                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


IRVIN E. COLEMAN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2871-97-2                   JUDGE ROBERT P. FRANK
                                                JULY 20, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   James F. D’Alton, Jr., Judge

          Steven D. Benjamin (Betty Layne DesPortes;
          Benjamin & DesPortes, P.C., on briefs), for
          appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Irvin E. Coleman (appellant) appeals his conviction for

attempted murder after a jury trial.    The jury also found

appellant guilty of robbery, malicious wounding and three counts

of use of a firearm during the commission of a felony.     The

trial court ordered that the sentences for each offense run

consecutively.     On appeal, appellant asserts that his conviction

for attempted murder is barred by the constitutional protection

against double jeopardy contained in the Fifth Amendment to the

United States Constitution.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                            I.   BACKGROUND

        Reginald Vincent testified that he was driving home from

his job at United Parcel Service (UPS) on the night of January

12, 1997 when he saw appellant in his backyard.      As Vincent

slowly drove past, appellant waved to Vincent.      Vincent stopped

the car, and appellant asked him for a ride to Pegram Street.

        When appellant got into Vincent’s car, he asked Vincent

where he lived and if he lived alone.     Vincent pointed to his

house and told appellant that he had a roommate but the roommate

was not at home.    During the ride, appellant asked Vincent about

his UPS uniform and asked Vincent if he made good money.

        After dropping off appellant on Pegram Street, Vincent went

home.    Vincent heard a knock at the door, looked through the

peephole and saw appellant.      He opened the door and appellant

asked him for a ride to Halifax Street.       Vincent agreed to take

appellant to Halifax Street, but told appellant that it would be

a few minutes, he needed to go to the restroom.

        Appellant came to the restroom door and pointed a gun at

Vincent’s face.    Appellant told Vincent to get on the floor, and

appellant held the gun on Vincent while he searched for

Vincent’s money.

        Then, appellant told Vincent to stand up and push his pants

down around his ankles.    Appellant began backing away, and when

he went around the corner, Vincent pulled his pants up and

started into the hallway.    As Vincent entered the hallway,

                                  - 2 -
appellant began firing at him from a distance of eight to ten

feet.       Vincent took two steps toward appellant in an attempt to

knock the gun away, but he was shot in the arm, the wrist, the

hand, both thighs and the groin.        After the shot to the groin,

Vincent fell face first into the kitchen and the shooting

stopped.      Ten seconds passed, during which there was no movement

or sound, and, then, appellant walked up to Vincent.        Appellant

stood over Vincent, straddled him, put the gun to Vincent’s neck

and fired the gun, shooting Vincent in the back of the head.

                               II.   ANALYSIS

        Appellant challenges his conviction for attempted murder on

grounds that it violates the constitutional guarantee against

double jeopardy found in the Fifth Amendment to the United

States Constitution. 1

        The Double Jeopardy Clause insures that an accused is not

“subject for the same offense to be twice put in jeopardy of

life or limb.”      U.S. Const. amend. V.    “This constitutional

guarantee is applicable to the States through the Due Process

Clause of the Fourteenth Amendment.”         Illinois v. Vitale, 447




        1
       Appellant’s Question Presented was: “Was the evidence
sufficient to support convictions of malicious wounding and
attempted murder arising from one transaction?” Since the
thrust of appellant’s argument centered on a double jeopardy
challenge and he included the “single transaction” language in
his Question Presented, we find that he has not defaulted on
this issue.


                                     - 3 -
U.S. 410, 415 (1980) (citing Benton v. Maryland, 395 U.S. 784

(1969)).

     The United States Supreme Court has interpreted the Double

Jeopardy Clause to include three protections for an accused:

(1) protection against a second prosecution for the same offense

after acquittal, (2) protection against a second prosecution for

the same offense after conviction, and (3) protection against

multiple punishments for the same offense.    See North Carolina

v. Pearce, 395 U.S. 711, 717 (1969).   “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) (citing Gore v. United States, 357 U.S. 386

(1958); Bell v. United States, 349 U.S. 81 (1955); Ex parte

Lange, 18 Wall. 163 (1874)).

     Appellant argues that the sentences for his convictions of

attempted murder and malicious wounding are multiple punishments

for the same offense, and, therefore, invokes the third

protection under Pearce.

     The “same offense” analysis set forth in Blockburger v.

United States, 284 U.S. 299 (1932), is the proper test for

constitutional double jeopardy.   In United States v. Dixon, 509

U.S. 688, 704 (1992), the United States Supreme Court rejected

and overruled the “same conduct” test adopted in Grady v.

                               - 4 -
Corbin, 495 U.S. 508 (1990).    The Court held that, unlike the

Blockburger test, the Grady test lacks “constitutional roots”

and “is wholly inconsistent with earlier Supreme Court precedent

and with the clear common-law understanding of double jeopardy.”

Id.

      In Blockburger, the United States Supreme Court held the

“test to be applied to determine whether there are two offenses

or only one is whether each [statutory] provision requires proof

of an additional fact which the other does not.”      Blockburger,

284 U.S. at 304 (citing Gavieres v. United States, 220 U.S. 338,

342 (1911)).    The application of the Blockburger test involves

an abstract comparison of the two offenses independent of the

specific facts of the particular case.      See Blythe v.

Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981)

(citing Whalen v. United States, 445 U.S. 684, 694 n.8 (1979)).

“It is the identity of the offense, and not the act, which is

referred to in the constitutional guaranty against double

jeopardy.”     Epps v. Commonwealth, 216 Va. 150, 153-54, 216

S.E.2d 64, 67 (1975) (citing Miles v. Commonwealth, 205 Va. 462,

467, 138 S.E.2d 22, 27 (1964)).    Therefore, under the

Blockburger analysis, a defendant may not be convicted of both a

greater and lesser included offense because the lesser-included

offense “requires no proof beyond that which is required for

conviction” of the greater offense.      Brown, 432 U.S. at 168.

The Blockburger test applies to simple statutory and common law

                                 - 5 -
crimes.   See United States v. Jeffers, 532 F.2d 1101, 1109

(1976).

     The elements of attempted murder are “a specific intent to

kill the victim and an overt but ineffectual act committed in

furtherance of this criminal purpose.”     Nobles v. Commonwealth,

218 Va. 548, 551, 238 S.E.2d 808, 810 (1977).    The required

elements to establish malicious wounding are a malicious

shooting, stabbing, cutting or wounding or bodily injury by any

other means with the intent to maim, disfigure, disable or kill.

Code § 18.2-51.   Therefore, in order to obtain a conviction for

attempted murder the Commonwealth must establish that there was

specific intent to kill and some overt but ineffectual act in

furtherance of the intent to kill.     No wounding or bodily injury

is required to establish attempted murder.     On the other hand,

some type of injury, specifically a stabbing, shooting, cutting,

or wounding, is required to prove malicious wounding.    Under the

Blockburger test, the two offenses have different elements and,

therefore, we hold that appellant’s convictions of both

attempted murder and malicious wounding are not violative of the

constitutional protection against double jeopardy.

     Appellant relies on Brown v. Commonwealth, 222 Va. 111,

116, 279 S.E.2d 142, 145-46 (1981), for the proposition that

malicious wounding is a lesser-included offense of attempted

murder.   Brown was charged with malicious wounding and attempted

murder.   See id. at 113, 279 S.E.2d at 143.    The evidence, as

                               - 6 -
recited by the Court, was that Brown shot Dennis Keen once in

the leg.    See id. at 113, 279 S.E.2d at 144.     Then, Brown’s

friend, Wilson, ground Keen’s wounded leg into the dirt, shot

and beat him.    See id.   The Court’s recitation of the facts did

not indicate that Brown fired more than one shot at Keen. 2        See

id.   It was the Commonwealth’s Attorney, at trial, who argued

that Brown fired more than one shot.     See id.

      The jury returned a conviction for assault and battery

under the attempted murder indictment and a conviction for

unlawful wounding under the malicious wounding indictment.         See

id. at 113, 279 S.E.2d at 143.    Brown challenged his convictions

on the basis that both offenses arose out of the single shooting

by Brown.    See id. at 112, 279 S.E.2d at 143.     On appeal, the

Attorney General argued that the attempted murder charge arose

from Brown’s shooting of the victim and the malicious wounding

charge arose from Brown’s status as a principal in the second

degree to Wilson’s actions.     See id. at 114-15, 279 S.E.2d at

144-45.    The Supreme Court rejected the Attorney General’s

argument and stated that it was clear that at trial the

Commonwealth relied on the same facts to convict Brown of both

charges.    See id.




      2
       Additionally, in its dictum, the Court presupposed that
Brown only fired one shot. See id. at 116, 279 S.E.2d at
145-46.


                                 - 7 -
     The Supreme Court reversed the conviction of assault and

battery and affirmed the conviction of unlawful wounding on the

basis that both assault and battery and unlawful wounding are

lesser-included offenses of malicious wounding.   See id. at 116,

279 S.E.2d at 145.   The conviction of unlawful wounding “barred

the defendant’s further conviction of all other offenses of a

higher grade and of any lesser included offense encompassed by

the malicious wounding indictment.”    See id.

     Brown, therefore, is consistent with the constitutional

protection against double jeopardy in that Brown’s conviction of

the lesser-included offense of unlawful wounding precluded

conviction of any greater or lesser-included offense of

malicious wounding, including assault and battery.

     Appellant’s reliance on Brown is based on the Court’s

dictum following the lesser-included offense analysis.    The

Court stated, “It is our conclusion that the court should have

instructed the jury that if it found the defendant guilty under

either the indictment which charged attempted murder or that

which charged malicious wounding, it should not consider further

the other indictment.”   Id. at 116, 279 S.E.2d at 145-46.

     We do not believe the Court’s dictum is relevant to its

holding that the conviction of one lesser-included offense

precludes additional convictions of all other lesser and greater

included offenses.   Further, we believe that any implication



                               - 8 -
derived from the dictum was resolved by the Court six months

later in Blythe, 222 Va. 722, 284 S.E.2d 796.

     In Blythe, the defendant was charged with unlawful wounding

and murder after he stabbed his mother’s boyfriend during a

domestic dispute.      See id. at 724, 284 S.E.2d at 797.

A jury convicted the defendant of voluntary manslaughter and

unlawful wounding.      See id.   The trial court ordered that the

defendant serve the sentences for the two convictions

consecutively.    See id.    Blythe argued that constitutional and

statutory double jeopardy protections applied since he was

convicted of and sentenced for both charges.       See id.   The Court

rejected the statutory double jeopardy argument based on Code

§ 19.2-294 because manslaughter is a common law, not statutory,

offense.    See id. at 724-25, 284 S.E.2d at 797.    Blythe’s

constitutional argument was grounded in the “singularity of his

criminal act” and the “sameness of the evidence supporting his

convictions.”    Id. at 725, 284 S.E.2d at 797.    Blythe argued

that the unlawful wounding charge was a lesser-included offense

of the murder charge and his conviction of voluntary

manslaughter satisfied the “same evidence” test for determining

the identity of offenses under a constitutional double jeopardy

analysis.    See id.   The Court applied the Blockburger test to

determine if it was the legislature’s intent to punish the

offenses cumulatively, and held that the charges were separate

offenses and one was not a lesser-included offense of the other.

                                   - 9 -
See id. at 726, 284 S.E.2d at 798.        The Court’s rationale was

that the unlawful wounding charge required evidence of a

shooting, stabbing, cutting or wounding, but the murder charge

did not require such proof because murder may be accomplished by

other means.   See id.

     We believe that the holding in Blythe is dispositive of

this case as attempted murder does not require evidence of a

shooting, stabbing, cutting or wounding.

     In his Question Presented and in his brief, appellant

asserts that the charges for attempted murder and malicious

wounding were part of the “same transaction,” and are barred on

the basis of double jeopardy.     As discussed above, the Grady

“same conduct” test for constitutional double jeopardy was

overruled by the United States Supreme Court; therefore, we

believe appellant is attempting to invoke the statutory

protection afforded an accused under Code § 19.2-294.       Code

§ 19.2-294 in pertinent part states:

          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
          federal statute a prosecution under the
          federal statute shall be a bar to a
          prosecution under the state statute.

Code § 19.2-294 is limited to violations of two or more

statutory offenses.      See Blythe, 222 Va. at 725, 284 S.E.2d at

                                 - 10 -
797.   Appellant was charged with a violation of a statutory

offense, malicious wounding, and a common law offense, attempted

murder.   Therefore, we hold that Code § 19.2-294 is inapplicable

to appellant’s case.

       For these reasons, we hold that appellant’s convictions for

malicious wounding and attempted murder are not barred by the

constitutional protections against double jeopardy.   We also

find that the statutory protection found in Code § 19.2-294 is

inapplicable because attempted murder is a common law crime.

We, therefore, affirm the convictions.

                                                          Affirmed.




                               - 11 -
Benton, J., dissenting.

       In Brown v. Commonwealth, 222 Va. 111, 279 S.E.2d 142

(1981), the defendant was separately indicted for “the attempted

murder of Dennis Ellis Keen, . . . the malicious wounding of

Dennis Ellis Keen,” and other offenses.    Those charges flowed

from an incident in which the defendant fired “two shots . . .

at Keen” during an altercation.     See id. at 113, 279 S.E.2d at

143.   Following convictions on lesser-included offenses under

both the attempted murder indictment and the malicious wounding

indictment, the Supreme Court reversed one of the convictions.

The Court ruled as follows:

            It is our conclusion that the [trial judge]
            should have instructed the jury that if it
            found the defendant guilty under either the
            indictment which charged attempted murder or
            that which charged malicious wounding, it
            should not consider further the other
            indictment. Therefore, we will affirm the
            defendant’s conviction of unlawful wounding
            [, which was the lesser-included conviction
            under the malicious wounding indictment,]
            and reverse his conviction of assault and
            battery [, which was the lesser-included
            conviction under the attempted murder
            indictment]. The indictment charging
            defendant with the attempted murder of
            Dennis Ellis Keen will be dismissed, and
            Brown’s conviction of assault and battery
            thereunder will be vacated, and the jail
            sentence and fine imposed on him will be set
            aside.

Id. at 116, 279 S.E.2d at 145-46.

       The evidence in this case proved Irvin E. Coleman shot

Reginald Vincent seven times after robbing him of his property.


                               - 12 -
Among other charges, Coleman was indicted for malicious wounding

and attempted murder.    Over Coleman’s objection, the trial judge

entered the jury’s verdict on both convictions.

     The malicious wounding statute provides as follows:

           If any person maliciously shoot, stab, cut,
           or wound any person or by any means cause
           him bodily injury, with the intent to maim,
           disfigure, disable, or kill, he shall . . .
           be guilty of a Class 3 Felony.

Code § 18.2-51.   “To sustain a conviction of attempted murder,

the evidence must establish both a specific intent to kill the

victim and an overt but ineffectual act committed in furtherance

of this criminal purpose.”     Nobles v. Commonwealth, 218 Va. 548,

551, 238 S.E.2d 808, 810 (1977).    Thus, every wounding

accomplished in the same transaction with the intent to kill

constitutes an offense containing the same elements as attempted

murder.   See Brown, 222 Va. at 116, 238 S.E.2d at 145-46.    See

also Buchanan v. Commonwealth, 238 Va. 389, 414-15, 384 S.E.2d

757, 772-73 (1989).

     “[T]he Double Jeopardy Clause prohibits successive

prosecutions as well as cumulative punishment.”     Brown v. Ohio,

432 U.S. 161, 166 (1977) (footnote omitted).    In Virginia, the

elements of malicious wounding and attempted murder clearly

establish that those crimes constitute the same offense for

purposes of the Double Jeopardy Clause.    “For it is clearly not

the case that ‘each [statute] requires proof of a fact which the

other does not.’”     Brown, 432 U.S. at 168 (citation omitted).

                                - 13 -
Indeed, the Supreme Court of Virginia’s decision in Brown

establishes that proposition.    See 222 Va. at 116, 279 S.E.2d at

145-46.

          As is invariably true of a greater and
          lesser included offense, the lesser offense
          . . . requires no proof beyond that which is
          required for a conviction of the
          greater . . . . The greater offense is
          therefore by definition the "same" for
          purposes of double jeopardy as any lesser
          offense included in it.

Brown, 432 U.S. at 168.

     For these reasons, I would hold that the trial judge should

have imposed the fourteen-year sentence and $5,000 fine on the

malicious wounding conviction and set aside the ten-year

sentence for attempted murder.




                                - 14 -
