*1 Richmond Joseph LeVasseur John v. Virginia
Commonwealth 17, 1983. June Record No. 822050. JJ., Russell, Cochran, Poff, Carrico, C.J.,
Present: Stephenson, Compton, Retired Justice. Harrison, *6 (Coleman Charles J. III & brief)» Zauzig, Zauzig, on for appellant. R. (Gerald
Donald Assistant General L. Curry, Attorney Baliles, General, on brief), for Attorney appellee.
RUSSELL, J., of the delivered court. opinion In a bifurcated trial conducted to Code 19.2- pursuant § seq., 264.3 et wilful, was of the John LeVasseur convicted Joseph deliberate, Benner, and killing of Pamela premeditated commission of while robbery armed with Code deadly weapon, § 18;2-31(d), and his at On November was fixed death.1 punishment 5, 1982, the trial report, officer’s considering after probation court The has imposed appeal the death sentence. defendant’s been consolidated with the automatic review of his death sentence and on our given docket. priority
The facts will be stated most favorable to Com- light monwealth. old in Pamela Benner was nineteen years February trial, separate non-jury robbery In a convicted of Pamela defendant was imprisonment. appeal. Benner and sentenced life conviction is not before us this That school, 1982. high After she had worked at the leaving Pentagon, 25, 1982, but on in her February and unemployed living par- ents’ home in She was with the defen- Woodbridge. acquainted dant, but fond of him. It been more than particularly three months since last she had seen him. She at home stayed but, an interest days, having most music she popular groups, attended band at performances she invited night. Frequently, members, wives, band their and to her girlfriends home parents’ during the Mr. and day. Mrs. Benner were both They employed. became concerned about missing occasional items from the house and habitually locked the door to to safeguard their bedroom their brother, Rick, belongings. Pamela’s worked during also the day and his bedroom door kept locked for same reason. 25, 1982,
About on and p.m. February 5:40 Pamela’s parents brother returned home from work together. The front door was “ammonia, There was a open. strong smell of Clorox something nature,” of this and the kitchen exhaust fan was running. doors both the and Rick’s bedrooms had been kicked parents’ in. The locks on many splinters were the floor. There wood were bloodstains on the broken doors of hair and pieces blood bed, the floor. Pamela’s was in the middle of her purse *7 some articles from it had been onto bed. emptied
In a downstairs room found family Pamela’s Her they body. were together ankles bound with and a cord from a masking tape stereo headset. An ice and a fork were pick two-pronged carving protruding from her back. She three had wounds” “penetrating wounds, abrasions, beside the and and right eye, over other forty covering lacerations her head was crushed body. back her blows from a blunt stab by instrument. There were some wounds which showed no In the medical examiner’s hemorrhaging. opin- ion, inflicted after this indicated that had been heartbeat had they “de- ceased. Some the wounds to the hands were described as fensive,” ad- incurred while the victim tried to ward off evidently in green ditional blows. She was clad a It and the long bathrobe. bleach, had in which been soaked a discolored body liquid rod on a body, fabric burned the skin. A curtain her lay on a her Charred marks on poker lay blanket near feet. fireplace that an had been made to indicated unsuccessful effort carpet A found on the floor body. burn the was telephone jack receptable on the victim’s A latent was found it which fingerprint near feet. to be the defendant’s. proved later were clothing shoes and
The defendant’s blood-spattered from some distance in a a trash plastic bag “dumpster” found having the stains as tests identified laboratory his home. Forensic from the items stolen made victim’s blood. Various been bag were found in the of the murder victim’s home family day in the locked kept Some of items had been with the these clothing. been open. bedrooms which had kicked had for that he known defendant Gerald Frazier testified 25, 1982, defen- 4:15 February two At about years. p.m. wife, came, vis- where Frazier was apartment dant with his to the alibi, that to “if I could him an he needed give asked iting, . . . that day.” he with me from two four o’clock that was say no and seemed He showed smiling The defendant normal. or alcohol. Frazier told under the influence signs being drugs had him that he would be an alibi because he provide unable an alibi interview at 2:30 When he asked job p.m. why attended needed, He said the defendant said “he killed somebody.” ... I big, had been named “Pam .... some fat slob it a girl him: to rob that the defendant told went her.” Frazier testified through A. He said he the back of the house. came with And he said that first hit her the back head he was, what he object. object some I can’t remember hit her with it and she fell to the floor.
And he with her said she him to leave pleaded stop, that, know, he alone. She even said that she loved him so you would leave her. said, know, die
And he the bitch wouldn’t and he you kept her. And then said he kitchen hitting got two-pronged he her, fork and and an ice and stabbed her re- pick, stabbed that. with peatedly
And he money then he said that he looked for and all find change, something could was about two sixty-five he said stand to in the like that. Then that he couldn’t longer. house any He tried evidence a bleach or laun- by using destroy *8 — — he said her. To detergent that’s what to over
dry pour — rid of and that. Then he said get things like fingerprints Did ask him about the effect that bleach? Q. you anything A. No.
Q. Go ahead. Well, know, A. said, he it just you thought he was like acid. know, You he it would remove the and thought fingerprints the evidence or whatever. destroy home, gone
The defendant then told Frazier that he had changed clothes, showered, and clothing threw his in a at the “dumpster” Frazier him to Apartments. told turn himself in. Bayview “go IAnd didn’t want to have to do it. I with wasn’t to part going him give an alibi anything.” evening
Later that called defendant Frazier and held the close a telephone to radio scanner to which police the defendant listening. was Frazier could hear police radio transmissions discussing D.O.A.” The told “possible defendant Frazier he was thinking of going with a relative. Kentucky stay
The next day the defendant went with his to the Gar- attorneys field substation and surrendered himself to the police. He stood by officer who police was the issuance of a seeking warrant robbery a magistrate. from When the officer stated that the Benners home, a theft of about reported twenty dollars cash from their defendant, Miranda who had been given interrupted warnings, said, “I got three dollars.” only Later, car, while riding with an officer in a police defendant said, her, “If I’d I burned wouldn’t have to . . go through this . The [expletive defendant later testified that he could deleted].” remark, not recall this might but that he it and making have said would not it. deny
The defendant made no denial of the atrocious nature crime or of his for the This responsibility killing. was made clear statement of the defense. coun- jury opening Defense sel told the that the evidence would not show the defendant murder, guilty capital guilt rather show “a lesser of murder.” degree
The testified he his wife and defendant was with living father, child in his mother’s home in 1982. His with February close, whom was he had died the particularly previous year. Vietnamese, defendant is having been the LeVasseurs adopted by when he was two old. at the time and years unemployed He felt about in his mother’s home because he guilty living said her with the business. He that he helping family printing looked for He was jobs depressed sporadically. attempted of illegal drugs. relieve his use depression by heavy *9 25, 1982, he his wife awoke him around said On February a.m., to look for a going job. him if he was out 10:30 and asked of hits” bong smoked “from seven to ten He said he dressed and two He then went to not unusual for him. which was marijuana, turned which had advertised for was help, service stations “two to a restaurant and consumed He then went down both. LSD), hit of acid (lycergic diethylamide, “a acid” plus beers” he felt and had impaired a of He said then piece paper. “limp” it was and Benner’s house because nearby vision. He went Pam car either “crash out or talk just out of the and get he wanted what’s happening.” about testified,
Pam, He answer the door. immediately he did her room looked in basement window and saw in the recreation a think, her watching I T.V.” He attracted eating and “sitting eggs, attention, said he “had a she admitted him to the home. He and headache, . . I felt like feeling and . terrible ... migraine his He was a brick inside head.” said discussed my they there situation, of his recent death living arrangements, and the work print had worked the LeVasseurs’ formerly his father. Pam of containing and a his father. had a album shop photo picture making this to him and snide remarks because She showed “was had it made or I had it made as far as under really living we and working with and free meals my getting same roof mother “ testified, Then, I he didn’t take the same of place employment.” I then thing and started and the next kindly getting upset too it — I head all my alls was a flash went into and light remember — I Fort is father in Walter Reed mean I remember seeing my Belvoir Hospital.” screams, thing
He then a but the next said he heard woman’s with “two objects sticking he remembered was Pam’s seeing body Pam, massag- from the back.” He said he been behind sitting occurred, back, he her when “flash ing light” and events. intervening remembered none The testified that he “went defendant further hysteric out.” open get ran the stairs and kicked two doors “to panic,” up his remembered the smell of and the bloodstains on He bleach shoes, He masking tape “rope” and hands. saw pants, around victim’s ankles. of removing said that he had no recollection defendant house, he while he was home driving from the but that
objects him, of the on the seat noticed that he had with lying passenger car, album, calculator, watches, a a “and photo two money lying home, all over the seat.” When he arrived he he was feeling said “disgust scared.” His wife told him take shower [sic] home, while she all of the items Benner to- put taken from the gether with defendant’s into a He clothing, plastic bag. testi- shower, fied that while he saw a murder inside his “It head. me on Pam . . with his beating Benner . He and up poker.” wife then drove to the where Bayview Apartments they disposed in a plastic bag giant then went to a “big, dumpster.” They *10 bank where his wife withdrew some the we money. time “[A]t didn’t know I to whether was town or turn in.” going skip myself
The defendant corroborated Frazier’s largely testimony. He ad- mitted that he had to gone Frazier to him for ask an alibi and that he had disclosed the murder. He did not recall re- having slob,” ferred to the victim as “a fat but said he probably have said “to it be macho at the time.” He admitted said having to Frazier that “the bitch wouldn’t die.” to explain Asked this — remark, said, well, he “Because when I was in the house there was more than on just stabs her.” He having remembered called Frazier later and to of a D.O.A.” on listening reports “possible the radio scanner. friend, evening Later that the defendant called another Mike —
Hamilton, to “come over and party with me I’ve some got good Hamilton pot.” had other plans. defendant then took “about bong 15 to 20 hits and had or glasses about two three of Jack counsel, Daniels.” The next his he day, surren- accompanied by dered himself to the police.
The defendant denied to the Benner house for the going purpose however, admit, of He did two robbing Pamela. that weeks earlier he had discussed with Mike Hamilton of committing the prospect burglaries and of another woman specifically proposed robbery for the of purpose raising money. rebuttal,
In Commonwealth called fellow inmates three had, the Prince William with County jail, whom the defendant while in discussed the case. All convicted felons. custody, were Bruce Jackson testified that the defendant told him that he had favors, gone to for Pam’s house sexual that when she rebuffed him he had her with to gone beaten and that he had poker, upstairs fork, knife, kitchen, obtained a an large pick, ice and a steak stabbed her with them and then kind of “detergent” some poured watches, over her. taking He said that the defendant described house, he hid calculators, of which later from the all and money clothing. with his a garbage bag him a similar that the defendant told
Donald testified McKenna skull motive, the victim’s the defendant said his that story her,” he with hitting when was “sounded a coconut breaking like die,” and “the bitch wouldn’t the defendant said that poker, down he beside lay after fork and obtaining pick, that ice order to be sure the heart in to ascertain the location of body her fatally. stab he told him that that the defendant Mendy
Louis Aris testified him a sim- gave The defendant argued had with Pam over money. re- said that he stabbing, of the then beating ilar account “Clorox,” kitchen, some it over got poured turned to the body. de- was the contention that the
The defense based entirely upon he ingested fendant so alcohol drugs was affected the time that he deliberation at incapable premeditation shows that the He further evidence killing. argues did existence until after intent commit not come into robbery sec- no more than guilty and that he therefore killing, filed assignments murder. The defendant ond-degree fifty-six error, has questions presented ap- which he reduced eleven We shall seriatim. consider them peal.
A. Selection. Jury as to Jurors’ Attitudes
I. Voir Dire Examination Toward the Death Penalty. a test that veniremen to argues subjecting
The defendant
case,
in a
as to their
to
the death
ability
penalty,
proper
apply
provides
him of a fair cross section of the
community
deprives
sta
him with
that is
He
introduce
“guilt prone.”
sought
a jury
effect,
Hovey
relied
upon
tistical
to this
similar
that
evidence
Court,
1,
P.2d
(1980).
v.
28 Cal.3d
616
1301
Superior
veniremen,
on
We
the examination
specifically
approved
dire,
thereof,
willingness,
impose capital
voir
as to their
lack
683,
Commonwealth,
Waye
219 Va.
251 S.E.2d
v.
punishment.
Commonwealth,
denied,
202,
442
924
v.
(1979);
cert.
U.S.
Turner
denied,
513,
1011
Va.
36
cert.
451 U.S.
(1980),
221
Moreover,
evidence
rejected
type
we have
expressly
Commonwealth,
v.
222
283
Hovey,
adduced in
Justus
Va.
denied,
(1981),
S.E.2d 905
cert.
(1982),
II. of Venue. Change The defendant filed a motion change for a of venue which six argued thereof, before In days trial. he offered support sixteen newspaper clippings local privately-taken opinion poll. evidence, The court received the newspaper clippings rejected the results of the No affidavits opinion poll. were offered support motion, motion. The court denied the but stated it might be renewed if voir dire should questioning reveal widespread prejudice against the defendant. court also indi cated its intention to question veniremen with directly respect to pre-trial bias publicity possible resulting therefrom. trial,
At thirty-three veniremen were subjected to voir dire questions, at first together and then in of two. groups Three were excused because of personal with the acquaintance defendant or the victim. Of the remaining thirty, ten recalled only any exposure to publicity concerning the case. None of them was aware any defendant, bias against the none had formed an as to his opinion guilt, and all stated a willingness aside lay whatever had they heard or read and to decide the case on the solely evidence and Indeed, court’s instructions. the defendant concedes on brief that “the record discloses no widespread voir prejudice during dire,” but argues that this is of little significance since voir dire was limited and the judge’s questions were “leading.”
We find no undue limitations in the record as to voir dire ques- tioning the subject of bias. The trial judge asked questions designed to elicit responses showing the effects of pretrial public- and there is ity, no indication that appropriate follow-up questions would have been fact, if prohibited, indicated. In been none were requested.
It is presumed that a defendant can receive a fair trial in where, occurred, locality the offense and the burden is on the accused to overcome that presumption by clearly demonstrating widespread prejudice against him. v. Coppola 243, 248, 220 Va. denied, S.E.2d 801 (1979), cert. U.S. 1103 (1980). The trial court’s discretion in ruling such upon *12 a motion will not be disturbed in the absence of clear showing abuse. Commonwealth, 41, Clanton v. 50, 223 Va. 286 S.E.2d 578
172, here. The news arti was made (1982). showing 177 No such facts, which are to the court simply reported cles tendered were inflammatory. They in themselves. were shocking They numerous, sufficient to is not alone but sheer volume of publicity Earl v. Briley of venue. Linwood change justify denied, 48, cert. (1980), 221 Va. was not abused. trial court’s discretion U.S. 1031 The Jurors’ Attitudes Voir Dire Examination as to III. of Drugs. Toward the Use to voir dire subjected After all had been prospective jurors of two groups were they a group, sequestered as questioning One of for further questioning. into the courtroom brought were and Linda Curren. of Anna V. Cornwell these consisted pairs concerning pre-trial publicity, to both court propounded questions formation of as opinion, or the existence of bias any prejudice, law and the on the solely to base a verdict guilt, willingness The Common evidence, and attitudes toward the death penalty. their concerning willingness two wealth asked Attorney questions so warranted. and evidence if the law the death impose penalty them, collo following counsel arose to question When defense ensued: quy Mr. Zauzig.
The Court: are opposed both of you Mr. I would assume that Zauzig: bias Do have drugs. you the use of drugs, illegal usage consider the unable to make you that would prejudice his defense? defendant, illegal drugs, part Ms. that again. Cornwell: Say — be unable you be able to Zauzig: you Mr. Would as a drugs, of illegal the defendant consider the usage by of his defense? part I think so. Ms. Cornwell: —or consider it would be able to
The Court: You drugs. use of the against Ms. Cornwell: I would law-abiding for all is there That presumption The Court: citizens. — fact that it used that he might The fact that con- could you illegal drugs, used that he had may develop of his defense? that as a part sider Cornwell: No. Ms. *13 Honor,
Mr. Your I have motion. a Zauzig: The Court: Motion is denied.
Notwithstanding ruling, this the record discloses Anna Cornwell struck from the result of chal- was as a jury peremptory lenge the rather than the defendant. by by defendant that he had a to twelve im- right constitutional argues who his jurors voluntary would entertain defense partial freely intoxication, and on brief that he was forced to erroneously argues since, her, one of use his strikes to remove she “har- peremptory bored a bias toward the use of which prejudice [illegal] drugs, awas fundamental issue in the trial.” error
Leaving ruling aside defendant’s that this asserting strike, cost him a his is underlying argument falla- peremptory Indeed, it is to cious. be that all citizens are hoped responsible drugs. the use of A prejudiced against illegal challenge for cause based a would such eliminate from the all ex- upon question those who of crime. A which cept approve proper question, might concern, have been framed to meet the defendant’s would have inquired could juror whether follow the court’s instruction which would reduce the defendant’s criminal if the responsibility he jury found that was so affected intoxication as to by voluntary be or incapable premeditation deliberation. The as questions, — asked, are “Would to equivocal: you be able would be una- you ble to . . . .” were in They fact misunderstood clearly ju- Further, ror: “I be against would the use of drugs.” question which asks whether the would able to consider the juror use of “as a illegal of his is drugs part ambiguous defense” so as to render the meaningless. answer it ask the juror Does whether factor, would drug consider intoxication mitigating does it ask whether the juror justification would treat it as total or excuse crime, for the necessitating an No of law acquittal? principle support last Because the was im- premise. question proper, the motion to for challenge juror cause properly denied.
IV. Voir Dire Questions Concerning Further Attitudes Illegal
Toward the Use of Drugs. aAt pretrial hearing, court directed counsel to submit in writing their voir dire In respective re proposed questions. the defendant sponse, submitted a list of fifty-eight questions, into the attitudes of veniremen eight elaborately of which inquired drugs general. illegal toward were questions argumentative
The court held that the proposed However, advised counsel that he would the court ambiguous. and that such an effort an them opportunity rephrase of trial. The defendant made beginning would be considered at the agreed objection ruling, rephrase questions. no the record. questions appears No written rephrasing however, was, this propound questions Counsel permitted came before the jurors they to the subject orally prospective asked, Each time the its question court of two. groups used, The first time it was counsel asked: differed. phraseology *14 would either of be unable to you “Do of the two of or you, any of in of defense illegal drugs support consider evidence of the use There was no With each suc- response. the crime of murder?” convoluted, veniremen, more the became question cessive of pair Commonwealth objected. no more the Eventually, but precise. revision, would meet the objection, which suggested The court counsel, the suggestion, than adopting rephrased but rather section, it to propounded previous as in quoted question Cornwell. Anna was sub- jurors another pair
After the Cornwell colloquy, arose to When defense counsel to voir dire examination. jected them, the court stated: interrogate have asked the other which Zauzig, you
Mr. question ruled on The Court has previously has been past rephrased. forward. It did this should come this and how question get- in the has been past What your question come forward. effect, is an is, to sanction what asking at ting reason, to ask right denying you For that I’m act. illegal are jurors far as further any prospective as question concerned. improve question, made no further effort
The defendant ruling appeal. this challenged objected 1981, 8.01-358, now makes the direct as amended Code § of right. a matter counsel jurors by of prospective questioning Cf. 513, Commonwealth, (1980), 36 273 S.E.2d 221 Va. Turner v. denied, part: It pertinent 1011 provides 451 U.S. cert.
581 The court and counsel for either shall have party right to examine under oath who is any called as a person juror therein and shall have right ask such or person juror relevant directly any to ascertain whether he question is re- lated cause, to either or has any interest in the party, or has or expressed or is any sensible opinion, any bias formed or . . . prejudice therein. Code 8.01-358 added). (emphasis While the 1981 § amendment makes mandatory formerly discretionary right counsel to question the prospective jurors it has no effect directly, on the na- ture of the which questions be may asked. The questions pro- relevant, pounded counsel must and the always, trial must, discretion, court in its decide the issue of relevancy, subject to review for Commonwealth, abuse. See Bassett v. 844, 222 Va. 853, 844, 284 Son, S.E.2d (1981); Inc., Deal v. Nix & 57, 63, 683, Va. S.E.2d 688 (1965); Slade v.
155 Va.
A otherwise, has no party right, statutory propound *15 wishes, any question he or to extend voir dire questioning ad infin itum. The court must afford a a full and party fair to opportunity ascertain whether prospective jurors “stand indifferent in the cause,” but the trial retains the judge discretion to determine when the have parties had sufficient to do so. opportunity
Here, the defendant made no of proffer the he questions would have asked of On subsequent prospective jurors. appellate review, we can assume that would only have been similar to they those to the put series of veniremen with culminating Anna Cornwell. For the reasons stated in the preceding of this part opinion, the did court not abuse its discretion in excluding such questions. They were not relevant to a determination of bias or Rather, prejudice. they were calculated to elicit a prospective ju- toward the use of illegal drugs ror’s attitude underlying generally.2 counsel, well might interesting they Such attitudes to abide the court’s in no to the relationship juror’s ability by structions, the law to the to find the facts and to impartially, apply facts conscientiously.
Moreover, trial the record indicates that the court afforded relevant ques reasonable to ask every opportunity the defendant on the which would be to elicit bias designed prejudice tions were given of At least seven jurors. opportunities part prospective a di rephrase question, finally accompanied by to counsel court, from the which was not followed. suggestion ques rect the court was sufficient to tioning preserve conducted actually by defendant’s to trial a fair and and we right by impartial jury, find no of discretion in the court’s refusal to further permit abuse voir dire the defendant on the of subject illegal questioning by drugs. Juror’s Questions
V. Voir Dire as to a Ability the Death Impose Penalty. in groups
During prospective jurors questioning two, were the court to Woltner questions put by Rudolph if to the effect that Edward Tostenson. Mr. Woltner responded im he vote to automatically murder were capital proved, the court awaiting challenge, the death Without pose penalty. then Attorney ques excused him for cause. The Commonwealth’s tioned Mr. Tostenson: Tostenson,
Mr. Mr. if under the law and the evidence Ebert: case, of this it that the death develops penalty it develops, questioning, law voir dire the veniremen had not been instructed At the time of legal questions gave relating voluntary them no frame to the defense of intoxication. The might by inquiry veniremen to fix in the context of that defense. The work which drugs objected strongly illegal they properly asked whether so to the use have been they by reduce the defen follow an instruction the court which would would be unable to responsibility the evidence that he was so affected if the found from dant’s criminal premeditation voluntary ingestion drugs incapable of or delibera that he was such tion, requisite capital element of murder. above, framework, questions noted the veniremen were abstract. As Without such a they they acquit readily they being the defendant if asked if could could infer that were law, being only using drugs. principle of effect illegal There no such he was found that intensity objections criminal questions veniremen’s was to elicit of the conduct.
583 is one of could consider the alternatives available to you you, for voting that alternative?
Mr. not Tostenson: I’m sure. Well,
Mr. Ebert: have to tell us one or the I you’ll way other. sure, understand not that you’re saying are don’t you you know? Do whether or you any feeling as to not you could consider that alternative?
The Court: I him of the May ask the second part question? — Mr. Ebert: Let me ask the second you next part — vote, I thing was to ask could going you you actually one of 12 for the death should jurors, the law and penalty, the evidence warrant same?
Mr. Tostenson: For death penalty?
Mr. Ebert: Yes.
Mr. Tostenson: I know if I be don’t could party that not. There is some doubt in my mind. me,
The Court: Mr. Excuse Ebert. I don’t think there is any further and necessity going any causing this gentlemen agonize. Zauzig, Mr. do insist you questions be upon asked? Yes;
Mr. Honor, Zauzig: I’d like to ask some Your questions, if I can.
The Court: All I’ll right; to ask permit you questions. — Mr. Mr. Zauzig: Honor, Mr. Ebert: Your I at this It point, object. seems answers, to me that from his does have he at least a moral or philosophical problem with potential impos- ing the death sentence and I don’t think he should be ques- — tioned further or the defendant permit me, Court: ask Let me that excuse Mr. question; Zauzig. Do you have moral or with philosophical problem imposing the death of how penalty, regardless severe the — — facts and circumstances the evidence may facts circumstances, but the evidence? Mr. Tostenson: you Would please repeat question? The Court: Do have a moral or you philosophical problem with imposing the death of how penalty, regardless severe the evidence might to be? develop
Mr. Tostenson: I I would. suppose circumstances, The Court: Under the Mr. I Zauzig, see no reason to go further. v. Il ruling, citing Witherspoon
The defendant to this objected denied, linois, (1968), and fur 391 U.S. U.S. reh’g *17 an given opportunity on the that he was objected ground ther Mr. further Defense by questioning. to “rehabilitate” Tostenson that, the mere fact that a Witherspoon, counsel out under pointed to the death penalty or moral juror religious objection exclusion; cause, be for not alone warrant his he could excluded effect, he would refuse under circumstances to consider if only “Mr. the Court has ruled on Zauzig, it. The court responded: that, from his answers that he has that and it is my interpretation problem.” if be for cause his
A excluded prospective juror may im substantially “would prevent on capital punishment views of his duties as a accordance with juror the pair performance Texas, 38, v. 448 U.S. 45 his instructions and his oath.” Adams to mean that a (1980). juror We have interpreted Witherspoon the of the against imposition who is committed vote irrevocably v. for cause. Common Coppola death excluded penalty may cert, 243, 250, wealth, (1979), 802 de 220 Va. nied, Whether a is thus (1980). juror “irrevocably 444 1103 U.S. committed,” for determination is a mixed of law fact question the trial court. fact-finder, of the meaning
As the trial court must weigh light questions posed, answers given phrasing tone, inflections, gen- and the dialogue, and tenor of the that, We are aware juror. of the prospective eral demeanor read in when transcribed and while the words employed may, ambivalent, who them ut- heard judge retrospect, appear their ultimate import. assess uniquely positioned tered 455, 464-65, S.E.2d Va. 248 v. 219 Smith denied, The trial judge 967 (1978), cert. U.S. against commitment must himself that satisfy juror’s This of fact cannot finding clear.” death is “unmistakably penalty can consideration unless we say, upon be disturbed appeal 465, 248 whole, Id. at that it was erroneous. voir dire as a at 141. S.E.2d Factors be Mr. Tostenson. see nor hear
We can neither trial court to con led the of his response record yond printed has that that he from his answers clude: “it is my interpretation court that his commitment to the trial was apparent It problem.” clear,” his and that “unmistakably death against penalty duties, gov- scheme statutory within the his ability perform was, v. words of Adams case in the murder erning a capital at 45. We cannot Texas, say 448 U.S. “substantially impair [ed].” finding as a whole that this voir dire from an examination of the of fact was erroneous. an that he was denied opportu contention
The defendant’s Tostenson, infir from the same Mr. suffers to “rehabilitate” nity voir dire to ask further right his his argument concerning as mity No was made illegal drugs. proffer on the subject questions have been to the put prospec to the further which might questions record are unable to determine from the tive and we juror, relevant, or whether their exclusion whether would have been they would have been an abuse of discretion. Rule 5:21.
Moreover, disclosed a ju when voir dire examination has cause, ror’s his for further state mind which warrants exclusion *18 him for of him can “rehabilitating” questions put purpose Commonwealth, 971, 977, have little effect. See Justus v. 220 Va. v. 266 S.E.2d Breeden 217 Va. (1980); 297, 300, Unless the subsequent serve to a clear or correct an questions misunderstanding dispel misstatement, ambigu inadvertent the trial is left with the judge reliable, task of which more the first ous answer is deciding last.
B. The Guilt Phase.
VI. Evidence of Defendant’s Mental and the History
Effects of Drugs.
1. Emotional problems. evidence,
The defendant offered in at the of guilt phase trial, from his childhood and the testi certain school records him from 1974 of two social workers who had counselled mony until of the evidence was to show that 1982. The January purpose behavior, emotional the defendant had a of anti-social long history self-esteem, low and controlling difficulties problems, impulses, addition, and In drugs. opinions involvement with alcohol expert who were offered from a clinical and psychologist psychiatrist while had interviewed and tests to the defendant he administered was in awaiting trial. The of their custody purpose testimony defendant, to show that the although suffered from psychotic, a “borderline disorder.” personality Because the defense of- only intoxication, fered in the case was that of voluntary defendant contends that this evidence was his of mental state probative at offenses, i.e., the time of the that he was in a condition which precluded deliberation. The trial court ex- premeditation cluded most of this evidence at the guilt stage, permitted its introduction at the of the trial stage as matter in penalty mitiga- tion of The defense was also to make punishment. permitted an extensive of the excluded evidence out of the proffer jury’s pres- ence guilt stage, at its content is a of the record. part
When, here, no defense is insanity interposed, defen- dant’s mental condition is relevant insofar as it only might pro- i.e., bative a fact issue: at the time of the kill- premeditation records, Neither the school nor ing. the defendant’s history related the social workers was past “problems” competent issue, Rather, address this did not to do so. they purport defendant were as foundation for the argues, they proper opinions to which we now turn. experts, Horlick,
Dr. Reuben a clinical interviewed de- psychologist, fendant three times and administered a battery psychological tests. He that the defendant had a “low to level of opined average with an of 95. described him as general intelligence,” I.Q. He “a disturbed individual” who acted “in an immature and seriously His diagnosis manner.” was “borderline ba- impulsive personality sic disorder . . . substance abuse and alcohol.” He aggravated by offered no on the whether the defendant’s mental opinion question such, 25, 1982, condition was as to affect his February ability and deliberate. premeditate Lanham, Dr. David interviewed the defendant psychiatrist, three times in He with Dr. Horlick’s jail. agreed diagnosis *19 disorder,” that the defendant “borderline personality opined dur- would be to behavior. On cross-examination prone impulsive he ing the was asked: penalty phase which would
Q. pre- there about this disorder anything [I]s vent from about commit- thinking an individual planning a crime? ting more likely.
A. I behavior is much say impulsive a necessarily, planning. But it would not prevent, an opinion was asked to express, nor expressed, Neither expert crime, time of the at the mental state defendant’s as to the as one which would condition his underlying neither characterized If the evidence had ability premeditate. affect his necessarily as admitted, been required speculate would have been the jury crucial fact what, upon effect it might if any, Commonwealth, 475, 479, 271 S.E.2d 221 Va. v. issue. In Spruill as to mental state medical considering testimony 421 (1980), we said: which dealt with only “possibility,” relevant, it must be become In order for testimony such realm of and into the of the realm of brought speculation out deals law in this area reasonable probability; and not “possibilities.” “probabilities” the same as that infirmity evidence suffered from proffered excluded it. and the trial court correctly we rejected Spruill, 2. Effect of Drugs. from Dr. Lanham
The defendant further
to elicit
sought
user,
to the
of LSD
upon
particularly
an
effect
expert opinion
disorder” such as
a user
from a “borderline
suffering
personality
Here,
v.
Fitzgerald
his.
the defendant relies upon
denied,
615, 629-32,
(1982),
cert.
223 Va.
without ob
toxicologist,
where an
(1983),
expert
Here, contrast, expressed Dr. Lanham’s opinion as follows: proffer of medical cer- degree to a reasonable
Q. you testify Can those ingesting types as I told just you, that a tainty person could perpetrate could tell me if a drugs, you person acts such as homicide without premeditation?
A. It’s entirely possible; yes. The defendant was permitted condition, describe his own at offense, the time of the to the jury. jury also heard the testi- Frazier, mony Hamilton, Gerald Michael and the defendant’s mother as to his appearance and demeanor that Frazier and day. Hamilton described his use of and drugs, Frazier testified as to his condition when under their influence. This factual al- testimony, circumstantial, though probative the fact in issue. The however, proffered expert testimony, raised It only “possibility.” failed to meet the test of Spruill, excluded. properly
VII. Improper Question by Commonwealth’s Attorney.
On examination, direct the defendant was asked: How did Q. you feel towards your mother after left? you A. Sorry. cross-examination,
On the Commonwealth’s Attorney asked: Q. Did you not that say felt for you sorry mother? your too; A. That yes.
[*] [*] [*] [*] Q. Did have hard you feelings towards your mother? A. No.
DidQ. ever you make the statement that you like to mother done your with? away Defense counsel objected. The court excused the immediately jury recess, for a ten-minute told the Commonwealth’s that Attorney the question had been “most inappropriate,” announced his intention to give instruction. cautionary The defendant moved for a which mistrial the court denied. The court said: “I do not intend to repeat question because I think to it would repeat just to it.” The amplify was then recalled and instructed by the court: recess,
Ladies and gentlemen of the just to the jury, prior the Commonwealth was or questioning cross-examining witness. Please disregard the last remarks that the Common- wealth made in its Attorney entirety. cross-exami- back to his go a chance will him give
We the remarks time; disregard you I ask this nation at made. remarks was asked that question question this improper effect of that the argues The defendant corrective admittedly prompt the court’s was so prejudicial *21 from an arising disagree. it. We not remove action could “[E]rror be may usually of counsel conduct or improper question improper trial court without of the decisive action and cured by prompt Commonwealth, v. 223 Black mistrial.” a motion for a granting court must 449, The Trial 277, 286, (1982). 454 288 S.E.2d Va. determination, of all the cir- light in the initial factual make an had been case, defendant’s rights whether the of the cumstances trial. Unless we can say a new as to require so indelibly prejudiced will not it wrong, this determination as a matter of law that the it is contrary, record shows be Unless the appeal. disturbed in- cautionary an explicit that the followed jury to be presumed Commonwealth, 211 v. Va. See Lewis given. struction promptly 80, 84, 239 175 S.E.2d
Here, circumstance out a significant the trial court pointed the de- suffered actually by of degree prejudice bearing upon asked, the defendant question fendant. When improper had, he in which testimony his direct had recently completed death with a fire- effect, victim to beating helpless admitted shocking any imputation to that story, In comparison place poker. about thoughts once entertained unpleasant that he might insignificance. his would into relative pale mother Offense. as a Lesser-Included VIII. Murder Second-Degree element of capital as to the The court instructed the jury instructed, was also The jury of murder. first-degree murder and the defendant’s request: at intoxicated greatly was so
If find that the defendant you both, he was that or or drugs use of alcohol voluntary cannot then you deliberating premeditating, of incapable murder. capital find him guilty reason- if it entertained told the that jury
Further instructions offense, resolve that doubt it must to the grade able doubt as offense; lesser and find him guilty the defendant’s favor all, if it doubted he was reasonably that at it must guilty acquit him. objected defendant to the court’s refusal to an give instruc- on second-degree
tion murder an additional of- lesser-included that, fense. He he argues admitted although murder committing with a weapon, Commonwealth was deadly nevertheless re- two murder; elements raise it to quired prove (1) capital deliberation, premeditation (2) killing commission of a if He contends that find robbery. jury should one of only these elements to have he killing, would be accompanied guilty murder, of first-degree and if the should find neither element he murder. present, guilty second-degree Commonwealth, 629, 634, In Wooden v. 208 Va.
623, 627 (1968), overruling an earlier decision to the we contrary, held that the trial court refused an instruction on properly second- where degree murder the evidence would support only findings first-degree murder or not This was so guilty. notwithstanding is homicide In presumption every second-degree murder. Wooden, we the view of the adopted dissenting justices Plymale 582, 602, v. 195 Va. (1954): S.E.2d *22 “The of second-degree murder to facts.” No presumption yields evidence, instruction be it given should unless is and supported such evidence must be more Hatcher v. than scintilla. Common- wealth, 811, 814, 756, 218 Va. (1978). 758
It is
if
true that
found the element of
jury
premeditation
intoxication,
to
and deliberation
be
reason of
lacking, by
voluntary
could
it
not convict the
of
murder.
do
defendant
But we
capital
that,
case,
agree
with the defendant
under
in
the evidence
this
further find
could
the element of
rob-
contemporaneous
as to
bery lacking,
second-degree
so
reduce the crime to
murder.
Commonwealth,
1033, 1043-44,
In Haskell v.
218 Va.
243
(1978),
S.E.2d
483
we
the view that the felony-mur-
adopted
statute,
18.2-32,
der
is
killing
closely
Code
where a
so
applies
§
time,
to
related to a
and causal connection as
robbery
place,
make it a
That statute
of
same criminal
makes
part
enterprise.
murder,
murder, in
robbery,
other
the commission of
capital
than
are not
degree.
murder of the first
Premeditation and deliberation
malice is.
inheres in
felony-murder,
elements of
Malice
or ex-
just
or without
cause
of a
act
doing
wrongful
intentionally
Thus,
in the
the malice
the malice inherent
robbery provides
cuse.
v. Common
Wooden
conviction.
for a felony-murder
prerequisite
wealth,
In Linwood Earl denied, held we (1981), U.S. cert. (1980), S.E.2d 48 time, be causal connection and place, that the relationships be jury ques need not necessarily a murder robbery tween a case, matter of could, determined as a in a tions. They proper victim their intercepted had accomplices law. and his Briley him to restaurant, him and forced robbed at gunpoint, outside a automobile, him for some his own in which abducted they enter the island to in the James River. at Mayo’s Arriving miles Island shot the after the initial twenty robbery, they fifteen to minutes car, then drove in his which away they victim fatally. They held that the involved killing and abandoned. We stripped parts time, so there was related causal connection closely place, same to the to make it criminal robbery part enterprise as a matter of law. us, these to it is mani-
Applying the evidence before principles fest that the and the murder of Pamela Benner are even robbery more connected than the crimes The victim inextricably Briley. was, in the absence of her custodian of home and family, the its The of vio- through contents. was stolen exercise property against lence her. The bloodstains on the doors to the splintered locked bedrooms in which the are cir- stolen property kept cumstantial evidence that her protect the ability property been subdued before by overwhelming violence the theft occurred. death, While it is time impossible to ascertain the of her precise relation to the evi- taking the Commonwealth’s property, defendant, her, dence shows rob having gone there to bound and beat to the her with a before he went poker, upstairs kitchen, hair, leaving ice pick traces blood and secure the fork with which he her carving then stabbed repeatedly. does crimes as defendant’s evidence nothing separate time, version, Indeed, his if be- place, or causal connection. lieved, makes it that the and the mur- unmistakably clear robbery *23 der were a leav- of the same criminal He admitted part enterprise. house, of with ing goods, the stolen possession spattered blood. There was the jury not a scintilla of evidence which upon time, could have found murder to the robbery unrelated such place, causal connection. could a Only support speculation no of a com- finding. record construction that permits except 592
mon Thus, criminal as a enterprise matter of law. court cor- refused to instruct the rectly as to jury second-degree murder. See Evans, v. 456 605 Commonwealth, U.S. Bunch Hopper (1983); v. 424, 225 Va. 304 271 (1983). S.E.2d moreover, We agree, with the General’s Attorney argu even if ment that the refusal of a second-degree murder instruc error, would, tion were deemed to it the circumstances of case, this be harmless a beyond reasonable doubt. The jury’s capi
tal verdict rejected murder makes clear that it the defense of vol believed, intoxication. Had that been untary defense the jury instructions, would have been required, by the court’s to make a Thus, rather than first-degree, capital murder even if finding. had been with jury presented second-degree murder option, it could have never reached such a actually verdict in view of its doubt, beyond a reasonable finding, that the acted defendant with ****8 premeditation deliberation.3 C. The Phase. Penalty
IX. Facial of Constitutionality Statutory Sentencing
Procedure.
argues
The defendant
that Virginia’s
murder sen
capital
for
reasons
tencing
is
unconstitutional
we
procedure
facially
Commonwealth,
considered and
v.
220
rejected
Stamper
Va.
260,
denied,
257 S.E.2d
cert.
445
972
(1979),
(1980);
808
U.S.
Commonwealth,
201,
Clark v.
220 Va.
593
683,
202,
denied,
Va.
251 S.E.2d
cert.
X. Conflict between Code 19.2-264.2 and Code 19.2- § §
264.4(C). The defendant court, pointed out to the trial at the penalty phase, that Code 19.2-264.2 that the provides trier of fact shall § impose the death unless it penalty makes one of the prere quisite findings “after consideration of the past criminal record of defendant;” convictions of the while Code 19.2-264.4(C) pro § vides that the death shall penalty not be imposed unless the Com monwealth proves beyond reasonable doubt
that there is a based probability evidence upon prior history or of the circumstances surrounding defendant the commission of the offense of which he is accused that he would commit criminal acts of violence that would constitute a continuing serious threat to or society, that his conduct committing offense was vile, outrageously wantonly inhuman, horrible or torture, that it involved depravity mind or aggravated battery the victim added). (emphasis He argues that the between dichotomy criminal “past record of convictions” and “prior renders history” the statutory scheme un- constitutionally vague. limine, He made a motion in at the begin- ning penalty to restrict phase, the Commonwealth to proof record,” of his “past criminal and to exclude other references to his This “prior is history.” argument based upon the alleged vagueness of the term “prior history.” He that it does says “not provide the defendant with an objective standard on which to pre- for the defense of pare while “criminal penalty phase,” record of convictions” does. 455, 477,
In Smith v. 219 Va. denied, 148 (1978), cert. 967 (1979), U.S. we a con rejected tention that of Code language 19.2-264.4(C) was unconsti § Texas, tutionally vague. We relied on the Jurek v. reasoning of denied, 428 U.S. reh’g U.S. 875 The rationale of Jurek is apposite: answering Texas must jury perform
The task that a of fu- [determining issue probability statutory question conduct, Virginia’s] under statute similar to ture criminal different the task count- is no from basically performed thus American of crim- throughout the system less times each day is that the have before it inal What is essential justice. about the individual defen- all relevant possible information whose it must determine. dant fate *25 added). at 275-76 (emphasis 428 U.S. evidence, convictions, criminal
The admission of other than in the dangerousness, expressly approved to defendant’s Commonwealth, 127, (1982). 295 643 v. 224 Va. S.E.2d Quintana Smith, to in and the conten expressed reject We adhere the views scheme, vagueness statutory tion that unconstitutional affects the 19.2-264.4(C), or either reason of the terms of Code because by § **4 of differing of the the two sections.* language Mitigating XI. Instruction to Consider Circumstances. The tendered five instructions at defendant proposed jury with to consider dealing duty the the penalty phase jury’s mitigat All either defective circumstances were ing fixing punishment. or law.5 in form erroneous statements of the
Instead, was instructed that death jury penalty the the at could not be unless the Commonwealth least proved imposed “vileness,” or (“dangerousness” one of the statutory predicates in the language) beyond framed a reasonable doubt. statutory only Even if one both were the was told that it proved, jury 4 jury “dangerousness” although We note that the was instructed as to both the and the predicates punishment, argued capital both “vileness” for and the Commonwealth that jury’s rejected present, “dangerousness” punishment solely were the verdict and fixed on finding predicate. Obviously, only the basis of the a of “vileness” can be based “vileness” “prior history” on the circumstances case on trial. The defendant’s is thus irrelevant history” finding “prior to “Past criminal of convictions” “vileness.” record and predicate. only “dangerousness” be relevant the 5 improper. “D” is Instructions “E” referred to “death electrocution.” This term and concern, legislative penalty prov not within The method of execution of the death is a mitigating jury. jury “G” told the that it must find that a circum ince Instruction any support purported it. “H” if there is “substantial” evidence to Instruction stance exists might aggravating jury limits on which the consider. Instruc establish circumstances given balancing weight purported to relative to be to miti tion “I” test for the establish authority gating aggravating these There was no for instructions. circumstances.
595 death; may fix the at but if the punishment believed from jury all death evidence was not then it penalty justified, shall fix at life The instruction punishment imprisonment. further told if the jury that Commonwealth failed to either predicate prove doubt, beyond a reasonable must life jury impose imprison- ment. These instructions stated the adequately statutory frame- Commonwealth, work and See v. were sufficient. 220 Va. Coppola 255, at 257 S.E.2d 805. at
The defendant even if argues that his offered instructions were not to be his given, constitutional con right the jury sider all mitigating factors before was im deciding punishment to give the trial court’s some paired by refusal instruction espe drawing the cially attention evidence jury’s mitigation. We disagree. The defendant was a full to adduce given opportunity evidence mitigation, and in did so. fact Over one hundred pages it, of the trial are devoted to it was transcript fully argued. evidence,” was instructed to consider “all the burden of proof correctly allocated.
We have held is repeatedly that an instruction which improper singles out one portion the evidence for special Sny- emphasis. Commonwealth, 792, 797, 55, der v. 220 Va. 58 547-48, (1980); Woods v. Va. S.E. We find no rulings error the court’s instructions at the penalty phase.
D. Sentence Review. Statutory determine,
Although argued not on we must appeal, by mandate, the of was im “1. Whether sentence death statutory the of or under influence other arbi posed passion, prejudice, any factor; and 2. Whether death is or trary the sentence of excessive cases, to in similar consider the disproportionate penalty imposed ing 17-110.1(C). both crime and the defendant.” Code the §
A of record shows no evidence of careful examination the entire factor” which “passion, any might or other prejudice arbitrary of As we did affected determination jury’s punishment. in all in we have examined the records Fitzgerald, capital Court, note of murder cases reviewed this by taking particular punishment solely facts those which juries imposed capital basis of the We found that the vileness of “vileness” predicate. of his exceeded that of Fitzgerald’s any prior treatment victim We now that we reviewed that time. conclude case had until close, is a toward Pamela Benner LeVasseur’s atrocious conduct sheer, We hold the sen- viciousness. that competitor unprovoked sentences is not or tence of death excessive disproportionate of a but less in crimes similar juries generally imposed by Virginia nature. horrifying having found no reversible error the proceedings,
Having death that the sentence of was properly determined independently will we decline to disturb commute sentence imposed, of affirm the the trial court. judgment
Affirmed. STEPHENSON, J., dissenting. so he was
LeVasseur contends he was intoxicated incapable willful, deliberate, to kill the forming a intent premeditated deceased, murder. and therefore could be guilty capital Va. Johnson v. S.E. 673 defense, This was was his and the trial court found there only evidence to of a instruction therefor. support giving
Since his intoxication was alleged voluntary produced primarily his counsel had the illegal drugs, argues use LeVasseur right juror voir dire to ascertain whether during jury prospective intoxication rule even illicit though apply voluntary involved. I drugs agree. were is from that intended to
It the record defense counsel apparent he or she question juror each determine whether prospective 8.01-358, “sensible bias or Code prejudice,” respect- § ing the use of which would that illegal drugs, preclude person from intoxi- the court’s instruction following respecting voluntary in- cation. this line of without questioning proceeded Apparently, cident Anna At questioned. until Cornwell prospective juror to the court suggested that Commonwealth’s point, Attorney that the in this asking regard defense counsel been question reframed, should be and the court instructed defense counsel ask the are all following question: “Assuming you opposed alone, *27 fact, use to drugs, the would this illegal prejudice you if the evi- usage, such a that could not consider their degree you used, defense.” dence that were as a the develops part they Essentially following court’s defense counsel suggestion, asked Cornwell the following question:
I would assume that... are use you opposed drugs, of illegal Do drugs. you have bias or that any prejudice would make you usage unable to consider the defen- by the dant, of illegal drugs, as of his part defense? —
Would be able to you be unable you to consider usage by the defendant of as illegal drugs, his part defense?
When Cornwell not to understand the appeared question, court fact inquired: “the that it that may develop he had used illegal drugs, could consider that as a of his defense?” you part Cornwell responded the defendant negative. Thereupon, for challenged motion, Cornwell cause. The court overruled this and Cornwell was deemed as a qualified juror serve in this case. cause,” Cornwell did not Clearly, “stand indifferent in the and the defendant’s of her challenge for cause should have been sustained.
When defense counsel began question next prospective court, juror, the sponte, sua ruled follows: Mr. Zauzig counsel], the other which question [defense you have asked in the been past has The Court rephrased. has ruled this how previously question and this should come forward. did It not come forward. is,
What your question in the has getting been at past effect, asking the sanction what is an illegal act. reason,
For that I’m denying you right to ask that as far as question further are any jurors prospective concerned.
As a result this case not ex- ruling, nine this were jurors amined bias or regarding might re- prejudice they the use of it specting illegal drugs as related to LeVasseur’s intoxi- cation defense. In this omission my judgment, prejudiced defendant and constituted reversible error. counsel’s was both majority argues question defense whether
ambiguous, juror because did know prospective drug intoxication could be considered for merely mitigation irrelevant, it was “calculated to elicit acquittal, because only *28 of illegal toward use the juror’s underlying attitude prospective hyper-technical I consider generally.” arguments these drugs and strained. model not have been a of
While question may defense counsel’s Cornwell, un- jurors, apparently the clarity, prior prospective the court and answered it to the satisfaction both derstood and counsel, court, is to the not asked counsel. It be remembered that her negative which received In response. Cornwell question addition, court, at the instance of the Commonwealth’s Attor- to use counsel was instructed for framed the which ney, question record reading of the indi- remaining jurors. My prospective him, counsel, substan- single on the occasion afforded cates that instruction. with the trial court’s tially complied was is no voir dire relevant extremely There doubt defendant’s existed, bias or as it touched determining whether prejudice The trial has the defense he advanced. court ulti only upon whether a juror of determining prospective mate responsibility or the a bias or the Commonwealth ac against prejudice “[h]as cused,” to believe he might or whether there is reason not “any trial Commonwealth and ac a fair to the give impartial Rule 3A:20. cused based on the law and the evidence.” solely impartial constitutional and an statutory guarantee “The no mere a substantive ‘legal technicality,’ right scrupulously is Mar justice.” to be observed in the administration day-to-day 445, 123, v. tin Va. unclear, trial If defense counsel’s court (1980). question it, forbidding should clarified rather than further questioning. is a guar-
“Preservation of the actual bias opportunity prove Dennis right of a an v. impartial jury.” antee defendant’s States, case, 171-72 In the present United 339 U.S. Therefore, I defendant this given opportunity. for the case reverse trial court remand judgment new trial. JJ., POFF, in dissent.
COCHRAN and join