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 JUDGE 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. Morrison, Judge 

 Dianne G. Ringer (Bierowicz & Ringer, P.C., on briefs), for 

appellant. 

 Virginia B. Theisen, Senior Assistant 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-degree murder and first-degree felony murder when there is only 

one victim. We agree and reverse the lesser conviction of second-degree murder along with its 

attendant conviction for use of a firearm in the commission of a felony. 

BACKGROUND 

 Holley, with the help of an accomplice, burst into a residence in Portsmouth in the early 

morning of January 27, 2010. The evidence suggests that the man inside the residence, Reginald J. 

Buffington, Jr., was dealing drugs. Buffington defended himself, and a violent struggle ensued. 

Buffington shot and wounded Holley, but Holley survived. Buffington was shot several times. 

PUBLISHED 
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When police arrived at the scene, they found Holley lying on the floor, moaning and bleeding 

profusely. Buffington’s lifeless body was leaning against a couch. He died of his gunshot wounds. 

 Holley was charged with both first-degree felony murder and second-degree murder. 

Holley was also charged with four counts of use of a firearm in the commission of a felony, 

abduction, armed statutory burglary, and possession of a firearm by a convicted felon. The trial 

court instructed the jury on both theories of murder and convicted 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 sustained both convictions. This 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 subject for the same offence to be twice put in 

jeopardy of life or limb.” U.S. Const. amend. 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 there 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 trial 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 response. As we note below, double 

jeopardy principles chiefly derive from the common law. Accordingly, we are satisfied that the 

argument is not barred by Rule 5A:18. 
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States Supreme Court decisions “have found more guidance in the common-law ancestry of the 

Clause than in its brief text.” Yeager 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 offense after conviction. And it 

protects against multiple punishments 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. THE COMMON LAW’S UNITARY THEORY OF HOMICIDE

 Common-law principles guide our decision. Although the common law of homicide 

contemplated “several stages of guilt, arising from the particular circumstances of mitigation or 

aggravation which attend it,” 4 William Blackstone, Commentaries on the Laws of England 177 

(facsimile ed. 1769), there could be but one homicide 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 Blackstone, 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, Historia Placitorum Coronae: The 

History of the Pleas of the Crown 246 (P.R. Glazebrook ed., Prof’l Books Ltd. 1971) (1736) 
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(“[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 indicted 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 aggravation. 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, insofar 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 displaced the common law. 

II. STATUTORY ENACTMENTS HAVE NOT ALTERED THE COMMON LAW RULE. 

A. The enactment of Code § 18.2-32 and cases interpreting that 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 are 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, robbery, or burglary, shall be deemed 

murder of the first degree; and all other kinds of murder shall be 

deemed murder of the second degree, and the jury before whom 

any person indicted for murder shall be tried, shall, if they find 
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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 the 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 the commission of, or attempt to 

commit, arson, rape, forcible sodomy, inanimate or animate object 

sexual penetration, robbery, burglary 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 murder 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 constitutes a violation of two distinct statutory provisions, 

the test to be applied to determine whether there are two offenses or only one, is whether each 

[offense charged] requires proof of a fact which 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 facts 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 assuring that the court does not exceed its legislative 

authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 

161, 165 (1977). Consequently, whether a punishment offends double jeopardy turns on a 

determination of “what punishments the Legislative Branch has authorized.” Whalen v. United 

States, 445 U.S. 684, 688 (1980). In answering this question, we will “first consider whether ‘the 

legislative intent is clear from the face of the statute or the legislative history.’” Andrews v. 
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Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010) (quoting Garrett 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 legislative 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 determine 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 primary 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 the 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 punishment 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 language of the original enactment and in precedent interpreting this 

statute. In adopting the predecessor to Code § 18.2-32, the General Assembly articulated its 

purpose, “The several offences which are 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.” 1796 Va. Acts ch. 2. In Fitzgerald v. Commonwealth, 223 Va. 

615, 636, 292 S.E.2d 798, 810 (1982), the Supreme Court 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. 
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much less . . . to divide the Common Law crime of murder into two distinct offences, to be 

prosecuted and punished under two distinct Indictments.” 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 committed.” 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 murder at the common law, under the 

two denominations of murder in the first degree, and murder in the 

second degree; and to annex to the 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 homicide as a unitary crime with regard to murder and felony 

murder. Instead, the provision was enacted to mitigate the harshness of the common law’s 

punishment for the crime of homicide. This clear legislative intent makes resort to the Blockburger 

test unnecessary. 

B. The enactment of a capital-murder statute, Code § 18.2-31,does not displace 

 common-law principles. 

 The Commonwealth points out that in several capital murder cases, the Supreme Court has 

turned to the Blockburger test and, in so doing, 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 and Payne do not govern our decision here. Code § 18.2-31 

created statutory crimes. Murder other than capital murder remains a common-law offense. The 
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statute that became Code § 18.2-32 was enacted against a common-law framework that 

contemplated the death penalty as the ordinary punishment for homicide. In contrast, Virginia’s 

capital murder statute was enacted as a reaction to emerging case law from the United States 

Supreme Court that prohibits a State from imposing the death penalty, unless it effectively narrows 

the scope of murders eligible for the death penalty. See Jurek v. Texas, 428 U.S. 262, 276 (1976); 

Furman v. Georgia, 408 U.S. 238, 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 legislative intent behind the two statutes differs. The intent animating the 

passage Code § 18.2-32 was to mitigate the harshness of the common law, whereas the purpose 

behind Code § 18.2-31 was to ensure that the worst murderers remained eligible for the ultimate 

sanction. This differing legislative purpose drives our resolution of the double jeopardy question.3

 

 We conclude that appellant cannot be convicted for both first-degree murder on a felony 

homicide theory and 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 departing 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 manslaughter. Id. at 535, 674 S.E.2d at 836-37. The 

statute defining the aggravated involuntary manslaughter, Code § 18.2-36.1(C), expressly 

provides that “[t]he provisions of this section shall not preclude prosecution under any other 

homicide statute,” thereby manifesting a clear legislative intent to allow a prosecution under both 

theories. Id. at 538-39, 674 S.E.2d at 838-39. 

 

4

 We acknowledge that the common-law pedigree of the felony-murder doctrine is the 

subject of scholarly debate. See, e.g., Guyora Binder, The Origins of American Felony Murder 

Rules, 57 Stan. L. Rev. 59 (2004). Whatever the merits 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 doctrine originated at common law”). 
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III. APPELLANT REMAINS CONVICTED OF FIRST-DEGREE FELONY MURDER. 

 Having concluded that appellant cannot be punished for both first-degree felony murder and 

second-degree murder for the killing of a single person, we turn to the question of which conviction 

must be vacated. Appellant maintains that his conviction 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 the conviction of the lesser included offense.” Clayton Motors v. 

Commonwealth, 14 Va. App. 470, 473, 417 S.E.2d 314, 316 (1992). Accordingly, we vacate 

appellant’s conviction for second-degree murder.5 We also vacate his associated charge for use of a 

firearm in the commission of second-degree murder, because conviction for that offense was 

contingent upon his conviction for second-degree murder. 

CONCLUSION 

 We reverse and vacate appellant’s conviction for second-degree murder and the attendant 

conviction for use of a firearm in the commission of a felony. We affirm the other convictions, 

including the conviction for first-degree felony murder and its associated 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 construed as detracting from the settled law under 

which the Commonwealth can “‘charge the commission 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 convicted of first-degree felony murder under 

Code § 18.2-32. The sentencing order, however, incorrectly 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).