368 S.E.2d 704 (Va. Ct. App. 1988)
On October 17, 1984, King and his copilot, Mark Lee Bailey, were flying a Beechcraft Bonanza airplane carrying over five hundred pounds of marijuana to the New River Valley airport in Dublin, Virginia.1 They were flying for Wallace Thrasher, who owned the airplane and ran the drug smuggling operation.2 King was a licensed pilot; Bailey was not.3 The two encountered heavy cloud cover and fog near Mt. Airy, North Carolina and apparently became lost.4 In an effort to navigate through the cloud cover and fog, they flew the plane to a lower altitude to follow U.S. Route 52.5 Bailey was piloting the plane at this time.6 As Bailey flew, King was examining navigation maps in an attempt to determine the plane’s whereabouts.7
The airplane crashed into Fancy Gap Mountain killing Bailey almost instantly.8 King was thrown from the plane and survived.9 King was charged with felony homicide under Code § 18.2-33 for Bailey’s death.10 A jury convicted King of second degree murder under the statute and recommended a six-year penitentiary sentence.11
King appealed his conviction to the Court of Appeals of Virginia.12
Whether the facts in this case constitute a violation of the felony-murder statute, Code § 18.2-33?13
The second degree felony-murder statute requires that the accidental death be the result of an act committed by the felons in furtherance of the felony.14 The doctrine imputes malice to the killing only when the homicide is causally connected to the felony, not merely coincident in time and place.15 A death resulting from circumstances unrelated to the criminal enterprise, such as weather conditions or pilot error, does not satisfy the causation requirement for felony-murder liability.16
No. The established facts demonstrate that King and Bailey were transporting over five hundred pounds of marijuana when their plane encountered heavy cloud cover and fog near Mt. Airy, North Carolina.17 They descended to follow U.S. Route 52, with Bailey piloting despite being unlicensed, while King reviewed navigation maps.18
The plane then crashed into Fancy Gap Mountain due to these weather conditions and the piloting.19 The crash was not caused by any act intended to further the drug smuggling operation.20 No evidence shows the plane was flying low to avoid detection or engaging in any maneuver necessitated by the felony.21
The death of Bailey resulted from fortuitous circumstances of fog and low cloud cover rather than from the commission of the felony itself.22 The felony merely placed the parties at the location of the accident without contributing to the cause of the crash.23 Therefore, the facts do not support a felony-murder conviction under Code § 18.2-33.24
The facts in this case do not constitute a violation of the felony-murder statute, and the conviction must be reversed.25
Whether the trial court erred in instructing the jury on the elements of the offense?26
The trial court must properly instruct the jury on the elements of felony-murder, including the required causal connection between the felony and the death.27
No. The conviction is reversed on the ground that the facts do not constitute a violation of the statute.28 The court does not address whether the trial court erred in instructing the jury on the elements of the offense.29 Reversal on the primary causation issue renders consideration of the jury instructions unnecessary, as the dispositive holding fully resolves the appeal without reaching secondary claims of instructional error.30
The issue of jury instructions is not reached due to reversal on the primary issue.31