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Curtis v. Commonwealth2/11/1992
ON REHEARING EN BANC
Keith Lamont Curtis appeals his conviction for the attempted capital murder of Dominica Harris in the commission of or subsequent to rape. Curtis had been convicted previously in Richmond for one of the two rapes that served as predicates for the attempted capital murder charge. The issue on appeal is whether proof of the Richmond rape to support the prosecution for attempted capital murder is barred under principles of double
jeopardy. We hold that his conviction in Richmond for the rape that occurred there did not bar proof of that rape as a predicate offense in his prosecution in Chesterfield County for attempted capital murder. We affirm the judgment of the trial court.
On September 9, 1988, Curtis raped Dominica Harris in his apartment in the City of Richmond. He transported Ms. Harris to a location in Chesterfield County where he raped her a second time. He then struck her several times with a jack, cut her throat, and left her on the side of the road. Her jugular vein was severed, a potentially fatal wound.
Curtis was convicted in the Circuit Court of the City of Richmond of raping Ms. Harris. Subsequently, in April 1990, he was tried in the Circuit Court of Chesterfield County on indictments charging that on September 9, 1988, in the County of Chesterfield, he did: (1) maliciously wound Dominica Harris; (2) rape Dominica Harris; and (3) attempt to kill Dominica Harris in the commission of or subsequent to rape.
In the Chesterfield trial, without objection, Ms. Harris testified concerning the Richmond rape. However, in arguing the jury instructions, Curtis objected on double jeopardy grounds to proof of the Richmond rape to support the attempted capital murder charge. The trial court overruled this objection, holding that the Chesterfield jury could consider the Richmond rape as a predicate for the attempted capital murder in Chesterfield County.
The jury was given the following verdict form:
We the jury find the defendant guilty of attempted capital murder of Dominica Harris in the commission of or subsequent to rape(s) that occurred in (choose one):
_______ Chesterfield
_______ Richmond
_______ Both Chesterfield and Richmond
and fix his punishment at:
-----------------------------------------------------
-----------------------------------------------------
---------------
Foreman
The jury returned the following verdict:
We the jury find the defendant guilty of attempted capital murder of Dominica Harris in the commission of or subsequent to rape that occurred in both Chesterfield and Richmond and fix his punishment at life in prison.
[Signed by Foreman]
Foreman
The defendant was also convicted of the Chesterfield rape. The malicious wounding charge was dismissed on motion of the Commonwealth's attorney.
On appeal, Curtis asserts that proof of the Richmond rape as a predicate for the attempted capital murder charge was barred by the prohibition against double jeopardy. Relying on Grady v. Corbin, 110 S. Ct. 2084 (1990), he argues that the trial Judge erred in permitting the jury to consider the Richmond rape, for which he had previously been convicted, as an element of attempted capital murder. The Commonwealth contends that consideration of this issue is barred by Rules 5A:18 and 3A:9(b)(1) and that the case at bar presents a sit
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