Case raises double jeopardy question

Posted: February 16, 2013

The Winchester Star

Bradley Scott Gregory

WINCHESTER — The case of a city man facing two murder charges will move forward with a jury trial this month.

Bradley Scott Gregory, 28, is charged with first-degree murder, felony homicide (or second-degree murder) and use of a firearm in the commission of a felony in the New Year’s Day 2012 death of Michael Scott Shirley, 27, of Berkeley Springs, W.Va.

He is scheduled for a trial on the charges beginning Feb. 26.

Gregory appeared Friday in Frederick County Circuit Court with his attorney, Public Defender Timothy Coyne — who argued to have the felony murder charge dismissed.

Judge Clay Athey ruled that the charge would not be dismissed.

The primary difference between first- and second-degree murder is that the former is premeditated and the latter is not.

“These theories are diametrically opposing,” Coyne said of the two charges.

Felony murder means that in the commission of a felony, someone is accidentally killed. In this case, the underlying felony would be malicious wounding.

Frederick County Commonwealth’s Attorney Ross Spicer said that charge was based on a statement Gregory made to law enforcement officials, indicating that he meant to shoot Shirley in the leg.

As previously reported by Capt. John Heflin of the county Sheriff’s Office, deputies responded during the early morning of Jan. 1, 2012, to a 911 call regarding a person shot at 1373 S. Timber Ridge Road, near the West Virginia border.

According to court records, Gregory was sitting in a vehicle in a parking area when he loaded the gun and shot Shirley in the chest.

Documents state that Gregory admitted shooting Shirley.

Coyne argued that no malicious wounding occurred in the case, just a death. “There is but one offense; there is one dead body in this case,” he said.

Additionally, Coyne said that if the jury convicted Gregory on both murder charges, it would violate double jeopardy laws and Gregory’s due process rights.

Assistant Commonwealth’s Attorney Marie Acosta argued that introducing Gregory’s statement about meaning to shoot Shirley in the leg meets the case standard for felony homicide.

Spicer said later that while prosecutors could not find a reported case involving the same set of combined charges, he believes their legal standing is clear.

Regarding the question of double jeopardy, Acosta suggested to the court that the matter could be addressed after the trial.

She said that while prosecutors do not expect Gregory to be convicted on both charges, if he is, the court would vacate one of them.

Coyne argued that inviting a jury to convict Gregory twice is double jeopardy.

“‘But don’t worry, we can fix it post-trial,’” he said, echoing the prosecution. “That’s the crux of the double jeopardy law.”

Coyne also anticipated confusion when presenting jury instructions and difficulty in the ability to raise certain defenses on behalf of Gregory if both charges are allowed to go to trial.

Specifically, he said, arguing self-defense, manslaughter and accidental shooting would be canceled out by jury instructions on one charge in connection with the other.

Acosta said she did not agree, and added that while those defenses may be affected, they would not be eliminated.

Siding with Acosta, Athey agreed that the matter could be taken up after the trial if necessary.

Spicer said the two charges allow prosecutors to present different theories at the trial, much as Gregory can present different defenses.

Athey did not rule on a motion filed by Spicer to prevent the defense from introducing certain evidence about Shirley’s criminal history.

He said he would take both sides’ arguments about the issue under advisement and issue an order next week.

— Contact Melissa Boughton at