COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

MICHAEL LEE WEAVER 

 OPINION BY 

v. Record No. 1415-96-3 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 24, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE 

Charles M. Stone, Judge 

 Wayne T. Baucino, Assistant Public Defender, 

for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Michael Lee Weaver was convicted by a jury of attempted 

second degree murder. On appeal, he contends (1) that his 

prosecution by the Commonwealth was barred by Code § 19.2-294 due 

to his previous acquittal in federal court for a similar 

statutory offense, and (2) that prosecutorial misconduct barred 

his retrial for attempted murder. We disagree and affirm the 

judgment of the trial court. 

 I. 

 On November 26, 1992, Weaver was charged with the November 

25, 1992 malicious wounding of Charles Michael Hudson, in 

violation of Code § 18.2-51. Following his arrest, federal 

authorities investigated a possible connection between the attack 

and Hudson's role as a witness in an upcoming federal trial. On 

January 22, 1993, a federal grand jury indicted Weaver for 
- 2 - 

conspiracy to murder and attempted murder of a witness to prevent 

him from testifying in a federal criminal trial. See 18 U.S.C. 

§§ 371, 1512(a)(1)(A). On January 28, 1993, the Martinsville 

General District Court entered a nolle prosequi of the malicious 

wounding charge on motion of the Commonwealth's Attorney. On 

November 11, 1993, a federal jury acquitted Weaver of both 

federal charges. 

 On May 2, 1994, Weaver was indicted in the Martinsville 

Circuit Court for attempted murder of Hudson. He was tried on 

December 27, 1995. After approximately two hours of 

deliberations, the jury recessed for the evening and resumed 

deliberations the following day. The trial judge instructed the 

jurors not to discuss the case with anyone and advised them that 

they should not be "influenced in anyway by anyone." The jury 

was not instructed to avoid media coverage of the trial. 

 That evening, a local cable television station called 

Commonwealth's Attorney Randy Smith at his home and asked him to 

discuss the case during a live call-in program. Mr. Smith 

responded to the television host's questions about the case. 

Several persons called the talk show in response to Mr. Smith's 

remarks, "both criticizing his alleged unprofessionalism and 

defending his right to inform the public." Weaver called the 

television station to complain and stated on the air that he had 

been found not guilty at his federal trial. 

 A juror heard part of the talk show after Mr. Smith's 
- 3 - 

interview, including the telephone call from Weaver. The juror 

reported to the trial court that his ability to remain impartial 

had been affected. The trial court granted Weaver's motion for a 

mistrial. Relying upon the Double Jeopardy Clause, Weaver moved 

to dismiss the charge due to prosecutorial misconduct. The trial 

court denied the motion. Upon retrial, a jury convicted Weaver 

of attempted murder. 

 II. 

 Weaver contends that Code § 19.2-294 barred this 

prosecution. Code § 19.2-294 provides, in pertinent part: 

 If the same act be a violation of two or more 

statutes, or of two or more ordinances, or of 

one or more statutes and also one or more 

ordinances, conviction under one of such 

statutes or ordinances shall be a bar to a 

prosecution or proceeding under the other or 

others. Furthermore, if the same act be a 

violation of both a state and a federal 

statute a prosecution under the federal 

statute shall be a bar to a prosecution under 

the state statute. 

(Emphasis added.) Weaver contends that his prosecution for 

attempted murder in violation of federal witness protection 

statutes bars his subsequent state prosecution for attempted 

murder, a common law crime. 

 "Section 19.2-294, however, applies only where two or more 

statutory offenses are involved." Blythe v. Commonwealth, 222 

Va. 722, 725, 284 S.E.2d 796, 797 (1981) (emphasis in original) 

(defendant's prior conviction for statutory offense did not bar 

prosecution for common law offense). Thus, "this section is not 
- 4 - 

applicable when one crime is a common law offense." Darnell v. 

Commonwealth, 12 Va. App. 948, 957, 408 S.E.2d 540, 545 (1991). 

Accord Martin v. Commonwealth, 242 Va. 1, 8-9, 406 S.E.2d 15, 19 

(1991) (defendant's prior conviction for statutory offense did 

not bar subsequent prosecution for common law offense of 

attempted murder "[e]ven if we assume that [defendant's] conduct 

constituted only one act"). 

 Weaver notes correctly that Blythe and its progeny addressed 

successive prosecutions in state courts, rather than successive 

proceedings in federal and state courts. He argues that the 

provision in Code § 19.2-294 covering successive federal and 

state prosecutions should be interpreted differently from its 

companion provision governing successive state prosecutions. 

 Weaver argues that the term "statute" in Code § 19.2-294 

should be construed broadly to include both common law and 

statutory offenses. He cites Owens v. Commonwealth, 129 Va. 757, 

105 S.E. 531 (1921), and Sigmon v. Commonwealth, 200 Va. 258, 105 

S.E.2d 171 (1958). His reliance upon those decisions is 

misplaced. Despite general reference in Owens and Sigmon to 

state "law," rather than state "statute," both decisions 

concerned application of the statutory bar to successive federal 

and state prosecutions for statutory offenses and, thus, did not 

involve prosecution for a common law crime.1

 

 

 1Without a statutory definition of the offense, the mere fact 

that Code § 18.2-26 fixes the punishment for attempted murder does 

not transform attempted murder into a statutory offense to which 

Code § 19.2-294 would apply. See Blythe, 222 Va. at 725, 284 
- 5 - 

 Weaver argues also that the General Assembly did not intend 

for Code § 19.2-294 to exclude coverage of common law offenses. 

Blythe, which held clearly that Code § 19.2-294 does not apply to 

prosecutions for common law crimes, was decided in 1981. The 

legislature revised Code § 19.2-294 in 1987. 1987 Va. Acts ch. 

241. Had the General Assembly disagreed with the Supreme Court's 

ruling, it could have amended the statute to include common law 

crimes. "'[W]here the General Assembly acts in an area in which 

this Court has already spoken, it is presumed to know the law as 

the Court has stated it and to acquiesce therein.'" McFadden v. 

Commonwealth, 3 Va. App. 226, 230, 348 S.E.2d 847, 849 (1986) 

(quoting Burns v. Board of Supervisors, 227 Va. 354, 360, 315 

S.E.2d 856, 860 (1984)). See also Hall v. Commonwealth, 14 Va. 

App. 892, 898-99, 421 S.E.2d 455, 460 (1992) (en banc). 

 Finally, "'[n]ontechnical words in statutes are taken to 

have been used in their ordinary sense and acceptation.'" Smith 

v. Commonwealth, 3 Va. App. 650, 655, 353 S.E.2d 159, 161 (1987) 

(citations omitted). In ascertaining the meaning of "statute," 

we note with approval the following: 

 Common law. As distinguished from law 

created by the enactment of legislatures, the 

common law comprises the body of those 

principles and rules of action, relating to 

the government and security of persons and 

property, which derive their authority solely 

from usages and customs of immemorial 

antiquity, or from the judgments and decrees 

 

S.E.2d at 797; Darnell, 12 Va. App. at 957 n.6, 408 S.E.2d at 545 

n.6. 
- 6 - 

of the courts . . . . 

* * * * * * * 

 Statute, n. An act of the legislature 

declaring, commanding, or prohibiting 

something . . . . This word is used to 

designate the legislatively created laws in 

contradistinction to court decided or 

unwritten laws. See Common law.

Black's Dictionary, 250-51, 1264-65 (5th ed. 1979). While either 

"statute" or "common law" may be referred to in a general sense 

as the "law," see id. at 795-96, they are mutually exclusive 

terms. See Code § 1-10 (noting that the common law remains in 

force in the Commonwealth except where modified by statute). 

 To conclude that the term "statute" as it is used in Code 

§ 19.2-294 excludes common law crimes in the first sentence, but 

includes them in the second sentence, would lead to an absurd 

result. Cf. Shull v. Commonwealth, 16 Va. App. 667, 670, 431 

S.E.2d 924, 925 (1993). 

 "[W]here a word is used in different 

sections of a statute and its meaning is 

clear in all but one instance, '[t]he same 

meaning . . . will be attributed to it 

elsewhere unless there be something in the 

context which clearly indicates that the 

Legislature intended some other and different 

meaning." 

Walthall v. Commonwealth, 3 Va. App. 674, 680, 353 S.E.2d 169, 

172 (1987) (quoting Board of Supervisors of Albemarle County v. 

Marshall, 215 Va. 756, 761-62, 214 S.E.2d 146, 150 (1975)). 

 We hold that the use of the term "statute" in Code 

§ 19.2-294 excludes common law offenses from the entire purview 
- 7 - 

of the statute. Thus, Code § 19.2-294 did not bar Weaver's 

prosecution for attempted murder. 

 III. 

 Weaver next contends that the trial court erred in denying 

his motion to dismiss the attempted murder charge on double 

jeopardy grounds following the granting of the mistrial. He 

argues that Mr. Smith should have known that his televised 

discussion of the trial would violate an attorney disciplinary 

rule2

 and would necessitate a defense motion for a mistrial. 

Weaver urges us to reconsider our prior decisions and to adopt a 

lesser standard that will bar successive prosecution when the 

prosecutor "was aware but consciously disregarded the risk that 

an objectionable event for which he was responsible would require 

a mistrial at the defendant's request." See Bauder v. State, 921 

S.W.2d 696, 699 (Tex. Ct. Crim. App. 1996). 

 A. 

 In Robinson v. Commonwealth, 17 Va. App. 551, 553, 439 

S.E.2d 622, 623, aff'd en banc, 18 Va. App. 814, 447 S.E.2d 542 

(1994), we held that prosecutorial misconduct causing a mistrial 

does not bar retrial unless the prosecutor intended to subvert 

 

 2DR 7-106(A) of the Disciplinary Rules of the Virginia Code of 

Professional Responsibility provides that: "A lawyer 

participating in . . . the prosecution . . . of a criminal matter 

that may be tried by a jury shall not make or participate in 

making an extra-judicial statement that a reasonable person would 

expect to be disseminated by means of public communication that he 

knows, or should know, constitutes a clear and present danger of 

interfering with the fairness of the trial by a jury." 
- 8 - 

the protection afforded by the Double Jeopardy Clause. Id. at 

553, 439 S.E.2d at 623 (citing MacKenzie v. Commonwealth, 8 Va. 

App. 236, 240, 380 S.E.2d 173, 175 (1989)). The United States 

Supreme Court has pronounced the following standard: 

 Only where the governmental conduct in 

question is intended to "goad" the defendant 

into moving for a mistrial may a defendant 

raise the bar of double jeopardy to a second 

trial after having succeeded in aborting the 

first on his own motion. 

Oregon v. Kennedy, 456 U.S. 667, 676 (1982). 

 We have consistently adhered to the foregoing standard, and 

we decline to deviate from our prior decisions. See, e.g., 

Bennefield v. Commonwealth, 21 Va. App. 729, 467 S.E.2d 306 

(1996) (noting that protections afforded under Virginia 

Constitution are coexistent with those in federal constitution); 

Robinson, 17 Va. App. at 553, 439 S.E.2d at 623 ("Without the 

requisite intent . . . gross prosecutorial misconduct will not 

satisfy the exception set forth in Kennedy."); Kemph v. 

Commonwealth, 17 Va. App. 335, 341, 437 S.E.2d 210, 213-14 

(1993); MacKenzie, 8 Va. App. at 239-40, 380 S.E.2d at 175. 

 B. 

 "In Kennedy, the Supreme Court made it clear that the 

exclusive focus should not be on the fact of prosecutorial error 

or on the impact of such error upon the defendant, but only on 

the intent of the prosecutor in committing the error." Robinson, 

17 Va. App. at 553, 439 S.E.2d at 624. Thus, as the trial court 

determined, the dispositive issue here is not whether Mr. Smith's 
- 9 - 

"possible violation of a disciplinary rule bars the defendant's 

retrial, but whether or not the actions of Mr. Smith, which may 

have ethical implications, were done by him with the intent to 

provoke the defendant into moving for a mistrial." 

 In proving "that the second prosecution is barred by double 

jeopardy, [the defendant] must produce sufficient evidence to 

allow the court to infer 'the existence or nonexistence of intent 

from objective facts and circumstances.'" Robinson, 17 Va. App. 

at 553, 439 S.E.2d at 624 (quoting Kennedy, 456 U.S. at 675). 

 In this case, the trial court stated that: 

 Even though this Court is disturbed by the 

actions of a prosecutor of Mr. Smith's long 

experience, the Court does not believe there 

was any Machiavellian scheme involved in Mr. 

Smith's mind to subvert the trial process, 

even though that was the likely and eventual 

result, and find [sic] that the prosecution 

did not intend to cause a mistrial. 

 Under familiar principles of appellate review, the trial 

court's findings of fact are binding unless they are without 

evidence to support them. Here, Mr. Smith did not initiate 

contact with the cable television station. The interview, while 

regrettable, did not, by itself, evince an intent to compel or 

provoke Weaver to seek a mistrial. Viewing the record and the 

objective facts and circumstances, we cannot say that the trial 

court's ruling was without evidentiary support. 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.