Shooting bullets in the same direction with others risks a Virginia murder conviction, says Fairfax lawyer

Shooting bullets while others do the same risks a Virginia murder conviction if someone gets killed in the process. As a Fairfax criminal lawyer, I know that this concept is called being a principal in the second degree. The Virginia Model Jury Instructions in that regard say: “Presence and consent alone are not sufficient to make a person a principal in the second degree.” Nonetheless, a “principal in the second degree is a person who did not actually commit the crime, but rather is present and knowingly assists by helping in the commission of the crime. It must be shown that he” intended by his communications or actions to encourage the person who committed the crime, or “shared the criminal intent of the person who actually committed the crime.” Virginia Model Jury  Instruction No. 3.100.  Raiquan Malique Sims got his first degree murder conviction affirmed, after he spilled the beans to the police that he shot in the same direction as his fellow vehicle occupants, which led to the death of Keontae Fox. Sims v. Commonwealth of Virginia, Record No. 0807-21-2 (Oct. 6, 2022) (unpublished). Virginia statutory law generally provides that: “In the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree.” Virginia Code § 18.2-18.

Must I admit to police that I was shooting bullets?

You have no obligation to answer police questioning (Constitutions’ Fifth and Sixth Amendments), beyond identifying yourself in the jurisdictions where criminal suspects are required to submit to law enforcement requests to identify themselves when police have reasonable suspicion that they had committed a crime.  Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004). Sims fell for the police subterfuge of lying to him that his co-suspects were already wagging their own tongues about what happened at the incident scene. Sims at that point changed his story from that of complete ignorance of any criminal activity, to that he joined his vehicle occupants in shooting bullets. 

What happens if I remain silent in the face of police questions? Doesn’t that simply upset the police?

What do you prefer, upsetting the police and walking away free, or answering every police question, consequently getting convicted, but having the police pat you on the head in thankfulness for your having wagged your tongue? Even if Sims regretted his shooting bullets behavior, confessing is not helpful in criminal court, where that simply brings a Virginia criminal defendant closer to conviction. Sims should have discussed the incident with nobody other than his qualified Virginia criminal defense lawyer. Unfortunately, despite my urging to clients not to get caught in the mistake of again speaking with police when a suspect, a good number of my clients disregard that admonition when next a police suspect, and help get themselves into hot water as a result.

How can I get convicted of first degree murder if it cannot be proven that my gun is the one that killed the victim?

Virginia’s principal in the second degree law does not require proving that the defendant’s shooting bullets caused someone to die, where their actions foster the circumstances that kill the victim. Sims. Sims agrees “with Sims that there was insufficient evidence to conclude that he directly killed Fox,” because Fox was killed by a 9mm firearm(s), whereas the evidence only established that Sims was shooting bullets from a .40 caliber handgun. “The Commonwealth did not connect any of Fox’s other wounds to a specific firearm or bullet caliber. Accordingly, there is no evidence that Sims fired any of the shots that killed Fox.” Sims. “Establishing that a defendant acted in concert of action with others establishes criminal liability upon a legal theory of transfer of intent. See Riddick v. Commonwealth, 226 Va. 244, 248 (1983)… Accordingly, if any of the shooters had the specific intent to kill Fox, that intent is also imputed to Sims.” Id. 

I have gotten charged with a serious crime. What should I do?

Just as was the case with shooting bullets defendant Sims, you are on an uneven playing field with police until you obtain a qualified Virginia criminal defense lawyer. Fairfax criminal lawyer Jonathan Katz focuses 99% of his law practice on criminal defense, having successfully defended thousands of criminal defendants Learn the positive difference Jon Katz can make for your defense, by calling us at 703-383-1100 for your free initial in-person consultation with Jon about your court-pending case.