PETITION TO AMEND VIRGINIA CODE SECTION 18.2-51.2 - By David Bomber
Plea for mercy, petitioner is being punished cumulatively for the same act and is asking the Virginia General Assembly to amend the statue on aggravated malicious wounding and is further asking the Governor of Virginia to pardon his conviction of aggravated malicious wounding.
I. STATEMENT OF THE NATURE OF THE PETITION
This petition is an appeal to the Virginia General Assembly by David Michael Bomber, hereinafter the Petitioner. The Petitioner, who is currently a prisoner in the Virginia Dept. of Corrections, seeks to amend the statue on aggravated malicious wounding, Virginia Code Section, 18.2-51.2, respectively, and further asks that a rider attach making the amendment retroactive.
II. STATEMENT OF FACTS
On June 5th, 2010, the Petitioner met Larry Michael Worrell II for the very first time at the pool at the apartment complex where the Petitioner and Worrell both resided. A short time later, Worrell and the Petitioner left the pool area and began drinking. Later, Worrell and the Petitioner drove to Hardee's and picked up Velvie Proffitt, whom was the Petitioner's girlfriend at the time, who also met Worrell for the first time that day.
During this Worrell drank heavily throughout the day and exhibited erratic behavior. His behavior culminated during a discussion of his experiences as a combat marine when he became agitated and claimed that he suffered from Post Traumatic Stress Disorder from witnessing his "buddies being blown in a helicopter crash." Following that Worrell became so distraught that he placed the Petitioner in a "military-style" chokehold to the point that the Petitioner nearly lost consciousness, which occurred inside his own apartment.
It was at this point that Proffitt intervened, enabling the Petitioner to escape from Worrell's grasp where the Petitioner then fled to his kitchen. After being pursued by Worrell, the Petitioner armed himself with a STEAK KNIFE and stabbed him in the chest ONE TIME. However, after the fact, the Petitioner did attempt to render first aid. The only eyewitness to these events was Proffitt, who eventually testified for the defense.
Initially the Petitioner was charged with malicious wounding. However, that charged was Nolle Prosequi in favor of aggravated malicious wounding when Worrell's condition worsened to the point that he suffered irreversible physical impairment. Then 224 days after the stabbing, Worrell passed away from complications from the wound. As a result, the Petitioner faced an additional indictment for second-degree murder along with the aggravated malicious wounding indictment.
Ultimately the Petitioner was tried by a jury in Roanoke County Circuit Court in a single trial setting that also included several misdemeanor indictments that stipulated that the offense conduct of all the indictments occurred on June 5th, 2010. Subsequently, the jury found the Petitioner guilty on all the indictments that he pled not guilty to, including both the aggravated malicious wounding and second-degree murder indictments. As a result, the judge imposed 25 years for the aggravated malicious wounding conviction and 15 years for the second-degree murder conviction that he based on the jury's recommendation. As a result, the Petitioner submitted an appeal.
III. AUTHORITIES & ARGUMENT
It is the decision by both the Court of Appeals, Record No. 2451-11-3 and the Supreme Court of Virginia, Record No. 130572, where a genuine issue lies concerning the Petitioner's convictions. In which case the Petitioner will be referencing the Court of Appeals of Virginia Memorandum Opinion, Bomber v. Commonwealth, 2013 Va. App. Lexis 75 (Mar. 5, 2013), respectively, as well as citing constitutional provisions & case law - some of which was taken from the statue on second-degree murder as defined in Virginia Annotated Code Section 18.2-32 of the Code of Virginia.
A. STANDARD OF REVIEW
It is apparent from the Court's opinion that there is a certain degree of ambiguity in the language of Code Section 18.2-51.2. The Court noted that, "Appellate courts must 'first consider whether the legislative intent is clear from the face of the statue or the legislative history...' " The Court however went on to note that, "Bomber writes that there is no explicit or implicit legislative authorization for the same conduct in either... Code Section 18.2-51.2... or Code Section 18.2-32." Please take notice that the Court of Appeals noted that they "agree that there is no explicit legislative authorization." The Court further stated that they cannot "ascertain the legislative intent as to the double jeopardy issue before us by a plain reading of the statues or by the legislative history." Then further added, "If the legislative intent cannot be ascertained Blockburger becomes the default analytical tool."
Under the Blockburger Rule, "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. U.S., 284 U.S. 299 (1932).
B. VIRGINIA CODE SECTIONS 18.2-51.2 & 18.2-32 DEFINED
i. VIRGINIA CODE SECTION 18.51.2 PROVIDES AS FOLLOWS:
A. If any person maliciously shoots, stabs, cuts, or wounds anyother person, or by any means causes bodily injury, with theintent to maim, disfigure, disable, or kill, he shall be guilty of aClass 2 felony if the victim is thereby severely injured and iscaused to suffer permanent and significant physicalimpairment.
B. If any person maliciously shoots, stabs, cuts, or wounds anyother woman who is pregnant, or by any means causes bodilyinjury, with the intent to maim, disfigure, disable, or kill thepregnant woman or cause the involuntary termination of herpregnancy, he shall be guilty of a Class 2 felony if the victimis thereby severely injured and is caused to suffer permanentand significant physical impairment.
C. For purposes of this section, the involuntary terminationof a woman's pregnancy shall be deemed a severe injury and apermanent and significant physical impairment.i. VIRGINIA CODE SECTION 18.2-32 PROVIDES AS FOLLOWS:
Murder, other than capital murder, by poison, lying inwait, imprisonment, starving, or by any willful, deliberate, andpremeditated killing, or in the commission of, or attemptto commit arson, rape, forcible sodomy, animate or inanimateobject sexual penetration, robbery, burglary, or abduction,except as provided in Section 18.2-31, is murder of the firstdegree, punishable as a Class 2 felony.
All murder other than capital murder and murder in the firstdegree is murder of the second degree and is punishable byconfinement in a state correctional center for not less than fiveyears nor more than forty years.
ARGUMENT
Accordingly, both Article 1, Section 8 of the Constitution of Virginia and the 5th Amendment of the U.S. Constitution provides in relevant part, "that in criminals prosecutions a man hath the right..." to not "be put twice in jeopardy for the same offense" (quoting Constitution of Virginia).
A. THE PETITIONER IS BEING HELD TO A DIFFERENT STANDARDOF LAW
In this matter, [the trial judge] should have instructed the jury that if it found the Petitioner guilty under the indictment which charged second-degree murder, it should not have further charged the other indictment of aggravated malicious wounding. See also Article 1, Section 9 of the Constitution of Virginia and the 8th Amendment of the U.S. Constitution, which both prohibits against "cruel and unusual punishments."
There is however a distinct possibility that the jury felt that if they found the Petitioner guilty on one indictment then they must find the Petitioner guilty on the other indictment. Interestingly, on July 14th, 2011, during the penalty phase of the trial, the jury posed the question to the judge whether they could recommend that the Petitioner serve his sentences concurrently or consecutively. In which case the judge ruled that they could not.
"It has long been understood that separate statutory crimes need not be identical -- either in constituent elements or in actual proof - in order to be the same within the meaning of the constitutional prohibition." 1 J. Bishop, New Criminal Law, Section 1051 (8th Ed. 1892); Comment, Twice in Jeopardy, 75 Yale L. J. 262, 268-269 (1965); quoting Brown v Ohio, 432 U.S. 161 (1977).
Moreover, "[t]he assumption underlying the Blockburger Rule is that Confess ordinarily does not intend to punish the same offense under two different statues." Ball v. United States, 470 U.S. 856 (1985).
B. THE DISJUNCTIVE USE OF THE WORD 'OR'
In theory, an accused cannot maim, disfigure, disable AND kill the same victim [in the same transaction] and receive four separate convictions for aggravated malicious wounding. This after all would constitute double jeopardy under both the Virginia and U.S. Constitutions. Hence the language in Virginia Code Section 18.2-51.2 clearly demonstrates that word "or" used therein must be disjunctive. Yet, both the Court of Appeals and Supreme Court imply that the Petitioner's intent was to maim, disable, and kill the victim in a single stroke, and further maintains that the Petitioner's convictions does not offend the double jeopardy clauses.
As Justice Kelsey noted in his dissent in Barr v. Atl. Coast Pipeline, 295 Va. 522 (2018), the "linguistic default is that 'and' is conjunctive and 'or' is disjunctive. See also Patterson v. Commonwealth, 216 Va. 306 (1975); Williams v. Commonwealth, 61 Va. App. 1 (2012); U.S. v. Woods, 571 U.S. 31 (2013); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (" The conjunctions and/or are two of the elemental words in the English language. Under the conjunctive/disjunctive canon, and combines items while or creates alternatives "). " [T]he use of the disjunctive word 'or', rather than the conjunctive 'and', signifies the availability of alternative choices." Rose v. Commonwealth, 53 Va. App 505 (2009); quoting Lewis v. Commonwealth, 267 Va. 302 (2004).
C. THERE IS A CASUAL RELATION BETWEEN THE MALICIOUSWOUNDING AND THE DEATH OF THE VICTIM
The aggravated malicious wounding statue provides in relevant part that a person must have "the intent to maim, disfigure, disable, or kill." Here the statue clearly specifies the intent to kill. Likewise, second-degree murder is a malicious killing without premeditation. The two crimes share a common mental state, and both by necessity have bodily injury as a result.
Merriam Webster's Dictionary of Law defines intent as, "the design or purpose to commit a wrong or criminal act" (emphasis added on the word act). See Epperly v. Commonwealth, 224 Va. 214 (1982) (where the exact state of defendants mind at the time of killing is the crucial factor in determining intent). Further, the test of the criminal intent in the use of a deadly weapon is to be found, not in the manner in which or the purpose for which the previous possession of the weapon was acquired, but in it's deliberate use for a deadly purpose." Adams v. Commonwealth, 163 Va. 1053 (1935).
Obviously, the jury rejected the Petitioner's claim of self-defense, thus the question becomes what was the Petitioner's intent when he stabbed the victim? Was it to maim, disfigure, disable, or kill?
It is also noteworthy to point out that the Court of Appeals also stated that, "The murder may be accomplished through any of the same methods as a malicious wounding, or others, such as poisoning, strangulation, and starving. Here, the Court erred by referencing poisoning, strangulation, and starving, as these are deliberate acts found specifically in first degree murder in Code Section 18.2-31. However, the Court overlooks that under the provisions set forth in Code Section 18.2-32 that the ONLY WAY to commit second-degree murder is by a malicious wounding of the victim.
Similarly, in Brown v. Commonwealth, 222 Va. 111 (1981), the accused was indicted for attempted murder and for malicious wounding (of the same victim). Yet, the Supreme Court of Virginia vacated the lesser-included offense. As Justice Benton noted in his dissent in Coleman v. Commonwealth, 1999 Va. App. Lexis 445 concerning Brown, " every wounding accomplished in the same transaction with the intent to kill constitutes an offense containing the same elements as attempted murder. " See also Buchanan v. Commonwealth, 238 Va. 389 (1989).
Indeed, there is a casual relation between the wounding and second-degree murder. Moreover, the common thread of aggravated malicious wounding and second-degree murder is malice aforethought. See Commonwealth of Va. v. Gibson, 4 Va. (2 Va. Cas.) 80 (1817); Wooden v. Commonwealth, 222 Va. 758 (1981).
However, as the Petitioner asserts his actions were strictly in fear for his safety and out of necessity, and it certainly was not the Petitioner's intent to commit either aggravated malicious wounding or second-degree murder - or both with a single stroke. Further, it is a fact that the aggravated malicious wounding was directly attributedbto the victim's passing. As Dr. Tharp, the medical examiner who performed the autopsy explained at trial, she had found obvious' damage to the 'upper parts' of the victim's brain... "and without the initial injury that caused the brain injury... he wouldn't have died." With that in mind it begs the question, why is the Petitioner serving two distinct and separate sentences for a single stabbing?
D. THE PROVISIONS SET FORTH IN VIRGINIA CODE SECTION18.2-51.2 DISTINGUISH THAT THE LEGISLATIVE BODY DIDNOT INTEND MULTIPLE PUNISHMENTS
The question whether the legislative body intended multiple punishments in Code Section 18.2-51.2 is resolved by the word intent used in the statue. Using the analogy of a gunman, suppose he shot his victim causing them to be paralyzed. Obviously, he first maimed them in the process. So, the question becomes what was his intent? Was it to maim the victim, or was his intent to disable them? No matter the answer, the defendant in this scenario will still only face one indictment regardless whether he shot his victim once, twice, or fourteen times [in the same act]. With that in mind, no defendant in Virginia's history has ever faced multiple counts of aggravated malicious wounding involving the same victim.
In the instant matter, the victim passed away from complications from the initial wounding. Obviously, the jury felt the Petitioner's intent was to kill the victim when he stabbed him once. However, unlike the gunman in the scenario above, the Petitioner was convicted of violating two different statues for one distinct act.
See also Clark v. Commonwealth, 90 Va. 360 (1893) (If the prisoner willfully inflicted upon the deceased a dangerous wound, one that was calculated to endanger and destroy a life, and death ensued therefrom within a year and a day, the prisoner is nonetheless responsible for the result although it may appear that the deceased might have recovered but for the aggravation of the wound would be unskilled or improper treatment).
In sum, the Blockburger Rule was applied incorrectly in this matter, particularly when the language in the aggravated malicious wounding statute is clear in it's use of the words or and intent. Whether intent is explicit or implicit, it nonetheless is only applicable to one element, as evident in Adams & Epperly. Moreover, this case is similar to Brown in respect that the Petitioner should have only been tried for the greater offense, the second-degree murder.
The only appropriate remedy to comport with Article 1, Section 8 of the Constitution of Virginia and the 5th Amendment of the U.S. Constitution is to retroactive amend the statue on aggravated malicious wounding, Virginia Code Section 18.2-51.2, respectively.
IV. CONCLUSION
For the aforementioned reasons, the Petitioner prays that a bill presented to the Virginia General Assembly to amend Code Section 18.2-51.2, and that it made retroactive.
Submitted on this 14th day of September 2022.
Respectfully Submitted,
David Bomber #1130793Nottoway Correctional CenterP.O. Box 488Burkeville, Va. 23922
V. PROPOSED BILL
A Bill to retroactively amend and reenact Code Section 18.2-51.2 of the Code of Virginia, relating to aggravated malicious wounding.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF VIRGINIA:
1. That Code Section 18.2-51.2 of the Code of Virginia isretroactively amended and reenacted as follows:
Code Section 18.2-51.2 Aggravated Malicious Wounding; penalty.
A. If any person maliciously shoots, stabs, cuts, or wounds anyother person, or by any means causes bodily injury, with theintent to maim, disfigure, disable, or kill, he shall be guilty of aClass 2 felony if the victim is thereby severely injured and iscaused to suffer permanent and significant physical impairmenttherein not resulting in death.
B. If any person maliciously shoots, stabs, cuts, or wounds anyother woman who is pregnant, or by any means causes bodilyinjury, with the intent to maim, disfigure, disable, or kill thepregnant woman or cause the involuntary termination of herpregnancy, he shall be guilty of a Class 2 felony if the victimis thereby severely injured and is caused to suffer permanentand significant physical impairment therein not resulting indeath.
C. For purposes of this section, the involuntary terminationof a woman's pregnancy shall be deemed a severe injury anda permanent and significant physical impairment, and shall beconstrued as distinct and punishable as a separate offenseunder Section 18.2-32.2.
D. For purposes of this section, the accused shall be precludedfrom prosecution under this provision of the statue, providingthat the offense conduct arises out of the commission inviolation of Section 18.2-51 or Section 18.2-51.2, and results indeath to the victim prior to a conviction, and shall be construedas distinct and punishable as a separate offense.
E. The provisions set forth in this section shall apply retroactively.
Respectfully Submitted by David Bomber
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