# Brown v. Com.

> Supreme Court of Virginia · November 5, 2009 · 278 Va. 523

URL: https://www.frixlaw.com/law-library/cases/1058295

## Case

- **Court:** Supreme Court of Virginia
- **Decided:** November 5, 2009
- **Citations:** 278 Va. 523; 685 S.E.2d 43
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Barbara Milano Keenan
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1058295

## How later opinions describe it (automated extraction)

- finding that, because the defendant “put[] into operation” a high-speed chase, he was directly responsible for a victim’s death occurring in a collision with a police officer’s car
- finding that because defendant “put into operation” a high-speed chase, he was directly responsible for a victim’s death occurring in a collision with a police officer’s car
- rejecting superseding cause argument because the defendant’s actions in eluding the officer “put into operation” the high-speed chase that resulted in the innocent motorist’s death
- affirming conviction for involuntary manslaughter where the victim died when his vehicle was struck by a police officer’s vehicle during a high-speed pursuit of the defendant

## Opinion text

PRESENT: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette,
JJ., and Lacy, S.J.

DOUGLAS MICHAEL BROWN, JR.

v. Record No. 090013 OPINION BY
JUSTICE BARBARA MILANO KEENAN
November 5, 2009
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal from a defendant’s conviction for

involuntary manslaughter, we consider whether the evidence was

sufficient to establish that the defendant was a proximate cause

of the death of a driver who was killed when his car was struck

by a police cruiser during a high-speed chase to apprehend the

defendant.

Douglas Michael Brown, Jr. was convicted in a bench trial

in the Circuit Court of the City of Colonial Heights of leaving

the scene of an accident, in violation of Code § 46.2-894;

feloniously eluding a police officer, in violation of Code

§ 46.2-817(B); driving after having been declared an habitual

offender, second offense, in violation of Code § 46.2-357(B);

and involuntary manslaughter. In this appeal, we consider only

Brown’s involuntary manslaughter conviction, for which he was

sentenced to ten years’ imprisonment, with five years suspended.

The evidence at trial showed that Officer Mark Bowen of the

Chesterfield County Police Department was investigating the
scene of an automobile accident when he heard “squealing” tires

as a vehicle approached from around a corner. Officer Bowen

used his flashlight to signal to the driver, whom he later

identified as Brown, that he should stop the vehicle.

Brown stopped the vehicle at an intersection, and Officer

Bowen approached the driver’s side window. When Officer Bowen

directed Brown to move his vehicle to the side of the road,

Brown instead accelerated toward Officer Bowen. Brown’s vehicle

passed within five feet of Officer Bowen, and made the next

available turn onto Route 1 in a southbound direction.

Officer Avery James, II, of the Chesterfield County Police

Department, who was investigating the nearby accident, received

a radio dispatch from Bowen. Officer Bowen described the “van”

driven by Brown, and warned that Brown may be “a drunk driver.”

Officer James soon observed the van, which was traveling at a

speed of about 70 miles per hour in a 45 mile-per-hour zone. He

activated his police cruiser’s emergency lights and siren, and

began pursuing Brown’s vehicle.

The two vehicles traveled toward Colonial Heights at speeds

ranging between 80 and 110 miles per hour. The van weaved

abruptly through traffic, forcing Officer James to “take evasive

action” to avoid hitting other cars in the southbound lanes of

Route 1.

2
Another driver, Rhonda Watts, was traveling eastbound

toward Route 1 in Colonial Heights. When she entered the

intersection at Route 1, she saw a “big flash” and a “big

vehicle” move through the intersection in front of her. Officer

James’ police car followed behind that vehicle.

Officer James swerved to avoid hitting Watts’ vehicle, lost

control of his police car, and struck another car that was

approaching the intersection from the opposite direction. The

driver of the other car, James H. Sears, was killed in the

collision. The police later apprehended Brown.

Following his conviction in the circuit court, Brown

appealed only his involuntary manslaughter conviction to the

Court of Appeals. In an unpublished order, the Court of Appeals

affirmed Brown’s conviction, holding that the evidence was

sufficient to support the circuit court’s judgment. Brown v.

Commonwealth, Record No. 1274-08-2 (Nov. 25, 2008). The Court

held that Brown was criminally negligent and that because he

“set the course of events in motion” that resulted in the

collision, he proximately caused Sears’ death. Id., slip op. at

4. The Court also determined that “it was foreseeable that

there was an inherent risk that a police officer could lose

control of his vehicle while pursuing [Brown], posing a danger

to others.” Id. We awarded Brown this appeal.

3
Brown argues that his actions did not directly cause Sears’

death, but that Sears died solely because of Officer James’

decision to continue the high-speed chase into a populated area.

Brown asserts that despite his own actions in attempting to

elude the police, he is not criminally responsible for Sears’

death because it was not foreseeable that Officer James would

continue to chase Brown’s vehicle at the speeds involved. We

disagree with Brown’s arguments.

On appeal, we consider the evidence in the light most

favorable to the Commonwealth, the prevailing party in the

circuit court, and we accord the Commonwealth the benefit of all

reasonable inferences deducible from the evidence. Britt v.

Commonwealth, 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008); Jay

v. Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008);

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586

(2008). When a defendant challenges the sufficiency of the

evidence, we give the judgment of a circuit court sitting

without a jury the same weight as a jury verdict. Britt, 276

Va. at 573-74, 667 S.E.2d at 765; Tarpley v. Commonwealth, 261

Va. 251, 256, 542 S.E.2d 761, 763 (2001); Hickson v.

Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645 (1999). We

will affirm the circuit court’s judgment unless it is plainly

wrong or without evidence to support it. Code § 8.01-680;

Britt, 276 Va. at 574, 667 S.E.2d at 765; Jay, 275 Va. at 524,

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659 S.E.2d at 319; Bolden, 275 Va. at 148, 654 S.E.2d at 586;

Tarpley, 261 Va. at 256, 542 S.E.2d at 763.

The common law crime of involuntary manslaughter consists

of two elements: 1) the accidental killing of a person, contrary

to the intention of the parties; and 2) the death occurs during

the defendant’s performance of an unlawful but not felonious

act, or in the defendant’s improper execution of a lawful act.

West v. Director, Dep’t of Corrs., 273 Va. 56, 63-64, 639 S.E.2d

190, 195 (2007); Dowden v. Commonwealth, 260 Va. 459, 470, 536

S.E.2d 437, 443 (2000); Cable v. Commonwealth, 243 Va. 236, 240,

415 S.E.2d 218, 220 (1992). To constitute involuntary

manslaughter, the “improper” execution of a lawful act must

amount to an unlawful commission of that lawful act,

demonstrating criminal negligence. West, 273 Va. at 64, 639

S.E.2d at 195; Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v.

Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).

In cases involving the operation of a motor vehicle, we

generally have defined involuntary manslaughter as an accidental

killing that is proximately caused by criminal negligence

involving conduct “so gross, wanton, and culpable as to show a

reckless disregard of human life.” Greenway v. Commonwealth,

254 Va. 147, 154, 487 S.E.2d 224, 228 (1997) (quoting King v.

Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)); see

also Riley v. Commonwealth, 277 Va. 467, 483-84, 675 S.E.2d 168,

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177 (2009); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d

780, 784 (1984). Criminal negligence is judged according to an

objective standard and, thus, may be found when the defendant

either knew or should have known the probable consequences of

his acts. Riley, 277 Va. at 483-84, 675 S.E.2d at 177; see

Gallimore v. Commonwealth, 246 Va. 441, 445-46, 436 S.E.2d 421,

424 (1993); Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d

218, 220 (1992).

We also have defined criminal negligence with reference to

gross negligence. We have stated that gross negligence is

punishable as criminal negligence when acts of a wanton or

willful character, committed or omitted, show “a reckless or

indifferent disregard of the rights of others, under

circumstances reasonably calculated to produce injury, or which

make it not improbable that injury will be occasioned, and the

offender knows, or is charged with the knowledge of, the

probable result of his acts.” Riley, 277 Va. at 484, 675 S.E.2d

at 177 (quoting Cable, 243 Va. at 240, 415 S.E.2d at 220); see

also Bell v. Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675,

681 (1938). To convict a defendant of involuntary manslaughter

based on such acts of criminal negligence, the Commonwealth must

also prove that the defendant’s criminally negligent conduct was

a proximate cause of the victim’s death. Gallimore, 246 Va. at

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445-46, 436 S.E.2d at 424; Cable, 243 Va. at 240, 415 S.E.2d at

220; King, 217 Va. at 607, 231 S.E.2d at 316.

Established principles of proximate causation are

applicable in both civil and criminal cases. Robinson v.

Commonwealth, 274 Va. 45, 53, 645 S.E.2d 470, 474 (2007);

Gallimore, 246 Va. at 447, 436 S.E.2d at 425. A proximate cause

is “an act or omission that, in natural and continuous sequence

unbroken by a superseding cause, produces a particular event and

without which that event would not have occurred.” Williams v.

Joynes, 278 Va. 57, 62, 677 S.E.2d 261, 264 (2009); accord

Williams v. Le, 276 Va. 161, 167, 662 S.E.2d 73, 77 (2008); see

Coyle v. Commonwealth, 50 Va. App. 656, 666, 653 S.E.2d 291, 296

(2007). Because an event can have more than one proximate

cause, criminal liability can attach to each actor whose conduct

is a proximate cause unless the causal chain is broken by a

superseding act that becomes the sole cause of the death. See

Gallimore, 246 Va. at 447, 436 S.E.2d at 425; O’Connell v.

Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006).

When a defendant’s criminally negligent conduct “put[s]

into operation” an intervening cause of a death, the defendant

remains criminally responsible for that death. See Commonwealth

v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265-66 (1998);

Gallimore, 246 Va. at 447, 436 S.E.2d at 425. Thus, an

intervening cause of such death that is a probable consequence

7
of the defendant’s own conduct will not constitute a superseding

cause breaking the chain of proximate causation. See Gallimore,

246 Va. at 447, 436 S.E.2d at 425; Delawder v. Commonwealth, 214

Va. 55, 58, 196 S.E.2d 913, 915 (1973). In contrast, an

independent, intervening act that alone causes the victim’s

injury or death is recognized as a superseding cause that will

exempt the defendant from criminal responsibility for his or her

conduct. Hubbard v. Commonwealth, 243 Va. 1, 14, 413 S.E.2d

875, 882 (1992); O’Connell, 48 Va. App. at 728-29, 634 S.E.2d at

384; see Joynes, 278 Va. at 63, 677 S.E.2d at 264.

Applying these principles, we first observe that Brown has

not assigned error to the Court of Appeals’ holding that his

driving conduct was criminally negligent. Therefore, that

holding is binding on appeal, and we consider only the remaining

issue of proximate causation. ∗ See Rule 5:17(c); Ortiz v.

Commonwealth, 276 Va. 705, 713, 667 S.E.2d 751, 756 (2008). The

issue of proximate causation before us is whether Officer James’

actions were a superseding cause of Sears’ death, relieving

Brown of criminal responsibility for his driving conduct, or

∗
We also observe that Brown’s other convictions that are
not challenged in this appeal may qualify as unlawful acts for
purposes of an involuntary manslaughter analysis. However, we
need not consider them here, because the Court of Appeals based
its holding on Brown’s criminal negligence, which constitutes an
independent basis for involuntary manslaughter when accompanied
by proof of proximate causation. See Greenway, 254 Va. at 154,
487 S.E.2d at 228; King, 217 Va. at 607, 231 S.E.2d at 316.

8
whether Brown remains criminally responsible for his driving

conduct because he “put into operation” Officer James’ acts.

The record shows that Officer James acted in direct

response to Brown’s decision to flee from Officer Bowen, and to

Officer Bowen’s warning that Brown might be intoxicated. Brown

continued to drive at speeds reaching 110 miles per hour,

executing dangerous driving maneuvers, with full knowledge that

the police were chasing him. Based on these facts, Officer

James’ high-speed chase to apprehend Brown and Sears’ death were

a direct result of Brown’s reckless driving. See Gallimore, 246

Va. at 447, 436 S.E.2d at 425; Hubbard, 243 Va. at 14, 413

S.E.2d at 882; Delawder, 214 Va. at 57-58, 196 S.E.2d at 915.

Because Brown’s actions “put into operation” the high-speed

chase, Officer James’ intervening actions were not a superseding

cause that alone caused Sears’ death. See Joynes, 278 Va. at

63, 677 S.E.2d at 264-65; Jenkins, 255 Va. at 521, 499 S.E.2d at

265-66; Gallimore, 246 Va. at 447, 436 S.E.2d at 425; Hubbard,

243 Va. at 14, 413 S.E.2d at 882. Thus, we hold that Brown is

criminally responsible for Sears’ death because his conduct was

a proximate cause of that death, and was a cause without which

Sears’ death would not have occurred. See Joynes, 278 Va. at

262-63, 677 S.E.2d at 264; Gallimore, 246 Va. at 447, 436 S.E.2d

at 425; O’Connell, 48 Va. App. at 728-29, 634 S.E.2d at 383-84.

9
In reaching this conclusion, we observe that the

reasonableness of Officer James’ actions is not an issue before

us. See Mayo v. Commonwealth, 218 Va. 644, 647, 238 S.E.2d 831,

833 (1977). Officer James’ driving conduct is relevant only to

the issue whether that conduct was a superseding cause of Sears’

death or, as we have decided, was an intervening act “put into

operation” by Brown’s acts.

Finally, we find no merit in Brown’s request that we alter

our analysis to add a principle from the felony-murder rule,

namely, that responsibility for an accidental death occurring

during the commission of a felony will be placed on a defendant

only if the death is inflicted by the defendant or by a third-

party acting in furtherance of the defendant’s crime. See

Bailey v. Commonwealth, 229 Va. 258, 262, 329 S.E.2d 37, 40

(1985); Wooden v. Commonwealth, 222 Va. 758, 763-65, 284 S.E.2d

811, 814-16 (1981); Rivers v. Commonwealth, 21 Va. App. 416,

426, 464 S.E.2d 549, 554 (1995). Citing this principle, Brown

argues that he is not criminally responsible for Sears’ death,

because Officer James did not act in furtherance of Brown’s

crime but was working to thwart Brown’s criminal conduct. We

disagree with Brown’s analysis.

Under the felony-murder rule, the law distinguishes those

acting in furtherance of a felony from those acting to thwart

the commission of that crime, because the element of malice is

10
supplied under the rule and is assigned only to criminal actors.

See Bailey, 229 Va. at 264, 329 S.E.2d at 41; Wooden, 222 Va. at

762, 284 S.E.2d at 814. This distinction is irrelevant here,

however, because malice is not an element of involuntary

manslaughter. See Rhodes v. Commonwealth, 238 Va. 480, 485, 384

S.E.2d 95, 98 (1989). Thus, regardless whether Officer James

was acting to thwart Brown’s criminally negligent conduct when

the fatal accident occurred, the issue before us remains whether

Brown’s criminally negligent conduct caused Sears’ death,

unbroken by a superseding cause. See Gallimore, 246 Va. at 445-

46, 436 S.E.2d at 424; Cable, 243 Va. at 240, 415 S.E.2d at 220;

King, 217 Va. at 607, 231 S.E.2d at 316.

Accordingly, we hold that the Court of Appeals did not err

in concluding that the evidence supports the circuit court’s

judgment. The evidence was sufficient to establish the crime of

involuntary manslaughter because Officer James’ actions did not

break the chain of proximate causation between Brown’s

criminally negligent conduct and Sears’ death.

For these reasons, we will affirm the Court of Appeals’

judgment.

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1058295. Public record. Not legal advice.