2.6 Specific Subsections of

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

2.6 SPECIFIC SUBSECTIONS OF SECTION 18.2-31

2.601 Abduction: Section 18.2-31(1). "The willful, deliberate, and premeditated killing of any person in the commission of abduction, as defined in § 18.2-48, when such abduction was committed with the intent to extort money or a pecuniary benefit or with the intent to defile the victim of such abduction."

A. Abduction. Section 18.2-31(1) refers to abduction as defined in section 18.2-48, which in turn depends upon the existence of an abduction as defined in section 18.2-47. A section 18.2-47 abduction can occur in two ways—first, by conduct directed at the abductee, and second, by conduct directed at the lawful custodian of the abductee.

In order to violate section 18.2-47 by conduct directed at the abductee, the defendant must use force, intimidation, or deception. Force or

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intimidation means actual physical violence or a threat thereof. ⁹² Deception means some trick or artifice that causes the victim to accompany or remain with the defendant. ⁹³ The victim, by means of the force, intimidation, or deception, must be seized, taken, transported, detained, or secreted. Asportation (moving the victim from one place to another) is a sufficient act under section 18.2-47, ⁹⁴ and more than momentary detention without asportation is also sufficient. ⁹⁵ The asportation or detention must be done with an intent to deprive the victim of liberty. When a momentary detention is a necessary part of another criminal act, such as rape or robbery, the perpetrator has committed either abduction by detention or the other felony. If, however, the detention "is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime," the perpetrator has committed both abduction by detention and the other crime. ⁹⁶ For example, in Hoke v. Commonwealth, ⁹⁷ the perpetrator bound and gagged his victim and also raped and robbed her. Because the detention was greater than that inherent in rape or robbery, conviction for abduction by detention was distinct from the convictions for rape and robbery. Powell v. Commonwealth⁹⁸ recognized that "restraint is not a necessary element of homicide"; thus, restraint beyond that necessary to accomplish rape and murder justified conviction for abduction.

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Section 18.2-47 also can be violated by conduct directed at a lawful custodian of the abductee. In such a case, (i) the force, intimidation, or deception must be directed against the custodian, (ii) the abductee must be taken from, secreted from, or transported away from the custodian, and (iii) the defendant must intend to deprive the custodian of lawful custody. ⁹⁹

The 2009 General Assembly expanded the definition of abduction to include abduction with intent to subject the person to forced labor or services. "For purposes of this subsection, the term 'intimidation' shall include destroying, concealing, confiscating, withholding, or threatening to withhold a passport, immigration document, or other governmental identification or threatening to report another as being illegally present in the United States." ¹⁰⁰

B. Aggravated Abduction. Although the felony murder statute "makes no distinction between the various types of abduction," the capital murder statute "limits the predicate abduction offense to Code § 18.2-48." ¹⁰¹ Once a section 18.2-47 abduction has been established, it becomes a section 18.2-48 abduction only if one or more of five aggravating factors exists: (i) intent to extort money or pecuniary benefit; (ii) intent to defile the abductee; (iii) abduction of a child under 16 years of age for purposes of concubinage or prostitution; (iv) abduction of any person for the purpose of prostitution; or (v) abduction of any minor for the purpose of manufacturing child pornography. For purposes of section 18.2-31(1), however, only the first two forms of aggravated abduction can constitute capital murder.

In Chabrol v. Commonwealth, ¹⁰² the defendant pled guilty to abduction with intent to defile and to capital murder in violation of section 18.2-31(5) (murder in the commission of rape). At the time of trial, abduction with intent to defile had not been added to section 18.2-31(1), but under present law the defendant in Chabrol could have been charged with capital murder

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during the commission of abduction with intent to defile. "Intent to defile" means "intent to sexually molest," ¹⁰³ which clearly includes penile-vaginal intercourse and oral sodomy, and probably includes other forms of sodomy and inanimate-object sexual penetration. Only the intent to defile must be proven—the intended sexual act need not be consummated. ¹⁰⁴ For the intent-to-defile aggravating factor to be applicable, the intent, by the terms of section 18.2-31(1), must be directed toward the victim of the abduction.

In Swisher v. Commonwealth, ¹⁰⁵ the Virginia Supreme Court rejected the defendant's argument that the term "intent to defile" fails to inform the defendant or any person of ordinary intelligence of what conduct will subject the defendant to a death sentence through commission of capital murder.The court stated that the phrase "to defile" is interchangeable with the phrase "sexually molest" and would be so understood by a person of ordinary intelligence.

Noncapital cases involving an "intent to extort money or a pecuniary benefit" have given the term a broad meaning. Extorting a pecuniary benefit includes extorting the cancellation of a debt, ¹⁰⁶ extorting the collection of a debt, ¹⁰⁷ or even extortion of a free ride. ¹⁰⁸ It also includes using the seized person to facilitate a robbery ¹⁰⁹ or taking a hostage to facilitate escape with stolen money. ¹¹⁰

2.602 Murder for Hire: Section 18.2-31(2). "The willful, deliberate, and premeditated killing of any person by another for hire."

A. Principal and Accessory. The "triggerman" rule discussed in paragraph 2.5 is an exception to the general rule that every principal in the second degree and every accessory before the fact may be punished as a principal in the first degree. Murder for hire is an exception to the exception, ¹¹¹

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thus authorizing imposition of the death penalty on someone other than the triggerman. In the simplest case, A hires B to kill C and B does so while A is not actually or constructively present. Both A and B can be "indicted, tried, convicted and punished" as principals in the first degree to capital murder for hire. ¹¹²

Williams v. Commonwealth¹¹³ noted that, as of 1996, there were five murder-for-hire cases in which the death penalty was imposed, while life sentences were imposed in eleven murder-for-hire cases.

B. "For Hire." The phrase "for hire" has not been construed by Virginia courts. The facts of the reported cases have involved specific monetary payments ¹¹⁴ or promises of sharing in the victim's life insurance proceeds. ¹¹⁵ The phrase "for hire" seems to require the payment of money or something reducible to a monetary value. For example, if a woman were to induce her boyfriend to kill her husband, promising in return to marry the boyfriend, there is no murder for hire.

In an attempted capital murder for hire case, the Court of Appeals held that "[h]iring a hit man is an overt act in furtherance of murder for hire, and it is an essential element of the offense. . . . Where a defendant has done everything possible to effectuate the murder, the hired killer's inaction is no bar to a conviction." ¹¹⁶ The Court of Appeals also held that "solicitation to commit murder is not a lesser-included offense of attempted capital murder for hire and the two offenses are not the 'same offense' for purposes of double jeopardy." ¹¹⁷

In Teleguz v. Commonwealth, ¹¹⁸ the Virginia Supreme Court noted that in determining vileness it may be "an open question" as to whether the acts committed by the actual murderer can be imputed to the "mastermind"

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who hired the perpetrator. Nonetheless, the court found sufficient evidence of vileness in the mastermind's own actions of selecting the murder weapon and directing the actual manner of the murder—cutting the victim's throat.

2.603 Murder by Prisoner: Section 18.2-31(3). "The willful, deliberate, and premeditated killing of any person by a prisoner confined in a state or local correctional facility as defined in § 53.1-1, or while in the custody of an employee thereof."

A. Prisoner. A case decided under an earlier statute referred to slaying by a "convict," which necessitated proof of the defendant's conviction. ¹¹⁹ That case seems inapplicable to the current statute, which includes confinement in "correctional facilities," where persons can be held in pretrial custody. The statute thus seems to require not proof of conviction but proof that the defendant was in some form of institutional confinement.

B. Correctional Facility. The defendant must be a prisoner in "a state or local correctional facility as defined in section 53.1-1." A "state correctional facility" is one operated by the Department of Corrections. A "local correctional facility" is one operated by a political subdivision. The definition of "local correctional facility" in section 53.1-1 specifically excludes "a lock-up." Community correctional facilities, such as halfway houses, are separately defined in section 53.1-1. A person assigned by the Department of Corrections to a halfway house, although he or she might be a prisoner, is not confined in a state or local correctional facility and is therefore not covered by the capital murder section.

C. Custody. Section 18.2-31(3) includes unconfined prisoners who are in the custody of an employee of a state or local correctional facility. The employee need not be the victim of the homicide, but the homicide must occur while the defendant is in the custody of the employee. The obvious cases are those in which a prisoner is being transported from jail to prison (in the custody of a deputy) or from prison...