09 April 2014

They can convict me of both charges?!? Virginia's Statute 19.2--294

Outside of constitutional double jeopardy protections, in Virginia Va Code sec 19.2-294, deals with dual charging:
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 ordinancesconviction 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. The provisions of this section shall not apply to any offense involving an act of terrorism as defined in § 18.2-46.4.
For purposes of this section, a prosecution under a federal statute shall be deemed to be commenced once jeopardy has attached.
The purpose of this statute was to limit prosecutions even when double jeopardy does not apply.  It limits the prosecution to an act rather than to a crime. See Owens v. Commonwealth, 129 Va 757 (1921)(stating that this statute was meant to prevent cases such as Arrington v. Commonwealth, 87 Va 96 (1890)(two separate prosecutions for the same act under different statutes)). However, the Virginia courts have both pulled the teeth out of this statute and neutered it.


To begin with, the courts have ruled that this statute does not apply if one of the crimes is a common law crime - and we all know that Virginia criminal law is replete with common law crimes. See Blythe v. Commonwealth, 222 Va. 722 (1981).  While this is a technically correct reading of the statute, it clearly falls well outside its intent. 

Nonetheless, we are left with an interesting question here. What of the hybrid statutes? Virginia has all sorts of statutes which add elements to common law crimes. Most prominent among these (at least in number of times charged) is probably felony larceny which is created under various statutes that add a particular aggravating element. 18.2-95 includes the elements of value ($200+) or an item (firearm); 18.2-104 makes prior convictions an aggravating element; 18.2-97 makes stealing a dog or certain farm animals an aggravating element. It seems that either under a legislative intent analysis or the application of the rule of lenity (construing the statute strictly against the Commonwealth) the inclusion of these hybrid laws would be called for.


Older cases seem to assume this statute barred concurrent prosecutions for different crimes rising from the same act and it was evenly specifically held to be so for a very short period of time.  Lash v. Commonwealth, 13 VaApp 251 (1991).  However, this was almost immediately overruled by the Court of Appeals sitting en banc in Hall v. Commonwealth, 14 VaApp 892 (1992). The Hall interpretation was later adopted by the Virginia Supreme Court. See Phillip v. Commonwealth, 257 Va 548 (1999).  Now the rule seems to be that if a second criminal charge is instituted at a point before conviction on the first they are not consecutive prosecutions because they both existed at the same time. See Phillips, supra (misdemeanor offenses tried in same hearing as the felony preliminary hearing in general district court do not keep the felonies from being pursued in circuit court), Schwartz v. Commonwealth, 41  VaApp 61 (2003)(a finding of delinquency on misdemeanor petitions in juvenile and domestic court during a transfer hearing does not bar prosecution of the felonies which are transferred to circuit court), Doss v. Commonwealth, 1995 VaApp No. 2003-93-3 (U) (warrants taken simultaneously, but tried in different courts do not violate the statute), and Phillips v. Commonwealth, 27 VaApp 674 (1998)( charges taken at different times, but heard in one hearing do not violate the statute). You'll note that all those cases, except the unpublished Doss, require a simultaneous hearing at some point. This leaves a question in my mind as to whether simultaneous prosecutions which occur at the same time before different courts violate the statute. My brain keeps telling me I've seen a case that says 'no', but I can't find it. Even without a case directly on point, as the "simultaneous hearing" is not part of the statute, but a creation of the courts, I strongly suspect that if a warrant based on a single act was still pending in the general district court the prosecution could simultaneously indict the defendant in circuit court at any time prior to the resolution of the charge in general district court. Anyway, the concurrent prosecution exception is also supported by a close reading of the statute and at least superficially supported by a reading of the facts in Arrington, which dealt with a subsequent prosecution based on a same act.


However, the coup de grace here comes from the cases which engage in fact parsing. Fact parsing entirely neutralizes this statute by making acts the exact same things as elements. In so doing, it makes the statute nothing more than the same protections that a defendant would get from the 5th Amendment. "The test of whether there are separate acts sustaining several offenses is whether the same evidence is required to sustain them."  Jefferson v. Commonwealth, 43 VaApp 361 (2004).

This addition to the statute is unsustainable from either the text of the statute or its purpose.  Merriam Webster online defines an act as "the doing of a thing" or "something done voluntarily." It defines evidence as "an outward sign", "something that furnishes proof", or "one who bears witness."  Let's test this out. Could a felon carrying a firearm in the pocket of his coat be convicted of both the charge of felon in possession and concealed weapon? The evidence required to prove felon in possession is carrying a weapon (the doing of a thing) and a prior felony conviction (status of the defendant). The evidence required to prove carrying a concealed weapon is carrying a weapon (the doing of a thing) and that the weapon is "hidden from common observation" (status of the firearm when carried). Of course, in Jefferson the Virginia Court of Appeals had no problem upholding the two convictions:
To sustain Jefferson's earlier conviction of carrying a concealed handgun, in violation of Code 18.2-308, the Commonwealth had to prove that Jefferson carried a handgun "about his person, hidden from common observation," without legal authorization to do so. That conviction did not require proof that Jefferson was a convicted felon. Conversely, to establish Jefferson's guilt in this case of violating Code 18.2-308.2, the Commonwealth had to prove that he had previously "been convicted of a felony" and that he "knowingly and intentionally possessed or transported any firearm." The Commonwealth was not required to prove that the handgun in Jefferson's possession was concealed. Hence, while possession of the handgun was conduct common to the prosecution of both statutory offenses, the attendant acts and legal disabilities necessary to sustain the two prosecutions were decidedly different.
Even the court recognizes that it is not dealing with acts when it upheld both convictions. It was dealing with different legal disabilities. In these cases the courts are engaging in a rather thin facade. They are calling elements "facts" and reducing this statute to nothing more than a restatement of the 5th Amendment's Blockburger test. Fact parsing is unsupportable by the text of the statute and rips the guts right out of it. Under fact parsing the statute is basically reduced to one simple statement: You can't prosecute two crimes, one of which is a lesser included in the other, in subsequent prosecutions.

This is not a line of interpretation that originated in Jefferson. Another example can be found ii Johnson v. Commonwealth, 38 Va App 137 (2002):
In the first instance, defendant admittedly was unlawfully operating a vehicle [act] while his privileges were in suspension [status]. In contrast, the subject prosecution resulted from such operation [same act] after he had been adjudicated an habitual offender [different status]. While driving was conduct common and necessary to each offense, the legal disability upon defendant that attended and was integral to the respective acts was significantly different. Thus, the "same evidence" would not produce a conviction for both offenses. Accordingly, the disparate "nature" of the acts saves the instant prosecution from the reach of Code 19.2-294.
All of which seems to have sprung from Fitzgerald v. Commonwealth, 11 Va App 625 (1991):
The "same act" involved in this case was the breaking of the doors of the places broken into.
. . . 
In this case, proof that the appellant damaged two doors and a window in entering these three establishments did not require proof of statutory burglary. Likewise, proof that he had entered these premises  during the nighttime to commit larceny did not require proof that he had damaged them in achieving entry.

Fact parsing is a very poor interpretation of the meaning of the statute and needs to be scrapped. However, the other two limitations of this statute are found in the statute themselves and only the General Assembly could change them. In my opinion, the best interpretation of the statute would be to apply it in the following circumstances:

I.  At least one element of each crime is set in a statute. This could be anything from an entirely statutory law such as DUI to something which just has one element set by statute such as grand larceny (value or certain items).

II.  One crime is charged subsequent to the completion of the prosecution of the other charge.

III.  They both contain the same act.
          A.  There is a single location, and
          B.  There is a single victim, and
          C.  There is a single time frame.

No comments: