WILLIAM JEFFERY CANTRELL V. COMMONWEALTH OF VIRGINIA
Record No. 840269
Supreme Court of Virginia
April 26, 1985
229 Va. 387
Present: All the Justices
John H. McLees, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.
RUSSELL, J., delivered the opinion of the Court.
The evidence was entirely circumstantial. Judy Cantrell was killed by two shotgun blasts as she was climbing the steps toward the side door of the Cantrell home, about 9:00 p.m. on December 8, 1981, while returning alone from a karate clаss. Her husband, the defendant, was at home, but the couple‘s only child was visiting the defendant‘s parents, who lived next door. The shotgun belonged to the defendant and was kept in the home.
Within a few minutes after the shotgun blasts were heard, the defendant called his parents’ home for help. The rescue squad arrived soon thereafter and found Judy dead at the foot of the steps, outside the home, and the defendant lying unconscious. He was taken to the Norton Community Hospital where he recovered consciousness but was hysterical, incoherent, and hyperventilating. His blood pressure was elevated and his face flushed. He had superficial facial scratches and an inconspicuous bruise on the forehead. There were no marks on the back of the head and no signs of serious head injury.
The defendant gave a statement to the police in which he said that he had entered his home about 6:40 p.m., thinking that nobody was present. He said that as he entered the kitchen, he was “struck over the head by a hаrd object with much force,” and was seized by three persons whom he could not identify. He said that he “passed out,” and when he “came to,” his hands and legs were tied, he was face down on the linoleum floor of the kitchen, and a large man was sitting on his back. He said that he was hit on the head several times with a hard object, that the assailants would frequently “bang [his] head on the floor,” that a water glass was broken on the back of his head, and that he was kicked in the stomach. He testified that he heard sounds indicating that the
The police found the Cantrell home in disarray, but many items of value, including Judy‘s rings, a camera, and several firearms, were undisturbed. The defendant gave the police a list of items missing from the home. These items were found in a field on the Cantrell property. Although rain and snow fell that night, a tracking dog was brought to the scene about three hours after the murder. The dog found a scent leading from the back of the house to a boundary fence arоund the field in which the missing items were recovered, but found no trail leading away from the property. Instead, the dog returned to the house. A palm print found inside the house belonged neither to the defendant nor to Judy, but no other fingerprints were recovered at the scene, on the shotgun, or on the items found in the field. A soil sample taken from a bathroom window sill matched soil behind the house, but was different from samples taken from defendant‘s shoes. A broken drinking glass was found on the kitchen floor.
Four months after the murder, a Wise County deputy sheriff received an anonymous telephone call in which a man with a voice which sounded “similar” to the defendant‘s suggested that a search of a planter box outside a hardware store in the town of Pound would reveal evidence which would convict another man of the crime. Under newly disturbed soil in the planter box, the deputy found a pistol and underwear from the Cantrell home and two old photographs of Judy. A witness testified that he had seen the defendant in Pound, near the flower box, three days before the anonymous call was received.
The Commonwealth introduced evidence that the defendant, at the time of the murder, had been conducting an adulterous relationship for a year with a married woman. Both parties to the relationship professed continuing devotion to their respective spouses and a strong desire to preserve their marriages.
Judy Cantrell‘s father had also retained Mr. McAfee in a civil case to seek a change of custody of the Cantrells’ only child from the defendant tо Judy‘s parents. The defendant argues that this employment gave Mr. McAfee a conflict of interest which rendered his participation in the criminal prosecution improper to a degree which denied the defendant due process of law. The defendant points out that Mr. McAfee‘s task in obtaining the child‘s custody for his clients, the child‘s grandparents, would be greatly facilitated if the defendant were convicted of murder. Further, the defendant argues that a murder conviction would bar his right to inherit from his decеased wife and would set the stage for a wrongful death action against him, all to the benefit of Mr. McAfee and his civil clients. Thus, he contends, the private prosecutor had an incentive, which the Commonwealth‘s Attorney lacked, to secure his conviction for reasons other than the impartial administration of justice. The defendant argues: “[t]he fact that there should need to be argument to the jury that the prosecution was biased because it was bought with private money for private vengeanсe creates entirely the wrong atmosphere for a criminal trial.” He points out that the role of privately employed prosecutors developed during a time when Commonwealth‘s Attorneys were not required to be members of the bar. The defendant argues that, since the adoption of statutory amendments requiring bar membership for Commonwealth‘s Attorneys,
The right of a citizen to hire a private prosecutor is rooted in the early common law of England. Criminal prosecutions, like civil actions, were conducted within the framework of a pure adversary system. The Crown did not provide a public prosecutor in routine felony cases; rather, the victim or his family retained private counsel to prosecute and the defendant retained counsel to defend. State v. Atkins, 261 S.E.2d 55, 57 (W.Va. 1979), cert. denied, 445 U.S. 904 (1980). See generally Note, Private Prosecution—The Entrenched Anomaly, 50 N.C.L. Rev. 1171 (1972). We have approved the practice, expressly or by implication, in many of our earlier cases. McCue‘s Case, 103 Va. 870, 1004, 49 S.E. 623, 630 (1905); Jackson‘s Case, 96 Va. 107, 112, 30 S.E. 452, 453 (1898); Sawyers v. Commonwealth, 88 Va. 356, 357, 13 S.E. 708, 708 (1891); Hopper, Stiers and Lemmon‘s Case, 47 Va. (6 Gratt.) 684, 685 (1849). Only one conviction has been reversed because of the participation of a private prosecutor, Compton v. Commonwealth, 163 Va. 999, 1004-06, 175 S.E. 879, 882 (1934), but the reversal was ordered not because the private prosecutor appeared, but rather because he was in fact employed by the clerk and the sheriff, whose duty was to serve the court impartially.
The policy arguments advanced by the defendant for a total prohibition of privately employed prosecutors may have a sound basis in considerations of public policy, but we think it advisable to leave to the General Assembly such a basic change in the long-established common law of Virginia. Nevertheless, without disturbing the common-law rule which generally permits the appearance of private counsel to assist the prosecution, we conclude that Mr. McAfee‘s role, in the circumstances of this case, infringed the defendant‘s right to a fair and impartial trial.
The common-law right of a crime victim, or of his family, to assist the prosecution with privately employed cоunsel is not absolute, but lies within the discretion and continuing control of the trial court. State v. Atkins, 261 S.E.2d at 58-59. A private prosecutor is subject to the same high standard of conduct in the trial of the case as is a public prosecutor. State ex. rel. Moran v. Ziegler, 244 S.E.2d 550 (W.Va. 1978). It follows, in our view, that he is absolutely prohibited from taking any position, making any argument, offering any evidence, or advocating any cause which would be forbidden to a public prosecutor.
We said in Macon v. Commonwealth, 187 Va. 363, 373, 46 S.E.2d 396, 401 (1948), that it is as much the duty of a Commonwealth‘s Attorney to protect his fellow citizens from unjustified prosecutions as it is to prosecute the guilty. His duty is “to seek justice, not merely to convict.” Virginia Code of Professional Responsibility EC 8-10, Vol. 11, Code of Virginia at 258 (1984 added volume).
A lawyer who represents the victim of a crime, or the victim‘s family, in a civil case arising out of the occurrence which gives rise to a criminal prosecution, for which he is hired as a special prosecutor, necessarily incurs a conflict of interest. He cannot serve two masters. His duty to administer the criminal law impartially, in the interest of justice, is essentially a judicial one. Griffin v. U.S., 295 F. 437, 439-40 (3d Cir. 1924). He also has undertaken a duty to represent the interests of his civil client with undivided fidelity and zeal. The likelihood of conflict between these two duties rises to the level of an overwhelming probability.
Examined from anothеr viewpoint, the private prosecutor is prohibited, as stated above, from advocating any cause which would be forbidden to the public prosecutor. Even in jurisdictions in which the Commonwealth‘s Attorney is permitted to engage in the part-time practice of law he may not undertake the civil represen-
We agree with the Ganger court that the position of a private prosecutor having a civil interest in the case so infects the prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, that prejudice to the defendant need not be shown. A conflict of interest on the part of the prosecution in itself constitutes a denial of a defendant‘s due process rights under
Although the foregoing holding rеquires reversal, we shall briefly discuss the defendant‘s two remaining assignments of error because the case may, if the Commonwealth be so advised, go to trial for a third time.
The defendant, as noted above, gave a statement to a deputy sheriff that he had been struck on the head with a hard object, and had “passed out;” that he had received numerous other blows to the head and that a water glass had been broken by a blow to the back of his head. In opening statement at trial, the prosecutiоn, after describing the defendant‘s statement, indicated that it would show the improbability of the defendant‘s version by producing evidence that when admitted to the hospital on the night of the murder, the defendant had only a “slight bruise on the front of his head, a little reddish place, and that will be all the testimony about his physical condition with regard to the alleged beatings and bangings and knocking out blow he received to the head.”
In order to counter this attack and to corroborate his version, the defendant callеd as an expert witness Dr. Clelland Blake, a forensic pathologist from Tennessee, who testified that he had examined many head injuries. Defense counsel, referring to defendant‘s statement to the sheriff, asked: “Let me refer to the statement where it said he was hit in the head, and ask you if a person were hit in the head hard enough to knock him down and to cause him to become unconscious, would that necessarily cause any lumps on the head?” The Commonwealth objected to the question “unless he saw the defendant and unless he has had an opportu-
The defendant assigns error to the exclusion of this evidence, and argues that it was not harmless error because, in closing argument, the prosecution stated to the jury:
And it doesn‘t take any Dr. Blake... to tell reasonable men and wоmen that if you hit somebody that hard . . . hard enough in the back of the head, you are going to leave something. You are going to leave a knot, you are going to take a gash out, you are going to leave something on the back of that man‘s head . . . when you hit somebody hard enough to knock them down on the floor, you are going to do a little bit of damage.
The Attorney General responds that the questions to Dr. Blake were not propounded in correct hypothetical form, and that the answers dеalt only with possibilities, rather than reasonable probabilities. Thus, he argues, the questions failed to meet the test of LeVasseur v. Commonwealth, 225 Va. 564, 587-88, 304 S.E.2d 644, 656-57 (1983), and Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980), and the answers were not probative of defendant‘s theory of the case.
In our view, it was error to exclude the proffered testimony. Hypothetical questions are unnecessary where an expert testifies from his own knowledge of the facts disclosed in his testimony, Walrod v. Matthews, 210 Va. 382, 388, 171 S.E.2d 180, 185 (1969), or, since 1982, where he renders an opinion “from facts, circumstances or data made known to or percеived by such witness at or before the hearing or trial.”
Over the defendant‘s objection, the court instructed the jury: “To prove the charge of murder the Commonwealth does not have to prove a motive for the killing. The presence or absence of a motive may be considered in arriving at your verdict.” The defendant concedes that such an instruction is proper in cases where direct evidence, or the defendant‘s admissions, furnish proof that he was the criminal agent, or even where the evidence, although circumstantial, entirely excludes the possibility of any other criminal agent. The defendant argues, however, that proof of motive is required in cases, such as his, where the prosecution seeks to prove the identity of the criminal agent by purely circumstantial evidence, which does not completely exclude the possibility that another person was the perpetrator.
In support of this proposition, the defendant relies on a linе of our decisions dealing with circumstantial evidence, going back to Dean‘s Case, 73 Va. (32 Gratt.) 912 (1879), where we said: “Here, then, we have a case of circumstantial evidence, where time, place, motive, means and conduct concur in pointing out the accused as the perpetrator of the crime. When these concur . . . the evidence is powerfully strengthened by the total absence of any trace or vestige of any other agent.” Id. at 926 (emphasis in original) (citation omitted). In Abdell v. Commonwealth, 173 Va. 458, 470, 2 S.E.2d 293, 298 (1939), we followed Dean, but stated the proposition more generally: “The burden is upon thе Commonwealth, where circumstantial evidence is relied upon to support a conviction, to show that ‘time, place, motive, means and conduct concur in pointing out the accused as the perpetrator of the crime.‘” Similar language has been employed in many circumstantial evidence cases. As recently as Bishop v. Commonwealth, 227 Va. 164, 313 S.E.2d 390 (1984), we said:
We are guided by familiar principles. Where the evidence is entirely circumstantial, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence. The chain of necessary circumstances must be unbroken. The circumstances of motive, time, place, means, and conduct must all concur to form an unbroken chain which links the defendant to the crime beyond a reasonable doubt. Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981); Inge v. Commonwealth, 217 Va. 360, 228 S.E.2d 563 (1976).
Id. at 169, 313 S.E.2d at 393.
The defendant misapplies these principles by confusing the species of circumstances which may or may not be available for proof in any given cаse, with the elements of the crime, which must each be proved in every case if a conviction is to be had. Intent, for instance, is a requisite element in many crimes, but motive is not. Motive is merely a circumstance tending to prove the guilt of the alleged perpetrator, as its absence may tend to show his innocence. It is relevant and probative on the issue of identity of the criminal agent, but it is not an element of any crime. “Motive and intent are not synonymous. Motive is the inducing cause, while intent is the mental state with which the criminal act is committed. . . . The prosecution is never required to prove motive, although it may do so.” C. Torcia, Wharton‘s Criminal Evidence § 170 (13th ed. 1972); P. Herrick, Underhill‘s Criminal Evidence §§ 54 and 644 (5th ed. 1957). Motive has never been a requisite element of the crime of murder in Virginia, Van Dyke v. Commonwealth, 196 Va. 1039, 1046, 86 S.E.2d 848, 852 (1955); Thomas v. Commonwealth, 186 Va. 814, 819, 44 S.E.2d 365, 368 (1947); Ferrell v. Commonwealth, 177 Va. 861, 873-74, 14 S.E.2d 293, 298 (1941); Sutton v. Commonwealth, 85 Va. 128, 135, 7 S.E. 323, 326-27 (1888), or in any other jurisdiction of which we are aware, C. Torcia, Wharton‘s Criminal Law § 137 (14th ed. 1979).
Our circumstantial evidence decisions do not require that each of the five circumstances of time, place, motive, means, and conduct must individually be proved beyond a reasonable doubt. In Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982), we observed that circumstantial evidence comes in infinite variety,
What our circumstantial evidence cases do stand for is the proposition that those circumstances which are proved must each be consistent with guilt and inconsistent with innocence, and that they must also be consistent with each other, that is to say, they must concur in pointing to the defendant as the perpetrator beyond a reasonable doubt.
The defendant, relying on the above-quoted language which we used in Bishop, Stover, and Inge, emphasizes the phrases “all necessary circumstances” and “the chain of necessary circumstances must be unbroken,” to argue that each of the five circumstances mentioned is essential. That reading joins the two phrases out of context. The first phrase, in its entirety, was: “all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence” (emphasis added). Thus it is apparent that not all of the listed circumstances must be proved in every case.
The distinction is best shown by the earliest case in which the general principle was stated. In Sutton, 85 Va. at 135, 7 S.E. at 326-27, the court instructed the jury: “[I]n all cases where the proof is circumstantial evidence, the time, place, means, opportunity, motive and conduct or such of these facts as may be proved with other facts, if any, must all concur in pointing out the accusеd beyond reasonable doubt as the guilty agent” (emphasis added). Counsel tendered the instruction without the italicized language, but the trial judge added it by interlineation. The defendant assigned error to the change. On appeal, we held: “This appears to have been a proper amendment. It is not necessary, for illustration, to prove a motive. The crime may be clearly established and no motive ever discovered.” Id. at 135, 7 S.E. at 326-27. We conclude that the jury was correctly instructed in the casе before us.
For the reasons stated above, the judgment of conviction will be reversed and the cases remanded for further proceedings consistent with the views expressed herein, if the Commonwealth be so advised.
Reversed and remanded.
I concur in the result reached by the majority. I agree that the trial court erred in permitting the private prosecutor to act under the facts presented and in excluding the expert medical testimony. I cannot agree, however, that it was proper for the court to instruct the jury that “the Commonwealth does not have to prove a motive for the killing.”
In many cases, this instruction is proper because, generally, motive is not an essential element of murder. Ward v. Commonwealth, 205 Va. 564, 570, 138 S.E.2d 293, 297 (1964). However, where, as here, the evidence is wholly circumstantial, “[t]he burden is upon the Commonwealth to prove beyond a reasonable doubt that motive, time, place, means, and conduct concur in pointing out the accused as the perpetrator of the crime.” Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976). (Emphasis added.) See also Boykins v. Commonwealth, 210 Va. 309, 312, 170 S.E.2d 771, 773 (1969); Abdell v. Commonwealth, 173 Va. 458, 470, 2 S.E.2d 293, 298 (1939).
This well-established rule has existed in the Commonwealth since Dean‘s Case, 73 Va. (32 Gratt.) 912 (1879). Twice recently, relying upon the rule reiterated in Inge, we reversed convictions in wholly circumstantial evidence cases. The most recent was Bishop v. Commonwealth, 227 Va. 164, 313 S.E.2d 390 (1984), where we said:
We are guided by familiar principles. Where the evidence is entirely circumstantial, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence. The chain of necessary circumstances must be unbroken. The circumstances of motive, time, place, means, and conduct must all concur to form an unbroken chain which links the defendant to the crime beyond a reasonable doubt.
Id. at 169, 313 S.E.2d at 393. (Emphasis added.) (Citations omitted.)
The other case was Stover v. Commonwealth, 222 Va. 618, 283 S.E.2d 194 (1981), in which we stated:
We believe the evidence in the present case fails to measure up to the Inge standard. We said in Inge that, where the
evidence is circumstantial, “all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.” We said further that “[t]he chain of necessary circumstances must be unbroken.“. . . We do not believe that the circumstances of motive, time, place, means, аnd conduct concur in this case to form an unbroken chain linking the defendant to the murder . . . beyond a reasonable doubt. The chain breaks down in its very first link. If the defendant‘s loss to Taylor [the victim] in the dice game can be considered sufficient motive for murder, . . . others than the defendant had a similar motive.
Id. at 623, 283 S.E.2d at 196. (Emphasis added.)
In the face of such clear, settled law, I believe that the instruction constituted reversible error, and that, upon remand, it should be refused. In my opinion, the majority has implicitly overruled this line of cases and repudiated a fair and logical rule that has served the Commonwealth well for over a century.