Washington v. Com., Record No. 1734-03-4.

Docket NºRecord No. 1734-03-4.
Citation604 S.E.2d 92, 44 Va. App. 157
Case DateOctober 26, 2004
CourtCourt of Appeals of Virginia

604 S.E.2d 92
44 Va.
App. 157

Phillip Morris WASHINGTON
v.
COMMONWEALTH of Virginia

Record No. 1734-03-4.

Court of Appeals of Virginia.

October 26, 2004.


604 S.E.2d 93
Joseph Taylor Brown (Simmons, Brown & Kane, P.L.C., on brief), for appellant

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON and McCLANAHAN, JJ.

JAMES W. BENTON, JR., Judge.

A jury convicted Phillip Morris Washington upon an indictment charging that he committed a malicious wounding "after having been twice convicted of a violent felony," in violation of Code § 18.2-51 and § 19.2-297.1, and that he committed a wounding during the commission of a felony in violation of Code § 18.2-53. On appeal, Washington contends that the trial judge erred in permitting the prosecutor to prove two prior robbery convictions during the guilt phase of the bifurcated trial. We hold that the felony convictions, which must be proved to invoke Code § 19.2-297.1, are not elements of the malicious wounding offense proscribed by Code § 18.2-51. We, therefore, reverse the conviction and remand for a new trial.

I.

Prior to trial, Washington filed a motion in limine to prohibit the prosecutor from introducing evidence of his prior violent felony convictions during the guilt phase of the trial. His motion asserts that this "evidence is not `relevant and probative of ... an element of the offense'" and that "it would be unduly prejudicial for the Commonwealth to refer to such evidence before any finding of guilt." The Commonwealth argued "that is an element of its proof in its case-in-chief." The trial judge denied Washington's motion, ruling that the Commonwealth had the burden of proving the two prior violent felony convictions and that the jury was required to make the factual finding during the guilt phase of trial. During the Commonwealth's case-in-chief at the guilt phase of the trial, the prosecutor introduced as evidence two prior conviction orders for robberies committed by Washington. At the conclusion of the evidence at the guilt phase, the jury found "the defendant guilty of malicious wounding ... after having been previously convicted of two violent felonies" and guilty of unlawful wounding during the commission of a felony.

During the punishment phase, the prosecutor informed the jury that "because it was an element of the offense, you got to see [during the guilt phase] the conviction orders for Mr. Washington for two violent felonies." At the conclusion of their deliberations, the jury fixed Washington's punishment at life imprisonment for the malicious wounding offense, the mandatory sentence required by Code § 19.2-291.1, and at five years imprisonment and a five hundred dollar fine for a wounding while committing a felony. The trial judge sentenced Washington according to the jury's verdict.

II.

Washington contends that the trial judge erred in permitting the introduction of evidence of the two prior felony convictions at the guilt phase of the trial. He argues that Code § 19.2-297.1 does not create an element of the offense proscribed in Code § 18.2-51, that the statutes do not require

604 S.E.2d 94
that the prior convictions be proven during the Commonwealth's case-in-chief, and that the admission of the evidence of the convictions before the punishment phase begins is prejudicial. The Commonwealth contends the two prior felony convictions are elements of the offense and must be submitted to the jury during the guilt phase

We resolve this issue by reviewing the statutes. Code § 18.2-51 provides that "if any person maliciously wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony." In pertinent part, Code § 19.2-297.1 provides as follows:

A. Any person convicted of two or more separate acts of violence when such offenses were not part of a common act, transaction or scheme ... shall, upon conviction of a third or subsequent act of violence, be sentenced to life imprisonment and shall not have any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence.
* * * * * *
B. Prior convictions shall include convictions under the laws of any state or of the United States for any offense substantially similar to those listed under "act of violence" if such offense would be a felony if committed in the Commonwealth.
The Commonwealth shall notify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section.

In applying these statutes, we are guided by well established principles.

Under basic rules of statutory construction, we determine the General Assembly's intent from the words contained in the statute. When the language of a statute is plain and unambiguous, courts are bound by the plain meaning of that language. Thus, when a statute's language is unambiguous, courts cannot give that language a construction that amounts to holding that the General Assembly did not mean what it actually has stated.

Volkswagen of America v. Smit, 266 Va. 444, 452, 587 S.E.2d 526, 531 (2003) (citations omitted). See also Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (holding that, when a statute has words of a plain import, courts cannot construe them in a way that varies the plain meaning of the language). In other words, courts are bound by the plain meaning of clear, unambiguous statutory language. Pope v. Commonwealth, 19 Va.App. 130, 132, 449 S.E.2d 269, 270 (1994).

Nothing in Code § 18.2-51, the statute proscribing malicious wounding, provides that the occurrence of prior, separate acts of violence are elements of the offense of malicious wounding. Likewise, Code § 19.2-297.1, the statute that defines the effect of prior, separate acts of violence, does not provide that these acts are elements of the offense proscribed by Code § 18.2-51. Indeed, by its express terms, Code § 19.2-297.1 applies only "upon conviction of a third or subsequent act of violence," and it provides that the convicted person "shall ... be sentenced to life imprisonment" upon the terms of the statute. (Emphasis added). Significantly, Code § 19.2-297.1 also provides that the prosecutor must "notify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section." (Emphasis added).

In short, Code § 19.2-297.1 unambiguously relates to the punishment to be imposed upon conviction. Reinforcing its clear, unambiguous language, the legislature enacted Code § 19.2-297.1 in Title 19.2, Chapter 18, of the Code of Virginia under the heading "Sentence; Judgment; Execution of Sentence." It is the only penalty enhancing statute in that chapter. Equally significant is the placement of this statute in the same title of the Code of Virginia as Code § 19.2-295.1, which provides for the bifurcation of trials in which evidence of prior criminal convictions is admitted during the punishment phase.1

604 S.E.2d 95
The Commonwealth asserts that the phrase "found by the jury," which is contained in Code § 19.2-297.1, implies that the fact finder must make a finding that the defendant has twice before been convicted of violent offenses prescribed by the statute. We agree with this assertion, as far as it goes. The statutory language, however, does not require that the prior conviction evidence be admitted during the guilt phase of trial. Rather, it expressly provides that "upon conviction of a third or subsequent act of violence" that person shall be sentenced to life imprisonment, "provided it is admitted, or found by the jury or judge before whom [the defendant] is tried, that he has been previously convicted of two or more ... acts of violence." Code § 19.2-297.1 (emphasis added). Consistent with Code § 19.2-295.1, this is evidence for enhancing punishment that is admissible and appropriate for the jury's determination at the punishment phase of trial.2

The Commonwealth also relies on Berry v. Commonwealth, 22 Va.App. 209, 468 S.E.2d 685 (1996), to support the proposition that Code § 19.2-297.1 must be read to provide that the prior convictions are elements of the offense and, therefore, evidence of those convictions is properly submitted to the jury during the guilt phase of the trial. The short answer to this argument is that Berry does not require that we hold that Code § 19.2-297.1 is an element of the offense of malicious wounding because Berry concerned an entirely different statute, Code § 18.2-248. The Berry decision dealt with the issue whether a defendant's prior narcotics convictions under Code § 18.2-248 were properly admitted to the jury during the guilt phase of the bifurcated trial in a third narcotics prosecution under Code § 18.2-248. Berry, 22 Va.App. at 213, 468 S.E.2d at 687. Unlike Code § 18.2-51 and Code § 19.2-297.1, the statutes at issue in this case, Code § 18.2-248, which was the statute at issue in Berry, provides for the substantive offense as well as for the penalty enhancement for a subsequent offense within the same statute. In Berry, we relied upon this inclusion of the penalty enhancement in the same statute which creates the substantive crime in determining that the penalty enhancement was an element of the offense.

Recently, in Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000), the Supreme Court held that introducing evidence of a prior conviction at the guilt phase of trial did not violate a defendant's constitutional right to due process under the Fourteenth Amendment. Id. at 227-28, 532 S.E.2d at 31 (citing Brown, 226 Va. at 59, 307 S.E.2d at 241). Supporting its holding that no due process violation occurred, the Court noted that the trial judge in Me...

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3 practice notes
  • Washington v. Com., Record No. 1734-03-4.
    • United States
    • Virginia Supreme Court of Virginia
    • August 9, 2005
    ...phase of the trial, but not the guilt phase. A divided panel of our Court agreed with this reasoning. Washington v. Commonwealth, 44 Va.App. 157, 604 S.E.2d 92 (2004). Having considered the matter en banc, we hold the statute does not forbid the recidivism evidence from being presented in t......
  • Washington v. Com., Record No. 051875.
    • United States
    • Virginia Supreme Court of Virginia
    • September 15, 2006
    ...that the occurrence of prior, separate acts of violence are elements of the offense of malicious wounding." Washington v. Commonwealth, 44 Va.App. 157, 161, 604 S.E.2d 92, 94 Upon rehearing en banc, a majority of the Court of Appeals affirmed the judgment of the trial court. Washington v. C......
  • Meador v. BIRTH-RELATED INJURY, Record No. 0227-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • October 26, 2004
    ...minutes after his birth." The independent physician panel reviewing this case likewise used the term this way, stating that Kyle was 604 S.E.2d 92 "born unexpectedly and precipitously at home" and arrived at the hospital after his "birth." Though none of these doctors intended to offer advi......
3 cases
  • Washington v. Com., Record No. 1734-03-4.
    • United States
    • Virginia Supreme Court of Virginia
    • August 9, 2005
    ...phase of the trial, but not the guilt phase. A divided panel of our Court agreed with this reasoning. Washington v. Commonwealth, 44 Va.App. 157, 604 S.E.2d 92 (2004). Having considered the matter en banc, we hold the statute does not forbid the recidivism evidence from being presented in t......
  • Washington v. Com., Record No. 051875.
    • United States
    • Virginia Supreme Court of Virginia
    • September 15, 2006
    ...the occurrence of prior, separate acts of violence are elements of the offense of malicious wounding." Washington v. Commonwealth, 44 Va.App. 157, 161, 604 S.E.2d 92, 94 Upon rehearing en banc, a majority of the Court of Appeals affirmed the judgment of the trial court. Washington v. C......
  • Meador v. BIRTH-RELATED INJURY, Record No. 0227-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • October 26, 2004
    ...minutes after his birth." The independent physician panel reviewing this case likewise used the term this way, stating that Kyle was 604 S.E.2d 92 "born unexpectedly and precipitously at home" and arrived at the hospital after his "birth." Though none of these docto......

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