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Turner v. Commonwealth

Supreme Court of Virginia
Nov 26, 1980
221 Va. 513 (Va. 1980)

Summary

concluding that the General Assembly intended to punish both capital murder during the commission of robbery while armed with a deadly weapon under Code § 18.2-34 and the use of a firearm in the commission of a felony under Code § 18.2-53.1, because the latter statute expressly provided that the offense it defined "shall constitute a separate and distinct felony" from the predicate offense

Summary of this case from Commonwealth v. Gregg

Opinion

44029 Record No. 800375.

November 26, 1980

Present: All the Justices.

Death sentence sustained; Trial Court may conduct voir dire and may exercise discretion to accept or refuse questions by counsel unless due process or right to fair and impartial trial denied; various issues concerning questions to venire, including irrevocable commitment against death penalty, racial prejudice, etc.; sequestration of Jury in discretion of Trial Judge; constitutionality of death penalty statutes; double jeopardy as applied to sentencing; asportation in robbery by control over others; other issues.

(1) Criminal Procedure — Counsel Conducting Voir Dire — Contingent on Approval of Court [Code Sec. 8.01-358, Rule 3A:20(a)].

(2) Criminal Procedure — Constitutional Law — Manner in which Jury is Selected is Within Sound Discretion of Trial Court so long as Selection Procedure Results in Fair and Impartial Jury.

(3) Criminal Procedure — Discretion of Trial Court in Accepting Questions for Venire Proposed by Counsel — Trial Court may Exercise Unless Refusal to Ask Question Denies Due Process or Otherwise Impinges upon Right to a Fair and Impartial Jury.

(4) Criminal Procedure — Discretion of Trial Court in Accepting Questions for Venire Proposed by Counsel — Identification of Racial Prejudice — Mere Fact that Defendant is Black and Victim is White does not Mandate Inquiry — Defendant's Right to Fair and Impartial Jury not Denied.

(5) Criminal Procedure — Discretion of Trial Court in Accepting Questions for Venire Proposed by Counsel — Refusal to Ask Questions Concerning Circumstances.

(6) Criminal Procedure — Voir Dire — Trial Court did not Err in Questioning Veniremen Concerning their Willingness to Impose Capital Punishment.

(7) Criminal Procedure — Voir Dire — Trial Court's Determination that Venireman Irrevocably Committed Against Death Penalty not Disturbed on Appeal unless Commitment is not Unmistakably Clear.

(8) Criminal Procedure — Jury — Sequestration — Mere Fact of Media Coverage does not Require Jury to be Sequestered — Trial Judge has Wide Discretion and this Extends to Capital Cases.

(9) Criminal Procedure — Constitutional Law — Death Penalty Statutes — Facially Constitutional.

(10) Criminal Procedure — Constitutional Law — Death Penalty Statutes — Imposition of Death Penalty on Basis of Jury's Conclusion Regarding Defendant's Propensity for Future Crime Constitutional.

(11) Criminal Procedure — Evidence — Sentencing Statute (Code Sec. 19.2-264.2) Constitutional As Applied.

(12) Criminal Procedure — Robbery — Asportation Through Control over Conduct of Others Through Force — First Degree Murder Instruction Under Code Sec. 18.2-32 Properly Refused — Defendant Committed Robbery Within Ambit of Code Sec. 18.2-31(d).

(13) Criminal Procedure — Constitutional Law — Sentencing — Double Jeopardy — Multiple Punishments for Same Offense — General Assembly Clearly Indicates Intent to Impose Multiple Punishments for Capital Murder and the Use of a Firearm in the Commission of a Felony (Code Sec. 18.2-53.1) — Double Jeopardy Claim Without Merit.

(14) Criminal Procedure — Sentencing — Death Sentence — Not Imposed Under Influence of Passion, Prejudice, or Other Arbitrary Factor [Code Sec. 17-110.1(C)(1)].

(15) Criminal Procedure — Sentencing — Death Sentence — Not Excessive or Disproportionate to Sentences Imposed in Other Cases.

(16) Criminal Procedure — Venue — Change Unnecessary.

(17) Criminal Procedure — Evidence — Photographs of Victim and Crime Scene Properly Admitted.

(18) Criminal Procedure — Instruction — Possibility of Parole — Properly Refused by Trial Court.

The Defendant, a black male, entered a jewelry store owned and operated by Smith, a white male. He displayed a sawed-off shotgun and demanded money and jewelry. Smith triggered a silent alarm while placing the money and jewelry into jewelry bags. Cosby and Police officer Bain then entered without knowing the robbery was in progress. Turner discovered that Smith had triggered the alarm; made him turn it off; and required Smith and Cosby to place additional valuables in the jewelry bags. Turner then took a revolver from Bain and fired it towards the rear wall. When Turner heard a siren, he walked back toward the middle of the store and shot Smith without warning. Bain distracted Turner by talking to him. Then Turner told Bain he was going to kill Smith because the latter had triggered the silent alarm and shot Smith twice in the chest, Smith dying as a result of these wounds. Thereafter Bain subdued Turner.

The venue of the Trial was shifted from Southampton to Northampton County. The Trial Judge questioned the venire, receiving questions submitted by counsel. The Jury was not sequestered. Turner was convicted of capital murder [Code Sec. 18.2-31(d)]; possession of a sawed-off shotgun in the commission of a crime of violence (robbery) (Code Sec. 18.2-300A); and the use of a firearm (pistol) in the commission of a felony (murder) [Code Sec. 18.2-53.1]. In the sentencing proceeding Defendant's sentence was fixed as death, the Jury having previously fixed his sentences at one year for violating Code Sec. 18.2-53.1 and life for violating Code Sec. 18.2-300A. The Trial Court imposed the sentences. The Defendant appeals his several convictions with his automatic review of his death sentence.

1. Rule 3A:20(a) making the right to counsel conducted voir dire contingent upon the Trial Court's approval does not conflict with Code Sec. 8.01-358, the latter section by its 1966 amendment (then Code Sec. 8-199 merely sanctioning a practice by most Trial Courts in permitting counsel to ask the questions directly, and Rule 3A:20(a) resolving any ambiguity present in the statutory language.

2. The defendant has a constitutional right to a fair and impartial jury but no constitutional right to a counsel conducted voir dire. The manner in which a Jury is selected is within the Trial Court's sound discretion as long as the selection procedure results in a fair and impartial Jury. The Trial Court's refusal to question Jurors individually out of the presence of other prospective Jurors and the Court's refusal to allow counsel conducted voir dire are not abuses of discretion. The voir dire conducted by the Trial Judge resulted in a fair and impartial Jury.

3. Unless the refusal to ask a question denies due process or otherwise impinges upon the right to a fair and impartial Jury, Code Sec. 8.01-358 and Rule 3A:20(a) empower a Trial Court to use its discretion in determining whether to ask questions proposed by either the Commonwealth or the defendant.

4. The Trial Court's refusal to ask questions proposed by defense counsel did not impinge on defendant's right to a fair and impartial Jury. While the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant, a Trial Court's refusal to do so is not constitutionally objectionable absent factors similar to those in Ham v. South Carolina, 409 U.S. 524 (1973). The mere fact that a defendant is black and the victim is white does not mandate such an inquiry.

5. The refusal of the Trial Court to ask questions concerning the circumstances under which a venireman would vote for the death penalty is not constitutionally objectionable. The voir dire questioning touched upon many of these questions, and assured removal of those veniremen who would invariably impose capital punishment. Moreover, the Court's instructions to the Jury clearly delineated the circumstances under which the death penalty could be imposed.

6. The Trial Court did not err in questioning veniremen concerning their willingness to impose capital punishment Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442 U.S. 924 (1979) followed.

7. Jurors may not be excluded simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction but jurors irrevocably committed to voting against the death penalty may be excluded. The Trial Court's determination that a Juror is irrevocably committed to voting against the death penalty is not disturbed on appeal unless the Juror's commitment against the death penalty is not unmistakably clear. On the basis of answers given by venireman Cypress, the Trial Court reasonably concluded he was irrevocably committed against the death penalty. Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979) cert. denied, 444 U.S. 1103 (1980); Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978) cert. denied, 441 U.S. 967 (1979) followed.

8. Absent any indication of prejudicial pretrial publicity a Trial Judge has wide discretion in deciding whether to sequester a jury. The mere fact of media coverage does not require the Jury to be sequestered. The Trial Judge's discretion extends to cases involving capital punishment. Here the refusal to sequester was not prejudicial error, venue having been changed from Southampton to Northampton County although there had been a recent Northampton case involving the death penalty.

9. The death penalty statutes are facially constitutional.

10. The imposition of a death penalty on the basis of a Jury's conclusion regarding a defendant's propensity for future crime is constitutional. Jurek v. Texas, 428 U.S. 462 (1976) followed.

11. The Commonwealth established that defendant's conduct was "outrageously or wantonly vile, horrible or inhuman". (Code Sec. 19.2-264.2). The evidence also establishes that defendant committed an aggravated battery. Even if defendant's crime did not meet the "vileness" standard on the basis of defendant's prior criminal record the Jury could reasonably conclude that defendant would probably commit criminal acts of violence that would constitute a continuing serious threat to society. The sentencing statute is constitutional as applied. Godfrey v. Georgia, 446 U.S. 420 (1980) distinguished.

12. To be convicted under Code Sec. 18.2-31(d) the defendant must have committed a robbery while armed with a deadly weapon. While defendant never had physical possession of the jewelry bags, a perpetrator exercises dominion and control over an object when he commands another to seize the object and that person complies. Here the defendant exercised dominion and control over the money and valuables when Smith and Cosby asported these items at his command. The degree of asportation necessary to constitute a taking to constitute robbery need only be slight and the requirement has been satisfied in this case. Thus the Jury should not have been instructed concerning the lesser offense of first degree murder, the evidence establishing a robbery committed under Code Sec. 18.2-31(d).

13. The constitutional prohibition of double jeopardy consists of three separate guarantees: (a) protection against a second prosecution for the same offense after acquittal; (b) protection against a second prosecution for the same offense after conviction and (c) protection against multiple punishments for the same offense. Since defendant's convictions stem from a single criminal trial only the guarantee against multiple punishments is at issue. This guarantee is limited to assuring that the Court does not exceed its legislative authorization by imposing multiple punishments for the same offense. The question is what punishments the legislature intended to impose and here the General Assembly has clearly indicated its intent to impose multiple punishments for capital murder and the use of a firearm in the commission of a felony (Code Sec. 18.2-53.1). The double jeopardy claim has no merit.

14. The sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor [Code Sec. 17-110.1(c)(1)].

15. The sentence of death is not excessive or disproportionate to the sentences imposed in similar cases. The defendant's criminal record is one of the most extensive reviewed by the Court under Sec. 17-110.1(c) and unlike any of the other defendants except in Mason v. Commonwealth, 219 Va. 1091, 24 S.E.2d 116, cert. denied, 444 U.S. 919 (1979) the defendant had been convicted for a previous murder.

16. A further change in venue was unnecessary.

17. Photographs of the victim and crime scene were properly introduced in evidence.

18. Defendant's contention that the Jury should have been given an instruction concerning the possibility of parole is without merit.

Appeal from a judgment of the Circuit Court of Southampton County. Hon. James C. Godwin, judge presiding.

Affirmed.

John C. Lowe (J. Lloyd Snook, III; Thomas L. Woodward, Jr.; William R. Savage, III; Lowe and Gordon, Ltd., on briefs), for appellant.

Robert H. Anderson, III, Assistant Attorney General (Marshall Coleman, Attorney General, on brief) for appellee.


The defendant, Willie Lloyd Turner, was convicted of capital murder, Code Sec. 18.2-31(d); possession of a sawed-off shotgun in the commission of a crime of violence (robbery), Code Sec. 18.2-300(A); and the use of a firearm (a pistol) in the commission of a felony (murder), Code Sec. 18.2-53.1. The jury fixed Turner's punishment at one year in the penitentiary for violating Code Sec. 18.2-53.1 and life imprisonment for violating Code Sec. 18.2-300(A). In the second stage of the bifurcated proceeding conducted pursuant to Code Sec. 19.2-264.3 and -264.4, the jury fixed the defendant's punishment for capital murder at death. At the conclusion of a separate sentencing hearing conducted pursuant to Code Sec. 19.2-264.5, the trial court sentenced the defendant to death for capital murder and sentenced him in accordance with the jury's verdicts on the other two offenses. The defendant is here for an automatic review of the death sentence, consolidated with his appeal from his several convictions. Code Sec. 17-110.1.

Code Sec. 18.2-31(d) provides that "[t]he willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon" constitutes capital murder.

I. FACTS

On July 12, 1978, at approximately 11:30 a.m., Willie Lloyd Turner, a black male, entered a jewelry store owned and operated by W. Jack Smith, Jr., a white male. In addition to Smith, an employee (Mary Huffman) and a customer were present when Turner entered the store. After entering the store, Turner displayed a sawed-off shotgun previously concealed by a towel and demanded money and jewelry. Smith, while placing money and jewelry into the store's jewelry bags, triggered a silent alarm alerting the police department.

Judith R. Cosby and Police officer Alan D. Bain, having entered the store without knowing a robbery was in progress, were detained in the store by Turner. Having discovered Smith had triggered a silent alarm, Turner demanded that Smith turn off the alarm. After acceding to Turner's demand, Smith, along with Cosby, began placing additional valuables designated by Turner into jewelry bags.

Near the rear of the store, Turner examined a revolver taken from Bain and fired a bullet toward the rear wall. Turner stated if he saw or heard any additional police officers, he was going to start killing those in the store. About that time, Bain heard a siren. Turner then walked from the back of the store toward the middle of the store, where Smith was stationed behind a counter, and fired a bullet from the revolver at Smith without warning. Smith, with blood on his temple, slumped behind the counter. Bain began talking with Turner, promising him to take him anywhere he wanted to go and asking him not to shoot again. While Bain talked with Turner, two occupants scrambled out the front door. After Turner told Bain he was going to kill Smith because he had triggered the silent alarm, Turner leaned over the counter and fired two bullets from the revolver into Smith's chest in rapid succession. Bain then grabbed and subdued Turner while Cosby ran out the front door. Smith died as a result of the bullets fired by Turner into Smith's chest.

II. JURY SELECTION AND SEQUESTRATION

Several of the defendant's assignments of error concern the manner in which voir dire was conducted. Over defense counsel's objections, the trial judge ruled that he alone would ask the questions of prospective jurors during voir dire. He also concluded that he would question jurors in groups of five, except when questioning jurors concerning their views on the death penalty. Although questioning concerning the death penalty occurred at least initially in groups of five, each prospective juror was required to answer individually at least two questions concerning capital punishment. Prior to the day of trial, the court asked counsel for the Commonwealth and the defendant to submit questions they wished to have asked. Turner's counsel submitted a list of fifteen questions, nine of which were asked by the trial judge.

Jurors were asked variations of the following questions: "Do you have any religious or conscientious scruples or objections against the imposition of the death sentence?" and "Do you feel that in each and every case, regardless of the facts, where a person is convicted of murder he should receive the death penalty?" Those jurors answering no to both questions were deemed suitable, without further questioning, with respect to their attitude toward the death penalty. Those answering yes to either question were questioned further by the court.

A. Refusal to Allow Counsel — Conducted Voir Dire

The defendant contends that Code Sec. 8.01-358 gives both court and counsel an unconditional right to question prospective jurors directly and that the trial court abridged this statutorily created right by refusing to allow counsel-conducted voir dire. Citing Supreme Court Rule 3A:20(a) the Commonwealth replies that trial courts have discretion in determining whether to permit counsel-conducted voir dire.

Code Sec. 8.01-358 provides: "The court and counsel for either party may examine under oath any person who is called as a juror therein and may ask such person or juror directly any relevant question to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and the party objecting to any juror may introduce any competent evidence in support of the objection; and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case.
"A juror, knowing anything relative to a fact in issue, shall disclose the same in open court."

Supreme Court Rule 3A:20(a) provides that following mandatory questioning by the court as to seven potential grounds for juror exclusion, "the court, or counsel with permission of the court, may examine on oath any prospective juror or may ask any question relevant to his qualifications as an impartial juror."

The Constitution of Virginia, Art. VI, Sec. 5, prohibits the promulgation of any court rule "in conflict with the general law as the same shall, from time to time, be established by the General Assembly." Supreme Court Rule 3A:20(a) clearly makes the right to counsel-conducted voir dire contingent upon the trial court's approval. In resolving the issue before us, we must determine whether Code Sec. 8.01-358 confers upon attorneys the unconditional right to question prospective jurors directly. If Code Sec. 8.01-358 confers such a right, it prevails over that portion of Rule 3A:20(a) which makes the exercise of that right contingent upon the trial court's approval.

The legislative history of Sec. 8.01-358 is useful in discerning whether the General Assembly intended to confer such a right upon attorneys. The Code of 1887 Sec. 3154 required trial courts to question prospective jurors when requested to do so by the litigants. The Code of 1919 Sec. 6000 enlarged a trial court's powers by providing that a court could question jurors even though not requested to do so by counsel. The pertinent language remained unchanged for several decades. See Code of 1950 Sec. 8-199 (1950). In 1966, the General Assembly amended Code Sec. 8-199 to read as follows:

Code of 1887 Sec. 3154 provided, insofar as is pertinent, that "[t]he court shall, on motion of either party in any suit, examine on oath any person who is called as a juror therein, to ascertain" the juror's qualifications.

Code of 1919 Sec. 6000 provided, insofar as is pertinent, that "[t]he court shall, on motion of either party in any suit, or may of its own accord," examine any prospective juror.

"The court and counsel for either party may examine on oath any person who is called as a juror therein and may ask such person or juror directly any relevant question to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and the party objecting to any juror may introduce any competent evidence in support of the objection; and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case."

Acts 166, c. 496, at 676 (language added in 1966 italicized). On June 15, 1971, this court promulgated a comprehensive set of rules governing criminal practice and procedure, to be effective January 1, 1972. One of these rules was Rule 3A:20, which unambiguously gives the trial court discretion in determining whether to allow counsel conducted voir dire. 211 Va. cvi (1971). Code Sec. 8-199 was recodified as Code Sec. 8-208.28 in 1973 without any change. Acts 1973, c. 439, at 651-52. In another recodification, the texts of Code Sections 8-215 (1957 Repl. Vol.) and 8-208.28 were combined to form the present text of Code Sec. 8.01-358. Acts 1977, c. 617, at 1111.

Code Sec. 8-215 (1957 Repl. Vol.) provided: "A juror, knowing anything relative to a fact in issue, shall disclose the same in open court."

As both parties recognize, we have not previously resolved whether the 1966 amendment to this statute confers upon attorneys an unconditional right to participate directly in voir dire. In Harmon v. Commonwealth, 209 Va. 574, 166 S.E.2d 232 (1969), we held that when a litigants attorney has agreed that the judge alone would ask the voir dire questions, he or she cannot require the trial judge to exercise that right in a particular fashion. In upholding Harmon's conviction, we concluded that the statutory permission for the court to ask such questions directly does not require a court to do so. Thus, the trial court was permitted, but not required as contended by Harmon, to question jurors individually. In regard to voir dire conducted by counsel, we noted that the propounding of questions by the trial judge, and not by counsel for the defendant, was "in accordance with the usual practice." 209 Va. at 579, 166 S.E.2d at 236. We also concluded that the word "may" "is not mandatory but permissive and leaves the matter to the discretion of the trial court." 209 Va. at 580, 166 S.E.2d at 236.

Prior to the 1966 amendment, the litigants' counsel had no authority whatsoever for directly participating in voir dire examinations. "Although the statute formerly required the judge alone to ask the questions, in practice most trial courts permitted counsel to ask them directly." Boyd, Practice and Pleading — The Twelfth Annual Survey of Virginia Law: 1966-1967, 53 Va. L. Rev. 1763, 1781 (1967) (emphasis added). The 1966 amendment "sanction[ed] this deviation and [brought] Virginia in line with the procedure in other jurisdictions." Id. Thus, the amendment authorized what was already in fact occurring: counsel's participation in voir dire when permitted by the trial court.

Cognizant that the statutory language might be subject to different interpretations, this court in 1971 promulgated Rule 3A:20(a) of the Rules of Criminal Practice and Procedure. This Rule, which clearly makes counsel's participation in voir dire contingent upon the trial court's approval, resolved any ambiguity present in the statutory language.

Turner suggests that, even if Code Sec. 8.01-358 confers no unconditional right to counsel-conducted voir dire, the trial court abused its discretion in refusing to allow defense counsel to question prospective jurors directly and in not questioning each prospective juror out of the presence of other jurors. While the defendant has a constitutional right to a fair and impartial jury, he has no constitutional right to counsel-conducted voir dire. See, e.g., United States v. Duke, 409 F.2d 669, 671 (4th Cir. 1969), cert. denied, 397 U.S. 1062 (1970). In the absence of a statute or court rule to the contrary, as long as the selection procedure results in a fair and impartial jury, the manner in which a jury is to be selected is properly within the trial court's sound discretion. Thus, the trial court's refusal to question jurors individually out of the presence of other prospective jurors and the court's refusal to allow counsel-conducted voir dire do not represent an abuse of discretion. See Dean v. Commonwealth, 209 Va. 666, 669, 166 S.E.2d 228, 230 (1969). We have carefully examined the voir dire conducted by the trial judge and believe it resulted in a fair and impartial jury. Under such circumstances, we cannot say the trial judge abused his discretion.

B. Refusal to Ask Specific Questions Proposed by Defense Counsel

As noted previously, the trial court refused to ask several questions proposed by defense counsel. Turner contends that the failure to ask these questions constituted prejudicial error.

Of the fifteen questions submitted by defense counsel, one question was withdrawn, nine were asked by the trial judge, and five were refused. These five questions were:
"(10) The defendant, Willie Lloyd Turner, is a member of the Negro race. The victim, W. Jack Smith, Jr., was a white Caucasian. Will those facts prejudice you against Willie Lloyd Turner or affect your ability to render a fair and impartial verdict based solely on the evidence?
(11) Do you feel that if a person is to be given the death penalty for the unlawful killing of another person, such penalty should be given only if such killing is of the most severe and aggravated nature? . . . .
(13) Do you feel that every person convicted of the unlawful killing of another person during a robbery should receive the death penalty?
(14) Do you feel that every person convicted of the unlawful killing of another person during a robbery should receive the death penalty if there is a probability that the person would commit criminal acts of violence that would constitute a continuing threat to society?
(15) Do you feel that every person convicted of the unlawful killing of another person during a robbery should receive the death penalty if his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder?"

The pre-1966 text of what is now Code Sec. 8.01-358 provided that "[t]he court shall, on motion of either party in any suit, examine" jurors to ascertain their qualifications concerning impartiality and lack of bias. The 1966 amendment deleted this requirement, providing merely that "the court . . . may examine [a prospective juror] and may ask [such juror] any relevant question." In Harmon v. Commonwealth, 209 Va. at 580, 166 S.E.2d at 236, we held that this statutory language "is not mandatory but permissive and leaves the matter to the discretion of the trial court." With the exception of seven questions, all of which were asked in this case, Rule 3A:20(a) makes voir dire questioning entirely discretionary with the trial court. Unless the refusal to ask a question amounts to a denial of due process or otherwise impinges upon the right to a fair and impartial jury, see, e.g., Ham v. South Carolina, 409 U.S. 524 (1973), the present wording of Code Sec. 8.01-358 and Rule 3A:20(a) empowers a trial court to use its discretion in determining whether to ask questions proposed by either the Commonwealth or the defendant.

[4-5] The trial court's refusal to ask the questions proposed by defense counsel did not impinge upon the defendant's right to a fair and impartial jury. While "the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant," a trial court's refusal to do so is not constitutionally objectionable in the absence of factors similar to those in Ham. Ristaino v. Ross, 424 U.S. 589, 597 n. 9 (1976). The mere fact that a defendant is black and that a victim is white does not constitutionally mandate such an inquiry. Lewis v. Commonwealth, 218 Va. 31, 35-36, 235 S.E.2d 320, 323 (1977). The refusal of the trial court to ask other questions, those concerning the circumstances under which a prospective juror would vote for the death penalty, likewise is not constitutionally objectionable. The voir dire questioning conducted by the trial judge probed many of the areas touched upon by these questions and assured the removal of those who would invariably impose capital punishment. The court's instructions to the jury clearly delineated the circumstances in which the death penalty could be imposed. Since the questioning actually conducted by the court preserved the defendant's right to a fair and impartial jury, the trial court's refusal to ask the voir dire questions proposed by defense counsel was not an abuse of discretion.

Turner introduced a study indicating that black defendants killing white victims receive the death penalty more frequently than black defendants killing blacks, whites killing blacks, or whites killing whites. The study, however, was based upon statistics compiled in other states and thus was of little utility in establishing the potential of prejudice in Virginia.

C. Examination of Prospective Jurors Concerning Attitudes About Capital Punishment

[6-7] For the reasons stated in Waye v. Commonwealth, 219 Va. 683, 690-91, 251 S.E.2d 202, 207, cert. denied, 442 U.S. 924 (1979), we reject Turner's contention that the trial court should not have questioned prospective jurors concerning their willingness to impose capital punishment.

We likewise believe that the trial court properly struck Samuel Cypress from the venire. After asking Cypress variations of the questions asked of others on the panel, the trial judge concluded that Cypress' objections to capital punishment were absolute. While jurors may not be excluded "simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction," Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), those jurors irrevocably committed to voting against the death penalty may be excluded. Coppola v. Commonwealth, 220 Va. 243, 250, 257 S.E.2d 797, 802 (1979), cert. denied, 444 U.S. 1103 (1980); Smith v. Commonwealth, 219 Va. 455, 464, 248 S.E.2d 135, 141 (1978), cert. denied, 441 U.S. 967 (1979). The trial court's determination that a juror is irrevocably committed to voting against the death penalty will not be disturbed on appeal unless we can say the prospective juror's commitment against the death penalty was not "unmistakably clear." Smith v. Commonwealth, 219 Va. at 465, 248 S.E.2d at 141. Accord, Coppola v. Commonwealth, 220 Va. at 250, 257 S.E.2d at 802. On the basis of the answers given by Cypress, the trial court reasonably concluded he was irrevocably committed against the death penalty.

The complete examination of Cypress appears below:
"THE COURT: Now, Mr. Cypress, do you have any religious or conscientious scruples or objections against the imposition of the death penalty?
MR. CYPRESS: Well, really, I don't go for the death penalty.
THE COURT: Can you say yes or no to that question?
MR. CYPRESS: No.
THE COURT: Or yes?
MR. CYPRESS: Do I have any objection?
THE COURT: Yes.
MR. CYPRESS: Yes.
THE COURT: Is your objection to the death penalty absolute?
MR. CYPRESS: Well, I would say yes.
THE COURT: Could you in a proper case impose the death penalty?
MR. CYPRESS: Didn't hear.
THE COURT: Could you in a proper case impose the death penalty?
MR. CYPRESS: Well, I can't see where it helps any."

D. Sequestration of the Jury

Turner sought and obtained a change of venue from Southampton County to Northampton County. Upon learning of a recent Northampton County case involving the death penalty and another murder in the area, defense counsel moved for another change in venue and for sequestration of the jury, both of which were denied. Turner contends that the refusal to sequester the jury was prejudicial error.

As Turner's counsel notes, a judge has discretion in determining whether to sequester a jury. The mere fact of media coverage does not require a judge to sequester a jury. Thompson v. Commonwealth, 219 Va. 498, 247 S.E.2d 707 (1978). A trial judge's discretion regarding sequestration extends to cases involving capital punishment. We hold that, in the absence of any indication of pretrial prejudicial publicity, a trial judge has wide discretion in deciding whether to sequester a jury.

III. CONSTITUTIONALITY OF THE DEATH PENALTY PROVISIONS

A. Facial Constitutionality

Turner contends that Virginia's statutory provisions concerning the death penalty are facially unconstitutional for reasons previously rejected by us. See Martin v. Commonwealth, 221 Va. 436, 434-40, 271 S.E.2d 123, 125-26 (1980); Mason v. Commonwealth, 219 Va. 1091, 1094-95, 254 S.E.2d 116, 118-19 (1979); Waye v. Commonwealth, 219 Va. 683, 698-99, 251 S.E.2d 202, 211 (1979); and Smith v. Commonwealth, 219 Va. 455, 476-79, 248 S.E.2d 135, 148-49 (1978). We reaffirm these prior holdings concerning the facial constitutionality of the death penalty statutory provisions.

Turner also argues that the imposition of the death penalty on the basis of a jury's conclusion regarding a defendant's propensity for future crime is unconstitutional. The statutory objective of isolating a criminal, according to Turner, can be accomplished through the less drastic measure of life imprisonment. As Turner acknowledges, Jurek v. Texas, 428 U.S. 262 (1976), upheld as constitutional a Texas statute allowing the imposition of the death penalty where a jury determines, inter alia, the defendant would probably commit "criminal acts of violence that would constitute a continuing threat to society." 428 U.S. at 269. While the only issue explicitly addressed concerning a defendant's propensity for future criminal conduct was whether the jury was being asked to resolve a question beyond its competency, 428 U.S. at 274-76, we believe Jurek holds that a defendant's propensity for future criminal acts of violence is an acceptable consideration in determining whether to impose the death penalty. See also Gregg v. Georgia, 428 U.S. 153, 183 n. 28 (1976) (plurality opinion).

"Turner does not contend that the jury had no basis for concluding he would probably commit "criminal acts of violence that would constitute a continuing serious threat to society . . . ." Code Sec. 19.2-264.2. Since 1974, the defendant has been convicted of malicious maiming, escape, unlawful wounding, malicious wounding, and second-degree murder. Four of these offenses occurred in the penal system.

B. Constitutionality as Applied

Citing Godfrey v. Georgia, 446 U.S. 420 (1980), Turner contends there was insufficient evidence to support a conclusion that his conduct in committing the offense "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery." Code Sec. 19.2-264.2. As we noted in James Dyral Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980) (this day decided), Godfrey rested upon its unique facts. The Godfrey prosecutor conceded the defendant had not tortured the victims or committed an aggravated battery upon them. 446 U.S. at 426. Godfrey had no prior criminal record. Thus, the death sentence rested upon the jury's finding that Godfrey's actions had been "outrageously or wantonly vile, horrible or inhuman in that [they] involved depravity of mind." 446 U.S. at 432. Rejecting such a conclusion as unconstitutional, the Supreme Court of the United States noted several facts: Godfrey's victims, family members who had caused him "extreme emotional trauma," were killed instantaneously; and shortly after the killings Godfrey acknowledged his involvement and the heinous nature of his crimes. Godfrey's crimes were not deemed to reflect "a consciousness materially more 'depraved' than that of any person guilty of murder." In summary, the state had not proven "a principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Id. at 433.

The second clause of Code Sec. 19.2-264.2 (hereafter, the "vileness" clause) provides specific criteria which must be met before the death penalty can be imposed on the basis of this clause. The conduct in committing the offense must be deemed to be "outrageously or wantonly vile, horrible or inhuman." Code Sec. 19.2-264.2. Second, the jury must conclude that the conduct establishes one of the following: torture of the victim, an aggravated battery of the victim, or the perpetrator's depravity of mind. See Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980).

In the present case, the Commonwealth established that Turner's conduct was "outrageously or wantonly vile, horrible or inhuman." Turner first shot Smith in the head without warning. After Smith slumped behind the counter, Bain immediately pleaded with Turner not to fire any more. After the defendant had fired one bullet hitting the rear wall and another one hitting Smith's head, Cosby became nauseous and asked if she could be seated. Rejecting Bain's pleas, Turner then leaned over the counter and fired two bullets into Smith's chest. While Smith was slumped behind the counter, Cosby heard him "gurgling." The evidence also establishes Turner committed an "aggravated battery": a "battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder." Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978). After being wounded by Turner, Smith slumped helplessly behind the counter. Unlike Godfrey's victims, Smith did not die instantaneously from a single discharge of a firearm.

Virginia's death penalty statute authorizes the imposition of the death penalty if either the "dangerousness" or "vileness" standard is met. Even if Turner's crime did not meet the "vileness" standard, imposition of the death penalty would be permissible under the "dangerousness" standard. On the basis of Turner's prior criminal record, set forth in footnote 11, the jury could reasonably conclude that the defendant would probably "commit criminal acts of violence that would constitute a continuing serious threat to society." Code Sec. 19.2-264.2.

As in James Dyral Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980), the jury returned a sentencing verdict without striking out the inapplicable language ("and" or "or"). Unlike in Briley, however, the trial judge in Turner's case refused to ask the jury members, either individually or collectively, whether their sentencing verdict was grounded upon the "dangerousness" or "vileness" standard or both. While the trial judge's refusal was not prejudicial error, it would accord with better practice to determine with certainty the basis for the jury's sentence. Such a procedure would greatly facilitate the process of appellate review.

IV. REFUSAL TO INSTRUCT THE JURY CONCERNING MURDER IN THE COMMISSION OF AN ATTEMPTED ROBBERY

Code Sec. 18.2-31(d), as noted earlier, provides that murder "in the commission of robbery" while armed with a deadly weapon is capital murder. Code Sec. 18.2-32 provides that murder "in the commission of, or attempt to commit," robbery is first-degree murder. Whereas Code Sec. 18.2-32 is violated by a murder in an attempted robbery, Code Sec. 18.2-31(d) is not. To be convicted under Code Sec. 18.2-31(d), the defendant must have committed a robbery.

Turner contends that the jury should have been instructed concerning the lesser offense of first-degree murder because the evidence failed to establish the commission of a robbery. While Turner never had physical possession of the jewelry bags personally, we believe the requirement of asportation has been satisfied in this case. "The degree of asportation necessary to constitute a taking under the common law definition of robbery need be only slight." Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603, 606 (1973). A perpetrator exercises dominion and control over an object where he commands another to seize the object and the person complies. In this case, Turner at gunpoint commanded Smith and Cosby to place money and valuables into jewelry bags owned by the store. Placing the money and valuables into the bags as requested, Smith and Cosby then put the bags on the counter. Turner exercised dominion and control over the money and valuables when Smith and Cosby asported these items at his command.

V. DOUBLE JEOPARDY

Citing Busic v. United States, 446 U.S. 398 (1980), Turner contends that the Double Jeopardy Clause of the United States Constitution was violated when he was convicted of the use of a firearm in the commission of a felony, Code Sec. 18.2-53.1, as well as murder in the commission of a robbery "while armed with a deadly weapon," Code Sec. 18.2-31(d). In Busic, the Supreme Court held that 18 U.S.C. § 924(c), providing enhanced punishment for one using or carrying a firearm in the commission of a felony, could not be applied to a defendant using a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a deadly weapon is used. Both Busic and its precursor, Simpson v. United States, 435 U.S. 6 (1978), were based upon a determination of Congressional intent.

U.S. Const., amend. V, provides that no one in a criminal case "shall . . . be subject for the same offense to be twice put in jeopardy of life or limb."

Code Sec. 18.2-53.1 provides that: "It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, robbery, burglary, malicious wounding as defined in Sec. 18.2-51, or abduction. Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a term of imprisonment of one year for a first conviction, and for 1 term of three years for a second or subsequent conviction under the provisions of this section. Notwithstanding any other provision of law, the sentence prescribed for a violation of the provisions of this section shall not be suspended in whole or in part, nor shall anyone convicted hereunder be placed on probation. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony."

Firearm, as defined in 18 U.S.C. § 921, includes a number of destructive devices not generally deemed to be firearms. See Simpson v. United States, 435 U.S. at 10, n.4.

The constitutional prohibition of double jeopardy consists of three separate guarantees: (1) "It protects against a second prosecution for the same offense after acquittal. [(2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense." Illinois v. Vitale, 447 U.S. 410, 415 (1980) quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969). In determining whether a defendant has been twice convicted for the "same offense," U.S. Const., amend. V, courts have been guided by the test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932): "[T]he test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of a fact which the other does not."

We need not resolve whether one convicted of the use of a firearm in the commission of a felony (Code Sec. 18.2-53.1) and murder in the commission of a robbery while armed with a deadly weapon [Code Sec. 18.2-31(d)] has been convicted twice for the "same offense" under the Blockburger test. As noted earlier, the defendant's convictions stem from a single criminal trial. Consequently, only the third constitutional guarantee (the guarantee against multiple punishments) is at issue in this appeal. The constitutional guarantee against multiple punishments "is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977). Where two or more punishments for separate statutory violations are imposed in a single criminal proceeding, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Whalen v. United States, 445 U.S. 684, 698 (1980) (Blackmun, J., concurring).

The statutory provisions at issue in this case are similar to those at issue in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 appeal dismissed for want of a substantial federal question sub. nom., Brintley v. Michigan, 444 U.S. 948 (1979) (use of a firearm in the commission of a felony and robbery "while armed with a dangerous weapon.") Under Hicks v. Miranda, 422 U.S. 332, 343-45 (1975), the Supreme Court's dismissals for want of a substantial federal question are dispositive precedent for those issues presented in a petitioner's appeal. In light of our conclusion concerning the significance of legislative intent on the issue before us, it is unnecessary to determine whether the Supreme Court's dismissal for want of a substantial federal question adjudicated whether felony-firearm and robbery "while armed with a dangerous weapon" constituted the same offense under Blockburger.

The General Assembly has clearly indicated its intent to impose multiple punishments for capital murder and use of a firearm in the commission of a felony. Code Sec. 18.2-53.1 provides that a "[v]iolation of this section shall constitute a separate and distinct felony" and that the punishment imposed for violating Code Sec. 18.2-53.1 "shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony." This language reflects an unambiguous intent to authorize multiple punishment for a single criminal transaction. Thus, Turner's double jeopardy claim has no merit.

VI. REVIEW REQUIRED BY CODE SEC. 17.110.1

Code Sec. 17-110.1(C)(1) requires that we consider and determine whether the death sentence "was imposed under the influence of passion, prejudice or any other arbitrary factor." We have carefully considered the record in this case and find no indication that the death sentence was the product of these enumerated factors.

Code Sec. 17-110.1(C)(2) requires us, after "considering both the crime and the defendant," to determine whether the death sentence "is excessive or disproportionate to the penalty imposed in similar cases." We have reviewed death sentences in those cases involving murder in the commission of a robbery while armed with a deadly weapon. James Dyral Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57, (1980); Linwood Earl Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980); Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied, 445 U.S. 972 (1980); Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103 (1980). While the atrociousness involved in Turner's murder does not rise to the level evidenced in Stamper, James Dyral Briley, or Coppola, Turner's murder is just as brutal as the murders in Linwood Earl Briley and Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049 (1980). Moreover, the defendant's criminal record, detailed in footnote 11, is one of the most extensive we have reviewed under Code Sec. 17-110.1(C). Turner, unlike any of the other defendants except for Mason, had been convicted for a previous murder. Certainly his prior criminal record is as extensive or more extensive than the criminal records of those other defendants sentenced to death for murder in the commission of an armed robbery. Having considered "both the crime and the defendant," Code Sec. 17-110.1(C)(2), we conclude the death sentence is not excessive or disproportionate to the sentences imposed in similar cases.

Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919 (1979).

VII. OTHER ASSIGNMENTS OF ERROR

[16-17-18] For the reasons stated in James Dyral Briley v. Commonwealth, supra, and Linwood Briley v. Commonwealth, supra, we reject Turner's contention that a further change in venue was necessary. We likewise reject his argument that photographs of the victim and crime scene should not have been introduced into evidence. Waye v. Commonwealth, 219 Va. at 692, 251 S.E.2d at 207-08. Moreover, Turner's contention that the jury should have been given an instruction concerning the possibility of parole has no merit. Stamper v. Commonwealth, 220 Va. at 278, 257 S.E.2d at 821; Clark v. Commonwealth, 220 Va. at 214, 257 S.E.2d at 792.

Turner raises several other assignments of error, discussed neither in his brief nor in oral argument. After examining each of these assigned errors, we conclude that they have no merit and require no further discussion.

Having given the defendant's case both appellate and independent review, we conclude there is no reversible error in either his convictions or sentences, and we find no other reason to disturb or commute his death sentence. Therefore, we affirm the judgments pronounced by the trial court.

Affirmed.


Summaries of

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Supreme Court of Virginia
Nov 26, 1980
221 Va. 513 (Va. 1980)

concluding that the General Assembly intended to punish both capital murder during the commission of robbery while armed with a deadly weapon under Code § 18.2-34 and the use of a firearm in the commission of a felony under Code § 18.2-53.1, because the latter statute expressly provided that the offense it defined "shall constitute a separate and distinct felony" from the predicate offense

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Case details for

Turner v. Commonwealth

Case Details

Full title:WILLIE LLOYD TURNER v. COMMONWEALTH OF VIRGINIA

Court:Supreme Court of Virginia

Date published: Nov 26, 1980

Citations

221 Va. 513 (Va. 1980)
273 S.E.2d 36

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