980
• Court: Supreme Court of Virginia

Page 134

267 S.E.2d 134 221 Va. 109 James Stewart SIMPSON
v.
COMMONWEALTH of Virginia. Record No. 791275. Supreme Court of Virginia. June 6, 1980.

Page 136

[221 Va. 110] Robert A. Niles, Remington (Niles, Chapman & Dulaney, Remington, on brief), for appellant.

Thomas D. Bagwell, 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.

COCHRAN, Justice.

On January 24, 1979 the trial court, sitting without a jury, convicted Simpson of the following offenses: murder (Code § 18.2-32), attempted murder (Code § 18.2-28), robbery (Code § 18.2-58), and two counts of use of a firearm in the commission of a felony (Code § 18.2-53.1). The convictions resulted from a series of events which involved Simpson and a codefendant, one David Thompson. The Commonwealth initially indicted Simpson for capital murder during the commission of armed robbery in violation of Code § 18.2-31(d), ¹ but the Commonwealth's Attorney successfully moved the trial court prior to opening argument to amend the indictment charging capital murder to allege first degree murder under Code § 18.2-32. ²

[221 Va. 111] Simpson's sole assignment of error presents the question whether the modification of the indictment from an allegation of capital murder under Code § 18.2-31 to a charge of first degree murder under § 18.2-32 precludes his conviction for both murder and robbery under the Double Jeopardy Clause of the Fifth Amendment. Simpson contends that the trial court predicated his liability for murder on the felony-murder concept, and maintains that the recent Supreme Court decision of Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), requires that his conviction for either murder or robbery be vacated.

Simpson's convictions arose from an armed robbery of a store in Mitchell, Culpeper County, during the course of which the owner, Thomas E. McMullen, was deliberately killed and a patron, Russell E. Shaw, was severely wounded. Shaw recovered from his wound and testified against Simpson at trial.

The evidence indicated that shortly after noon on April 20, 1978 Simpson and Thompson, both armed with handguns, entered the store owned and operated by McMullen, demanded cash, robbed the register of approximately $50, and also stole a six-pack of beer. Shaw, a neighbor, suffered the misfortune of entering the store during the commission of the robbery. When Shaw arrived, Simpson was holding a gun on McMullen. Thompson ordered Shaw to lie on the floor in front of the counter and produce his wallet. When Thompson saw Shaw's billfold contained no cash, he struck Shaw. Thompson then forced McMullen and Shaw to a back room of the store, ordered them to remain there, departed momentarily, but returned after a few minutes. According to Shaw, Thompson prefaced his conduct with an apology, and thereupon shot McMullen twice in the head, and fired a single shot into the head of Shaw. McMullen later died of his wounds, but Shaw was able to leave the store under his own power and notify the police.

Thompson's father testified in behalf of the Commonwealth and related that he had elicited from Simpson details concerning the crime several days after its occurrence. According to the elder Thompson, Simpson acknowledged his participation in the criminal conduct and explained that McMullen and Shaw had been shot because "a dead man couldn't talk".

Page 137

[221 Va. 112] In moving to amend the indictment, the Commonwealth's Attorney explained that early investigations of the crime could not determine whether Simpson or Thompson had been the actual "triggerman", and that warrants had been obtained charging both defendants with capital murder. However, subsequent evidence revealed Thompson to be the actual perpetrator of the shootings and Simpson to be an accessory to the killing. Recognizing that Code § 18.2-18 requires that a principal in the second degree to a capital murder be indicted, tried, convicted and punished as though the offense were murder in the first degree, the Commonwealth's Attorney moved the court, without objection from Simpson, to strike the language "willfully, deliberately and premeditatedly" from the indictment and to amend the statute designated from Code § 18.2-31 to § 18.2-32. The court sustained the motion. The amended indictment which the court then proceeded to try Simpson upon alleged in relevant part that Simpson did "unlawfully and feloniously kill and murder one Thomas E. McMullen during the commission of robbery while armed with a deadly weapon, in violation of Section 18.2-32 of the 1950 Code of Virginia, as amended, . . . ."

Simpson adduced no evidence in his behalf, and at the conclusion of the Commonwealth's case the trial court, sua sponte, asked the Commonwealth's Attorney whether a conviction of first degree murder would necessarily entail proof of the same elements used to substantiate the charge of robbery. The Commonwealth's Attorney responded, that case authority indicated the question to be unresolved. Acknowledging that the issue remained somewhat unsettled, the trial court nevertheless convicted Simpson of both the murder and robbery charges. The oral opinion of the trial court explicitly concluded that Simpson and Thompson "clearly intended" to kill McMullen so he would not later identify them, and reasoned that Simpson's active participation in the robbery and presence at the scene of the killing rendered him responsible for the murder....