Can You Be Convicted of Both Murder and Manslaughter?

Holy crud. Why would you take a jury - which sentences in Virginia - on a case as open and shut as this 2d DUI fatality? Were the sentencing guidelines (which the judge gets, but a jury is forbidden by law) that bad?

Payne was drunk and driving her boyfriend's truck home from work when she lurched off the pavement and struck Patel as he walked alongside the westbound lanes of Midlothian Turnpike at the entrance ramp to north- bound Chippenham Parkway. At the time, she was fleeing from a rear-end accident she had caused.

She was convicted on all counts

The jury found Payne guilty of felony murder, aggravated involuntary manslaughter and two counts of felony hit-and-run in connection with Patel's death. The jury imposed 20 years each for the murder and the manslaughter convictions and a total of six years for the hit-and-runs.

It took me a minute to figure out how she could be convicted on both murder and manslaughter, but I think I've figured it out. Felony murder arises from the fact that she was fleeing from the felony and neither flight nor an ongoing felony is an element in manslaughter. Manslaughter comes out of the drimking while driving and DUI is not necessarily an element in felony murder (it could be if it was the third DUI in 10 years). Still, it will be interesting to see if they both survive appeal.

There's lots of case law in Virginia which supports felony murder for recklessly driving away from a felony crime in an attempt to escape and accidently causing a death through that recklessness. The problem is that reckless driving is a lesser included offense of DUI. There was a case a while back in which the Virginia Courts Appellate held that when a robbery was acquited a subsequent charge of grand larceny was barred by double jeopardy because both included petit larceny. Both had their own individual elements; grand larceny requires over $200 to be taken and robbery requires the use of force or threat. However, that was not enough to overcome the fact that they both had a lesser included offense in common.

I predict that the Court of Appeals will uphold the conviction based on the fact that the reckless driving could be based upon the manner of the driving rather than the fact she was DUI. The trickier question is how the Supreme Court will handle it.