COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McCullough and Senior Judge Haley UNPUBLISHED
Argued at Salem, Virginia
DAVID MICHAEL BOMBER MEMORANDUM OPINION * BY v. Record No. 2451-11-3 JUDGE JAMES W. HALEY, JR. MARCH 5, 2013 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY Robert P. Doherty, Jr., Judge
Wayne D. Inge for appellant.
Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
In a single trial, a jury convicted David Michael Bomber of aggravated malicious wounding
(Code § 18.2-51.2) and second-degree murder (Code § 18.2-32). The trial court imposed the jury’s
recommended sentences on each conviction.
Bomber maintains the trial court erred in refusing to strike the second-degree murder
indictment, or to merge the aggravated malicious wounding indictment into the second-degree
murder indictment, and, further, erred in denying his motion to vacate the conviction for aggravated
malicious wounding.
These assignments of error are premised upon Bomber’s contention that his conviction of
and sentencing for both aggravated malicious wounding and second-degree murder in a single trial
violate the Fifth Amendment prohibition against double jeopardy.
We affirm the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The relevant facts may be succinctly stated. On June 5, 2010, Bomber stabbed the victim.
On January 15, 2011, the victim died. Bomber does not challenge the sufficiency of the evidence
supporting either conviction, nor does he challenge the causal relation between the wounding and
the death.
Bomber contends there was one criminal act of stabbing which resulted in multiple
punishments in violation of the Fifth Amendment protections against double jeopardy. The Fifth
Amendment guarantees that no person “shall . . . for the same offense . . . be twice put in jeopardy
of life or limb.” “The constitutional provision concerning double jeopardy embodies three
guarantees: ‘(1) “It protects against a second prosecution for the same offense after acquittal.
[(2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it
protects against multiple punishments for the same offense.”’” Blythe v. Commonwealth, 222 Va.
722, 725, 284 S.E.2d 796, 797 (1981) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980)).
Appellant’s argument encompasses the third protection, prohibiting multiple punishments for a
single offense in a single trial.
In the single-trial setting, “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). And, “the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” Whalen v. United States, 445 U.S. 684, 688 (1980). . . .
The question resolves itself, therefore, into one of legislative intent where the issue is whether “the Legislative Branch” has provided that two offenses may be punished cumulatively.
Id. at 725-26, 284 S.E.2d at 798. Appellate courts must “first consider whether ‘the legislative
intent is clear from the face of the statute or the legislative history . . . .’” Andrews v.
Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010) (quoting Garrett v. United States,
-2- 471 U.S. 773, 779 (1985)). In the absence of explicit or implicit statements of legislative intent,
reviewing courts must determine the legislative authorization by examining the relevant statutes.
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 an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).
Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001). “[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, 222 Va. at 726, 284 S.E.2d at 798.
During oral argument before the panel, counsel for Bomber based his argument primarily
upon Andrews. We accordingly review that case.
Andrews killed Romano A. Head and Robert I. Morrison on January 2, 2002, in an
apartment, at approximately the same time, during what is fairly characterized as the same act or
transaction. Prior to these murders, an individual named Clayton K. Breeden had been killed on
December 13, 2001. Andrews was indicted for the capital murder of all three. The indictments
for the murder of Head and Morrison charged a violation of subsection (7) of Code § 18.2-31,
“killing of more than one person as a part of the same act or transaction.” The indictments for
the murders of Head, Morrison, and Breeden charged a violation of subsection (8) of Code
§ 18.2-31, “killing of more than one person within a three-year period.” In a single trial, a jury
acquitted Andrews of the murder of Breeden, but convicted Andrews of the murders of Head and
Morrison under both subsections of Code § 18.2-31. Following the jury recommendation, the
trial court imposed four death sentences for the killing of Head and Morrison: two death
sentences under both subsections for both victims.
-3- Andrews maintained that two of the death sentences violated the Double Jeopardy Clause
because both convictions were necessarily based upon the concurrent murders of Head and
Morrison. Thus, he argued, he had been subjected to multiple punishments for the same offense.
The Commonwealth defended based upon a Blockburger analysis. However, the
Supreme Court noted that a condition precedent to application of that analysis is a determination
that the legislature, in enacting a statute or statutes, did, or did not, intend that each violation be a
separate offense. Andrews, 280 Va. at 284, 699 S.E.2d at 267. If that legislative intent cannot
be ascertained, Blockburger becomes the default analytical tool. Reviewing the legislative
history, the Supreme Court found that in enacting subsection (8) of Code § 18.2-31 “the General
Assembly could not have intended to create a separate offense of capital murder under which a
defendant could be punished for the same conduct for which he also could be punished under
Code § 18.2-31(7).” Id. at 287, 699 S.E.2d at 269. Thus, the Andrews Court concluded
Blockburger analysis was not appropriate. The Supreme Court held that while an individual
could be indicted and convicted under both subsections, the imposition of two death sentences
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COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McCullough and Senior Judge Haley UNPUBLISHED
Argued at Salem, Virginia
DAVID MICHAEL BOMBER MEMORANDUM OPINION * BY v. Record No. 2451-11-3 JUDGE JAMES W. HALEY, JR. MARCH 5, 2013 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY Robert P. Doherty, Jr., Judge
Wayne D. Inge for appellant.
Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
In a single trial, a jury convicted David Michael Bomber of aggravated malicious wounding
(Code § 18.2-51.2) and second-degree murder (Code § 18.2-32). The trial court imposed the jury’s
recommended sentences on each conviction.
Bomber maintains the trial court erred in refusing to strike the second-degree murder
indictment, or to merge the aggravated malicious wounding indictment into the second-degree
murder indictment, and, further, erred in denying his motion to vacate the conviction for aggravated
malicious wounding.
These assignments of error are premised upon Bomber’s contention that his conviction of
and sentencing for both aggravated malicious wounding and second-degree murder in a single trial
violate the Fifth Amendment prohibition against double jeopardy.
We affirm the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The relevant facts may be succinctly stated. On June 5, 2010, Bomber stabbed the victim.
On January 15, 2011, the victim died. Bomber does not challenge the sufficiency of the evidence
supporting either conviction, nor does he challenge the causal relation between the wounding and
the death.
Bomber contends there was one criminal act of stabbing which resulted in multiple
punishments in violation of the Fifth Amendment protections against double jeopardy. The Fifth
Amendment guarantees that no person “shall . . . for the same offense . . . be twice put in jeopardy
of life or limb.” “The constitutional provision concerning double jeopardy embodies three
guarantees: ‘(1) “It protects against a second prosecution for the same offense after acquittal.
[(2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it
protects against multiple punishments for the same offense.”’” Blythe v. Commonwealth, 222 Va.
722, 725, 284 S.E.2d 796, 797 (1981) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980)).
Appellant’s argument encompasses the third protection, prohibiting multiple punishments for a
single offense in a single trial.
In the single-trial setting, “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). And, “the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” Whalen v. United States, 445 U.S. 684, 688 (1980). . . .
The question resolves itself, therefore, into one of legislative intent where the issue is whether “the Legislative Branch” has provided that two offenses may be punished cumulatively.
Id. at 725-26, 284 S.E.2d at 798. Appellate courts must “first consider whether ‘the legislative
intent is clear from the face of the statute or the legislative history . . . .’” Andrews v.
Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010) (quoting Garrett v. United States,
-2- 471 U.S. 773, 779 (1985)). In the absence of explicit or implicit statements of legislative intent,
reviewing courts must determine the legislative authorization by examining the relevant statutes.
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 an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).
Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001). “[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, 222 Va. at 726, 284 S.E.2d at 798.
During oral argument before the panel, counsel for Bomber based his argument primarily
upon Andrews. We accordingly review that case.
Andrews killed Romano A. Head and Robert I. Morrison on January 2, 2002, in an
apartment, at approximately the same time, during what is fairly characterized as the same act or
transaction. Prior to these murders, an individual named Clayton K. Breeden had been killed on
December 13, 2001. Andrews was indicted for the capital murder of all three. The indictments
for the murder of Head and Morrison charged a violation of subsection (7) of Code § 18.2-31,
“killing of more than one person as a part of the same act or transaction.” The indictments for
the murders of Head, Morrison, and Breeden charged a violation of subsection (8) of Code
§ 18.2-31, “killing of more than one person within a three-year period.” In a single trial, a jury
acquitted Andrews of the murder of Breeden, but convicted Andrews of the murders of Head and
Morrison under both subsections of Code § 18.2-31. Following the jury recommendation, the
trial court imposed four death sentences for the killing of Head and Morrison: two death
sentences under both subsections for both victims.
-3- Andrews maintained that two of the death sentences violated the Double Jeopardy Clause
because both convictions were necessarily based upon the concurrent murders of Head and
Morrison. Thus, he argued, he had been subjected to multiple punishments for the same offense.
The Commonwealth defended based upon a Blockburger analysis. However, the
Supreme Court noted that a condition precedent to application of that analysis is a determination
that the legislature, in enacting a statute or statutes, did, or did not, intend that each violation be a
separate offense. Andrews, 280 Va. at 284, 699 S.E.2d at 267. If that legislative intent cannot
be ascertained, Blockburger becomes the default analytical tool. Reviewing the legislative
history, the Supreme Court found that in enacting subsection (8) of Code § 18.2-31 “the General
Assembly could not have intended to create a separate offense of capital murder under which a
defendant could be punished for the same conduct for which he also could be punished under
Code § 18.2-31(7).” Id. at 287, 699 S.E.2d at 269. Thus, the Andrews Court concluded
Blockburger analysis was not appropriate. The Supreme Court held that while an individual
could be indicted and convicted under both subsections, the imposition of two death sentences
under both “violated the double jeopardy prohibition against multiple punishments for the same
offense.” Id. at 288, 699 S.E.2d at 269-70. Accordingly, upon remand, the Commonwealth was
required to elect which conviction it chose to pursue in a new penalty determination proceeding.
On brief in the instant case, Bomber writes that there “is no explicit or implicit legislative
authorization for imposing multiple punishments for the same conduct in either . . . Code
§ 18.2-51.2 or . . . Code § 18.2-32.” Appellant’s Br. at 5, 8. We agree there is no explicit
legislative authorization. Likewise, however, there is no explicit or implicit legislative
prohibition on imposing multiple punishments in, or applicable to, either statute. They are
separate statutes, not subsections of the same statute as in Andrews, and they authorize different
degrees of punishment. We cannot ascertain the legislative intent as to the double jeopardy issue
-4- before us by a plain reading of the statutes or by the legislative history. Therefore, we must
apply the Blockburger test and compare the elements of proof for each offense.
Viewing the offenses in the abstract, second-degree murder and aggravated malicious
wounding have distinct elements of proof. Both offenses require proof of malice. However, the
two offenses have no other elements in common. Aggravated malicious wounding must be by
stabbing, cutting, shooting, or other wound or injury. Code § 18.2-51.2. A prosecution for
second-degree murder does not require proof of means. The murder may be accomplished
through any of the same methods as a malicious wounding, or others, such as poisoning,
strangulation, and starvation. Blythe, 222 Va. at 726, 284 S.E.2d at 798. Aggravated malicious
wounding requires proof of the “intent to maim, disfigure, disable or kill.” Code § 18.2-51.2
(emphasis added). Second-degree murder does not require proof of any specific intent. Tizon v.
Commonwealth, 60 Va. App. 1, 11, 723 S.E.2d 260, 265 (2012). Finally, aggravated malicious
wounding requires proof of “permanent and significant physical impairment,” Code § 18.2-51.2,
and second-degree murder requires proof of death. These elements for each offense are thus
distinct. Indeed, on brief, Bomber writes: “Obviously a person cannot be charged with some
degree of homicide until his victim dies.” Appellant’s Br. at 9.
Bomber’s contention that the only difference for the prosecution of one crime over the
other being the passage of time, is a fact specific argument which is not relevant in a
Blockburger analysis. The two offenses require elements of proof that the other does not. Much
like in Blythe (multiple punishments intended with voluntary manslaughter and unlawful
wounding in the commission of a felony), the aggravated malicious wounding statute prohibits
certain methods of violence resulting in severe and permanent injury. The murder statute
punishes the taking of life without regard to the method. Aggravated malicious wounding
requires proof of a specific intent, whereas second-degree murder requires no specific intent.
-5- With different elements of proof, aggravated malicious wounding is not a lesser-included offense
of second-degree murder. Similarly, the Coleman Court determined malicious wounding was
not a lesser-included offense of attempted murder and the legislature intended multiple
punishments. Where there are distinct elements of proof, the facts of the particular case have no
bearing on the abstract analysis of the statutes.
The offenses, having separate and distinct elements, allow for prosecution under both
statutes. Thus, we conclude the legislature authorized separate punishments for these acts.
Accordingly, we affirm Bomber’s convictions for both aggravated malicious wounding and
second-degree murder. 1
Affirmed.
1 During oral argument counsel for Bomber candidly and admirably acknowledged that a Blockburger analysis would defeat his double jeopardy argument and for that reason primarily based his argument upon Andrews. -6-