Virginia criminal defense- Preserving double jeopardy protection
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Any time a criminal defendant is charged with multiple offenses, it is time for the defendant’s lawyer to check for double jeopardy issues. Double jeopardy protection not only applies against being tried twice on different occasions for the same offense — U.S. Const. Amend. V — but also applies to duplicate criminal counts and any criminal count whose elements duplicate or nest within the elements of another count. Blockburger v. U.S., 284 U.S. 299 (1932).
An important part of reviewing for Blockburger double jeopardy relief is in legislative intent. Praised be the lawyer for Carroll Edward Gregg, Jr., for insisting from the outset that double jeopardy law prohibited him for being tried both for common law involuntary manslaughter and statutory involuntary manslaughter. Congratulations, as well, to Gregg and his trial lawyer for avoiding a murder conviction following Gregg’s fatal shooting — firing two shots — of a car repossession man. Gregg v. Virginia, ___ Va. App. ___ (March 7, 2017).
What a tragic case this is. The evidence at Gregg’s jury trial was that two repossession men came at night time to recover Gregg’s vehicle. Then:
“When Marin used a lockout tool to open the door of the truck, its alarm system was activated. Marin heard a man yell out the window, ‘You better get the F out of here.’ Sanchez drove the tow truck down the driveway, with Marin following in the other vehicle, and stopped at the end of the driveway to check his GPS for directions. As Sanchez was turning out of the driveway, Marin heard ‘a loud bang, and right after that, [he] heard [Sanchez] screaming.’ He then ‘[saw Sanchez] throw his hands up and . . . [slump] over the steering wheel, and . . . the tow truck going into the ditch.’
“When [police] Sergeant Darrell Shores spoke with [Gregg], [Gregg] stated that he had accidentally shot the tow truck driver. [Gregg] stated that he ‘shot [at the tow truck], then he fell, then he shot again.’ He also stated that ‘[repossession teams] should not be allowed to do this in the middle of the night.’”
As an aside, I also would have cause for pause for anyone to do vehicle repossession work after dark. Then, again, sometimes that is the easiest or only real time of day to find working people’s vehicles, at their homes after returning from work. Certainly, the evidence does not show Gregg having much if any reason to have feared for anybody’s safety from these two repossession men.
Gregg’s trial judge rejected his Blockburger double jeopardy argument, and imposed in consecutive fashion the jury’s recommended ten-year sentences on the common law involuntary manslaughter count and statutory manslaughter count. He would have fared much worse at sentencing if convicted of murder.
Gregg concludes that the trial court appropriately gave the jury the option to convict Gregg either for common law or statutory involuntary manslaughter, but that double jeopardy principles barred separate convictions and sentences for both counts. First, Gregg confirmed that the Virginia legislature did not intend to allow separate punishments both for common law and statutory involuntary manslaughter, but stated that where “a legislature intends to impose multiple punishments for the same course of conduct, the imposition of multiple punishments does not violate the Constitution.” Second, absent such legislative intent for separate punishments for statutory and common law involuntary manslaughter, Gregg confirms that Blockburger bars Gregg from receiving two separate sentences:
“When reviewed in the abstract, the charges in the present case do not qualify as separate offenses within the meaning of Blockburger. The offense of common law involuntary manslaughter does not require proof of a fact different from those required for a conviction of involuntary manslaughter under Code § 18.2-154…
“Because the element of shooting at an occupied vehicle in Code § 18.2-154 is simply the criminally negligent act which renders the accused guilty of involuntary manslaughter, we cannot say that Code § 18.2-154 requires proof of a fact that is not required to prove the common law crime of involuntary manslaughter. Convictions for both these offenses resulted in appellant receiving multiple punishments for the same offense, and thus, the Double Jeopardy Clause was violated.”
Consequently, Gregg orders a new sentencing proceeding, whereat the Commonwealth/prosecution will need to decide whether to keep the common law or statutory involuntary manslaughter conviction and sentence in place, whereby the remaining involuntary manslaughter count will be vacated.