2.3 "IN THE COMMISSION OF"
Five of the capital felony murder subsections use the phrase "in the commission of" to describe the relationship between a predicate felony and the premeditated killing. Capital felony murder is made out when there is a premeditated killing "in the commission of" certain aggravated abductions, 52 robberies or attempted robberies, 53 rape or attempted rape, forcible sodomy or attempted forcible sodomy, forcible object sexual penetration, 54 the commission or attempted commission of certain violations of the narcotics laws, and the commission of an act of terrorism. 55
The language "in the commission of" is also used to describe noncapital felony murder in section 18.2-32 of the Virginia Code. In a section 18.2-32 case, Haskell v. Commonwealth, 56 the court stated that for the killing to be considered "in the commission of" the felony, the killing must be "so
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closely related in time, place, and causal connection [to the felony] as to make them parts of the same criminal enterprise." This rule has been adopted in capital felony murder cases. For instance, in Briley (Linwood) v. Commonwealth, 57 the defendant and two confederates accosted a man at gunpoint outside a restaurant, took his wallet and keys, ordered him into his car, drove the car to a deserted area, and then killed the victim and took the car. The court held, as a matter of law, that the killing was part of the "same criminal enterprise" as the robbery because the robbery continued from the point of the initial taking of the car until the killing some 15 to 20 minutes later. The court stated that "where the violence against the victim and the trespass to his property combine in a continuing, unbroken sequence of events, the robbery itself continues as well for the same period of time."
Particularly in robbery predicate cases, the court has adopted an expansive interpretation of "in the commission of." The court has rejected arguments based on the temporal interval between a taking and the application of force and on the sequence of the two elements. 58 In contrast, Woodard v. Commonwealth reversed a felony-murder conviction because "the felonious criminal enterprise, the distribution of ecstasy, had clearly ended prior to the killing." 59
Although "in the commission of" has been read very broadly by Virginia courts, if there is a failure to prove all elements of the predicate felony, there can be no capital felony murder. In a noncapital but first-degree...
