Sullivan v. Com.

• Citation: 433 S.E.2d 508,16 Va.App. 844
• Decision Date: 03 August 1993
• Docket Number: No. 0014-91-2,0014-91-2
• Parties: Kevin Patrick SULLIVAN v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 508

433 S.E.2d 508

16 Va.App. 844

Kevin Patrick SULLIVAN v. COMMONWEALTH of Virginia.

Record No. 0014-91-2.

Court of Appeals of Virginia.

Aug. 3, 1993.

Michael C. Allen, Richmond (Hairfield, Morton, Allen & Rockwell, on brief), for appellant.

Richard B. Smith, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on briefs), for appellee.

Present: MOON ^*, C.J., and BAKER, BARROW, BENTON, COLEMAN, WILLIS, ELDER, BRAY and FITZPATRICK, JJ.

UPON A REHEARING EN BANC

WILLIS, Judge.

On August 18, 1992, a panel of this Court reversed Kevin Patrick Sullivan's convictions for robbery of Curtis Meade and for use and display of a firearm in the commission of that robbery, holding that those convictions violated the prohibition against double jeopardy, 14 Va.App. 1044, 420 S.E.2d 724. ¹ We stayed the mandate of that decision and granted rehearing en banc. Upon rehearing, we affirm the judgment of the trial court.

About 9:00 p.m. on February 28, 1990, Tommy Foster and Curtis Meade were preparing to close the Movie Time Video shop in Richmond. Sullivan approached the counter and drew a gun from his sweatshirt. He pointed the gun at Foster and Meade and threatened to kill them if they did not obey his instructions. Sullivan told Foster to give him money. Foster was a new employee and did not know where all the money was kept. Meade was obliged to direct him in collecting the store's money. After Foster collected $1,600, he placed it in a bag and handed it to Sullivan. Sullivan then forced the two men to lie on the floor while he left the premises.

On June 11, 1990, a warrant was issued charging Sullivan with the robbery of Foster and with the use of a firearm during the commission of that robbery. On September 10, 1990, the grand jury returned a two-count indictment specifying those charges and another two-count indictment charging Sullivan with robbery of Meade and with the use of a firearm in the commission of that robbery. On November 2, 1990, the trial court accepted Sullivan's guilty plea to the Foster charges. Sullivan then moved to dismiss the remaining charges on the ground that their prosecution would unconstitutionally subject him to double jeopardy. The trial court denied this motion and convicted Sullivan of the Meade charges. This appeal addresses that ruling.

Sullivan contends that the February 28, 1990 incident constituted a single robbery, a single act of intimidation directed jointly against the two store employees and a single taking of property from them jointly. He argues that his conviction under the Foster indictment was a conviction for the entire offense and barred his re-trial for the same offense under the Meade indictment. The Commonwealth argues that each employee was assaulted and intimidated, and that the money in their joint possession was taken from each of them. Therefore, the Commonwealth argues, the incident effected two robberies and two incidental firearm offenses. We agree with the Commonwealth's position.

The double jeopardy clause of the fifth amendment

protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court set forth the traditional test for double jeopardy:

[W]hether there are two offenses or only one, ... whether each provision requires proof of an additional fact which the other does not.

Id. at 304, 52 S.Ct. at 182. The Supreme Court later elaborated this standard, holding that a court must first apply the traditional Blockburger test, and then apply a further standard which provides:

[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990) (footnote omitted).

United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the Supreme Court overruled Grady v. Corbin and returned to the traditional double jeopardy test. It held:

In both the multiple punishment and the multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the "same-elements" test, the double jeopardy bar applies. The same-elements test, sometimes referred to as the "Blockburger" test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution.

Id. at ----, 113 S.Ct. at 2856.

The assault on Foster and the taking of property from him were elements required to be proved in support of the charge of robbery against him, but were not embraced within the charge of robbery of Meade. Likewise, the assault on Meade and the taking of property from him were elements required to be proved in support of the charge of robbery against him, but were not embraced within the charge of robbery of Foster. Thus, if both Foster and Meade were robbed, double jeopardy does not bar prosecution for both robberies.

Robbery is defined as

[a] taking, with the intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. The phrase "... of the personal property of another, from his person or in his presence ..." has been broadly construed to include the taking of property from the custody of, or in the actual or constructive possession of, another.

Johnson v. Commonwealth, 215 Va. 495, 496, 211 S.E.2d 71, 72 (1975).

In Jordan v. Commonwealth, 2 Va.App. 590, 347 S.E.2d 152 (1986), we addressed the issue of multiple punishments for robbery when several persons are victimized. The Jordan court held as follows:

[B]ecause the essential character of both Code § 18.2-58 and common-law robbery is violence against a person for the purpose of theft, ... the appropriate "unit of prosecution" is determined by the number of persons from whose possession property is taken separately by force or intimidation.

Id. at 596, 347 S.E.2d at 156 (citation omitted). In Jordan, the defendant pointed a gun at two employees and obtained money, which belonged to their employer, from each of them. We rejected the defendant's argument that only one robbery had occurred and found no double jeopardy bar to prosecution for robbery of each employee.

Both Foster and Meade were custodians of the store's money and jointly possessed it. This case differs from Jordan only in that, although both employees possessed their employer's money, only Foster physically surrendered money to Sullivan. However, Sullivan forced Meade to assist in the collection and surrender of the money. Thus, he forcibly took money from Meade's possession. He intimidated each employee and obtained the money through the agency of that intimidation. He threatened to kill each employee if he did not yield the money. He robbed each employee and, thus, committed two robberies. See Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104 (1983) (upholding three separate convictions for brandishing a firearm where the defendant pointed a gun at three men standing a few feet away, rejecting his double jeopardy claim of multiple punishment for a single offense).

The judgment of the trial court is affirmed.

Affirmed.

BENTON, Judge, dissenting.

The double jeopardy clauses of the federal and state constitutions provide that no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const. amend. V; Va. Const. art. I, § 8.

It is now well recognized that [the double jeopardy] clause affords an accused three distinct constitutional guarantees. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same...