*1 Wayne Dennis Virginia Commonwealth Record and 900239 Nos. 900238 September Present: All the Justices *4 Thomas M. F. Anderson for Blaylock; Anthony appellant. Darron, Terry, Sue Leah General Attorney (Mary A. Assistant General, Attorney brief), for appellee.
JUSTICE of the Court. RUSSELL delivered the opinion death murder conviction and
On we review the capital appeal, of Eaton for the murder Wayne Dennis sentence imposed Hines. L. Trooper Jerry State Master Virginia I. PROCEEDINGS 1, 1989, Rockbridge County Eaton was indicted aby On May 18.2-31(f), under former Code murder for grand jury capital § in the com- for the use of a firearm (6),1 18.2-31 and now Code § motion, On Eaton’s Code 18.2-53.1. of a under felony mission § At the conclusion of County. changed Fauquier the venue was trial conducted pursuant of a bifurcated stage jury the first -264.4, Eaton of both convicted jury and Code 19.2-264.3 §§ for two at imprisonment fixed his jury punishment offenses. The trial, At the penalty phase conviction. on the firearm years mitigation, and hearing aggravation after evidence murder, based upon death for capital punishment fixed Eaton’s re- reviewing post-sentence After dangerousness.” his “future 10, 1990, court, judgments entered final on January the trial port, fixed by the penalties convictions and confirming imposing the two the jury. death review of Eaton’s automatic
We have consolidated the in Record murder conviction of the capital with his penalty appeal given and have 900238, -110.1(F), and 17-110.1(A) No. Code §§ also certi- docket, 17-110.2. We have Code them on the priority § of Virginia appeal of of Appeals fied from the Court consolidated conviction, and have Record No. firearm for our consideration. two records
II. THE EVIDENCE review, we will appellate principles Pursuant to established Common- to the most favorable light in the view the evidence drugs influence of while under February wealth. On Jr., Custer, in an Walter alcohol, killed Eaton shot and County. shared in Shenandoah mobile home they orchard near the home County the Shenandoah Eaton went to Later that day, shot, killed, and Marston, neighbor. a friend and Ripley $15, wallet, friend, containing Marston’s taking robbed his tated purpose Code killing § of a law-enforcement officer 18.2-31(6) interfering defines with the as capital performance as defined murder: “The his official § 9-169(9) willful, duties.” deliberate, when such killing premedi *5 Eaton then returned automobile. 1981 Ford Fairmont Marston’s Ann Mc- girlfriend, Judy his joined home where to his mobile Donald, decided to flee Shenan- there. The pair who also resided court appearance to avoid Eaton’s scheduled doah in order County Ea- charges; burglary larceny week on unrelated following on Interstate drove south go jail.” They want to ton “didn’t 81. Highway State Master evening, Virginia 11:30
Approximately p.m. Hines, 81 in Rock- who was Interstate L. Jerry patrolling Trooper was stop. Judy operating caused the Ford to bridge County, intoxicated, vehicle, Hines, her of while driving who suspected license. a radio check on her operator’s called his dispatcher thereafter, 25,” all which enabled “signal Soon Hines asked for a his radio transmissions. In vicinity state in his to receive troopers there, transmission, “hold still hold saying, this Hines was heard a woman’s voice just background, still there a minute.” In the Jr., Golleher, Virginia could be heard. State Allen K. Trooper be- just minutes when he heard Hines assistance away request cause “he was a with a drunken driver.” having problem driver, Dees, south driving
Charles W. an interstate truck arresting Judy. on Interstate 81 while Hines was in the process standing He and the all Trooper “observed a man and a woman vehicles, in of the car.” headlights Trooper’s between the two Dees saw the . . . out” the man who was “really chewing trooper standing standing a few feet in front of him while the woman was thereafter, next to the rear fender Ford. Soon Dees down the road as it again eight saw the Ford miles approximately him southbound toward Salem. sped past arrived scene at 11:55 He found p.m. Golleher at the Trooper closed, and Hines’ the doors running, cruiser its motor the front of flashing lights on. As Golleher approached car, dead, face-down, bumper, he saw Hines lying just beyond and saw body of blood. Golleher rolled the over pool trooper’s holes; chest. two bullet one in Hines’ neck and another in his holstered, Hines’ service revolver was still with the secured. strap Ford on the registration Golleher found the to Marston’s 1981 Salem” that seat Hines’ cruiser and “advised State Police Hines had Trooper perpetrator been killed and that the suspected was headed toward Salem in 1981 Ford. found a sum- Golleher offense, mons in for a traffic citing Hines’ cruiser McDonald Judy card, Golleher to along enabling with the Ford’s registration transmit the license number and of the car. dis- description broadcast a lookout for the Ford its patcher occupants. a.m., 1:30 Salem Police Officer Michael E. Approximately Green found the Ford in the lot of fast food restaurant parking Ford, in Salem. When Green he shone a pulled spot- behind vehicle, its window. then out of his light got into rear Green drew revolver, shouted and instructed the two “police,” occupants, *6 McDonald, and their on their heads. Eaton to hands Judy put a pistol reached for the floor and thereafter Green saw in Judy Eaton put Eaton’s hand. fired a shot at car and it Green lot. A chase en- gear parking high-speed in and drove out of sued, of 100 miles hour per in which the cars attained speeds Several officers in their cruisers through city police streets. other joined pursuit. into post.
The chase ended when Eaton crashed a street lamp Ford, As fire and emanated from the officers police smoke surrounding took the vehicle. Before the could up positions police in temple take the Eaton shot the left and pair custody, Judy into they then fired a shot into his own head. When were from pulled dead, Eaton but wreckage, and was alive uncon- Judy wet and Eaton was bloody. scious. His hands were Subsequently, to Roanoke Memorial where he treated transported Hospital for a to the head. gunshot wound the Ford. Ac- handgun
The recovered a .38 from caliber tests, was the used kill cording handgun weapon forensic Hines, Custer, Marston, Although and McDonald. Judy Marston, himself, Custer, and Judy, had used the to shoot gun negative. hands were Ac- forensic tests residue on his for powder however, testing the residue cording to a forensic expert, prior blood, both have off hands water or could been washed Eaton’s in- were the scene due to Eaton’s of which in abundant at supply burning douse auto- and the efforts to fire department’s demonstrated Judy’s mobile. tests on hands performed Forensic casings shell Eight that she had also handled weapon. empty had fired least were found The been pockets. pistol received three seven times before crash. Custer had day, shots, two, Hines Marston and two. 21, 1989, after Ea- shortly on 7 a.m.
Approximately February wounds, Police Virginia Spe- for his State ton received treatment him his room. hospital cial D. Watts Agent George approached indicated rights. Eaton informed Eaton of his constitutional Watts that he understood his head and down. Watts then by nodding up “willing asked Eaton if he was to continue to answer questions,” which Eaton indicated “no” his head. Watts imme- shaking left room. ceased the diately questioning later, 24, 1989, Three Eaton was released days February jail, from the and transferred to the Roanoke hospital County alleged where he was incarcerated for the murder of Mc- Judy Donald. of the Salem Police Sergeant Jeffrey Dudley Department Hottinger Rockingham and Detective C.R. Sheriff’s County jail arrived at the that afternoon to meet with other Department officers and a Rockingham County Their discussion prosecutor. centered on burglary larceny charges unrelated pending against Eaton in for which had Rockingham County, counsel been appointed. prosecutor charges informed officers that those had been “nolle earlier that prossed” day. Dudley Hottinger then entered an interrogation room where Eaton was seated.
The officers advised Eaton of constitutional rights and he indicated that he understood them. The officers then proceeded interrogate Eaton and to discuss burial. ad- Judy’s Eaton neither mitted nor denied shooting Hines. When asked whether Trooper Hines, shot Judy Eaton stated: was a “Judy good girl. Judy *7 wouldn’t hurt anybody.” interrogation ceased eventually when Eaton became confused and asked for “some time to think.” later, days
Two on February Eaton sent a to Dud- message ley requesting that he deliver a of to the Judy jail. photograph After Dudley delivered the and advised Eaton photograph again of rights, his constitutional began asking Eaton about Judy’s wounds, indicating that he that she was thought already dead when he shot her. Eaton also said . was . . that “Judy upset the going was to arrest her.” trooper Eaton related Additionally, details of the murders of Custer and Marston.
Pursuant to a agreement dated November Eaton plea pleaded guilty Shenandoah to the first County degree murder Custer, Marston, of the murder capital and of and other robbery related offenses. He was sentenced to life terms three consecutive plus Eaton also years. the of Code 53.1-151 accepted provisions § ( B1), under which he would be ineligible for He subse parole. quently entered a guilty to the murder plea Rockbridge County of Judy McDonald.
In the guilt of Eaton’s phase trial for the murder of Trooper Hines, Chadwick J. another inmate of the Roanoke Holley, being trigger- Eaton admitted the
County jail, testified that had who testified that Eaton jail drug charges, man. was in on Holley, Hines, length. With killing regard Trooper discussed each at that, returning as the and were Holley Judy Eaton told Trooper cruiser, the the Ford from the Eaton “shot cop.” Holley gave detailed of Eaton’s and the subse- description getaway then a chase which resulted in Eaton’s quent high-speed capture. An on indicated that he Trooper’s body autopsy performed bullet, shot One fired from 9 to inches away, pierced was twice. his chest traveled downward his through and armpit bullet, fired from 12 24 inches lung. heart and The second his and his Each away, pierced through windpipe. neck traveled have fatal. wound would been defense, Holley
In his testified that he had told it he, Judy not shot Hines. He testified that Judy, Trooper who togo jail. shot the she did not want to The jury, because trooper however, and found him of rejected guilty capital Eaton’s version murder. trial, argued for phase
At of the Commonwealth penalty of the death factor Ea- solely aggravating based penalty ton’s It introduced evidence dangerousness.” “future Custer, Marston, murders, a part McDonald and entered agreement Eaton’s Shenandoah into evidence. The County plea as a ineligible not informed that Eaton was parole agreement, result and the defense deletion objected bargain. of that testified at the Holley penalty part plea murders, that he was joked Eaton described the phase that as was dead. Judy free to because she blame death trooper’s from two introduced evidence Additionally, Commonwealth that Eaton County other inmates at the Roanoke Jail who testified “shank,” wire spring had fashioned a a made out of and a weapon rod, escape from shower curtain with which he planned guard taking overpowering weapon. tes- mitigation psychologist’s
Eaton’s evidence in consisted as timony describing “low-average,” Eaton’s intelligence *8 that Eaton was not problem of certain testimony jail employees prisoner. court, the retired receiving jury
After instructions the trial from delibera- hours of Following to determine the over two sentence. tions, that was deadlocked the trial court it jury notified vote, for the is required such as whether unanimous inquired sentence, death a life sentence. The trial required impose “I cannot court instruct instruction responded: you beyond received; if you agree which have are unable you pen- advise the court.” alty, please
No further communication was received from the Three jury. later, and one-half hours returned with a unanimous ver- dict fixing Eaton’s at death. punishment
III. ASSIGNMENTS OF ERROR WAIVED 2, 5, Eaton is deemed to Assignments have waived of Error 7, 11, 12, issues, and 30.2 Despite assigning error to these Therefore, failed to argue them on brief. to Rule pursuant 5:27(e), we will not consider them on appeal. Cheng Common wealth, 26, 41, 240 Va. (1990). S.E.2d
IV. ISSUES PREVIOUSLY DECIDED raises certain appeal issues which have been decided adversely to his claims by our decisions. We previous adhere to and, those rulings will accordingly, not discuss them further here. The issues thus resolved are previously whether:
A. The death penalty unconstitutional. See v. Com- Spencer monwealth, 78, 84, 240 Va. 393 S.E.2d (1990) (Spencer IV).
B. The defendant should granted have been additional peremp- tory challenges. See id. assignments complained: These of error (2) by denying That the trial court prohibit erred the Defendant’s in Limine to .Motion concerning adjudicated the introduction of evidence at trial the commission of other Salem; unadjudicated County City acts committed in Shenandoah and the (5) by refusing give proposed That the trial court erred the Defendant’s statement explaining process prospective jurors; of Voir Dire to (7) by refusing That the question trial court erred prospective to allow the Defendant to
jurors credibility “jailhouse proffered ques- about the as set snitches” out Voir Dire 9; tion number (11) by admitting testimony King That the trial court erred of M. in the Frederick testimony buttressing purpose Commonwealth’s case in chief as such was offered for the witness, testimony Holley; of Commonwealth’s Chadwick (12) by admitting testimony Dudley That the trial court erred of Jeff in the Com- testimony purpose buttressing monwealth’s case in chief as such was offered for the witness, testimony of Holley; Commonwealth’s Chadwick (30) refusing That the trial court erred to set aside the of death after review sentence post-sentence report pursuant Virginia Code Section 19.2-264.5.
246 concerning voir death pen
C.
dire
By permitting
questions
Pruett v.
See
“death-prone” jury.
the court
alty,
impanelled
1,
266, 277-78,
Commonwealth,
(1986),
Va.
351 S.E.2d
7-8
232
denied,
(1987).
cert.
V. VOIR DIRE
A.
Veniremen for Cause.
Refusal
Strike
retaining
four
contends that the trial court erred
court,
give
As an
we must
objections.
veniremen over his
appellate
decision whether to retain or exclude
deference to
trial court’s
court “sees and hears the
individual veniremen because the trial
412,
Witt,
accord
(1985);
v.
469
426
juror.”
U.S.
Wainwright
563, 572,
850,
Commonwealth, 238
385 S.E.2d
v.
Va.
Spencer
denied,
U.S.__,
(1990)
The standard to
the trial
applied
is whether his
on the jury panel
whether to retain a venireman
to the court some
dire
indicate
during
answers
voir
examination
the performance
“would
thing
substantially impair
or
prevent
and his
of his
as
in accordance with his instructions
juror
duties
Texas,
Turner v.
(1980);
45
accord
oath.” Adams v.
U.S.
483, 486,
Commonwealth,
543, 549,
cert. de
S.E.2d
234 Va.
nied,
O’Dell,
at
Va.
S.E.2d
(1988);
1. Frances Gouldthorpe, B. dire examination of Frances During voir criminal with other Eaton’s counsel about involvement inquired driv- on a drunk could not sit juror said she prosecutions. “tragic experience” had had a ing previous case because she that evidence informing juror to such an offense. After respect court asked her forthcoming, trial of alcohol consumption that it indicated if would affect her she impartiality; that evidence would not. engaging from he “was prevented
Eaton contends that pre-formed regarding Gouldthorpe’s] meaningful inquiry [Juror involving about cases alcohol Those opinions consumption.” opin- ions, continues, might have affected the juror’s impartiality.3 We do not The record demonstrates that the trial agree. clearly court, about the by inquiring juror’s to remain ability impartial, was satisfied that her prior with drunk cases experience driving would not or “prevent substantially impair performance duties a juror.” as We find in the record nothing to indicate [her] otherwise.
2. John Lutley numerous, Eaton’s counsel asked venireman John Lutley lengthy a defendant’s questions regarding of inno- presumption cence and a defendant’s not to option take stand in his own defense. Initially, Lutley voiced concern taking about Eaton’s not However, the stand. when asked: “You will listen to the evidence consider fairly with the along instructions?” re- Lutley “Yes, I sponded: and understand that the case has to be made by defense, not prosecution, by the I understand that.” Over Ea-
ton’s objection, was seated Lutley on the jury.
Eaton contends that Lutley was “confused about the pre
and, therefore,
sumption
innocence”
unqualified to sit on the
We
jury.4
disagree.
whole,
Taking
dire as
Lutley’s voir
see
Pruett,
3. J. Phyllis Daines During the Daines, voir dire of J. Phyllis Eaton’s counsel posed several lengthy questions, whether would essentially asking she that she tion because Eaton did not raise it in the trial court. Rule 5:25. not raise this On Eaton also brief, might Eaton objection “automatically” argues, also in the trial court, we will not consider it on argues brief, impose that the Lutley the death juror was “death should penalty. have prone.” We will not consider this conten been excused Again, appeal. because Eaton did because she stated Rule 5:25. if were proved
“automatically” impose the death penalty answered, When trial court Daines “Yes.” guilty. Initially, Daines say “automatically,” emphati- if she meant to asked her the death automatically” impose stated: “I would not cally penalty. “death clearly
Eaton contends that Juror Daines was not she would the record indicates that prone.” contrary, On was in only the death Her error “automatically” impose sentence. confusing posed to a responding “yes” lengthy question When the word “automatically.” Eaton’s counsel which contained unambiguous in terms by clear and question posed court, would abide the trial trial that she juror responded seating juror Daines. court’s instructions. There was no error S. Cherry 4. Donald S. should Cherry that venireman Donald Eaton contends he “would stated that Cherry have been excused for cause because if Eaton were convicted capital lean towards” the penalty death whole, However, the rec voir dire as a taking Cherry’s murder.5 mitigation evidence in ord shows that he would clearly give record, we on the Based weight aggravation. same as evidence was not “death Cherry prone.” trial court that agree *11 Questions Concerning Eligibility B. Parole the which informed question The voir dire proposed defense reason ineligible parole by that would be jury The him for his other murders. sentences previously imposed upon a sen- could consider jurors they also asked whether question to concern if were instructed not they tence “less than death” re- of Eaton’s ultimate or parole themselves with the possibility objec- to the Commonwealth’s turn The court sustained society. ruling. assigns error to question tion to the and Eaton not relevant evi eligibility Information regarding parole 85, IV, Va. 240 at by dence to be considered the jury. Spencer 351, 341, 613; Commonwealth, 238 Va. at v. 393 S.E.2d Watkins denied, U.S.__, 110 50, S.Ct. (1989), 385 S.E.2d 56 cert. 494 cence cause Eaton [5] Eaton also requirement did argues, not raise this on he brief, doubted his ability objection Cherry in the trial “was confused to apply court, we will not consider about law and facts presumption effectively.” it on appeal. inno Be Rule 5:25.
249 168, 178-80, Commonwealth, 1797 v. 234 Va. (1990); Williams 361, denied, 484 1020 (1987), 360 S.E.2d 367-68 cert. U.S. Commonwealth, 401, 418-19, (1988); Poyner v. 229 Va. 815, denied, Indeed, 865, (1985). S.E.2d 474 U.S. “the has no be advised of events.” Id. right post-sentencing at S.E.2d 836. Court has left Supreme The expressly States, this to be as a of state question determined matter by Ramos, There (1983). law. 1013-14 U.S. California fore, not voir refusing the trial court did err in Eaton’s proposed dire question.6
VI. SUPPRESSION OF TO STATEMENTS POLICE Contending that they rights were obtained in violation of his Sixth, Fifth, Amendments, under the and Fourteenth Eaton as- signs error refusal to court’s statements he suppress made to the on 24 and 26. Eaton did February February not at the hearing October 30 on motion testify suppress. his officers, witnesses his only statements were the two police Dudley and who Hottinger, February interviewed him 26. February two some
Although testimony officers differed in re- both spects, testified that Eaton received full Miranda warn- they before, ings and several during, interrogation; times that he gave them; indication that he he every understood that made fully counsel; inquiries about his entitlement to the assistance of that he told that he repeatedly was not talk to the officers required counsel; in the absence of and that counsel would be obtained for him if so desired. Both re- officers testified that Eaton never continued, quested counsel and that he to dis- quite voluntarily, cuss the case with hearing, them. At the conclusion of the court found that Eaton had never invoked his to counsel and that his statements were made. exami- voluntarily Our freely nation of the record satisfies us that the were findings sup- court’s ported evidence. defense,
Sgt. more Dudley’s favorable to the testimony, was offered Hottinger, defense. Detective whose version and refused his deleted that have told the For this reason, part proffered of his Shenandoah that he was we also Instructions reject ineligible County B and C for parole. assignments plea at the agreement penalty of error relating phase to the court’s of trial, parole *12 rulings which eligibility would which Commonwealth, was called a Com- favorable to as more principles In with familiar ap-
monwealth witness. accordance review, inter- concerning we will review the evidence pellate party.7 in the most favorable to the light prevailing views earlier, when Watts to inter- Agent attempted As stated Special a shake of his Eaton indicated February view Eaton on and Watts left any that did not wish answer questions head he made to him until No further efforts were interview immediately. February him in an interview room on Hottinger met Dudley said warnings, and Eaton that 24. Eaton Dudley gave Miranda crash, chase, the discussing high-speed them. After understood suicide, attempted Dudley and Eaton’s shooting Judy, Hines. said: “The reason shooting Dudley to the of Trooper turned Eaton was because he you stopped you?” shot the had trooper At that Judy.” to arrest replied, going point, “He Iif wanted attorney did I could have an Dudley: say asked “You “that he didn’t have Hottinger one?” then told Eaton tell [the if right attorney that he did have have an anything; officers] he wanted one.”8 room for a
A period Dudley short of silence followed. left funeral of Judy then Eaton about the Hottinger few minutes. told They discussed that McDonald and where she was be buried. subject Dudley until returned. return, about questions the officers asked some Dudley’s
After Hines Trooper traffic gun. stop by Eaton described the Hottinger then wasn’t Judy arrest. He said that drunk. Judy’s “Judy Eaton replied: “if had Judy trooper.” asked Eaton shot di- hurt He neither anyone.” was a and she wouldn’t good girl and, con- Hines shooting Trooper rectly admitted nor denied trial, was the Judy no gave hint testimony trast to later no statement concern- the crime. Eaton made other perpetrator killing. the Hines ing only must not be
A
counsel
right
waiver of an accused’s
intelligent relin
knowing and
must also constitute a
voluntary; it
or
In
privilege.
of a known
and abandonment
quishment
case,
and circum
facts
each
depends
particular
this
“upon
case,
background, experi-
surrounding
including
stances
ant.
8 Hottinger
“two or three” occasions
It assumes that
dissenting
testified that Eaton made
opinion
facts were
during the
entirely
as
based
related
February
similar
inquiries,
the version
Sgt.
interview.
Dudley.
most favorable
received similar responses,
to the defend
*13
Arizona,
ence,
v.
U.S.
and conduct of the
Edwards
451
accused.”
Zerbst,
458,
477,
v.
464
(1981)
482
Johnson
304 U.S.
(quoting
Butler,
369,
(1979).
Carolina v.
441 U.S.
374-75
(1938)); North
counsel, however,
A
not
ex
right
waiver
to
need
be
it
shown
the circumstances.
240
plicit;
can be
Va.
Cheng,
35,
case,
S.E.2d at 604. In the
the court inferred such
present
393
to
in a
willingness
engage
waiver from Eaton’s
discussion of
with
receiving
warnings
case
the officers after
Miranda
and indi
Butler,
See
that he understood them.
North Carolina v.
cating
no stranger
Eaton might contends that this be true had he not refused 21, an interview with Special Agent Watts on but that February his refusal on that occasion had prohibiting any the effect of sub sequent interviews unless he We is agree. initiated them. do not It 21, true that if had requested counsel on no sub February sequent police-initiated would have been questioning permitted Edwards, counsel’s absence. U.S. at 484-85. A mere refusal however, is not the as a The speak, request same for counsel. silent, honored” “scrupulously right Eaton’s to remain did not they right violate that when they re-initiated questioning later, days three following warnings. renewed Miranda Michigan v. Mosley, 423 U.S. 106-07 did (1975) not violate de (police fendant’s right silence re by re-initiating questioning, after newed Miranda hours in warnings, three after defendant had voked right to remain silent).
Eaton also contends that his Sixth rights Amendment were infringed because he had counsel in his unrelated appointed property-crime cases in Rockingham (terminated nolle County prosequi just before the interview on who not February 24) untenable. Ea- That contention also
present at the interview. with yet counsel had not attached ton’s Sixth Amendment judi- because “adversary murder of Hines Trooper to the respect See charge. been initiated on yet cial had not proceedings” Jackson, Sixth (1986). v. U.S. Michigan Rockingham rights charges Amendment attached to Eaton’s do rights not travel charges. were those Such County specific other crimes any attach themselves defendant and Moulton, (1985). U.S. 180 n.16 might commit. Maine Therefore, no counsel had involve- Rockingham County cases, case, even if *14 Rockingham with the and the present ment rights no upon would have conferred had remained they pending, murder. Eaton with to the Hines respect validly to right even if his counsel argues Eaton next that interview, he invoked February 24 waived at the of the inception Edwards, he con- Citing it of the during course conversation. the interview right mentioned his to counsel tends that when he in pres- be resumed only immediately, should have ended own ence of counsel or initiative. upon The of Edwards is succinct: holding has his right now hold that an accused invoked when [W]e custodial interrogation, to have counsel present during by showing be established right valid waiver that cannot custodial police-initiated he to further only responded that We rights. his even if he has been advised of interrogation Edwards, accused, ex- having an such as further hold that coun- through only with the police his desire deal pressed sel, authorities interrogation subject is not to further him, the ac- unless been made available until counsel has communication, or exchanges, cused initiates further himself conversations with the police. added). Our in- (footnote omitted) (emphasis
451 U.S. 484-85 “in- therefore, whether Eaton the question must focus quiry, desire or his “expressed present” his have counsel right voked counsel.” only through to deal with the police con Eaton’s utterances We with the trial court that agree in other Authorities were equivocal. to counsel cerning to the respect with standards jurisdictions differing have adopted expressed. must be counsel which for request specificity
253 some unambiguous request, pro- courts a clear require Some is men- subject hibit all further when the counsel questioning further way, only in while others any permit questioning tioned States Su- United resolving ambiguity. for purpose v. Court has not Smith Illi- expressly question, preme decided nois, 91, (1984), expressed preference 469 95-96 but has U.S. who “bright-line guidance rules” for must C., v. 442 conduct Fare Michael U.S. interrogatories. custodial 707, (1979). 718 court, Commonwealth, Poyner
The trial
relying
401,
815,
denied,
(1985)
Va.
S.E.2d
U.S. 888
Commonwealth,
Bunch v.
225 Va.
304 S.E.2d
cert. de
nied,
(1983),
concluded that the standard prevailing
U.S.
Virginia
in
that a
for counsel must be “unambiguous
request
in
Edwards
We distin
unequivocal”
trigger
order to
rule.
in
in Edwards
guished
facts Bunch from those
out
by pointing
that
Edwards
an
“where
involved
statement
unequivocal
counsel,
accused
he
wanted
. . . was
Bunch’s statement
couched
ambiguous
in
to the
that he
want
might
terms
effect
Bunch,
talk to a
We share the
Court’s
for
Supreme
U.S.
preference
“bright-line”
guidance
rules for the
those
conduct
of
who must
and evaluate custodial
of the
interrogations. In further explication
views
expressed
Bunch and
we hold that the Edwards
Poyner,
invoked,
cease,
rule is
interrogation
that custodial
must
when
accused,
having
having
warnings
begun
received Miranda
authorities,
to
respond
clearly
to
“has
as-
questions
counsel,” Edwards,
(emphasis
You which he is offenses other than offense for on trial other motive; as as evidence of the evidence of the defendant’s only intent; as evidence of defendant’s knowledge; defendant’s feelings as evidence of the defendant’s conduct and toward them; victim and relations between evidence the de- malice; fendant’s as evidence of the defendant’s premedita- tion; as evidence of defendant’s in connection opportunity for which offense he is on trial for no other purpose. A, proposed
Eaton’s Instruction was refused by which the trial court, stated: court instruct are jury that not to consider you [s] of the
evidence fact that defendant has to homi- plead guilty Salem, cide in Shenandoah County and the City Virginia as evidence of his murder guilt capital Trooper Jerry Hines. A, refusing
In Instruction the trial court ruled that it was duplica instruction, 6. granted tive of Instruction No. We agree. The not while law felicitously phrased, fairly covered the principle The trial did not issue. court abuse its discretion in refusing another, grant instruction. Stockton v. duplicative Common wealth, 124, 145, 384, 371, denied, 227 Va. 314 S.E.2d U.S. 873 (1984). Instructions B C would proposed have in the jury
structed on the definition of a the second de principal gree on the duty to convict defendant jury’s of the lesser offense if it guilt had reasonable doubt as to his on the capital instructions, charge. murder The trial court ruling refused both that there was no foundation for either in the evidence.
“A defendant entitled have the instructed only those theories of the case that are evidence.” Frye supported Commonwealth, (1986). Va. 345 S.E.2d More than a scintilla of evidence must be an present support instruction. Id. contends, based his own that there testimony,
sufficient evidence record in the that he support theory tes- principal degree. the second He to his points, specifically, in which timony he stated that Hines instructed him Trooper *17 another to arrive. On trooper Ford and wait for return the instructions, brief, following the he argues by trooper’s that Eaton Hines, opportunity McDonald the giving distracted purposefully the trooper. to shoot Eaton this support theory. is no evidence the record
There Hines, to distract Trooper he was attempting never testified that such an at- introduced to indicate nor was other evidence any defendant’s proposed evidence fails to support Because the tempt. C, denied them. correctly B the trial court Instructions and D, instructed Instruction which would have Eaton also proffered murder if it degree of second guilty felony to find Eaton jury continuing during larceny killed believed Hines was Trooper court, however, trial denied the instruction car. The Marston’s law,” there was it statement of the and because was “an incorrect it. support insufficient evidence D was “because proper
Eaton contends that Instruction oc- in which a murder continuing of the Marston vehicle larceny disagree. We being triggerman.” curred without Eaton statute, 18.2-33, defines the Code murder felony § to the inten accidentally, contrary of one killing crime as “[t]he of some felonious act while in the prosecution tion of parties, added.) evidence was introduced Clearly, . . . no (Emphasis .” Therefore, “accidentally.” that Hines was killed Trooper indicate evidence, and the trial by any D Instruction was unsupported the instruction. court refused properly - PHASE IX. JURY PENALTY INSTRUCTIONS F, instructions, through pen- A Eaton six proffered all six. Eaton as- The trial court refused of the trial. alty phase error to each refusal. signs D, E, A, on Instruction and F were all variations
Instructions Commonwealth, trial court. approved by proffered of “future dan- instruction, factor aggravating That tailored to stated: gerousness,” Eaton an offense Wayne
You have convicted Dennis must decide whether death. You which bemay punished to death or to life sentenced shall be Wayne Dennis death, the can be fixed at the penalty Before imprisonment. that, a reasonable doubt beyond Commonwealth must prove is a background, there history after consideration of his commit acts of violence would criminal probability that would threat to continuing society. constitute serious evidence,
If from you unanimously, find all the that, has reasonable doubt beyond Commonwealth proven there is a history background, after consideration of his that he would commit criminal acts of violence probability continuing society, that would constitute a serious threat to then fix the of Dennis Eaton at you Wayne may punishment death or if believe from all the evidence that death you fix justified, is not then shall penalty you punishment Dennis Eaton at life Wayne imprisonment.
If the Commonwealth has failed to reason- beyond prove *18 that, able doubt after consideration of and back- history ground, is a would probability there that he commit criminal acts of violence that would a continuing constitute serious threat society, to then shall fix the of Dennis you punishment Wayne Eaton at life imprisonment. “If,
Instruction would A have added: after conscientious discus- deliberation, and sion cannot a you reach unanimous decision whether to life impose you death sentence or imprisonment, may so advise the Court.” Eaton that this was a argued better court, however, statement of law. The trial refused Instruction A because would it have allowed the to avoid its jury duty. We agree.
Besides being duplicative previously an instruction Stockton, granted, 227 Va. at S.E.2d Instruction A would have an to given avoid a jury easy way determining sentence. Code 19.2-264.4(E) While imposition provides § of a life sentence by agree trial court when the cannot jury nevertheless, a a upon penalty, jury, has duty conscientiously Thus, to to attempt arrive at a sentence. the trial court correctly refused Instruction A. D, E, Instructions and were of In
Similarly, F duplicative struction 1. D Instruction informed the that it could not base jury the death sentence Eaton a solely fact that killed officer. Instruction E mitigating listed a number of factors to be considered and F jury, Instruction stated that jury could life impose finding a sentence reasonable despite beyond a doubt the existence of aggravating circumstances. Because In struction 1 and fully jury instructed the on the fairly applicable
law,
say
we cannot
that the trial court abused its discretion
A, D, E,
F, were
that
Instructions
and
ruling
Eaton’s proffered
Stockton,
We
X. SUFFICIENCY OF “FUTURE DANGEROUSNESS” Eaton moved strike at the conclu- During the penalty phase, and at the close of all again sion of the Commonwealth’s evidence a motions. The returned the evidence. The court denied both death, found after consideration “having unanimously sentence of probability that there is a history background [Eaton’s] acts violence would consti- would commit criminal to society.” tute serious threat continuing to produce In Commonwealth failed that the contending that he would a future threat pose sufficient evidence to indicate he com evidence which reveals that ignores Eaton society, murders, and re irrational seemingly mitted four unprovoked crimes, joked Additionally, lated within a 24-hour period. incarcerated, and, while fashioned his crime spree Holley about in an guard which he assault deadly planned weapon this, intro considering evidence After escape attempt. evidence that there ample duced in we conclude mitigation, *19 finding that to the by support jury’s the Commonwealth presented society. threat to continuing, Eaton a serious posed DEADLOCK XI. JURY trial, the phase the court at being penalty instructed Upon above, ap- As after to its verdict. noted the retired consider jury hours, a note to sent and the foreman two one-half proximately be to “We continue the further instruction: requesting trial court hours. The a half same vote after two and deadlocked the Life impris- The we must be unanimous. Death Verdict indicates Please necessary. is not unanimous vote onment does indicate a beyond instruct you “I cannot trial court clarify.” responded: The received; agree are to you if unable the instruction which have you response court.” No other the the advise upon penalty, please
259 and hours later when it jury came from the until three one-half fixing a verdict at death. punishment returned unanimous that, note, the court receiving Eaton contends the trial discharge and a life sentence jury pursuant required impose 19.2-264.4(E). to Code That states: “In the event the provision § as court cannot to the shall dismiss the jury agree penalty, Further, a jury, sentence life.” impose imprisonment that if trial did not it jury, Eaton maintains court dismiss it should have a if it given charge informing supplemental decision, could not reach a unanimous the trial court would im- a life pose sentence. option
Neither warranted. Obvi proposed ously, finally was not deadlocked. When a jury jury deciding sentence, a matter of the of a murder gravity capital two one- hours an half is not excessive time for deliberation. The had jury been instructed fully regarding applicable sentencing, law and the did trial court not abuse its discretion in response its the jury’s inquiry. strong interest,
The state has a
sentencing
in capital
pro
ceeding,
having
conscience
the community expressed by
jury
the ultimate
of life or death.
v.
question
Lowenfield
Phelps,
(1988).
U.S.
court is
en
entitled to
courage the
its
continue
deliberations for a reasonable time
jury
Id.;
even after the
has indicated that
v.
it is deadlocked.
U.S.
Gordon,
dismissed,
(11th
1987),
817 F.2d
Cir.
Thibodeaux,
(1988);
XII. AND PROPORTIONALITY Code 17-110.1(C) us sentence on requires to review death § record to consider and determine: 1. Whether the sentence of under the influ- imposed death was factor; ence of passion, prejudice any arbitrary or other 2. Whether the death or disproportion- sentence of is excessive cases, considering ate both the penalty in similar imposed crime and the defendant.
260 murder capital
We
the records
all
have accumulated
Court,
17-110.1(E),
to Code
this
pursuant
cases reviewed
§
pen
to those cases in which
death
attention
giving particular
dangerousness” predicate,
the “future
solely
based
alty
534,
276
Commonwealth,
391 S.E.2d
239 Va.
Savino v.
e.g.,
Commonwealth,
403,
46
374 S.E.2d
236 Va.
(1990); Fisher v.
denied,
v.
(1989);
U.S. 1028
Common
Pope
cert.
490
(1988),
denied,
114,
485
wealth,
352
cert.
(1987),
234 Va.
360 S.E.2d
289,
Commonwealth,
Va.
302
v.
225
(1988); Peterson
U.S. 1015
520,
denied,
(1983);
865
Bassett v. Com-
464 U.S.
S.E.2d
cert.
denied,
monwealth,
844,
(1981), cert.
222 Va.
Record Affirmed. *21 LACY, con- joins, with whom WHITING JUSTICE JUSTICE curring dissenting in in part and part.
I concur with the in all the rule majority respects except to determine whether an individual in- adopted by majority voked his Amendment to counsel. right Fifth
Edwards v. 477 Arizona, (1981), 451 the police U.S. requires a Fifth to when invokes his Amend stop questioning suspect ment not be resumed until a right Interrogation may to counsel. is or until the himself reinitiates the dia lawyer present, suspect logue. The in Wayne this case is whether Dennis question to during invoked his Fifth Amendment counsel his interro right on 24 gation by Hottinger February Officers and when he Dudley referred to such I ought counsel statements as to “Maybe talk to a “Didn’t I had a to lawyer,” you right lawyer,” a and say someone, “I need to talk to a a someone.”1 psychiatrist, lawyer, In when my statements such as these are opinion, equivocal made, the most and to ask obvious is the sus- appropriate response “Do want a The pect, you lawyer?”. response to this suspect’s and should resolve the allow the question ambiguity interrogators to proceed This to consistent with accordingly. easy test apply, Arizona, Miranda v. 384 (1966) U.S. 436 and its and progeny, efficient of terms and time. a police court It true provides bright-line rule which is fair to and alike.2 defendants 1 that, Commonwealth, holding majority’s Poyner under Va. v. 229 329 S.E.2d denied, (1985), right inquiring cert. 474 888 U.S. Eaton’s statement about his to an counsel, attorney only clarifying question request and a does not address the not consequences remaining counsel. references to Hottinger’s only Detective initial handwritten referred to Eaton’s statement that he *22 Arizona-, in which Court de- Supreme
Edwards v. the phrase the to continue a custo- police Miranda does not allow clared that right his if “has asserted interrogation clearly dial the defendant added). pro- 485 This phrase to counsel.” 451 U.S. at (emphasis most for the majority’s position. vides tenuous at support not the right, Edwards involved the waiver of a constitutional no as to whether or question of that There was right. invocation an Further- attorney present. not the wished have defendant more, issue, noted in some discussing the waiver the Court that “when the for counsel is jurisdictions request waiver was possible, Estelle, 1979) (en banc). v. 597 513 (CA5 Nash F.2d equivocal. 1979).” (CA5 v. F.2d 768 Ed- Wainwright, See 601 Thompson wards, 486, at n.9. 451 U.S. issue, addressing
When
invocation
counsel
specifically
the.
731,
U.S.
Cupp,
did comment in Frazier v.
394
Court
Supreme
statement,
lawyer
better
aget
“I think I had
(1969),
738
more,”
to invoke the defen-
might
I
be sufficient
any
before
talk
language
“in
manner”
dant’s
to counsel under the
any
Illinois,
Miranda,
v.
379
the test under Escobedo
but fell short of
Frazier,
at
394 U.S.
487
controlled the case.
(1964),
U.S.
which
Edwards,
in Smith v.
Court
Supreme
738.
after
years
Three
denied,
(5th
1984); Thompson
(1988);
Cherry,
Cir.
v.
Based on these one must take a step propor- tions to maintain that the Court’s use of the as- phrase “clearly Edwards, serted” in established or even the standard supports majority adopted today. defendant,
In addition to an burden on the placing improper test also an burden on the majority’s exacting unnecessary places officer. The intent of the defendant is now to be measured police officer, through the perspective interrogating very per- son who has a substantial interest in the fruits of the interroga- tion. What seem clear to one may officer unequivocal police Furthermore, may appear ambiguous to another. equivocal will judgment subject be review the courts. continually (cid:127)Courts, officers, like divergent well arrive at conclu- may sions regarding import of a references to an attor- suspect’s The rule ney.3 the Court undercuts the adopted by today rationale of Miranda and the Court preference expressed by Supreme for establishing bright-line will rules which law enforce- provide ment officers with appropriate guides for responses particular actions.
In my the record opinion, in this case supports finding counsel, minimum, Eaton intended to but request exemplifies practical legal dangers inherent rule re- majority’s an quiring unambiguous for counsel. request Eaton, a functional I.Q. illiterate with an between 84 and *23 was interrogated on his release days the after three hospital from of treatment for a gunshot self-inflicted wound to the head. About an hour before the interrogation began, Officers and Hot- Dudley tinger met with two state and the attor- troopers Commonwealth’s for neys of Salem and the of City County Rockbridge. At this discussed, meeting, strategy for the of Eaton was in- interrogation cluding the fact that unrelated in Rock- charges property pending 3 Compare, example, holding of one circuit court in this Commonwealth that right might defendant invoked his to counsel when he stated that “he want to talk to a Commonwealth, denied, lawyer,” 423, 430, Bunch 225 Va. 304 S.E.2d (1983), 464 U.S. 977 with the in this case that Eaton’s state conclusion of the trial court and, therefore, “Maybe ought lawyer” ment equivocal he to talk to a did not invoke was right. his Fifth Amendment morning, earlier that
ingham prossed had been nolle County on for Eaton those releasing attorney appointed thereby charges.4 beginning Dudley explained Officer interrogation,
At the
Eaton,
written
or
warnings to
but no
explanation
the Miranda
not
re-
rights
of
was used. The
interrogation
tape
waiver
minutes, during
The interview lasted
corded.
approximately
testified,
*24
asking
which requires simply
met
a rule
could
be
easily
end
lawyer?”.
want a
“Do you
clarifying question,
notes
second,
Hottinger’s
typewritten
testimony
needed
talk to someone.
set of
his
notes and
suppression hearing
attorney
state
two
that Eaton referred to an
or three other
occasions,
Hottinger
wording
precise
Dudley’s
did
but
not recite the
statements.
those
ought
lawyer,” “maybe
notes state that Eaton said “he
to a
I better talk to a
to talk
lawyer,”
ought
Although
“maybe
lawyer.”
and
I
to talk to a
must be consid-
the evidence
Commonwealth,
light
ered
most
to the
which the trial
favorable
evidence
Hottinger
identifying
Dudley by
court relied must
considered.
also be
Without
either
or
name,
each,
you say
right
the court held
1 had
an
that statements testified to
“Did
and,
attorney?”,
ought
might
attorney,”
ambiguous
equivocal
and “I
to talk to an
were
therefore,
request
did not
constitute
for counsel.
2
approach
determining
This
whether the defendant
intends to invoke
constitu
See,
Ducharme,
right
adopted by
e.g.,
tional
has
been
a number
courts.
Norman
(9th
1989);
Alabama,
(11th
1988);
F.2d 1483
Cir.
Owen v.
F.2d
Cir.
U.S. v.
Gotay,
Fouche,
(2d
1988);
1985),
(9th
844 F.2d
Cir.
Cir.
U.S. v.
Notes
notes and his handwritten Sergeant Dudley which time reflected, an attorney at least five references to that Eaton made and, I had an right attorney?” “Didn’t to including you say occasions, “he to talk to an ought attorney.” at least two an officers reiter- attorney, police After each reference to Eaton remained silent. ated had a to an right attorney. that Eaton with conversation interrogation then reinitiated the police buried that being who was concerning girlfriend Judy, Eaton’s day. to said, I’d talk a law- “Maybe one after Eaton better point, At to with the Common- left the room confer yer,” Sergeant Dudley of reference Eaton’s concerning implications wealth’s attorney interrogation deter- decided to continue They counsel. The interro- later. attorney question mine where stood on they he again stated that needed gation concluded when Eaton finally time to think. record, rights of On this continued waiver his Eaton’s began referring into when brought question counsel, in albeit times counsel. As Eaton continued refer their manner, evidenced an the reactions ambiguous Yet, statements. own consequences concern over find ambiguity no action to remove the they took affirmative Rather, their they wanted orchestrated out whether he counsel. avoid the require- in a which believed would they actions manner interrogation. during an attorney ment of the presence such activ- encourages The rule majority today adopted to determine officers ity, encouraging police rather than interro- custodial persons manner the intent straightforward That rights. the exercise of their constitutional gations regarding
[4] old “smelled like three as ones which day The trial court characterized these actions fish.”