                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Felton, Judges Frank, Humphreys, Kelsey, Petty, Beales, Alston,
PUBLISHED


                      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.
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.
                                               -2-
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)

                                                 -3-
(“[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


                                                -4-
                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.

                                                  -5-
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.
                                                 -6-
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


                                                 -7-
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”).
                                               -8-
              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).
                                               -9-
