Summary
holding that Simmons did not apply even though jury predicated death sentence on future dangerousness because appellant would have been eligible for parole
Summary of this case from Smith v. StateOpinion
49662 Record Nos. 920810 and 920811
November 4, 1994
Present: All the Justices
The trial court in a capital murder case did not err in refusing to inform the jury about Virginia's laws regarding parole eligibility because the defendant was not ineligible for parole under the terms of Code Sec. 53.1-151 (B1) at the time he was sentenced for capital murder.
Capital Murder — Future Dangerousness — Parole Ineligibility — Jury Instruction — Death Penalty
The petitioner was convicted by a jury of two offenses of capital murder and, in the penalty phase of the trial, the jury fixed his penalty at death, based upon the future dangerousness predicate. The trial court sentenced him in accord with the jury verdicts and the Supreme Court of Virginia affirmed the judgments and the sentence of death. The petitioner sought a writ of certiorari from the U.S. Supreme Court, which vacated the judgment and remanded the case to the Supreme Court of Virginia for further consideration in light of Simmons v. South Carolina, 512 U.S. ___, 114 S.Ct. 2187 (1994), which provides that the jury may be informed of a defendant's ineligibility for parole.
1. In Simmons, the United States Supreme Court held that, when future dangerousness is at issue in the sentencing phase of a capital murder case, the jury is entitled to be informed of the defendant's parole ineligibility.
2. In order for that decision to apply in the present case, the defendant must have been ineligible for parole at the time he was before the sentencing jury.
3. To be ineligible for parole in Virginia, a defendant's criminal record must include three separate felony offenses of murder, rape or armed robbery not part of a common act or scheme.
4. Here the petitioner's criminal record contained only two offenses that could have been taken into account for purposes of Code Sec. 53.1-15l (B1) and, therefore, he was not ineligible for parole and the Simmons decision does not affect his capital murder conviction and death sentence.
On Remand from the Supreme Court of the United States.
Affirmed.
Leonard R. Piotrowski (Michael S. Arif; Martin, Arif Soloway, on brief), for appellant.
Robert Q. Harris, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
In the guilt phase of a bifurcated jury trial, a jury convicted Dwayne Allen Wright of two offenses of capital murder, to-wit: (1) the willful, deliberate, and premeditated killing of Saba Tekle in the commission of robbery while armed with a deadly weapon, in violation of Code Sec. 18.2-31(4); and (2) the willful, deliberate, and premeditated killing of Tekle subsequent to attempted rape, in violation of Code Sec. 18.2-31(5). In the penalty phase of the trial, the jury fixed Wright's punishment for the capital murders at death, based upon the "future dangerousness" predicate. Code Sec. 19.2-264.2.
In the same trial, Wright was convicted of robbery, attempted rape, and use of a firearm in the commission of robbery, for which he received sentences of life imprisonment, ten years' imprisonment, and two years' imprisonment, respectively. All the convictions were for offenses that were part of a common transaction.
The trial court sentenced Wright in accord with the jury verdicts. We affirmed the trial court's judgments and the sentence of death. Wright v. Commonwealth, 245 Va. 177, 427 S.E.2d 379 (1993).
Wright petitioned the Supreme Court for a writ of certiorari, and, on June 20, 1994, in a summary disposition, the Supreme Court granted certiorari, vacated the judgment, and remanded the case to this Court "for further consideration in light of Simmons v. South Carolina, 512 U.S. ___, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)." Wright v. Virginia, ___ U.S. ___, 114 S.Ct. 2701 (1994). By order entered July 29, 1994, we placed this case on our September 1994 docket and directed counsel to brief and argue the question of what impact, if any, the Simmons decision has on Wright's conviction and sentence.
On appeal to this Court, Wright contended that the trial court erred in refusing to inform the jury about Virginia's laws regarding parole eligibility. Wright, 245 Va. at 197, 427 S.E.2d at 392. We rejected the contention, noting that we repeatedly had rejected the same contention in other capital murder cases. Id.
[1-2] In Simmons, the Supreme Court held that, when "future dangerousness" is at issue in the sentencing phase of a capital murder case, the jury is entitled to be informed of the defendant's parole ineligibility. Simmons, 512 U.S. at ___, 114 S.Ct. at 2198. Therefore, in order for the Simmons decision to apply in the present case, Wright must have been ineligible for parole at the time he was before the sentencing jury.
To be ineligible for parole in Virginia, a defendant's criminal record must meet the test prescribed in Code Sec. 53.1-151(B1), which provides as follows:
Any person convicted of three separate felony offenses of (i) murder, (ii) rape or (iii) robbery by the presenting of firearms or other deadly weapon, or any combination of the offenses specified in subdivisions (i), (ii) or (iii) when such offenses were not part of a common act, transaction or scheme shall not be eligible for parole.
In the present case, the record shows that, in the state of Maryland, Wright previously had been convicted of first degree murder, attempted murder, and two firearms offenses. Only the Maryland murder conviction is an offense designated in Code Sec. 53.1-151(B1). Further, the Virginia capital murder and robbery with the use of a deadly weapon convictions may not be considered separately and counted as two predicate offenses under Code Sec. 53.1-151(B1) because the offenses were part of a common transaction. Consequently, Wright's criminal record contained only two offenses that could have been taken into account for purposes of Code Sec. 53.1-151(B1). Therefore, Wright was not ineligible for parole, and the Simmons decision does not affect Wright's capital murder conviction and death sentence.
Joint Appendix, pp. 1688 and 1705.
Accordingly, we will reaffirm the trial court's judgment and reinstate the capital murder conviction and death sentence. Affirmed.
We do not revisit the second question presented by Wright because it does not relate to the issue on remand. Therefore, our previous holding on that issue stands. See Wright, 245 Va. at 198, 427 S.E.2d at 393.