ONE CRIME OR TWO?
ANALYSIS OF SHENG JIE JIN V. COMMONWEALTH
(Posted February 14, 2017) The Court of Appeals gives us a ruling on a fascinating legal issue today in Sheng Jie Jin v. Commonwealth. The defendant was accused of two counts of attempting to murder his estranged wife. The two offenses evidently occurred just minutes apart.
In the first, the husband drove his car at the wife, who was saved only when her brother pulled her aside at the last minute. Even so, the car’s side mirror struck her in the head. “Within a few minutes” thereafter, the husband drove back and succeeded in hitting the wife and the brother with the car, which then crashed into some propane tanks, generating a cloud of gas.
The husband wasn’t done. After being struck by the car, the wife had either crawled or been dragged inside a nearby building. The husband came after her with a hammer and struck her in the head “multiple times” before bystanders stopped him.
Fortunately, the wife survived. At trial, the husband asserted in a motion to strike that he could only be convicted of one offense of attempted murder, because the entire transaction was one event and it was the same victim. The judge disagreed and convicted him of both charges.
This is a Double Jeopardy problem. The way to analyze it is to determine if these attempts – one with a car, one with a hammer – were “separate and distinct acts” as contrasted with a continuing offense. Citing a 2010 CAV decision, Hodnett v. Commonwealth, involving conduct inside a jail, today’s CAV panel concludes that the trial court could well have concluded that these were separate acts, punishable separately. In Hodnett, the two offenses were the same mechanism and occurred just seconds apart. That makes today’s judgment call easy; the panel unanimously affirms.
I’ll add a few additional comments here. The first is a point of preservation. In criminal prosecutions, if a defendant claims that the prosecution would violate his right not to be subject to two punishments for the same conduct, he has to file a written motion before trial; otherwise, the objection is waived. This defendant waited until a motion to strike the prosecution’s evidence, but the CAV evaluates his argument on the merits anyway.
Why isn’t this waived? Because the Commonwealth didn’t object, and the circuit court decided the matter on the merits. Yes, the CAV could have affirmed on other grounds – Virginia’s right-for-the-wrong-reason doctrine is quite expansive now – but the court probably felt it better to evaluate the merits of a constitutional challenge.
Second, in listing the name of the case above, I’ve used the defendant’s full name: Sheng Jie Jin. Many of you know that in many cultures in Asia, a person’s family name, what you and I would call the surname, comes first. (The President recently got that part wrong when he referred to Japanese Prime Minister Abe Shinzō as “Prime Minister Shinzō.” That would be the equivalent of calling our commander in chief “President Donald.”)
Because of the differing conventions, Western media often reverse the names of Asian people, so the West generally refers to the Prime Minister as Shinzō Abe, with his family name last. Because I don’t know if the court has done that here or not, I’ve set out the full name. (The CAV panel refers to the defendant as “Jin.”)
Next, the CAV analyzes the dispositive issue under a deferential standard of review: abuse of discretion. The court does not rule as a matter of law that actions like this necessarily constitute two attempts; instead, the court concludes that the trial judge permissibly found that it was two crimes, not one. A different standard of review may well have produced a different outcome, though in truth I think that’s unlikely in this case.
Finally, as I read the awful account of the attack on the wife here, it brought to mind the famous assassination of Grigori Efimovich Rasputin in the basement of a St. Petersburg, Russia palace in December 1916. His murderers fed him poisoned cakes and poisoned wine, but the potassium cyanide in them had no noticeable effect over the course of more than an hour. Growing impatient, one of the men – Prince Felix Yusupov – grabbed a gun and shot the holy man in the back. Rasputin collapsed, still breathing but bleeding heavily. After convulsing once, he lay still.
An hour or so later, Yusupov checked the body and was surprised to find it still warm. (In December in St. Petersburg, that was noteworthy.) As the prince bent over to check more closely, the “dead man’s” eyes opened, and he leaped up to attack his attempted murderer. Breaking free, the prince ran madly upstairs, leaving Rasputin to stagger outside into the snow.
Another conspirator soon caught up with him and shot him again in the back. With the monk lying on the ground, the gunman shot again, hitting his victim in the head. When Rasputin groggily tried to crawl, the gunman kicked him viciously in the head. The body lay still and the gunman hauled the corpse back inside. There, the prince, enraged, struck the lifeless body several times in the head with a dumbbell.
The conspirators then tied up the body inside a heavy cloth. They took it to a bridge and dumped it into the frozen Malaya Nevka River. There, beneath the icy current, Rasputin died of hypothermia, with water in his lungs.
I mention this gruesome tale because under the decision handed down today, the Russian conspirators could have been charged with seven counts of attempted murder on the same victim – and one count of murder, of course.