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Martin v. Commonwealth6/7/1991
CHIEF JUSTICE CARRICO delivered the opinion of the Court.
In this appeal involving convictions of attempted murder and use of a firearm in the commission of attempted murder, we consider the Supreme Court's new "same conduct" rule for determining whether the second of two successive prosecutions is barred by principles of double jeopardy. See Grady v. Corbin, 495 U.S. , 110 S. Ct. 2084 (1990). Finding that the Corbin rule does not apply here, we will affirm the convictions.
The following scenario spawned the question for decision in this case: On October 31, 1987, Larry Berry, a member of the police department of the City of Manassas Park in Prince William County, responded to a call concerning a disturbance at a Hardee's restaurant. Upon arrival, Officer Berry observed the defendant, Wallace Elwood Martin, emerging from the restaurant in
an apparently intoxicated condition. Berry asked Martin for identification and inquired about what had happened inside the restaurant. Martin became "very loud and boisterous," and Berry placed him under arrest for being drunk in public.
When Berry, who was in full uniform, attempted to "walk [Martin] over to the police car," Martin "turned... and "shoved" Berry. The two fell against Berry's cruiser and then to the ground, with Martin atop Berry. They struggled on the ground for "quite a while" until Berry was able to get Martin "off of ." Martin broke away and stepped "on to the sidewalk," some seven feet from Berry.
Then, as Berry "was pulling [himself] up off the ground" and had gotten "almost in an upright position," he looked up and saw that Martin was pointing a gun at him. Martin pulled the trigger and Berry heard a "click," but the gun did not fire. Berry ran behind a parked vehicle and heard another "click" from Martin's gun. Berry pulled his weapon out and shot at Martin, but missed. Still pointing his gun at Berry, Martin began to run, and Berry fired again, this time hitting Martin in the right shoulder.
When other police officers arrived, Martin's gun was discovered, unloaded, on the ground about ten feet from where he lay. He was transported to a hospital for treatment. He told a police officer the next day that he "would have shot the bastard if had a gun."
As a result of his encounter with Berry, Martin was charged with three misdemeanor offenses, viz., obstructing justice by threats or force, drunk in public, and carrying a concealed weapon. Martin was also charged with two felonies, viz., attempted capital murder of a law enforcement officer for the purpose of interfering with the performance of his official duties and use of a firearm in the commission of attempted capital murder.
At a single hearing in general district court, Martin was convicted of the three misdemeanor offenses and held for the grand jury on the two felony charges. After he was indicted for attempted capital murder and use of a firearm, he filed a plea of former jeopardy. In a pretrial ruling, the trial court granted the plea and dismissed the two felony indictments, holding that the charge of obstructing justice was a lesser included offense of the charge of attempted capital murder of a law enforcement officer.
The grand jury then indicted Martin for attempted murder [242 Va Page 4] and use of a firearm in the commission of attempted murder. To these indictments, Martin filed a "Plea of Former Jeopardy and Res
Judicata." The trial court denied this plea, a jury convicted Martin of both
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