The murder of Robert Schwartz occurred on
December 8, 2001 in Leesburg, Virginia. The crime was orchestrated by
his 20 year-old daughter, Clara Jane Schwartz, as part of a
fantasy role-playing game. Clara was convicted of first-degree murder
for orchestrating her father's murder.
The case made national headlines due to Robert
Schwartz's prominence in the scientific community and for claims that
his murder was related to role-playing games and the occult.
Robert Schwartz was a nationally renowned scientist
in the field of biometrics and DNA research, and was a founding member
of the Virginia Biotechnology Association. He was the father of three
children: Catherine Michele, Jesse, and Clara Jane.
On December 8, 2001, Robert Schwartz was stabbed to
death with a sword at his Leesburg, Virginia farmhouse. His body was
discovered two days later.
Three days after the murder, then-19 year-old
Katherine Inglis made statements to the police implicating Schwartz's
daughter Clara in his murder. Inglis claimed that Clara Schwartz
discussed the planning and murder of her father with her, 21 year-old
Michael Pfohl, and 18 year-old Kyle Hulbert. Inglis stated that the
motive for the murder was that Robert Schwartz had hit Clara and she
believed that he tried to poison her.
Clara Schwartz, who was a sophomore at James
Madison University at the time of the murder, was charged with the
crime on February 2, 2002. Clara was formally indicted for the murder,
as well as conspiracy to commit murder and solicitation of murder
charges, on March 31, 2002. Inglis, Pfohl, and Hulbert were all
previously indicted for Robert Schwart'z murder.
Clara Schwartz was the first of the four
co-defendants to go on trial in October 2002. The prosecutors
portrayed Clara Schwartz to be a manipulative young woman who used her
role-playing game, Underworld, to convince her friends to kill her
father. The prosecutors argued that "Clara Schwartz wanted her father
dead; she had hated her father for a long time", and that after
failing to enlist her friend Patrick House to kill her father, Clara
became desperate to have her father murdered.
Clara's defense argued that Robert Schwartz's
killer, Kyle Hulbert, had taken Clara's directives to kill her father
out of the context of their role-playing game. Her attorney persisted
that "Clara Jane Schwartz never intended for any person to kill her
However, the prosecution's star witness Patrick
House testified that Clara spoke increasingly about killing her
father, and that she researched herbal poisons because she wanted his
death to appear natural. House also testified that she spoke of how
much money she stood to inherit if he died and her concerns that he
would cut her out of his will. He stated that she became increasingly
frustrated because he was not carrying out her wish, and said how
Clara later found a willing participant in Kyle Hulbert.
On October 16, 2002, Clara's jury convicted her of
first-degree murder. On February 10, 2003, she was sentenced to serve
48 years in prison. She is currently being housed at the Fluvanna
Correctional Center for Women near Troy, Virginia and has a tentative
release date of November 2, 2043. Clara has made many unsuccessful
attempts to appeal her conviction; her conviction was most recently
affirmed Fourth District of the United States Court of Appeals on
March 9, 2010.
For their roles in the murder, Kyle Hulbert was
sentenced to life in prison and Michael Pfohl was sentenced to 20
years. Katherine Inglis served a 1-year sentence for conspiracy to
In the media
In 2012, the murder of Robert Schwartz was profiled
on the Oxygen Network's Snapped and Investigation Discovery's
Daughter Gets 48 Years In Slaying of Her Father
Siblings Say No Sentence Could Bring Justice
By Maria Glod - The Washington Times
February 11, 2003
Clara Jane Schwartz, a former college student
obsessed by vampires, assassins and magic, was sentenced yesterday to
48 years in prison for persuading a friend to kill her father, a
respected Loudoun County scientist.
Schwartz, 20, was at James Madison University on Dec. 8, 2001,
when Robert M. Schwartz was stabbed with a 27-inch sword as he sat
down to dinner in his remote Leesburg farmhouse. But she had "set in
motion a series of events that led to the terrible death," Loudoun
Circuit Judge Thomas D. Horne said before imposing the sentence.
"We are responsible for our actions," Horne said.
"We don't shift blame to others."
Clara Schwartz faced her brother and sister yesterday, as both
testified that no sentence, no matter how severe, could bring justice.
Michele Schwartz, 22, told the judge that she is haunted by nightmares
of her father's last moments and that the sight of a knife makes her
uneasy. Jesse Schwartz, 25, said he thinks of his father's death --
and his sister's role -- every day.
"It's been nothing but a nightmare since the first day I found
out," Michele Schwartz testified. "It's hard enough it was my father,
but on top of that to have my sister committing such a horrible
When Horne asked Clara Schwartz if she had anything to tell the
court, she replied: "Nothing that hasn't already been said."
Clara Schwartz had long had a troubled relationship with her
father, a noted expert on DNA sequencing, and complained that he
poisoned her food, yanked her hair and disapproved of her clothes and
friends, according to court testimony. Eventually, prosecutors said,
Clara Schwartz's anger turned to hatred, and she sought out two young
men to kill him. Ultimately, she persuaded one of them -- Kyle Hulbert
-- to do it, according to testimony.
Clara Schwartz met Hulbert, 19, who had a long history of mental
illness, at a local Renaissance festival in fall 2001. The pair were
drawn together by a shared fascination with witchcraft and the occult,
and Hulbert, who fancied himself a warrior, quickly dubbed himself
Clara Schwartz's protector, prosecutors said.
On a rainy Saturday night, Hulbert and two friends, Michael
Pfohl, 22, and Katherine Inglis, 20, drove to Robert Schwartz's
fieldstone farmhouse, authorities said. Hulbert, of Millersville, who
is awaiting trial on a murder charge, later told police that he went
inside alone, confronted Schwartz about the alleged abuse and slashed
and stabbed him with a sword, according to court documents.
Defense attorneys said Clara Schwartz complained about her
father simply to vent her teenage frustrations but never planned his
murder. Hulbert, they said, misconstrued Clara Schwartz's words and
acted on his own.
Defense attorney Corinne J. Magee said yesterday that Clara
Schwartz feels a "great deal of guilt" but insists that she never
intended for her father to be killed.
Prosecutors, however, said Clara Schwartz's desire to get rid of
her father was evident before she met Hulbert. During her October
trial, Clara Schwartz's former boyfriend testified that in summer 2001
they engaged in a fantasy role-playing game called "Underworld," in
which Schwartz's character, "Lord Chaos," asked his character, an
assassin, to kill her father.
Clara Schwartz's uncle, Christopher Schwartz, one of a few
family members supporting her, testified that his niece had been
troubled for years. He said a hyperthyroid condition caused her to be
confused and paranoid.
"She was a good person, but she had these demons," Christopher
Clara Schwartz was convicted in October of first-degree murder,
conspiracy to commit murder and two counts of solicitation to commit
Pfohl, of Haymarket, pleaded guilty to second-degree murder and
is scheduled to be sentenced in April. Inglis, of Haymarket, a friend
of Clara Schwartz's from high school, is facing a charge of conspiracy
to commit murder.
Robert Schwartz, the victim's father, yesterday said he hopes
his granddaughter will express remorse to the family as time passes.
"She had free choices, and her choices were always the bad
ones," he said.
Daughter Guilty in Dad's Sword Killing
Los Angeles Times
October 16, 2002
LEESBURG, Va. — A former college student was found
guilty Tuesday of first-degree murder for enlisting a friend to kill
her scientist father with a sword.
A Loudoun County Circuit Court jury deliberated
four hours before returning its verdict against Clara Jane Schwartz,
20. Jurors recommended she spend 48 years in prison. She will be
formally sentenced Jan. 21.
Defense attorneys said they would appeal, arguing
that the jury did not spend enough time going through the evidence.
Robert Schwartz, 57, was found dead in his home
Dec. 12. A prominent biophysicist, he had been stabbed multiple times
with a 2-foot-long sword. Police arrested two of Clara Schwartz's
friends and found the murder weapon in one of their homes.
Schwartz has been in jail since her arrest in
February on the campus of James Madison University, where she was a
Prosecutor Owen Basham urged the jury Tuesday to
recommend a stiff sentence. "You've been asked to look at the
photographs and look at the ugly, savage way Dr. Schwartz was killed
in his own home," Basham said.
The jury could have recommended a life sentence for
the convictions, which also included conspiracy to commit murder and
two counts of soliciting a crime.
The defense argued that the man prosecutors say she
asked to commit the crime, Kyle Hulbert, is not mentally stable. They
also argued that Robert Schwartz abused his daughter.
Hulbert, 19, of Millersville, Md., wrote in a
confession that he killed Schwartz to protect Clara Schwartz from
He refused to testify last week against his friend,
citing his right to avoid self-incrimination.
Prosecutors allege that Hulbert wasn't the only
person Schwartz asked to kill her father.
Patrick House, a former boyfriend, testified Oct. 8
that he and Schwartz were the primary characters in an elaborate
role-playing game she invented called Underworld. Clara played the
overlord, Lord Chaos, and House acted as an assassin assigned to kill
"Old Guy" -- Clara Schwartz's father.
At one point, Schwartz asked House when he really
would kill her father, but he never followed through, he testified.
Defense attorneys said the game was only an escape
for a girl with a sad social life.
Hulbert and Michael P. Pfohl, who is accused of
driving Hulbert to the Schwartz house, each is charged with
first-degree murder and conspiracy. Their trials are set for early
Kyle Hulbert was
already a troubled young man with profound mental illness when he met
19-year-old Clara Schwartz at a Virginia renaissance festival in 2001.
“We got close
very quickly and I consider her my closest, most dear friend and a
sister as well,” Hulbert eventually told police.
The 18-year-old man was
diagnosed with schizophrenia and bipolar disorder, the former
affecting Hulbert’s perception of reality and the latter subjecting
him to episodes of unrealistic beliefs about his power and aggressive
behavior. Schizophrenia and bipolar disorder are both manageable with
medicine, but when Hulbert fell under the spell of Schwartz, he was
In the 12 years before he met
Schwartz, Hulbert had been institutionalized for psychiatric care
seven times. His last release was less four months before he became a
Schwartz and Hulbert both were
fascinated by witchcraft, the occult, the Goth culture, and fantasy
None of those — even in
combination — forces anyone to murder (and most eschew violence), but
their influence on a group of troubled teens meant murder.
Schwartz, a Doc Marten-wearing
computer science major at James Madison University, called herself the
“Priestess of High Chaos,” apparently aligning herself with a type of
magic that is sometimes associated with the creatures of H.P.
Lovecraft’s Cthulu Mythos with a bit of Nietzsche and William S.
Burroughs thrown in. Chaos magicians frequently operate from the
premise that “Nothing is True and Everything is Permitted,” which
Schwartz used to justify her murderous desire and which Hulbert’s
damaged psyche embraced as his fantasy world began to overtake
Schwartz had been trying for
months to find someone to kill her father, noted DNA researcher Robert
M. Schwartz. Her sole motive appears to be that they didn’t get along.
Her widowed father disapproved of her Goth clothes and resented the
fact that his daughter, one of his three children, was spending so
much time in isolation in her room.
Preying on Hulbert’s immersion
in the fantasy world of dragons, orcs, and vampires, Schwartz
convinced the teen that her father was trying to kill her. She alleged
that he had poisoned a pork chop and a lemon, and that he frequently
physically abused her by punching her and pulling her hair.
Schwartz’s brother and sister
strongly refuted her allegations of either a murder plot by Robert
Schwartz or any abuse in his home.
When Schwartz told Hulbert, who
considered himself the champion of the Priestess of High Chaos, that
her life was in danger, he did not hesitate to come to her rescue.
Hulbert became fixated on images of Schwartz crying from the “abuse,”
and told authorities that he believed Robert Schwartz was going to
kill his daughter on an upcoming trip to the Virgin Islands.
“I have always told Clara I
would protect her,” Hulbert wrote in his confession to police. “I
could not kill him without just cause. If I was not defending myself
or someone else, I could not kill.”
On November 9, 2001, Hulbert and
Schwartz traded instant messages.
“If I was to tay (kill) him
would you be mad at me?” Hulbert asked.
“No,” Schwartz wrote back. “Just
don’t do it now.”
“Maybe in a month?” the
Priestess’s champion asked.
“We’ll talk about it down here.
Take a long walk and talk,” she replied. “I just hate talking about
that kind of stuff on here.”
In another conversation Hulbert
and Schwartz once again traded messages about “taying” Robert
“If you do, all I ask is that it
not trace to me,” Schwartz cautioned Hulbert — hardly an attempt to
dissuade her self-styled champion.
Later, Schwartz would say that
she was “just joking,” but then contradicted herself by adding that
she believed Hulbert would carry through on the threat.
“Maybe deep down I thought that
he might have done it,” she later told police. “But in my heart of
hearts I thought he was just talking.”
Later in her five and half hour
interview with police shortly after her father was slain, Schwartz
recanted what was in her “heart of hearts.”
“I want to go straight,” she
told police. “In my heart of hearts I knew he was going to do that.”
Perhaps she knew what Hulbert
planned to do because she pushed him in that direction: She admitted
making “off-hand” comments about her father, speculating what her life
would be like “if he was dead,” adding that “life would be better
without Dad in the picture.”
Toward the end of November 2001,
Schwartz sent Hulbert $60 from college by overnight mail. The money,
police said, was used by Hulbert to buy a headcovering and gloves, and
to pay for gas to drive to the Schwartz home.
On December 8, 2001, Hulbert and
two friends, 21-year-old Michael Pfohl and Katherine Inglis, 19, drove
to the Loudon, Virginia, farmhouse of Robert Schwartz, intending to
kill the scientist. Schwartz was in her dorm room at James Madison on
that cold, rainy Saturday night.
Hulbert went into the home alone
and hunted down Robert Schwartz. Once he located his quarry, Hulbert
confronted Robert about the alleged abuse and his “plan” to kill his
“I know about your plans,”
Hulbert recalled saying to Robert. “You won’t get away with it.”
Then he attacked the scientist
with a 27-inch sword. Hulbert slashed, hacked, and stabbed the
defenseless man between 40 and 45 times, leaving him to die.
Hulbert returned to the car,
gave the sword to Pfohl, who wiped the blood from the sword and
wrapped it in towels.
Pfohl’s parents would later
describe their son as suicidal and suffering from hallucinations. He
was constantly striving for acceptance, they said.
“If he sees someone who needs
something, if he can, he gives it to them,” Pfohl’s mother said.
Arrests in the case didn’t take
long. As standard police practice, investigators began looking first
at the Schwartz family and pulled the phone records to Clara
Schwartz’s dorm room. A call from Hulbert came in around the time
police surmised that Robert Schwartz was murdered.
On December 9, police
interviewed Schwartz, who lied about receiving any telephone calls.
When she was confronted, she quickly implicated Hulbert and tried to
She could not explain a note
found in her dorm listing the fantasy names by which she and her
co-conspirators went, and asking “High Chaos” to bestow “true honor
upon their souls.”
A prosecutor explained what the
government considered to be the meaning of the note.
“Thanks, guys, for killing my
dad,” said Assistant Commonwealth Attorney Jennifer Wexton. “That’s
what the document said.”
A former boyfriend told
authorities that when he played a fantasy game called “Underworld,”
Schwartz’s character asked his to kill her father.
The three conspirators who went
to the murder site were arrested on December 11, and the plot
unwravelled. Inglis was offered a plea in return for her cooperation
and Pfohl agreed to plead to second degree murder.
Clara Schwartz remained free
until February 2002.
The only conspirator who went to
trial was Clara Schwartz. Her attorney argued that there was only a
bit of circumstantial evidence linking her to the crime.
“They have no unified theory of
what happened,” said James Connell. “They just want to throw it
against the wall and see what sticks.”
Before her trial, nearly every
one of Schwartz’s relatives — Clara’s brother and sister, and her
extended family — signed a letter asking the judge to keep her in jail
pending her trial. They said she was a danger to herself and to them
if she was freed.
“A majority of the family is in
agreement with the commonwealth’s attorney, who felt she was a danger
to herself and a danger to the family,” they wrote. “We’re very much
together on this point.”
After a five-day trial in
October 2002, Clara Schwartz was convicted of orchestrating her
father’s killing. She was sentenced to 48 years in prison. She’ll have
to serve every day of that sentence under Virginia’s
While Clara Schwartz was
unemotional at the sentencing hearing, her family wept openly. Their
tears, however, were for Robert Schwartz.
“It’s been nothing but a
nightmare since the first day I found out,” her sister told the court.
“It’s hard enough that it was my father, but on top of that to have my
sister committing such a horrible crime…”
When asked if she had anything
to say before the sentence was pronounced, Clara Schwartz responded
simply, “nothing that hasn’t already been said.”
Kyle Hulbert pleaded guilty to
first-degree murder in March 2003 and received a life-without-parole
sentence. He said he pleaded guilty to spare the Schwartz family the
ordeal of another trial.
“She was the puppetmaster and
Kyle Hulbert was the puppet,” Hulbert’s lawyer told the media after
Pfohl pleaded to second-degree murder and got 18
Life Sentence in Leesburg
By Maria Glod - The Washington
September 8, 2003
Kyle Hulbert, a young man obsessed by vampires and
witchcraft who used his 27-inch sword to kill his friend’s father, a
respected Loudoun County scientist, was sentenced today to life in
Hulbert, 20, attacked Robert Schwartz, 57, at his
secluded Leesburg farm house on Dec. 8, 2001, at the behest of
Schwartz’s daughter, Clara Jane, Loudoun prosecutors said. Clara
Schwartz had told Hulbert that her father hit her, pulled her hair and
poisoned her food, and Hulbert told police he was haunted by images of
his friend’s suffering.
Yesterday in Loudoun County Circuit Court, Hulbert
apologized to the Schwartz family and said he thought what he “was
doing was right” when he slashed and stabbed Robert Schwartz.
“There is nothing I wouldn’t give to take that act
back,” Hulbert said. “I allowed myself to be poisoned by Clara.”
Hulbert’s sentencing is a key moment in the story
of a group of friends whose shared interest in fantasy worlds was at
the center of one of Loudoun’s most bizarre killings. Clara Schwartz
is serving a 48-year prison sentence for orchestrating her father’s
death, and another friend, Michael Pfohl, 22, is serving an 18-year
sentence for second-degree murder. Pfohl’s girlfriend, Katherine
Inglis, 20, faces a conspiracy charge in the plot.
Prosecutors and defense attorneys said Hulbert, who
has a long history of mental illness and spent much of his childhood
in mental institutions, created a fantasy world in which he saw
himself as a protector of the downtrodden. When Clara Schwartz came to
Hulbert complaining that she was abused by her father, he felt
compelled to act, said Hulbert’s attorney, William Fitzpatrick.
“But for Mr. Hulbert’s mental health . . . this
never would have happened,” Fitzpatrick said. “She was the puppet
master. Kyle Hulbert was the puppet.”
Circuit Judge Thomas D. Horne said he sympathized
with Hulbert’s difficult childhood and understood why Hulbert took
refuge in a fantasy world. But he said Hulbert was responsible for his
actions when he killed Schwartz.
“This is not a fantasy world for [the Schwartz
family]. It’s real,” Horne said. “Every day they live with the death
of Robert, a child, a father, and the fact that he left this world at
your hands and at the hands of his own daughter."
Court of Appeals of Virginia
Schwartz v. Commonwealth
Clara Jane SCHWARTZ
COMMONWEALTH of Virginia.
Record No. 0577-03-4.
April 19, 2005
Present: FRANK and CLEMENTS, JJ., and WILLIS, S.J.
James G. Connell, III, Richmond (Corinne J. Magee;
Devine & Connell, P.L.C.; The Magee Law Firm, on briefs), for
appellant.Virginia B. Theisen, Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Clara Jane Schwartz (appellant) was convicted in a
jury trial of murder in violation of Code § 18.2-32, conspiracy to
commit murder in violation of Code § 18.2-22, and two counts of
solicitation to commit murder in violation of Code § 18.2-29. On
appeal, appellant contends the trial court erred in (1) finding that
her statutory right to a speedy trial was not violated, (2) submitting
the charges of murder and conspiracy to commit murder to the jury
although essential elements of those charges were not alleged with
particularity in the indictment, (3) concluding that the double
jeopardy doctrine did not bar her conviction for both murder and
conspiracy to commit murder under the circumstances of this case, (4)
determining that Wharton's Rule did not bar her conviction for both
murder and conspiracy to commit murder under the circumstances of this
case, and (5) excluding the testimony of Dr. Michael L. Deem regarding
the mental health of Kyle Hulbert, the principal in the first degree
in the murder, and quashing appellant's subpoena duces tecum seeking
certain of Dr. Deem's interview notes and Loudoun County Mental Health
Center's treatment notes. Finding no error, we affirm the trial
court's judgment and appellant's convictions.
The facts pertinent to this appeal are not in
dispute. In accordance with familiar principles of appellate review,
“[w]e consider those facts in the light most favorable to the
Commonwealth,” the party that prevailed below. Rose v. Commonwealth,
265 Va. 430, 432, 578 S.E.2d 758, 759 (2003).
Appellant was the youngest child of the victim, Dr.
Robert Schwartz. During her senior year in high school, appellant
became friends with Katherine Inglis. Appellant told Inglis that her
father was “continually doing stuff to her like try[ing] to poison
her.” During the summer and fall of 2001, appellant told Inglis that
her father was “poisoning meat she would eat,” “hitting her on
occasion,” and “pulling her under the water in their pool.” She also
told Inglis that “she wished he was dead” and that “she would inherit
a third of a million dollars from her father” when he died. Inglis
never saw any bruises or other evidence of physical abuse by
appellant's father during the time she knew appellant.
In August 2001, appellant, who attended James
Madison University (JMU), began dating Patrick House. Appellant
complained to House that her father had attempted to molest and kill
her. Appellant also made statements to House about her desire for
her father's death and requested that he kill him. She gave House a
book that contained information about poisoning and told him that she
wanted her father's killing to “look natural” so it would “not be able
to be traced back to her.” She also told House that she would
inherit money from her father when he died but “was concerned [he] was
trying to cut her out of [his] will.”
In September 2001, appellant went out to dinner
with House and Inglis. During the meal, appellant said that her
steak had been poisoned and speculated that her father had “gotten in
touch with the cook.” Later, appellant asked House “when [he]
planned on killing her father,” to which House responded, “When the
time was right, it would happen.”
Later in September 2001, appellant met Kyle Hulbert
at a Renaissance Fair in Maryland. Hulbert quickly became close
friends with appellant, Inglis, and Inglis's boyfriend, Michael Pfohl.
Appellant told Hulbert that “she had been suffering from mental and
emotional abuse from her father,” her father made “death threats” to
her, and her father “had poisoned her [food] on several occasions.”
Appellant told Hulbert that appellant and her father “were going to
the Virgin Islands for Christmas vacation” and that her father “was
planning on making sure she did not come back.”
In November 2001, Hulbert, Inglis, and Pfohl drove
to James Madison University to spend the weekend with appellant.
Appellant complained to Hulbert about “how her father had abused her
and poisoned her” and showed him “some of her journals” in which she
had documented those events. At the end of the weekend, appellant
said to Inglis, “Maybe Kyle can help me with my father.” She also
told Inglis that she would be able to take a semester off “if her
father died while she was in college.”
After the weekend, appellant and Hulbert began to
exchange instant messages and speak by telephone almost daily.
During one instant message session, Hulbert responded to appellant's
claim that her father had tried to kill her by saying appellant's
father was lucky Hulbert did not know where he lived. Hulbert then
asked appellant for permission to kill her father. Appellant told
him to wait, saying they would talk more about it in person.
Appellant further informed Hulbert that House also wanted to kill her
father and that, if Hulbert did it, he should ensure it could not be
traced back to her. Appellant then gave Hulbert general directions
to her father's house, which was located in a rural area of Loudoun
On Thanksgiving weekend, appellant arranged for
Hulbert to camp clandestinely in the woods near her father's house.
Inglis and Pfohl dropped Hulbert off after dark. The next day,
Hulbert went to the house to see appellant. During the brief visit,
he met appellant's father and older sister and showed them a sword he
had with him.
Soon thereafter, Hulbert asked appellant to send
him money for gas so Pfohl could drive him and for gloves and a
“do-rag” to “prevent him from leaving hairs at the scene” when he
killed her father. On December 6, 2001, appellant wrote Hulbert a
check for $60 and sent it to him via overnight mail.
On the evening of December 8, 2001, Inglis and
Pfohl dropped Hulbert off near appellant's father's property.
Hulbert, who had his sword strapped to his side, proceeded on foot to
appellant's father's house. When appellant's father answered the
door, Hulbert entered the house and killed him, stabbing him over
thirty times with the sword. The next day, Hulbert told appellant on
the telephone that he had killed her father.
A neighbor, learning appellant's father had not
reported to work, discovered his body on December 10, 2001. Loudoun
County Investigator Greg Locke traveled to James Madison University to
inform appellant of her father's death. When asked about her
friends, appellant provided information to the investigator about
Hulbert, House, Pfohl, and Inglis, among others. Hulbert was
arrested the following day.
After initially saying she thought Hulbert was only
“venting” or “kidding” when he said he was going to kill her father,
appellant told Investigator Locke, “I want to go straight. In my
heart of hearts, I knew that [Hulbert] was going there to kill [my
father].” Appellant was arrested on February 1, 2002, for the murder
of her father and held continuously in custody thereafter. After
being taken to jail, appellant told her cellmate that the plan was for
Hulbert to kill her father “because if anything came up he would take
the blame because he had mental issues.”
After a preliminary hearing on March 21, 2002, the
juvenile and domestic relations district court found probable cause
and certified appellant's murder charge to the circuit court for
consideration by a grand jury. On March 29, 2002, the grand jury
returned a four-count indictment charging appellant with murder,
conspiracy to commit a felony, and two counts of solicitation to
commit a felony. Specifically, count one of the indictment alleged
that, “[o]n or about the 8th day of December, 2001, in the County of
Loudoun [appellant] ․ did feloniously, willfully and deliberately, and
with premeditation, kill and murder [her father] ․ in violation of
[Code § ] 18.2-32.” Count two alleged that, “during the period from
on or about November 2001 to on or about December 2001, [appellant]
did feloniously and unlawfully conspire, confederate or combine with ․
Kyle Hulbert, et. al [sic] ․ to commit a felony within this
Commonwealth, in violation of [Code § ] 18.2-22.” Count three
alleged that, “during the period of November 2001 [appellant] did
feloniously and unlawfully command, entreat, or otherwise attempt to
persuade another person to commit a felony, in violation of [Code § ]
18.2-29.” Finally, the fourth count alleged that, “during the period
from on or about June 2001 to on or about November 2001, [appellant]
did feloniously and unlawfully command, entreat, or otherwise attempt
to persuade another person to commit a felony, in violation of [Code
§ ] 18.2-29.”
By order entered April 5, 2002, the trial court set
the case for trial by jury commencing August 5, 2002.
On June 14, 2002, appellant filed a motion seeking
a bill of particulars as to counts two, three, and four of the
indictment. With respect to count two, appellant sought to have the
Commonwealth identify “the person(s), if any, referenced by the phrase
‘et. al [sic]’ ” and “where and when the alleged agreement took
place.” With respect to counts three and four, appellant sought to
have the Commonwealth identify the date and location of the alleged
solicitation, “the person who was the object of the alleged
solicitation,” and “the felony which was the subject of the alleged
In response, the Commonwealth identified Hulbert
and House as the recipients of the respective solicitations in counts
three and four and identified murder and conspiracy to commit murder
as the object felonies of both of those counts. The Commonwealth
argued that further particularization of counts two, three, and four
The trial court agreed that most of the other
requested particularizations were not required, but directed the
Commonwealth to particularize the persons identified in count two by
the phrase “et. al [sic].” Count two was subsequently amended to
reflect that the conspiracy was with Hulbert alone.
On July 3, 2002, Investigator Locke underwent
medically necessary, major back surgery. On July 24, 2002, the
Commonwealth moved for a continuance of the trial based on Locke's
failure to recover from his surgery as quickly as expected. The
parties stipulated that Locke was a material witness. The trial
court initially denied the Commonwealth's motion for lack of evidence
“from an expert” and continued the matter pending examination of
Locke's medical records by a board-certified neurosurgeon to ascertain
whether Locke would be “physically unable from a medical standpoint to
testify” at the scheduled trial. The trial court required that the
selected expert be made available to confer with counsel by telephone.
In an affidavit dated July 30, 2002, Dr. Michael G.
Radley, a board-certified neurosurgeon and fellow of the American
College of Surgeons, reported that, having reviewed the medical
records relating to Locke's surgery and follow-up treatment, it was
his opinion that Locke's condition did not allow him to sit in court
longer than twenty to thirty minutes “without the potential for
significant increasing back pain.” Dr. Radley further opined that it
was “highly likely that if that time in court [was] greater than one
day, [Locke's] increasing pain [would potentially] not allow him to
continue through the entire proceedings.” Dr. Radley advised that
Locke not “be required to sit for prolonged periods of time” for
another six to eight weeks. After submitting the affidavit, Dr.
Radley was made available to counsel for both parties for telephonic
Based on Dr. Radley's affidavit, the trial court,
over appellant's objection, granted the Commonwealth's motion for a
continuance and set the trial for October 7, 2002. Appellant
subsequently moved for dismissal of the charges against her on speedy
trial grounds, noting that the rescheduled trial exceeded the
five-month limitation set forth in Code § 19.2-243 by more than six
weeks. In denying appellant's motion to dismiss, the trial court
recited Dr. Radley's opinions and explained that the court,
“respecting the rights of the parties in this case, set [the trial
date] at the minimum that it could [be] set within what the doctor had
testified to [as] the [time] frame ․ within which [Locke] would be
able to testify.”
Following his arrest, Hulbert was charged in the
circuit court with the first-degree murder of appellant's father.
The court directed Loudoun County Mental Health Center to perform a
mental evaluation to determine Hulbert's sanity at the time of the
offense, pursuant to Code § 19.2-169.5, and to assist Hulbert's
counsel in his criminal defense, including providing treatment to
Hulbert if necessary. Dr. Deem, a clinical psychologist with Loudoun
County Mental Health Center, performed the ordered mental evaluation,
and other personnel at Loudoun County Mental Health Center provided
treatment to Hulbert.
On September 17, 2002, appellant requested the
issuance of a subpoena duces tecum to Dr. Deem for production of
certain “documents relied upon by Loudoun County Mental Health Center
in the formation of opinions or reports regarding the mental health of
Kyle Hulbert.” Specifically, appellant sought the notes prepared by
Dr. Deem of his interviews with third parties regarding Hulbert's
mental health, “[d]ocuments prepared by third parties subsequent to
December 8, 2001, and forwarded to Dr. Deem to assist in his
evaluation,” and Loudoun County Mental Health Center's treatment notes
Hulbert's and Loudoun County Mental Health Center's
respective attorneys filed motions to quash the requested subpoena.
Hulbert's counsel acknowledged, at the October 3, 2002 hearing on the
motions to quash, that the “[d]ocuments prepared by third parties
subsequent to December 8, 2001, and forwarded to Dr. Deem to assist in
his evaluation” were not privileged or otherwise protected. He
argued, however, that Dr. Deem's third-party-interview notes in
preparation of the Code § 19.2-169.5 report and Loudoun County Mental
Health Center's treatment notes were protected by the attorney-client
privilege set forth in Code § 19.2-169.5(E), which Hulbert had not
waived, and the work product doctrine. Hulbert's counsel, whom the
court had directed to review the relevant documents in order to
particularize his objections, further argued that the treatment notes
were “indispensable to his defense” of Hulbert because “90 percent of
the content [of] those ․ notes [were] statements of the facts from
Finding that Dr. Deem's notes of his interviews
with third parties and the Loudoun County Mental Health Center's
treatment notes were protected under the attorney-client privilege
because “Dr. Deem was an indispensable agent of [Hulbert's] attorney,”
the trial court granted the motions to quash with respect to those
Appellant's trial commenced on October 7, 2002.
During the trial, appellant adduced evidence that Hulbert had
demonstrated antisocial and unstable behaviors in the past and had a
history of mental problems. When appellant called Dr. Deem to
testify regarding Hulbert's mental state, Hulbert's attorney objected
to the admission of such testimony on the ground that Dr. Deem was his
agent and Dr. Deem's testimony regarding Hulbert's mental state was
protected by the attorney-client privilege. The trial court
sustained the objection, noting that Dr. Deem had prepared the
court-ordered Code § 19.2-169.5 report.
Following the presentation of evidence, the trial
court refused appellant's instruction on manslaughter and instructed
the jury, over the appellant's objection, as follows:
The defendant is charged with the crime of first
degree murder. The Commonwealth must prove beyond a reasonable doubt
each of the following elements of that crime:
1. That Kyle Hulbert killed Dr. Robert Schwartz;
2. That the killing was malicious; and
3. That the killing was willful, deliberate and
4. That the defendant acted as an accessory before
the fact or conspired with Kyle Hulbert in the commission of the
killing of Dr. Robert Schwartz as those terms are defined in other
instructions by the Court.
Appellant contended the homicide charge submitted
to the jury could “be no more than a voluntary manslaughter” because
count one of the indictment did not allege the element of malice.
The trial court also instructed the jury (1) that,
on the murder charge, the Commonwealth had to prove appellant, “as an
accessory before the fact, shared the criminal intent of ․ Hulbert,”
(2) that “[a]n accessory before the fact is liable for the same
punishment as the person who actually committed the crime,” and (3)
[a]n accessory before the fact is one who is not
present at the time of the commission of the crime, but who, before
the commission of the crime, in some way planned, advised or assisted
in the commission of the crime, knowing or having reason to know of
the intent of the principal to commit the crime.
The trial court further instructed the jury, over
the appellant's objection, as follows:
The defendant is charged with the crime of
conspiracy. The Commonwealth must prove beyond a reasonable doubt
each of the following elements of that crime:
1. That the defendant entered into an agreement
with Kyle Hulbert; and
2. That the agreement was to commit murder; and
3. That both the defendant and Kyle Hulbert
intended to commit murder.
Appellant contended the Commonwealth was “not
entitled to the word ‘murder’ in [the] instruction” because count two
of the indictment charged her only with conspiracy to “commit a
felony” without specifying the object felony. In rejecting
appellant's argument, the trial court reasoned that no “other felony
The jury found appellant guilty of first-degree
murder, conspiracy to commit murder, and two counts of solicitation to
commit murder. The jury recommended a sentence of thirty years for
the murder, eight years for the conspiracy, and five years for each of
the solicitations, for a total sentence of forty-eight years.
Following trial, appellant filed a motion to set
aside the murder and conspiracy convictions on the ground that the
jury should not have been instructed she was charged with first-degree
murder and conspiracy to commit murder because count one of the
indictment did not allege malice and accomplice liability and count
two did not allege the object felony. Appellant also moved to have
the conspiracy conviction set aside and the charge dismissed (1) on
double jeopardy grounds because, as submitted to the jury, count two
was a lesser-included offense of count one and (2) for violation of
Wharton's Rule. After denying appellant's post-trial motions, the
trial court imposed the recommended forty-eight-year sentence in a
final order entered February 19, 2003.
This appeal followed.
II. RIGHT TO A SPEEDY TRIAL
On appeal, appellant contends the trial court erred
in refusing to grant her motion to dismiss the charges against her on
the ground that she was denied her right to a speedy trial because the
trial court improperly continued the commencement of her trial beyond
the deadline established by Code § 19.2-243. We disagree.
Code § 19.2-243 constitutes Virginia's “statutory
embodiment of the constitutional right to a speedy trial.” Clark v.
Commonwealth, 4 Va.App. 3, 5, 353 S.E.2d 790, 791 (1987). The
statute protects the accused from lengthy incarceration prior to trial
by mandating the dismissal of charges where more than five months
elapse from the indictment or finding of probable cause by the
district court to the commencement of trial. Code § 19.2-243. The
application of the statute may be tolled, however, for any of several
enumerated conditions, including when a prosecution witness is
“prevented from attending [the trial] by sickness or accident.” Code
§ 19.2-243(2); see Robinson v. Commonwealth, 28 Va.App. 148, 152-53,
502 S.E.2d 704, 706 (1998) (“Strict adherence to the statutory time
requirement is tempered by the provisions setting forth specific
circumstances excusing the Commonwealth's failure to bring an accused
to trial within the prescribed time.”).
In this case, the juvenile and domestic relations
district court found probable cause and certified the murder charge on
March 21, 2002, and the grand jury indicted appellant on the three
other related charges on March 29, 2002. The trial court originally
set the trial to commence within the five-month limitation period
prescribed by Code § 19.2-243, on August 5, 2002. Subsequently,
however, applying the “sickness” exception of Code § 19.2-243(2), the
trial court granted the Commonwealth's motion for a continuance to
allow for Investigator Locke's recovery from his medically necessary
back surgery and set the trial for October 7, 2002, which, as
appellant points out, was beyond the statutory limitation period.
At issue, therefore, is whether Locke's medically
necessary back surgery properly implicated the “sickness” exception
set forth in Code § 19.2-243(2). Because this is a question of law
involving statutory interpretation, we review the trial court's
judgment de novo. See Sink v. Commonwealth, 28 Va.App. 655, 658, 507
S.E.2d 670, 671 (1998) (“Although the trial court's findings of
historical fact are binding on appeal unless plainly wrong, we review
the trial court's statutory interpretations and legal conclusions de
Appellant argues that the word “sickness” has a
plain and unambiguous meaning that places Locke's surgery and his
recovery from that surgery outside the scope of the exception. In
support of her position, appellant points to the definition of
“sickness” propounded in Black's Law Dictionary: “Illness; disease.
An ailment of such a character as to affect the general soundness
and health; not a mere temporary indisposition, which does not tend
to undermine and weaken the constitution.” Black's Law Dictionary
1380 (6th ed.1990).1
Locke's surgery, appellant argues, “was not an illness or a disease”
and, thus, “was not ‘sickness' within the meaning of Code
We find no merit in appellant's argument. It is
well established that, “[w]hen, as here, a statute contains no express
definition of a term, the general rule of statutory construction is to
infer the legislature's intent from the plain meaning of the language
used,” in light of the context in which the term at issue is used.
Hubbard v. Henrico Ltd. Partnership, 255 Va. 335, 340, 497 S.E.2d
335, 338 (1998). We will not “apply ‘an unreasonably restrictive
interpretation of the statute’ that would subvert the legislative
intent expressed therein.” Armstrong v. Commonwealth, 263 Va. 573,
581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v. Commonwealth, 219
Va. 759, 761, 250 S.E.2d 760, 761 (1979)); see also Commonwealth v.
Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998) (noting that the
“plain, obvious, and rational meaning” of the statute should prevail
“over any curious, narrow, or strained construction”). In the
present context, the plain meaning of the term “sickness” includes
“the condition of being ill,” “a disordered, weakened or unsound
condition,” and “a form of disease.” Webster's Third New
International Dictionary 2111 (1993). Here, it is clear from the
record that, as a result of major back surgery, Investigator Locke
was in “a disordered, weakened or unsound condition” that, as the
trial court implicitly found, made him “physically unable from a
medical standpoint to testify” at trial within the time limit
prescribed by Code § 19.2-243. We cannot say, therefore, that
Locke's condition during his recuperation from surgery was not
“sickness” within the meaning of Code § 19.2-243(2).
Indeed, this interpretation is also compelled by
the definition of “sickness” espoused by appellant. Although
arguably not an “illness” or “disease,” the debilitative effect of
Locke's surgery plainly constituted “[a]n ailment of such a character
as to affect [his] general soundness and health ․ [and] undermine and
weaken [his] constitution.” Black's Law Dictionary, supra, at 1380.
Moreover, the interpretation urged by appellant
would lead to an absurdity, since it would permit the tolling of Code
§ 19.2-243's strictures as long as a witness suffered from an illness
or disease that prevented him or her from appearing at trial but
require resumption of the running of the limitation period if the
witness has surgery to treat the illness or disease, no matter how
debilitating the surgery's effect. This result would eviscerate the
statute of its purpose, which is to provide for speedy trial
exceptions in circumstances “beyond the control of the trial judge and
the parties,” when delays are warranted to “ensure a fair trial to
both the accused and the Commonwealth.” Baity v. Commonwealth, 16
Va.App. 497, 502, 431 S.E.2d 891, 894 (1993). We will not interpret
a statute “so that it leads to absurd results.” Branch v.
Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992).
We hold, therefore, that the trial court properly
continued the commencement of appellant's trial beyond the five-month
deadline set forth in Code § 19.2-243 due to Investigator Locke's
inability to attend trial because of “sickness.” Accordingly, the
trial court did not err in denying appellant's motion to dismiss.
III. PARTICULARITY OF THE INDICTMENT
Appellant further contends the trial court erred in
instructing the jury that she was charged with first-degree murder as
an “accessory before the fact or co-conspirator” and conspiracy to
commit murder because the Commonwealth did not allege essential
elements of those offenses. In light of such omissions, she argues,
the submission of the murder and conspiracy charges to the jury
violated her due process and notice rights under the United States and
Virginia Constitutions and Code § 19.2-220. We disagree.
“Both the United States and Virginia Constitutions
recognize that a criminal defendant enjoys the right to be advised of
the cause and nature of the accusation lodged against [her].” 2
Simpson v. Commonwealth, 221 Va. 109, 114, 267 S.E.2d 134, 138
(1980). “The important concerns evident in these provisions are fully
honored by Virginia Code § [ ] 19.2-220, [which] ․ requires that an
indictment name the accused, describe the offense charged, identify
the location of the alleged commission, and designate a date for the
offense.” Id. “An indictment, to be sufficient, must give an accused
notice of the nature and character of the charged offense so the
accused can make his defense.” Commonwealth v. Dalton, 259 Va. 249,
253, 524 S.E.2d 860, 862 (2000).
“When considering on appeal whether an indictment
charged a particular offense, we limit our scrutiny to the face of the
document.” Moore v. Commonwealth, 27 Va.App. 192, 198, 497 S.E.2d
908, 910 (1998). However, since it is the function of the bill of
particulars to supply additional information to the defendant
concerning an accusation, “the bill of particulars and the indictment
must be read together.” Livingston v. Commonwealth, 184 Va. 830, 837,
36 S.E.2d 561, 565 (1946). We also consider as “incorporated by
reference” the statutes cited in the indictment. Reed v.
Commonwealth, 3 Va.App. 665, 667, 353 S.E.2d 166, 167-68 (1987).
A. Murder Charge
Count one of the indictment, on which appellant was
prosecuted for murder, alleged, in pertinent part, that appellant “did
feloniously, willfully and deliberately, and with premeditation, kill
and murder [her father] ․ in violation of [Code § ] 18.2-32.” At
trial, the court refused appellant's manslaughter instruction and
instructed the jury that appellant was charged with first-degree
murder. The court further instructed the jury that, to sustain the
murder conviction, the Commonwealth had to prove beyond a reasonable
doubt that Hulbert killed appellant's father, “the killing was
malicious ․ willful, deliberate and premeditated,” and appellant
“acted as an accessory before the fact or conspired with ․ Hulbert in
the commission of the killing.”
Appellant first submits that she could not properly
be convicted of or punished for a homicide offense greater than
voluntary manslaughter because count one of the indictment failed to
allege malice, a necessary element of the crime of murder. See
Rhodes v. Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989)
(“Malice, an essential element of all grades of murder, distinguishes
murder from manslaughter.”). That defect, she argues, unlawfully
denied her notice of the nature and character of the
first-degree-murder charge submitted to the jury. Appellant
acknowledges that count one of the indictment complied with the
provisions of Code § 19.2-221 3
and that “the Supreme Court of Virginia has repeatedly upheld Code
§ 19.2-221 against constitutional challenges” in the past. See,
e.g., Simpson v. Commonwealth, 221 Va. 109, 115, 267 S.E.2d 134, 139
(1980); Barber v. Commonwealth, 206 Va. 241, 246-47, 142 S.E.2d 484,
489 (1965). She asserts, however, that the United States Supreme
Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), rendered those Virginia Supreme Court
cases “obsolete” and Code § 19.2-221's provisions permitting the use
of a short-form indictment for murder unconstitutional. Thus, she
concludes, the submission of the charge of first-degree murder to the
jury violated her constitutional and statutory rights to due process
This Court recently addressed the same issue in
Walshaw v. Commonwealth, 44 Va.App. 103, 603 S.E.2d 633 (2004), appeal
filed, No. 042542 (November 12, 2004). Thus, our decision in that
case, which was issued during the pendency of this appeal, controls
the disposition of the present issue.
As in this case, the appellant in Walshaw
challenged the indictment as not setting forth with sufficient
particularity the elements necessary to convict and punish him on the
charge of first-degree murder. Id. at 107, 603 S.E.2d at 634.
There, as here, the short-form indictment complied with Code
§ 19.2-221, referenced Code § 18.2-32, and did not allege malice, and
the appellant argued that the jury should only have been instructed on
voluntary manslaughter. Id. at 107-08, 110, 603 S.E.2d at 635-36.
The defective indictment, he contended, “denied him adequate notice of
the charge against him as required by the United States Constitution
and ․ Apprendi.” Id. at 108-09, 603 S.E.2d at 635. After concluding
that the issue before the United States Supreme Court in
Apprendi-“whether the sentencing judge could impose a sentence in
excess of the maximum for the offense of which the defendant had been
indicted and convicted under New Jersey law”-was wholly inapposite to
the resolution of the issue before this Court, we held
that the short form statutory indictment on which
appellant was convicted fully informed him of the nature and cause of
the accusation against him as required by the United States and
Virginia Constitutions. The absence of the word[ ] “malice” ․ in the
indictment did not render it defective to charge first-degree murder.
It was sufficient that it alleged that appellant “murdered” [the
victim] and that it referred to Code § 18.2-32. Finding no
constitutional defect in appellant's indictment, we affirm the
judgment of the trial court.
Id. at 112-15, 603 S.E.2d at 637-39 (footnote
Accordingly, we hold that Apprendi is inapposite to
the instant issue, since, as in Walshaw, “appellant did not face an
enhanced punishment imposed by a judge beyond the statutory maximum
for the crime of which [she] was convicted.” Id. at 114, 603 S.E.2d
at 638. We further hold that, even though it did not allege malice,
count one of the indictment informed appellant of the nature and
character of the murder charge on which she was convicted and gave her
adequate notice of the offense to make her defense. Thus, the
submission of the charge of first-degree murder to the jury did not
violate her constitutional and statutory rights to due process and
Appellant also maintains that she could not
lawfully be convicted of or punished for murder as “an accessory
before the fact or co-conspirator,” the theory on which her conviction
for murder rested, because count one of the indictment failed to
allege any fact supporting a theory of accomplice liability. As a
result, she asserts, she had no notice that she would need to defend
herself from prosecution by the Commonwealth under such a theory.
Thus, she argues, the
situation here is analogous to that in Commonwealth
v. Dalton, 259 Va. 249, 524 S.E.2d 860 (2000). In Dalton, the
Supreme Court of Virginia held that the United States and Virginia
Constitutions, as well as Code § 19.2-220, bar a defendant's
conviction for accessory after the fact on an indictment as a
principal․ Likewise, the same constitutional authorities bar the
Commonwealth from convicting appellant on an accessory [before the
fact] or co-conspirator theory on an indictment as a principal.
Accordingly, appellant concludes, the trial court
erred in submitting the murder charge to the jury based on the theory
of accomplice liability.
Appellant's reliance on Dalton is misplaced.
Indeed, Dalton supports the trial court's action here.
In Dalton, our Supreme Court addressed the issue
whether a defendant who was tried on an indictment charging murder was
entitled to an accessory-after-the-fact jury instruction. In
analyzing that issue, the Supreme Court first noted that, pursuant to
Code § 19.2-220 and the Due Process Clauses of the United States and
Virginia Constitutions, the indictment must give the accused “notice
of the nature and character of the charged offense so the accused can
make his defense.” Dalton, 259 Va. at 253, 524 S.E.2d at 862.
Citing the common-law principle that “an accused cannot be convicted
of a crime that has not been charged, unless the crime is a
lesser-included offense of the crime charged,” the Supreme Court then
articulated the rule that “neither the Commonwealth nor an accused is
entitled to a jury instruction on an offense not charged, unless the
offense is a lesser-included offense of the charged offense.” Id.
The Court then proceeded to determine that “the crime of being an
accessory after the fact is not a lesser-included offense of the crime
of murder.” Id. at 253-54, 524 S.E.2d at 862-63. The Court's
analysis did not conclude at that point, however.
Instead, the Supreme Court went on to consider
whether Code § 19.2-286-which provides, in pertinent part, that “[o]n
an indictment for felony the jury may find the accused not guilty of
the felony but guilty of ․ being an accessory thereto”-creates a
statutory exception permitting the giving of an accessory-after-the
fact instruction on a felony indictment against the defendant as a
principal. Examining the legislative history of the statute, the
Court noted as follows:
Code § 19.2-286 was formerly Code § 19.1-254.
Former Code § 19.1-254, as it existed prior to its repeal in 1975,
provided that “on an indictment for felony the jury may find the
accused not guilty of the felony but guilty of an attempt to commit
such felony, or of being an accessory after the fact.” (Emphasis
added.) In 1975, when Title 19.2 of the Code replaced Title 19.1,
the statute was changed by substituting the term “accessory thereto”
for the term “accessory after the fact.”
In deleting the modifier, “after the fact,” the
General Assembly indicated its intention to eliminate accessories
after the fact from the application of Code § 19.2-286. By limiting
the statute's application to accessories before the fact, any conflict
between the statute and the notification requirements of due process
Id. at 254, 524 S.E.2d at 863 (second emphasis
added). Having thus found that the exception established in Code
§ 19.2-286 was intended to apply only to accessories before the fact,
the Court held that, “before a defendant can be tried and convicted of
being an accessory after the fact, he must be charged with that
offense” and that, “[u]nless such a charge is specifically made,
neither the Commonwealth nor an accused is entitled to an
accessory-after-the-fact instruction.” Id. at 255, 524 S.E.2d at 863.
Notwithstanding appellant's claim that the ambit of
the Supreme Court's ultimate holding in Dalton extends analogically to
the circumstances of the present case, it is clear from the
above-quoted portion of the Supreme Court's analysis in Dalton and the
plain language of Code § 19.2-286 that a defendant may be convicted of
being an accessory before the fact on a felony indictment charging the
defendant as a principal and that such a conviction does not violate
“the notification requirements of due process.” 4
It follows, therefore, that the Commonwealth is entitled, under Code
§ 19.2-286, to an accessory-before-the-fact instruction on a felony
indictment even when the defendant is not charged in the indictment
with being an accessory before the fact to the felony. This
conclusion is also compelled by the plain language of Code § 18.2-18,
which provides, in pertinent part, that “every accessory before the
fact may be indicted, tried, convicted and punished in all respects as
if a principal in the first degree.” 5
(Emphasis added.) See Hyman v. Commonwealth, 206 Va. 891, 892-93,
147 S.E.2d 156, 157 (1966) (holding that, pursuant to the same,
“perfectly plain” language of the statutory predecessor of Code
§ 18.2-18, the defendant could properly be convicted as an accessory
before the fact on an indictment charging statutory burglary); Sutton
v. Commonwealth, 228 Va. 654, 668-69, 324 S.E.2d 665, 673 (1985)
(Poff, J., concurring) (noting that, “[a]t common law, an accessory
before the fact to a felony could not be convicted under an indictment
charging him as a principal” and that Code § 18.2-18 “abolish[es] the
common law distinction” between an accessory before the fact and a
principal); id. at 670 n. *, 324 S.E.2d at 674 n. * (Stephenson, J.,
dissenting) (noting that, “[h]ad [the defendant] been indicted as a
principal in the first degree, she could have been convicted as an
accessory before the fact” under Code § 18.2-18).
Here, appellant was charged in the indictment with
first-degree murder. Consequently, the Commonwealth was entitled to
an accessory-before-the-fact jury instruction on that offense.
Accordingly, we hold that the trial court did not err in submitting
the murder charge to the jury based on the theory that appellant was
“an accessory before the fact or co-conspirator” in the commission of
the charged murder.
B. Conspiracy Charge
As amended, count two of the indictment alleged, in
pertinent part, that appellant “did feloniously and unlawfully
conspire, confederate or combine with ․ Kyle Hulbert, ․ to commit a
felony ․, in violation of [Code § ] 18.2-22.” 6
At trial, the court instructed the jury that appellant was charged
with conspiracy and that the Commonwealth had to prove beyond a
reasonable doubt that appellant “entered into an agreement with Kyle
Hulbert,” that “the agreement was to commit murder,” and that
appellant and Hulbert both “intended to commit murder.” After the
jury found appellant guilty of conspiracy, the trial court gave the
jury an instruction setting out the range of punishment that could be
imposed for a Class 5 felony. The jury recommended a term of
imprisonment of eight years for the conspiracy, which the court
Appellant contends on appeal, as she did below,
that the Commonwealth was not entitled to have the object felony of
the charged conspiracy identified in the instruction as murder because
count two of the indictment did not identify the object felony as
murder. She claims that, if the Commonwealth intended to seek her
conviction of and punishment for a Class 5 felony offense of
conspiracy under Code § 18.2-22(a)(2), as opposed to the less severe
offense of conspiracy set forth in Code § 18.2-22(a)(3), count two
should have specifically identified the object felony of the
conspiracy as murder or, at least, identified it as an offense that
was punishable by five or more years' incarceration. Since count two
failed to identify the object felony, she was not, she argues,
properly notified of the conspiracy-to-commit-murder charge. Relying
on the rule stated by this Court in Hall v. Commonwealth, 8 Va.App.
350, 381 S.E.2d 512 (1989), that, in order to convict a defendant
under a statute that contains multiple offenses carrying different
punishments, “the indictment must contain an assertion of the facts
essential to the punishment sought to be imposed,” appellant further
argues that, because count two identified no specific felony as the
object of the charged conspiracy and alleged no fact authorizing any
but the minimum punishment set forth in the Code § 18.2-22(a), the
indictment could only support conviction for the least serious offense
contemplated by the statute, since she “cannot be expected to have
assumed that [she] was charged with [a greater offense] unless it was
expressly charged in the indictment.” Hall, 8 Va.App. at 352, 381
S.E.2d at 513. Thus, she concludes, the trial court violated her
rights to due process and notice by submitting the charge of
conspiracy to commit murder to the jury.
Appellant's reliance on Hall in this case is
misplaced. Code § 18.2-300, the statute under which the appellant in
Hall was convicted, “defines two separate crimes,” one each in its
two subsections, A and B.7
Id. at 351, 381 S.E.2d at 512. In Hall, the appellant was
specifically “indicted for the use of a ‘sawed-off shotgun’ in the
commission of a ‘crime,’ ” a Class 4 felony in violation of Code
§ 18.2-300(B). Id. However, the trial court instructed the jury
that the appellant was charged with the more serious crime of “using a
‘sawed-off’ shotgun in the commission of a crime ‘of violence,’ ” a
Class 2 felony in violation of Code § 18.2-300(A). Id. at 351, 381
S.E.2d at 512-13. “The jury was also instructed that the range of
punishment was that of a Class 2, not a Class 4, felony.” Id. at
351-52, 381 S.E.2d at 513. Since the indictment failed to give the
appellant notice of the crime of which he was convicted and, in fact,
advised him that he was charged with the other, less serious crime set
forth in Code § 18.2-300, we reversed his conviction. Id. at 352,
381 S.E.2d at 513.
Here, however, appellant was correctly informed in
count two of the indictment that she was charged with conspiracy to
commit a felony in violation of Code § 18.2-22. Appellant nevertheless
argues that she could not be convicted of and punished for a Class 5
felony offense of conspiracy because the indictment failed to allege
an object felony. At the heart of appellant's argument is the
implicit assertion that subsections 1, 2, and 3 of Code § 18.2-22(a)
each contain a distinct conspiracy offense carrying its own punishment
range based on the gravity of the object felony. Appellant, however,
is mistaken about the nature of the statute under which she was
convicted. Rather than setting out three distinct offenses, Code
§ 18.2-22(a) defines only a single offense-conspiracy to commit a
felony. That offense, consisting of the “proscribed conduct [and]
the attendant elements, is clearly defined in the initial sentence of
the statute.” Thomas v. Commonwealth, 37 Va.App. 748, 754, 561 S.E.2d
56, 59 (2002) (examining, in consideration of a similar issue, Code
§ 18.2-308.2); see Code § 18.2-22. The punishment for the offense
is then set out in subsequent subsections based on the gravity of the
object felony, ranging from a fine “not exceeding $500” up to a prison
term of twenty years and a fine of $100,000. Code § 18.2-22(a); Code
§ 18.2-10. It is clear, therefore, from the statutory scheme set
forth in Code § 18.2-22(a), that, contrary to appellant's assertion,
the subsections of Code § 18.2-22(a) contain gradations of punishment,
not separate and distinct offenses comprised of their own discrete
elements. Indeed, as we observed relative to the statute at issue in
Thomas, “such disparate penalties do not spawn gradations of the
offense. The crime is not defined by the penalty.” 37 Va.App. at
754, 561 S.E.2d at 59. Accordingly, this is not a case like Hall, in
which the trial court allowed “the Commonwealth [to] ․ effectively
ambush the accused with an instruction that would effectively permit
the jury to convict an accused for a separate crime not charged in the
indictment.” Dalton, 259 Va. at 256, 524 S.E.2d at 864 (Koontz, J.,
dissenting). Hence, Hall is inapposite, and appellant's argument
Because count two fully informed appellant that she
was charged with conspiring to commit a felony, in violation of Code
§ 18.2-22, and because conspiracy to commit a felony is the only crime
set forth in Code § 18.2-22, we hold that count two was sufficient to
advise appellant “of the cause and nature of the accusation lodged
against [her],” as required by the United States and Virginia
Constitutions. Simpson, 221 Va. at 114, 267 S.E.2d at 138. “To the
extent appellant required additional particulars of the charge to
[more ably] defend [herself, she] could have requested [such
particulars in her motion for] a bill of particulars.” Walshaw, 44
Va.App. at 115 n. 6, 603 S.E.2d at 639 n. 6. Although appellant
requested particulars regarding the object felonies of the
solicitation charges in counts three and four of the indictment and
particulars regarding the phrase “et. al [sic]” in count two, she did
not seek particulars regarding the object felony of the conspiracy
alleged in count two. Likewise, appellant does not assert, and the
record does not show, that she suffered any prejudice because count
two of the indictment did not identify the object felony as murder.
As the trial court effectively found, no “other [object] felony [was]
suggested” by the evidence presented at trial.
We hold, therefore, that, in the context of this
case, the trial court did not err in submitting the charge of
conspiracy to commit murder to the jury.
IV. DOUBLE JEOPARDY
As previously noted, the Commonwealth's prosecution
of appellant for first-degree murder was based on the theory that
appellant participated in the commission of the charged murder as an
accessory before the fact and was, therefore, subject, under Code
§ 18.2-18, to conviction and punishment for the murder as if she were
the principal in the first degree. At the conclusion of the
evidence, the trial court gave, without objection by the Commonwealth,
a finding instruction that informed the jury that, to prove the murder
charge lodged against appellant in count one of the indictment, the
Commonwealth had to prove, inter alia, that appellant “acted as an
accessory before the fact or conspired with ․ Hulbert in the
commission of the killing.” 8
The same instruction effectively incorporated by reference the
definition of “an accessory before the fact” set forth in another
instruction and the elements of conspiracy-to-commit-murder contained
in the finding instruction subsequently given by the court for the
conspiracy charge lodged against appellant in count two of the
On appeal, appellant acknowledges the general
principle that a conspiracy to commit a crime and the substantive
crime that is the object of the conspiracy are separate and distinct
offenses and conviction and punishment may be had for each offense.
See Wayne R. LaFave, Criminal Law § 6.5(h), at 612 (3d ed.2000)
(stating that, at common law, “it is now possible for a defendant to
be convicted and punished for both the conspiracy and the substantive
offense”); Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358,
364, 98 L.Ed. 435 (1954) (“It is settled law in this country that the
commission of a substantive offense and a conspiracy to commit it are
separate and distinct crimes, and a plea of double jeopardy is no
defense to a conviction for both.”); Boyd v. Commonwealth, 236 Va.
346, 351, 374 S.E.2d 301, 303 (1988) (holding that, notwithstanding
Code § 18.2-23.1's application to successive trials, “conviction of
both the completed substantive offense and the underlying conspiracy”
are permitted in Virginia “provided the convictions occurred, as here,
in a single trial”). Appellant contends, nonetheless, that, because
the trial court instructed the jury that the charged conspiracy was an
element of the charged murder, the prohibition against double jeopardy
protects her from being sentenced to consecutive terms for those
crimes. Specifically, appellant claims that, because the
Commonwealth did not object to the finding instruction for murder
given to the jury in this case, the elements set forth therein
constitute the law of the case. Hence, appellant reasons, the
inclusion in that instruction of conspiracy as an element of murder
and the incorporation of the elements listed in the
conspiracy-to-commit-murder finding instruction had the effect, for
purposes of this case, of making every element of the conspiracy
charged in count two of the indictment an element of the murder
charged in count one of the indictment. Consequently, appellant
argues, under the test stated in Blockburger v. United States, 284
U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the charged
murder offense and the lesser-included charged conspiracy offense are
not distinct offenses for double jeopardy purposes. Accordingly,
appellant's argument continues, the imposition of consecutive
sentences for those two crimes constitutes multiple punishments for
the same offense, in violation of her right to be free from double
jeopardy under the United States and Virginia Constitutions. Thus,
she concludes, the trial court erred in failing to set aside the
jury's conspiracy verdict and dismiss the conspiracy charge. We
As relevant here, the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution “guarantees
protection ․ against multiple punishments for the same offense.”
Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733 (2001)
(citing Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264,
65 L.Ed.2d 228 (1980)). “Virginia's constitutional guarantee against
double jeopardy affords a defendant the same guarantees as the federal
Double Jeopardy Clause.” Stephens v. Commonwealth, 263 Va. 58, 62,
557 S.E.2d 227, 230 (2002). Thus, subjecting a defendant to
cumulative punishments for the “same offense” violates both state and
federal constitutional protections against double jeopardy. Cf.
Hudgins v. Commonwealth, 43 Va.App. 219, 241, 597 S.E.2d 221, 232
(2004) (en banc) (holding that the defendant's prosecution for larceny
of the victim's bicycle from his person following his acquittal for
robbery of the same bicycle from the same victim violated Virginia and
federal constitutional prohibitions against double jeopardy).
In a single-trial setting, the double jeopardy
doctrine does not bar the imposition of consecutive sentences for two
crimes arising out of the same criminal act “unless ․ the two
punishments are ․ for the same crime or one punishment is for a crime
which is a lesser[-]included offense of the other.” Coleman, 261 Va.
at 200, 539 S.E.2d at 734; see also Brown v. Ohio, 432 U.S. 161, 168,
97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977) (holding that “the
greater offense is ․ by definition the ‘same’ for purposes of double
jeopardy as any lesser offense included in it”). The test to be
applied to determine whether the consecutive sentences are for the
same or a lesser-included offense is “ ‘whether each [charged offense]
requires proof of a fact which the other does not.’ ” Coleman, 261
Va. at 200, 539 S.E.2d at 734 (emphasis added) (alteration in
original) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182);
see Brown, 432 U.S. at 166, 97 S.Ct. at 2225 (“The established test
for determining whether two offenses are sufficiently distinguishable
to permit the imposition of cumulative punishment was stated in
Blockburger ․”); cf. Taylor v. Commonwealth, 11 Va.App. 649, 652-53,
400 S.E.2d 794, 795-96 (1991) (holding that the determination whether
a crime is a necessarily included lesser offense of another crime “is
made by examining the elements of the crimes that must be proved in
order to sustain a conviction”). “ ‘This test emphasizes the elements
of the two crimes. “If each requires proof of a fact that the other
does not, the Blockburger test is satisfied․” ’ ” Harrison v.
Commonwealth, 220 Va. 188, 193, 257 S.E.2d 777, 780 (1979) (quoting
Brown, 432 U.S. at 166, 97 S.Ct. at 2226 (quoting Iannelli v. United
States, 420 U.S. 770, 786 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d
616 (1975))). “[I]f not, [the crimes] are the ‘same offense’ and [the
constitutional guarantee against] double jeopardy bars additional
punishment․” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct.
2849, 125 L.Ed.2d 556 (1993). “In applying the Blockburger test, we
look at the offenses charged in the abstract, without referring to the
particular facts of the case under review.” Coleman, 261 Va. at 200,
539 S.E.2d at 734.
Hence, we must determine whether the offenses of
murder and conspiracy for which appellant was charged in this case
each requires proof of a fact that the other does not. For purposes
of this analysis, we will assume, without deciding, that the finding
instruction for first-degree murder given in this case constitutes the
law of the case and, thus, sets forth the elements of the charged
offense of murder, as appellant claims. Looking at the legal
elements of the charged offenses without regard to the facts of the
case, it is clear that the charged offense of first-degree murder
requires proof of a fact that the charged offense of conspiracy to
commit murder does not. The murder offense requires proof that the
victim was killed. See Ramsey v. Commonwealth, 2 Va.App. 265,
271-72, 343 S.E.2d 465, 470 (1986) (“In order to find a person guilty
as an accessory ․ to a felony, the Commonwealth must prove the
commission of the felony.”). The conspiracy offense does not. See
id. at 272, 343 S.E.2d at 470 (“Proof of the commission of a felony is
not a necessary element of the crime of conspiracy to commit a
felony․”). The crucial question remains, however, whether the charged
offense of conspiracy to commit murder requires proof of a fact that
the charged offense of first-degree murder does not.
As previously noted, appellant maintains that the
effective incorporation of the charged conspiracy-to-commit-murder
offense into the finding instruction for murder renders the charged
conspiracy a lesser-included offense of the charged murder. Thus,
appellant concludes, the two crimes are the “same offense” for double
In making this argument, however, appellant focuses
solely on the fact that the finding instruction for murder permits the
jury to find appellant guilty of first-degree murder if the
Commonwealth proves appellant “conspired with ․ Hulbert in the
commission of the killing.” In doing so, appellant ignores the other
language in the same prong of the finding instruction, which plainly
indicates that proof by the Commonwealth of a conspiracy between
appellant and Hulbert to commit murder is but one of two alternative
means of establishing appellant's guilt with respect to the charged
murder. Indeed, in view of the finding instruction's provision that
the Commonwealth must prove that appellant either “acted as an
accessory before the fact or conspired with ․ Hulbert in the
commission of the killing” (emphasis added), it is clear that proof of
the referenced conspiracy is not the sole basis upon which appellant's
liability as an accomplice in the murder could rest. Proof that
appellant participated in the murder as an accessory before the fact
would also suffice to establish appellant's guilt. Hence, we cannot
say, viewing the applicable legal elements of murder in the abstract,
that proof of the referenced conspiracy is “required” in this context
to prove the charged murder. See Coleman, 261 Va. at 200, 539 S.E.2d
at 734 (holding that, in the context of a Blockburger double jeopardy
analysis, “proof of the specific intent to kill” is not “required” in
a malicious wounding case because Code § 18.2-51-which requires proof
that the accused had “the intent to maim, disfigure, disable, or
kill”-uses the disjunctive “or” in its description of the required
intent for that offense); cf. Taylor, 11 Va.App. at 653, 400 S.E.2d
at 796 (“Even if one offense is committed in [some] cases of the
commission of another offense, it is not a necessarily included lesser
offense of the other one.”). Thus, although incorporated into the
finding instruction for murder, the charged offense of conspiracy to
commit murder is not an element that must be proven to sustain the
It follows, therefore, that the charged conspiracy
offense requires proof of a fact the charged murder offense does not.
“[C]onspiracy to commit murder requires proof of an agreement.”
Stevens v. Commonwealth, 14 Va.App. 238, 242, 415 S.E.2d 881, 884
(1992). Conversely, to be convicted as an accessory before the fact,
one must “incite[ ], advise [ ], or abet[ ] others in the commission
of the crime” without being “present at the commission of the
offense.” Tolley v. Commonwealth, 216 Va. 341, 348, 218 S.E.2d 550,
555 (1975). Plainly, it is possible to incite, advise, or abet in
the commission of a crime without at the same time having agreed to
commit such crime. As the United States Supreme Court has stated,
“[a]iding, abetting, and counseling are not terms which presuppose the
existence of an agreement. Those terms have a broader application,
making the defendant a principal when he consciously shares in a
criminal act, regardless of the existence of a conspiracy.” Pereira,
347 U.S. at 11, 74 S.Ct. at 364. Thus, murder, even when committed
as an accessory before the fact, does not require proof of an
agreement. See also Ramsey, 2 Va.App. at 272, 343 S.E.2d at 470
(holding that “proof of an ‘agreement’ to commit a felony is not a
necessary element in a conviction for the commission of the felony”).
Because the charged murder and conspiracy offenses
each require proof of a fact that the other does not, the Blockburger
test is satisfied. Consequently, the charged offenses do not
constitute the “same offense” for purposes of double jeopardy, and the
imposition of consecutive sentences for appellant's convictions of
those offenses does not violate the constitutional guarantee against
V. WHARTON'S RULE
Appellant also contends that Wharton's Rule
operates to bar her conviction and punishment under Code § 18.2-22 for
conspiracy to commit murder. Thus, she concludes, the trial court
erred in denying her motion to have the conspiracy conviction set
aside and the charge dismissed. We disagree.
Wharton's Rule is a judicially created “doctrine of
criminal law enunciating an exception to the general principle that a
conspiracy and the substantive offense that is its immediate end are
discrete crimes for which separate sanctions may be imposed.”
Iannelli, 420 U.S. at 771, 95 S.Ct. at 1287. See generally Boyd,
236 Va. at 351, 374 S.E.2d at 303 (articulating the current law in
Virginia that convictions may be had in a single trial for “both the
completed substantive offense and the underlying conspiracy”). Under
the rule, “[w]hen to the idea of an offense plurality of agents is
logically necessary, conspiracy [to commit that offense] ․ cannot be
maintained.” Stewart v. Commonwealth, 225 Va. 473, 478, 303 S.E.2d
877, 879 (1983) (holding that Wharton's Rule applies to the crime of
pandering) (quoting 2 F. Wharton, Criminal Law § 1604, at 1862 (12th
ed.1932)). In other words, Wharton's Rule precludes conviction for
both the substantive offense and the conspiracy to commit that offense
when the substantive offense “is of such a nature as to necessarily
require the participation of two persons for its commission.” 9
Iannelli, 420 U.S. at 774 n. 5, 95 S.Ct. at 1288 n. 5, (emphasis
added) (quoting 1 R. Anderson, Wharton's Criminal Law and Procedure
§ 89, at 191 (1957)); see also Gebardi v. United States, 287 U.S.
112, 122, 53 S.Ct. 35, 37-38, 77 L.Ed. 206 (1932) (holding, with
respect to the application of Wharton's Rule, that, “where it is
impossible under any circumstances to commit the substantive offense
without cooperative action, the preliminary agreement between the same
parties to commit the offense is not an indictable conspiracy”).
Thus, “[a]pplication of the rule is dependent upon a showing that the
commission of the substantive offense[ ] requires the participation of
two people; the fact that two or more people combine to commit an
offense that could be committed by only one person does not invoke
application of the rule.” Ramsey, 2 Va.App. at 272, 343 S.E.2d at
470; see also Costello, supra, at 225 (“Simply put, if the
substantive offense can be committed by one person acting alone,
Wharton's Rule does not apply.”); LaFave, supra, § 6.5(g)(4), at 610
(“The rule does not apply when the offense could be committed by one
of the conspirators alone, nor even when cooperation was a practical
but not logical necessity.” (footnote omitted)).
It is clear that conspiracy to commit murder and
the substantive offense of murder are discrete crimes to which
Wharton's Rule does not ordinarily apply to bar the imposition of
cumulative sentences. Unlike the crime of pandering and the “classic
Wharton's Rule offenses-crimes such as adultery, incest, bigamy,
dueling”-which, by their nature, necessarily require the participation
of two persons for their commission, murder obviously can be committed
by one person acting alone. Stewart, 225 Va. at 478, 303 S.E.2d at
879. Thus, “separate sanctions may be imposed” at a single trial for
both murder and conspiracy to commit murder. Iannelli, 420 U.S. at
771, 95 S.Ct. at 1287; see Ramsey, 2 Va.App. at 272, 343 S.E.2d at
470 (holding that, under Wharton's Rule, the defendant's convictions
of forgery and uttering as a principal in the second degree did not
preclude her conviction of conspiracy to commit uttering); Boyd, 236
Va. at 351, 374 S.E.2d at 303 (permitting the “conviction of both the
completed substantive offense and the underlying conspiracy” if the
convictions occur at the same trial).
Appellant asserts, however, that Wharton's Rule
precludes her conviction for conspiracy to commit murder because her
murder conviction was based solely on her participation in the
commission of the murder as an accessory before the fact or
co-conspirator. By definition, she argues, a crime the conviction of
which is based solely on a theory of accomplice liability necessarily
requires the participation of at least two persons for its commission.
Thus, she argues, she may not properly be convicted and punished for
both the charged murder and the charged conspiracy to commit murder.
Although seemingly meritorious at first blush,
appellant's argument ultimately fails for two fundamental reasons.
First, appellant's reliance on the fact that she was convicted of
murder under a theory of accomplice liability is misplaced in this
context. As we implicitly held in Ramsey, in determining whether
Wharton's Rule applies to a substantive offense the conviction of
which is based on accomplice liability, the focus must be on the
underlying criminal act of the particular substantive offense rather
than on the accomplice aspect of the offense. 2 Va.App. at 272, 343
S.E.2d at 470. The accompliceship itself is not the completed
criminal act upon which the conviction is based but simply the means
by which criminal responsibility for the completed criminal act is
incurred under Code § 18.2-18. See Snyder v. Commonwealth, 202 Va.
1009, 1017, 121 S.E.2d 452, 458 (1961) (holding that “before the
accessory to a crime can be convicted as such, it must be shown that
the crime has been committed by the principal”). Thus, the
accomplice aspect of the substantive crime reflects the accused's
participation in the crime and serves as the basis of the accused's
criminal liability for that crime but does not constitute the
substantive crime itself. Here, the substantive offense is murder, a
crime which, as noted, can logically be committed by one person.
Second, Wharton's Rule “has continued vitality only
as a judicial presumption, to be applied in the absence of legislative
intent to the contrary.” Iannelli, 420 U.S. at 782, 95 S.Ct. at 1292.
As alluded to earlier, our Supreme Court held in Boyd, in 1988, that
the legislature did not intend, in enacting Code § 18.2-23.1, to
“prohibit ․ conviction of both the completed substantive offense and
the underlying conspiracy, provided the convictions occurred, as here,
in a single trial.” 236 Va. at 351, 374 S.E.2d at 303. Thus, upon
completion of the substantive crime, the crime's actual perpetrator
may be convicted and punished at the same trial for both the
substantive crime and the underlying conspiracy. Additionally, Code
§ 18.2-18 provides that “every principal in the second degree and
every accessory before the fact may be indicted, tried, convicted and
punished in all respects as if a principal in the first degree.” The
statute's purpose is to ensure that any person who participates as an
accomplice in a substantive crime is equally accountable and subject
to the same punishment as the actual perpetrator of the crime. See
Charlton v. Commonwealth, 32 Va.App. 47, 52, 526 S.E.2d 289, 292
(2000) (holding that Code § 18.2-18 “direct[s] that an accessory
before the fact is accountable in all respects as the principal who
carries out the intended crime, as well as any of its natural,
probable, and incidental crimes”). It is clear, therefore, from the
legislature's silent approval of the Supreme Court's decision in Boyd
over the years and its enactment of Code § 18.2-18 that the
legislature intends that an accomplice's participation in the
completed substantive crime and the underlying conspiracy be
treated-like the principal in the first degree's participation in
those crimes-as discrete offenses for which separate convictions and
punishments may be imposed in a single-trial setting. Indeed, to
provide that a principal in the first degree may be separately
punished for the underlying conspiracy but an accomplice to the crime
may not would be to disallow the imposition of the same punishment on
accomplices and principals in the first degree and would be contrary
to Code § 18.2-18's mandate that such defendants may be punished
equally. Hence, application of Wharton's Rule in this instance, as
appellant urges, would be in direct contravention of “legislative
intent to the contrary.” Iannelli, 420 U.S. at 782, 95 S.Ct. at 1292.
Consequently, we hold that Wharton's Rule does not
apply here to relieve appellant of the imposition of punishment for
her conviction of the charged offense of conspiracy to commit murder.
VI. EVIDENCE REGARDING HULBERT'S MENTAL STATE
Appellant contends the trial court erred in
excluding Dr. Deem's potentially exculpatory testimony at trial
regarding Hulbert's mental state at the time of the offense and in
quashing portions of her subpoena duces tecum seeking potentially
exculpatory documentation from Dr. Deem and Loudoun County Mental
Health Center regarding Hulbert's mental state at the time of the
offense. She asserts that Hulbert's mental condition at the time of
the offense formed an important part of her defense because Hulbert
misperceived her intentions and did not possess the mental capacity to
enter into a conspiracy. Thus, appellant argues, by limiting her
access to such testimonial and documentary evidence, the trial court
improperly “abridged her right to call for evidence and present a
defense.” We disagree.
As noted above, after Hulbert was charged with the
murder of appellant's father, the trial court directed that a mental
evaluation be performed pursuant to Code § 19.2-169.5 by the Loudoun
County Mental Health Center to determine Hulbert's sanity at the time
of the offense and to assist Hulbert's counsel in preparing his
criminal defense, including providing mental health treatment to
Hulbert if necessary. Dr. Deem, a clinical psychologist with Loudoun
County Mental Health Center, performed the ordered mental evaluation,
and other personnel at Loudoun County Mental Health Center provided
the ordered mental health treatment.
When appellant requested the issuance of a subpoena
duces tecum to Dr. Deem for production of certain “documents relied
upon by Loudoun County Mental Health Center in the formation of
opinions or reports regarding the mental health of Kyle Hulbert,”
Hulbert's attorney filed a motion to quash the requested subpoena,
asserting that the material was protected by the attorney-client
privilege under Code § 19.2-169.5(E). The trial court granted the
motion to quash with respect to Dr. Deem's notes of his interviews
with third parties and the Loudoun County Mental Health Center's
treatment notes, finding those documents were protected under the
attorney-client privilege because “Dr. Deem was an indispensable agent
of [Hulbert's] attorney.”
At trial, when appellant called Dr. Deem as a
witness, Hulbert's counsel objected to any testimony by Dr. Deem
relating to Hulbert's mental state on the grounds of attorney-client
privilege. Appellant's counsel proffered that he would ask Dr. Deem
to give an opinion as to Hulbert's mental health.10
The trial court sustained the objection of Hulbert's counsel, and Dr.
Deem did not testify.
On appeal, as below, the parties agree that the
court-ordered report prepared by Dr. Deem pursuant to Code
§ 19.2-169.5 is protected from disclosure under the attorney-client
privilege established in subsection E of the statute. They further
agree that Hulbert's statements to Dr. Deem, as the agent of Hulbert's
attorney, are also protected under the attorney-client privilege.
They disagree, however, as to whether Dr. Deem's conclusions
concerning Hulbert's mental state at the time of the offense, Dr.
Deem's notes of his interviews with third parties that he conducted in
the course of his evaluation of Hulbert's mental condition, and the
Loudoun County Mental Health Center's treatment notes are similarly
protected. The Commonwealth asserts they are so protected. Appellant
claims that those conclusions and documents are not protected and that
the trial court erred in denying her access to them. The dispositive
question before us, then, is threefold: whether the attorney-client
privilege set forth in Code § 19.2-169.5 operates to thwart
appellant's access to (1) Dr. Deem's testimony regarding Hulbert's
mental state, (2) Dr. Deem's notes of his interviews with third
parties regarding Hulbert's mental state, and (3) the treatment notes
of the Loudoun County Mental Health Center regarding Hulbert's mental
state. As the resolution of these issues is interrelated and
interdependent, we will address them together.
“The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed on
appeal in the absence of an abuse of discretion.” James v.
Commonwealth, 18 Va.App. 746, 753, 446 S.E.2d 900, 904 (1994).
Furthermore, we review a trial court's decision regarding a motion to
quash the issuance of a subpoena duces tecum “under an abuse of
discretion standard.” America Online, Inc. v. Anonymous Publicly
Traded Co., 261 Va. 350, 359, 542 S.E.2d 377, 382 (2001); see also
O'Brian v. Langley School, 256 Va. 547, 552, 507 S.E.2d 363, 366
(1998) (noting that, “generally, the granting or denying of discovery
is a matter within the discretion of the trial court”). “By
definition, when the trial court makes an error of law, an abuse of
discretion occurs.” Bass v. Commonwealth, 31 Va.App. 373, 382, 523
S.E.2d 534, 539 (2000).
Under basic rules of statutory construction, we
examine a statute in its entirety, rather than by isolating particular
words or phrases. When the language in a statute is clear and
unambiguous, we are bound by the plain meaning of that language. We
must determine the General Assembly's intent from the words appearing
in the statute, unless a literal construction of the statute would
yield an absurd result.
Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d
494, 496 (2001) (citations omitted).
Code § 19.2-169.5 governs the resolution of this
issue. Code § 19.2-169.5(A) requires the appointment of “one or more
qualified mental health experts” to assist an indigent defendant who
has shown before trial that his sanity at the time of the offense is
likely to be “a significant factor in his defense.” The appointed
mental health experts are to evaluate the defendant's mental state at
the time of the offense and, if appropriate, “assist in the
development of an insanity defense.” Code § 19.2-169.5(A).
Additionally, pursuant to Code § 19.2-169.5(D), the mental health
experts are to prepare a “full report” concerning the defendant's
mental condition at the time of the offense. Code § 19.2-169.5(E)
provides as follows:
Disclosure of evaluation results.-The report
described in subsection D shall be sent solely to the attorney for the
defendant and shall be deemed to be protected by the lawyer-client
privilege. However, the Commonwealth shall be given the report, the
results of any other evaluation of the defendant's sanity at the time
of the offense, and copies of psychiatric, psychological, medical, or
other records obtained during the course of any such evaluation, after
the attorney for the defendant gives notice of an intent to present
psychiatric or psychological evidence pursuant to § 19.2-168.
The statute clearly provides that the results of
the mental health evaluation performed pursuant to the statute will
not be disclosed to anyone except defense counsel until the defendant
gives notice of his intent to present expert evidence at trial on the
issue of his insanity at the time of the offense. In the meantime,
those results are fully protected under the attorney-client privilege.
Thus, absent a waiver of that privilege by the defendant, neither
the Commonwealth nor any other party other than the defendant is
entitled to receive the evaluation results unless and until the
defendant gives notice that he will assert an insanity defense.
Similarly, the statute provides that the Commonwealth is not entitled
to receive the results of other evaluations of the defendant's sanity
at the time of the offense and the records associated therewith until
notice of the defendant's intention to present evidence of insanity
has been given. It necessarily follows, therefore, as a matter of
logic, that, under the statute, the Commonwealth likewise may not
receive the psychiatric, psychological, medical, or other records
produced by the mental health experts during the course of the
evaluation and the defense-related treatment ordered under Code
§ 19.2-169.5(A) and the preparation of the report ordered under Code
§ 19.2-169.5(D) until after the defendant has given notice that he
will assert an insanity defense.
To construe Code § 19.2-169.5 as meaning otherwise
would improperly lead to the absurd results of (1) prohibiting the
Commonwealth from receiving the records obtained during other mental
health evaluations of the defendant's mental state at the time of the
offense until a notice of insanity defense is filed but allowing the
Commonwealth access to the underlying records produced by the mental
health experts performing the ordered evaluation under Code
§ 19.2-169.5 before such notice is given and (2) protecting the
results of the ordered evaluation from disclosure until notice is
given by the defense pursuant to Code § 19.2-168 while allowing
pre-notice discovery of the records upon which those results were
based and from which those results could be directly or indirectly
deduced. See generally Cook v. Commonwealth, 268 Va. 111, 116, 597
S.E.2d 84, 87 (2004) (noting that “our case law uses the phrase
‘absurd result’ to describe situations in which the law would be
internally inconsistent”). Accordingly, we hold that the
psychiatric, psychological, medical, and other records produced by the
mental health experts appointed under Code § 19.2-169.5 in the course
of fulfilling their court-ordered responsibilities under Code
19.2-169.5 are protected under that statute from being disclosed to
the Commonwealth until the defendant gives notice pursuant to Code
Our Supreme Court has described the attorney-client
privilege as follows:
Confidential communications between attorney and
client made because of that relationship and concerning the subject
matter of the attorney's employment “are privileged from disclosure,
even for the purpose of administering justice.” The privilege
attaches to communications of the client made to the attorney's agents
․ when such agent's services are indispensable to the attorney's
effective representation of the client. Nevertheless, the privilege
is an exception to the general duty to disclose, is an obstacle to
investigation of the truth, and should be strictly construed.
Commonwealth v. Edwards, 235 Va. 499, 508-09, 370
S.E.2d 296, 301 (1988) (citations omitted) (quoting Grant v. Harris,
116 Va. 642, 648, 82 S.E. 718, 719 (1914)). It is clear that, in
providing in Code § 19.2-169.5(D) that the evaluation results,
although not communications by the client to counsel's agent, are to
be protected under the attorney-client privilege, the legislature
recognizes that the services of the mental health experts appointed
pursuant to Code § 19.2-169.5(A) are indispensable to defense
counsel's effective representation of the client.
Indeed, the absence of such protection would have a
chilling effect on the information the appointed experts could obtain
from the client during their evaluation and treatment in preparation
of the defendant's case, since a defendant would be reluctant to speak
candidly to a mental health expert who could be called as an
exculpatory witness in the trial of an alleged accomplice with adverse
interests even though no notice of insanity defense had been given by
the defendant or whose notes could be made immediately available to
the Commonwealth. As our Supreme Court has observed,
[c]ommunications between lawyer and client are
privileged to the end that the client be free to make a full, complete
and accurate disclosure of all facts, unencumbered by fear that such
true disclosure will be used or divulged by his attorney, and without
fear of disclosure by any legal process.
Seventh Dist. Comm. v. Gunter, 212 Va. 278, 286-87,
183 S.E.2d 713, 719 (1971) (emphasis added).
Here, Hulbert had not given any notice of his
intent to assert an insanity defense when the trial court ruled on
appellant's request for access to Dr. Deem's notes of his interviews
with third parties regarding Hulbert's mental state and the Loudoun
County Mental Health Center's treatment notes or when appellant called
Dr. Deem as a witness at her trial.11
Thus, Hulbert had not waived his statutorily provided attorney-client
privilege protecting the results of his mental health evaluation under
Code § 19.2-169.5. Consequently, under Code § 19.2-169.5(E), those
results were not to be made available to anyone other than Hulbert's
counsel and the Commonwealth was not entitled to receive the records
produced by Dr. Deem and the Loudoun County Mental Health Center
during the course of their court-ordered evaluation and treatment of
Hulbert's mental condition under Code § 19.2-169.5.
As noted, when Dr. Deem was called to testify,
appellant's counsel specifically represented that he would ask Dr.
Deem to give his opinion regarding Hulbert's mental state at the time
of the offense. As that opinion would reveal the results of
Hulbert's mental health evaluation performed by Dr. Deem pursuant to
Code § 19.2-169.5, the trial court properly excluded Dr. Deem's
testimony. Likewise, the trial court properly denied appellant's
access to Dr. Deem's notes of his interviews with third parties
regarding Hulbert's mental state and the Loudoun County Mental Health
Center's treatment notes because the Commonwealth would have had
access to those documents if they were released to appellant. See
Rule 3A:12(b) (“Any subpoenaed writings and objects, regardless by
whom requested, shall be available for examination and review by all
parties and counsel.”).
Accordingly, we hold that, contrary to appellant's
claim, the trial court did not abuse its discretion in denying
appellant access to Dr. Deem's testimony and notes and the Loudoun
County Mental Health Center's notes.
For these reasons, we affirm the judgment of the
trial court and appellant's convictions.
editions of Black's Law Dictionary do not include the word “sickness”
as a discrete entry.
Sixth Amendment of the United States Constitution provides, in
relevant part, that “[i]n all criminal prosecutions the accused shall
enjoy the right to ․ be informed of the nature and cause of the
accusation.” Article I, Section 8 of the Virginia Constitution
provides that “in all criminal prosecutions a man hath the right to
demand the cause and nature of his accusation.”
§ 19.2-221 provides, in pertinent part, as follows:While any form of ․
indictment ․ which informs the accused of the nature and cause of the
accusation against him shall be good the following shall be deemed
sufficient for murder and manslaughter:Commonwealth of Virginia ․
county (or city) to-wit: The grand jurors of the Commonwealth of
Virginia, in and for the body of the county (or city) of ․, upon their
oaths present that A ․ B ․, on the ․ day of ․, 20 ․, in the county (or
city) of ․ feloniously did kill and murder one C ․ D ․ against the
peace and dignity of the Commonwealth.
4. It is
worth noting, given appellant's claim that she was unaware she would
be prosecuted on count one of the indictment under an
accessory-before-the-fact theory, that, throughout the entire trial,
appellant defended the murder charge by claiming she did not intend
for Hulbert to kill her father or know that he would actually do so.
“An accessory before the fact is an individual who must ‘know or have
reason to know of the principal's criminal intention and must intend
to encourage, incite, or aid the principal's commission of the
crime.’ ” Smith v. Commonwealth, 33 Va.App. 65, 70, 531 S.E.2d 608,
610 (2000) (quoting McGhee v. Commonwealth, 221 Va. 422, 427, 270
S.E.2d 729, 732 (1980)).
§ 18.2-18 provides in its entirety as follows:In the case of every
felony, every principal in the second degree and every accessory
before the fact may be indicted, tried, convicted and punished in all
respects as if a principal in the first degree; provided, however,
that except in the case of a killing for hire under the provisions of
subdivision 2 of § 18.2-31 or a killing pursuant to the direction or
order of one who is engaged in a continuing criminal enterprise under
the provisions of subdivision 10 of § 18.2-31 or a killing pursuant to
the direction or order of one who is engaged in the commission of or
attempted commission of an act of terrorism under the provisions of
subdivision 13 of § 18.2-31, an accessory before the fact or principal
in the second degree to a capital murder shall be indicted, tried,
convicted and punished as though the offense were murder in the first
§ 18.2-22, entitled “Conspiracy to commit felony,” provides, in
pertinent part, as follows:(a) If any person shall conspire,
confederate or combine with another, either within or without this
Commonwealth, to commit a felony within this Commonwealth, or if he
shall so conspire, confederate or combine with another within this
Commonwealth to commit a felony either within or without this
Commonwealth, he shall be guilty of a felony which shall be punishable
as follows:(1) Every person who so conspires to commit an offense
which is punishable by death shall be guilty of a Class 3
felony;(2) Every person who so conspires to commit an offense which is
a noncapital felony shall be guilty of a Class 5 felony; and(3) Every
person who so conspires to commit an offense the maximum punishment
for which is confinement in a state correctional facility for a period
of less than five years shall be confined in a state correctional
facility for a period of one year, or, in the discretion of the jury
or the court trying the case without a jury, may be confined in jail
not exceeding twelve months and fined not exceeding $500, either or
§ 18.2-300 provides as follows:A. Possession or use of a “sawed-off”
shotgun or “sawed-off” rifle in the perpetration or attempted
perpetration of a crime of violence is a Class 2 felony.B. Possession
or use of a “sawed-off” shotgun or “sawed-off” rifle for any other
purpose, except as permitted by this article and official use by those
persons permitted possession by § 18.2-303, is a Class 4 felony.
immaterial to the issue before us, it should be noted that, as the
Commonwealth points out in its appellate brief, there is, in Virginia,
no such crime as murder in the course of a conspiracy.
those cases,” one commentator has explained, “participation by two
people ․ is already indicated, so the social harm of a criminal
combination has already been realized and punishment for conspiracy to
do the same act would be an unfair doubling.” John L. Costello,
Virginia Criminal Law and Procedure § 17.3, at 224 (3d ed.2002).
further argues in her brief, as an aside, that the trial court's
denial of her request to allow a proffer for the record of Dr. Deem's
specific answers to her questions constitutes an independent ground
for reversal. Because this issue was not presented in a “Question
Presented” for which an appeal was granted, we do not address it here.
See Parker v. Commonwealth, 42 Va.App. 358, 373, 592 S.E.2d 358, 366
(2004) (recognizing that we will only consider “those arguments
presented in the petition for appeal and granted by this Court”).
had not yet been tried. Indeed, the Commonwealth reports on appeal
that Hulbert never asserted an insanity defense but was instead
convicted of murder on his plea of guilty.