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Curtis v. Commonwealth5/21/1991
h conceded this issue before the trial court. In arguments concerning the double jeopardy issue, the Commonwealth's attorney stated, "I might agree with him [defense counsel], Your Honor, had he not been found guilty of the rape in the city but he was found guilty." The Commonwealth does not contest the fact that the rape in the defendant's apartment was the same rape that had previously been prosecuted in the City of Richmond.
As in Low, we must assume, in the absence of a record of the Richmond trial, that "proof in the first trial followed the charge and that no other offense was proved or tried." 11 Va. App. at 52, 396 S.E.2d at 385 (quoting Martin v. Taylor, 857 F.2d 958, 960 (4th Cir. 1988)). The conviction of rape in Richmond must necessarily have involved proof of the conduct occurring in Curtis's apartment, which was also shown in the Chesterfield trial. As previously discussed, the admission of the evidence concerning the Richmond rape, standing alone, did not violate double jeopardy. The test in Grady is not a "same evidence" or "actual evidence" test. "The critical inquiry is what conduct the state will prove, not the evidence the State will use to prove that conduct." Grady, 110 S. Ct. at 2093. When the trial court found that the Chesterfield jury could consider the Richmond rape as a predicate for the capital murder charge and the jury was given a verdict form embodying this decision, double jeopardy was violated. The fact that there were two jurisdictions involved is not sufficient to distinguish the present case from Grady.
The Commonwealth argues that such error was harmless because Curtis was convicted of the Chesterfield rape and this rape alone could have supported the attempted capital murder conviction. Also, the evidence of the Richmond rape was admissible and certainly would have been considered by the jury.
"Where a federal constitutional right has been violated, the conviction must be reversed unless the government proves that the error was harmless beyond a reasonable doubt." Mason v. Commonwealth, 7 Va. App. 339, 348, 373 S.E.2d 603, 608 (1988). Error will be presumed to be prejudicial unless it plainly appears that it could not have affected the result. Joyner v. Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951). Curtis was sentenced to the maximum penalty. We find that this error
was not harmless beyond a reasonable doubt.
For the reasons stated, we reverse the defendant's conviction of attempted capital murder and remand for a new trial consistent with the views expressed in this opinion.
Reversed and remanded.
Disposition
Reversed and remanded.
Judges Footnotes
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