Brian Alden Kennemore was convicted by a jury of multiple violent crimes, including felony murder during arson. He appealed, arguing that the trial court incorrectly instructed the jury regarding the causal connection between the arson and the victim’s death. The case stemmed from a 2005 incident where Kennemore, after consuming alcohol and cocaine with Mark Alger and Jennifer Popa, returned to find Popa dead in a bedroom, her body burned and showing signs of asphyxiation. DNA evidence linked Kennemore to the crime scene, with a statistical analysis indicating a 1 in 6 billion chance it belonged to someone else. The coroner determined Popa was smothered but suggested she might have been alive during an initial flash fire that contributed to her death.
Kennemore’s defense motioned to strike the felony murder charge, citing insufficient evidence, which the trial court denied, emphasizing the coroner's testimony about the flash fire. During jury deliberations, a question about whether the victim had to be alive when the fire was set was posed. The court suggested a response indicating that the killing could occur before, during, or after the arson, provided it was closely related to the criminal act. Kennemore's counsel objected, asserting that the evidence suggested Popa was either dead before the arson or that the fire was intended to conceal her death. The court ultimately found no error in its instructions, affirming Kennemore's conviction.
The jury's determination of the causal link between arson and the victim's death was central to the case, with Kennemore's counsel arguing that the jury instruction could mislead jurors into believing that a death occurring before the arson could still support a guilty verdict. Counsel contended that a valid connection between the death and the arson must exist, such as a killing intended to facilitate arson, which was not supported by the evidence in this case. While acknowledging that the flash fire could have contributed to the victim’s death, Kennemore maintained that this contribution did not sufficiently connect with the arson as required by law. The trial court rejected these objections and provided the instruction as proposed, resulting in guilty verdicts, including felony murder.
On appeal, Kennemore argued the instruction was partially correct but incomplete, particularly lacking in articulating the causation requirement. He interpreted the jury's question as an implicit finding that the victim's death occurred before the arson, underscoring the necessity for clear causation guidance in the instruction. However, the court disagreed, asserting that a jury's question does not equate to a definitive finding of fact, as the jury speaks solely through its unanimous verdict. Even if the question were interpreted as suggesting the death occurred prior to the arson, the verdict itself must be taken as the only clear expression of the jury's decision. The court found that the trial court's instruction, derived from established precedent, adequately summarized the felony-murder doctrine, which attributes malice to killings committed during the commission of a felony.
Killing during the commission of arson is classified as first-degree murder under Code 18.2-32, which applies to both intentional and unintentional killings. The felony-murder doctrine incorporates the res gestae limitation, which assesses the temporal, locational, and causal relationship between the killing and the felony to determine if they constitute a continuous criminal act. The Virginia Supreme Court holds that the felony-murder statute is applicable when the killing is closely linked to the felony, allowing them to be considered part of the same criminal enterprise. This relationship is valid whether the killing occurs before, during, or after the felony, as long as there is a direct causal connection.
In the case at hand, the trial court’s instruction accurately reflected these principles, stating that the killing could be related to the arson as long as it was closely tied in time, place, and cause. The instruction was deemed sufficient, as it did not mislead the jury regarding the necessary causal connection between the killing and the arson. The appellate review focused on ensuring clarity and completeness of the law presented and confirmed that the trial court exercised appropriate discretion in maintaining brevity in its instructions. The instruction adequately addressed the nexus of causation and adhered to the principles of the res gestae doctrine. Consequently, the court affirmed Kennemore’s conviction for felony murder in connection with the arson.
