COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Frank, Humphreys, Kelsey, Petty, Beales, Alston, McCullough, Huff, Chafin and Decker Argued at Richmond, Virginia

JONATHAN MARQUIS HOLLEY OPINION BY v. Record No. 0939-13-1 J UDGE STEPHEN R. McCULLOUGH DECEMBER 23, 2014 COMMONWEALTH OF VIRGINIA

UPON A HEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Johnny E. Mo rrison, Judge Dianne G. Ringer (Bierowicz & Ringer, P.C., on briefs), for appellant. Virginia B. Theisen, Senior As sistant Attorney General (Mark R. Herring, Attorney General; Katherine Quinlan Adelfio, Assistant Attorney General, on briefs), for appellee.

Jonathan Marquis Holley argues that the Double Jeopardy Clause precludes a conviction and punishment for both second-de gree murder and first-degree felo ny murder when there is only one victim. We agree and reverse the lesser co nviction of second-degree murder along with its

attendant conviction for use of a firearm in the comm ission of a felony.

BACKGROUND Holley, with the help of an accomplice, burst into a residenc e in Portsmouth in the early morning of January 27, 2 010. The evidence suggests that the man inside the residence, Reginald J. Buffington, Jr., was deal ing drugs. Buffington de fended himself, and a vi olent struggle ensued. Buffington shot and wounded Holle y, but Holley survived . Buffington was shot several times.PUBLISHED- 2 - When police arrived at the scene, they found Holley ly ing on the floor, mo aning and bleeding profusely. Buffington’s lifeless bo dy was leaning against a couch. He died of his guns hot wounds. Holley was charged with both first-degree felony murder and second-degree murder. Holley was also charged with four counts of us e of a firearm in the co mmission of a felony, abduction, armed statutory burglary, and possession of a firearm by a convic ted felon. The trial court instructed the jury on both theories of murder and convict ed Holley on both. Following the jury verdicts, defense counsel argued that appellant could not be sentenced for two separate murders when there was only one victim and that doing so would violate the Double Jeopardy Clause. Following additional briefing, the trial court sustai ned both convictions. Th is appeal followed.

ANALYSIS Appellant argues that he cannot be convicted of both first-degree felony murder and second-degree murder when there is a single murder victim. 1 The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subjec t for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amen d. V. The constitutional prohibition against double jeopardy “had its origin in the three common-law pleas of autrefois acquit, autrefois convict , and pardon.” United States v. Scott, 437 U.S. 82, 87 ( 1978). The constitutional right “derived from English common law, which followed then, as it does now, the relatively simple rule that a defendant has been put in jeopardy only when ther e has been a conviction or an acquittal — after a complete trial.” Crist v. Bretz, 437 U.S. 28, 33 (1978). And while there are “an exceptionally large number of cases” interpreting the Double Jeopardy Clause, most of the leading United

1 We reject the Commonwealth’s contention, advanced at the en banc oral argument, that appellant did not rely on the common law at tria l and, therefore, his argument is procedurally barred under Rule 5A:18. Appellant squarely raised the double jeopardy argument before the trial court in a written brief, and the Commonwealth filed a res ponse. As we note below, double jeopardy principles chiefly derive from the comm on law. Accordingly, we are satisfied that the argument is not barred by Rule 5A:18.- 3 - States Supreme Court decisions “have found more guidance in th e common-law ancestry of the

Clause than in its brief text.” Y eager v. United States, 557 U.S. 110, 117 (2009). It is now well recognized that this 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 of fense after conviction. And it protects against multiple punishm ents for the same offense.” Brown v. Commonwealth, 230 Va. 310, 312-13, 337 S.E.2d 711, 712-13 (1985) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). It is this last layer of protection we are called upon

to examine. “We review de novo claims that multiple punishments have been imposed for the same

offense in violation of the double jeopardy clause.” Lawlor v. Commonwealth, 285 Va. 187, 227, 738 S.E.2d 847, 870 (2013).

I. T HE COMMON LAW ’ S UNITARY THEORY OF HOMICIDE Common-law principles gui de our decision. Although th e common law of homicide contemplated “several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it,” 4 William Blackst one, Commentaries on th e Laws of England 177 (facsimile ed. 1769), there could be but one homic ide for one dead body, see, e.g., United States v. Ammidown, 497 F.2d 615, 625 (D.C. Cir. 1974) (“At common law, . . . [w]here there was but one killing, there was but one offense, and one act could therefore give rise to only one sentence.”). Due to the unitary nature of homicide at common law, an acquittal for murder barred a subsequent prosecution for manslaughter, and vice versa. See 4 Blacksto ne, Commentaries at 330 (“[A] conviction of manslaughter, on an appeal, is a bar even in another appeal, and much more in an indictment, of murder; for the fact prosecuted is the same in both, though the offences differ in colouring and in degree. ”); see also 2 Matthew Hale, Hi storia Placitorum Coronae: The History of the Pleas of the Crown 246 (P.R . Glazebrook ed., Prof’l Books Ltd. 1971) (1736)- 4 - (“[I]f a man be acquit generally upon an indictment of murder, auterfoits acquit is a good plea to an indictment of manslaughter of the same person, or è converso , if he be indicted of manslaughter, and be acquit, he shall not be indi cted for the same death, as murder, for they differ only in degree, and the fact is the same.”). In short, under the common law of homicide, the units of prosecution are dead bodies, not theories of aggrav ation. If the common-law rule remains the law of Virginia, appellant cannot be convicted of two murders for a single killing. Code § 1-200 provides that: [t]he common law of England, insofa r as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly. See also Herndon v. St. Mary’s Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d 567, 569 (2003) (“[A] statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested.”). The Commonwealth relies on statutory enactments to contend that the General Assembly has displace d the common law.

II. S TATUTORY ENACTMENTS HAVE NOT ALTERED THE COMMON LAW RULE

. A. The enactment of Code § 18.2-32 and cases interpreting th at statute do not establish any legislative intent to displace the common law. First, the Commonwealth relies on Code § 18.2-32 . That statute, as originally enacted in 1796, provided:

The several offences which ar e included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment: Be it further enacted, That all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robber y, or burglary, shall be deemed murder of the first degree; and a ll other kinds of murder shall be deemed murder of the second degr ee, and the jury before whom any person indicted for murder shall be tried, shall, if they find- 5 - such person guilty thereof, ascertain in their verdict whether it be murder, in the first or second degree.

1796 Va. Acts ch. 2. Code § 18.2-32, the direct descendant of th e statute enacted in 1796, provides as follows: Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in th e commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burgl ary or abduction, except as provided in § 18.2-31, is murder of the first degree, punishable as a Class 2 felony. All murder other than capital murd er and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years. The Commonwealth argues that this Court should employ the Blockburger test. Under that test, when “the same act or transaction constitute s a violation of two distin ct statutory provisions, the test to be applied to determine whether ther e are two offenses or only one, is whether each [offense charged] requires proof of a fact wh ich the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). “[I] n applying this test, the two offenses are to be examined in the abstract, rather than with reference to the fact s of the particular case under review.” Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981). “Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assu ring that the co urt does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Br own v. Ohio, 432 U.S. 161, 165 (1977). Consequently, whether a pu nishment offends double jeopardy turns on a determination of “what punishments the Legislativ e Branch has authorized.” Whalen v. United States, 445 U.S. 684, 688 (1980). In answering this qu estion, we will “first consider whether ‘the legislative intent is clear from the face of the statute or the legislative history.’” Andrews v.- 6 - Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010) (quoting Garre tt v. United States, 471 U.S. 773, 779 (1985)). “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislativ e history.” Garrett, 471 U.S. at 779. As our Supreme Court has noted: [W]hile Blockburger can provide an efficient mechanism to parse statutory language in order to de termine the legislature’s intent with regard to whether multiple punishments are permitted for conduct chargeable under more than one code section, it is not the sole, or in many cases, the primar y tool of statutory construction used to determine that intent. Andrews, 280 Va. at 284, 699 S.E.2d at 267. The legislative intent behind the passage of th e statute that later became Code § 18.2-32 is clear. In enacting this statute, the General Assembly did not intend to set aside the common-law rules for a single homicide’s punishme nt by making that punishment more severe. To the contrary, the General Assembly acted to mitigate the harshness of the common law’s punishment for murder. That intent appears in the langua ge of the original enactment and in precedent interpreting this statute. In adopting the predec essor to Code § 18.2-32, the Ge neral Assembly articulated its purpose, “The several offences which are incl uded under the general de nomination of murder, differ so greatly from each other in the degree of th eir atrociousness, that it is unjust to involve them in the same punishment.” 1796 Va. Acts ch. 2. In Fitzgerald v. Commonwealth, 223 Va. 615, 636, 292 S.E.2d 798, 810 (1982), the Supreme Cour t observed that the General Assembly enacted the predecessor to Code § 18.2-32 “to mitigate the harshness of the common law which punished murder and numerous other crimes with death.” Furthermore, in Wicks v. Commonwealth, 4 Va. (2 Va. Cas.) 387, 391-92 (1824), the Court concluded that, by enacting this statute, 2 the General Assembly did not intend “to change,

2 Wicks involved 1 Rev. Code of 1819, ch. 171, § 2, at 616. Its relevant language was nearly identical to that of 1796 Va. Acts ch. 2.- 7 - much less . . . to divide the Common Law crime of murder into two dis tinct offences, to be prosecuted and punished under two distinct Indictme nts.” Rather, the General Assembly’s intent was “to graduate the punishment of each murder by a scale to be established by itself, according

to the circumstances under which it should be comm itted.” Id. Several decades later, the Court reiterated its understanding that the purpose of this statute: [W]as not to create two offences out of the crime of murder , but to arrange the various kinds of murd er at the common law, under the two denominations of murder in th e first degree, and murder in the second degree; and to annex to th e cases in each denomination a punishment corresponding in severity to the degree of atrocity with which they might be perpetrated, and by which they would be marked as belonging to the one or the other of said denominations of murder. Livingston v. Commonwealth, 55 Va. (14 Gratt.) 592, 596 (1857) (emphasis added). Our examination of the legislative intent behind the enactment of the statute that ultimately became Code § 18.2-32 leads us to conclude that the General Assembly did not intend to displace the common law’s conception of hom icide as a unitary crime with regard to murder and felony murder. Instead, the pr ovision was enacted to mitigate the harshness of the common law’s punishment for the crime of homicide. This clear le gislative intent makes re sort to the Blockburger test unnecessary. B. The enactment of a capital-murder st atute, Code § 18.2-3 1,does not displace common-law principles. The Commonwealth points out th at in several capital murder cases, the Supr eme Court has turned to the Blockburger test and, in so doin g, upheld multiple death sentences for a single homicide. See Andrews, 280 Va. at 280-81, 699 S.E.2d at 265; Payne v. Commonwealth, 257 Va. 216, 228, 509 S. E.2d 293, 301 (1999).

The decisions in Andrews an d Payne do not govern our deci sion here. Code § 18.2-31 created statutory crimes. Murder other than capital murder rema ins a common-law offense. The- 8 - statute that became Code § 18.2-32 was enacted against a common-law framework that contemplated the death penalty as the ordinary p unishment for homicide. In contrast, Virginia’s capital murder statute was enacted as a reaction to emerging ca se law from the United States Supreme Court that prohibits a State from imposi ng the death penalty, unles s it effectively narrows the scope of murders eligib le for the death penalty. See Jurek v. Texas, 428 U.S. 262, 276 (1976); Furman v. Georgia, 408 U.S. 23 8, 239-40 (1972) (per curiam). The General Assembly responded by enacting a specific statutory regime to govern capital murder cases. Fitzgerald, 223 Va. at 636-37, 292 S.E.2d at 810. Although the overriding purpose of both Code § 18.2-31 and Code § 18.2-32 is gradation, the legislat ive intent behind the two statutes differs. The intent animating the passage Code § 18.2-32 was to mitigate the harshnes s of the common law, whereas the purpose behind Code § 18.2-3 1 was to ensure that the worst murderer s remained eligible for the ultimate sanction. This differing legisla tive purpose drives our resolution of the double jeopardy question. 3 We conclude that appellant cannot be convic ted for both first-degr ee murder on a felony homicide theory an d second-degree murder for the killing of a single person. 4

3 Payne v. Commonwealth, 277 Va. 531, 674 S. E.2d 835 (2009), provides an additional illustration of the General Assembly departi ng from the common law’s unitary theory of homicide. There, although the defendant killed a single individual, she was convicted of both felony murder and aggravated involuntary ma nslaughter. Id. at 535, 674 S.E.2d at 836-37. The statute defining the aggravat ed involuntary manslaughter, C ode § 18.2-36.1(C), expressly provides that “[t]he provisions of this section shall not pr eclude prosecution under any other homicide statute,” thereby manife sting a clear legisla tive intent to allow a prosecution under both theories. Id. at 538-39, 674 S.E.2d at 838-39.

4 We acknowledge that the co mmon-law pedigree of the fel ony-murder doctrine is the subject of scholarly debate. S ee, e.g., Guyora Binder, The Origin s of American Felony Murder Rules, 57 Stan. L. Rev. 59 (2004). Whatever the me rits of that academic debate, Virginia courts have long incorporated the doctrine into Virginia law and it remains part of our law to this day. See, e.g., Commonwealth v. Montague, 260 Va. 697, 700, 536 S.E.2d 910, 912 (2000) (explaining that “[t]he felony-murder doc trine originated at common law”).- 9 - III. A PPELLANT REMAINS CONVICTED OF FIRST

- DEGREE FELONY MURDER

. Having concluded that appellant cannot be punished for both first-degree felony murder and second-degree murder fo r the killing of a si ngle person, we turn to the question of which conviction must be vacated. Appellant maintains that his convi ction for first-degree murder should be vacated. We disagree. “Where a defendant is convicted in a single trial of a lesser included offense and the greater offense, we must vacate th e conviction of the lesser include d offense.” Clayton Motors v. Commonwealth, 14 Va. App. 470, 473, 417 S.E.2d 314, 316 (1992). Accordingly, we vacate appellant’s conviction fo r second-degree murder. 5 We also vacate his asso ciated charge for use of a

firearm in the comm ission of second-degree murder, beca use conviction for that offense was contingent upon his conviction for second-degre e murder.

CONCLUSION We reverse and vacate appellant’s conviction for second-degree murd er and the attendant

conviction for use of a firearm in the commission of a felony. We affi rm the other convictions, including the conviction for first-de gree felony murder and its associ ated firearm charge. We also

remand for correction of a clerical error in the final sentencing order. 6 Affirmed and remanded in part, reversed and vacated in part.

5 Nothing in this opinion should be constr ued as detracting from the settled law under which the Commonwealth can “‘charge the commi ssion of a single offense in several different ways in order to meet the contingencies of proof.’” Andrews, 280 Va. at 286, 699 S.E.2d at 268 (quoting Buchanan v. Commonwealth, 238 Va. 389, 397, 384 S.E.2d 757, 762 (1989)).

6 The record reflects that appellant was c onvicted of first-degree felony murder under Code § 18.2-32. The sentencing order, however, in correctly states that he was convicted of felony homicide under Code § 18.2-33. See Code § 8.01-428(B) (permitting the correction of scrivener’s errors).