(Posted April 5, 2018) The Supreme Court today hands down three published opinions, including one of the last two remaining from appeals argued in 2017.


Criminal law

The Commonwealth is on the anterior side of the “v.” in Commonwealth v. Gregg, an appeal implicating the Double Jeopardy Clause. A jury convicted Gregg of common law involuntary manslaughter and statutory manslaughter in connection with a shooting during the repossession of a car.

The sole issue here is purely legal: Can you be convicted of both of those crimes for the same conduct, involving the same victim? The Court of Appeals held that you cannot. The prosecution got a writ, but today the justices unanimously affirm. The court notes that in some statutes, the legislature expresses an intention that “cumulative convictions” are permissible for the same conduct. In other statutes, the statute expresses the opposite directive.

Here, the statute proscribing involuntary manslaughter doesn’t express either preference. Evaluating the statute in light of the common-law crime, the court concludes:

A conviction under Code § 18.2-154, the legislature has determined, is “involuntary manslaughter,” and common law involuntary manslaughter also is “involuntary manslaughter.” Involuntary manslaughter under Code § 18.2-154 is the “same offence” as common law involuntary manslaughter. We therefore conclude that Gregg was twice convicted and sentenced in the same trial of the same offense …

The court remands the case to the trial court, where the prosecution may elect which conviction it prefers for sentencing; the other will be vacated.

The other criminal-law decision also tangentially involves the involuntary-manslaughter statute. In Bryant v. Commonwealth, the court addresses whether the prosecution must prove intent in a charge of unlawfully discharging a firearm within an occupied dwelling.

Justice Russell’s factual recitation is heartbreaking. Bryant became despondent after her mother died suddenly; it didn’t help that she also lost her job around the same time she lost her mother. She decided to end her life, and drove from her Maryland home to Harrisonburg with a gun, resolving to die by her own hand after seeing the mountains one last time.

Maryland law-enforcement authorities learned of the situation and managed to track her through her cell phone to a motel in Rockingham County. They contacted the Rockingham Sheriff, who sent deputies to the motel to try to prevent a needless death.

The deputies learned Bryant’s room number and went there to try to speak with her. They knocked on the door and called the room phone, but got no answer until Bryant, hearing activity outside “called out that they should not come in, that she had a gun and if they came in she would shoot herself. Her voice sounded ‘angry’ and ‘upset.’”

One of the deputies started conversing with Bryant, hoping to calm her. She replied that she was despondent and wanted the deputies to shoot her. Instead, the conversation continued and Bryant became calmer; the deputies may have begun to suspect that they were getting through to her.

The sharp report of a gunshot that followed must have demoralized them. After a moment, a deputy called out, “Are you okay?” Bryant’s voice replied that she was. The deputy persuaded her to put the gun on the bed, and then walk over to the window where they could see that she was unarmed. When she did so, they entered the room and found a bullet hole in the carpet. Bryant was essentially unharmed. The deputies transported her, not to jail, but to a hospital.

The local prosecutor sought and obtained an indictment for unlawful shooting in an occupied dwelling. Bryant’s defense was that she had decided not to harm herself, and the gun discharged accidentally when she tried to put it down. At trial, Bryant offered a jury instruction that required the prosecution to prove that she intended to discharge the weapon; that accidental discharge was not criminal. The trial court refused that instruction.

A jury considered the case based on a model jury instruction that contained no intent requirement. After deliberating, it returned a verdict of guilty, but tellingly imposed a fine of zero dollars, with no incarceration.

The Court of Appeals affirmed the conviction, and today the Supreme Court does the same. The justices find that nothing in the statute requires any specific intent. It provides two different punishments; one for malicious acts (that’s a Class 4 felony) and the other for unlawful acts (Class 6). Conviction for an unlawful act requires proof of mere criminal negligence; not the intent to fire a weapon. The justices therefore affirm the conviction, ruling that the trial court correctly refused Bryant’s proposed instruction.

In reading this opinion, I found myself feeling profound sympathy for Bryant, and relief for her in that she didn’t carry out her intentions. I sincerely admired and respected the deputies who put themselves in harm’s way to try to help another human being. I acknowledge that the justices made the right call on the law here, declining to read into the statute a requirement that the General Assembly didn’t place there.

But I was flatly astonished at the Rockingham Commonwealth’s Attorney for seeking an indictment here. This was a case that cried out for the exercise of prosecutorial discretion; there was no good reason to prosecute a despondent person who overcame a dreadful resolution to end her life, and harmed no one in the process. I don’t know the prosecutor’s situation, and indeed I don’t even know his or her name. Perhaps that person was facing reelection and wanted to establish a tough-on-crime reputation to impress the voters.

This was the wrong case in which to do it. And the jury saw that, too: instead of nullifying the statute with an acquittal, they imposed no consequences upon a technically guilty defendant. (I am aware that Bryant now has the civil disabilities of a convicted felon, but the jury had no control over that.) This woman needed to receive health care; not to feel the weight of the criminal-justice system. The jury knew what was right better than the politician did here.


The last opinion of the day is a highly complex real-property contract case, RECP IV WG Land Investors LLC v. Capital One Bank. It involves a dispute over density rights under the Fairfax County Comprehensive Plan. As you can imagine, when land becomes as valuable as it is in Fairfax, density is a valuable commodity.

RECP IV and Capital One are successor entities to those who contracted for the sale of 29 acres in an office park in Tysons Corner. The contract allocated a certain number of units called FAR (the formal name is floor area ratio) to the buyer, Capital One’s predecessor. The parties also set out their respective rights in the event the county allowed greater density n the future: Capital One would get the first 200,000 square feet, and the parties would divide anything over that.

Then the county did a remarkable thing, in conjunction with the opening of new Metro stations in Tysons: It lifted the cap on FAR for all properties within 1,600 feet of the stations. That radius included both Capital One’s property and that retained by RECP IV and its affiliates.

Capital One speedily took advantage of the new rule, applying for and receiving approval for another 3.8 million square feet of FAR. (The building is Capital One’s headquarters.) At that point RECP IV sued, seeking declaratory relief, an injunction, and damages.

I’m going to cut to the chase here, since the facts are much more complex than the skeletal outline I’ve given you, and the rulings depend heavily on those facts. I’ll mention instead the eventual ruling and a couple of key points of wider application:

  • The trial court ruled in favor of Capital One, finding that it was impossible to allocate excess FARs on a formula, because the numerator of the division is now infinity.
  • The Supreme Court affirms unanimously, largely on the same ground. The court holds that this is not a case for declaratory relief, since any claims that RECP IV owned had matured by the time it filed suit. It agrees that the county’s action in granting unlimited density to all affected properties renders performance of the future allocation impossible. (In essence: Both parties now have unlimited rights! What’s not to celebrate?)
  • Finally, the court affirms an award of $1.9 million in attorney’s fees, since Capital One prevailed on all three counts of the complaint, and now wins again on appeal. That ruling, in turn, will likely trigger an eventual fight over appellate attorney’s fees.