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Curtis v. Commonwealth5/21/1991
COLE, J.
Keith Lamont Curtis appeals his conviction for the attempted capital murder of Dominica Harris in the commission of or subsequent to rape. The sole issue on appeal is whether the prosecution for attempted capital murder is barred under principles of double jeopardy when Curtis had been previously convicted in Richmond for one of the two rapes that served as predicates for the attempted capital murder charge. We hold that the conviction is barred, using the Richmond rape as a predicate, and reverse Curtis's conviction.
On September 9, 1988, Curtis raped Dominica Harris in his apartment in the City of Richmond. He then transported Harris to a location in Chesterfield County where he raped her a second time. Curtis then struck Harris with a jack that he had retrieved from the trunk of his car and left her on the side of the road. Harris's jugular vein had been severed and that wound, along with the associated blood loss, was potentially fatal.
The defendant was tried and convicted in the Circuit Court of the City of Richmond of raping Harris. Subsequently, in April 1990, the defendant 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 from the defendant, Harris testified concerning the rape which occurred in Richmond. However, in arguing the jury instructions, Curtis objected on double jeopardy grounds to the use of the Richmond rape to support the attempted capital murder charge. The trial court overruled this objection, finding that the Chesterfield jury could consider the rape in Richmond as a predicate for the attempted capital murder in Chesterfield County.
The jury was given a verdict form drafted as follows:
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 their verdict in the following words:
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 the motion of the Commonwealth's attorney.
On appeal, the defendant asserts that the attempted capital murder charge was barred by double jeopardy. Specifically, he asserts that under Grady v. Corbin, 110 S. Ct. 2084, 2087 (1990), the trial judge erred in permitting the jury to consider the Richmond rape, for which he had previously been tried, as an element of attempted capital murder. The Commonwealth claims that consideration of this issue is barred by Rules 5A:18 and 3A:9(b)(1) and that the case at bar presents a situation significantly different from Grady because two jurisdictions are involved.
As a preliminary matter, the Commonwealth asserts that the double jeopardy claim was untimely because it was not raised until after the Commonwealth's case-in-chief in viol
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