*1 Richmond MORRIS, GEORGE WESLEY JR.
COMMONWEALTH OF VIRGINIA
No. 1688-92-2 Decided January
Counsel Mikula; Mikula; Englisby Evans & (Rudy, M. Denis C. Englisby Ned briefs), & fоr appellant. Englisby, Rosenthal, D. Condon, B. Assistant General Attorney (Stephen
Robert General, for on brief), appellee. Attorney Opinion con Morris, (Morris) Jr.
KOONTZ, J. Wesley appeals George out of arising grand larceny first murder and degree victions for auto the theft of Houck’s (Houck) Houck Jerry Wayne death Circuit County in the Chestеrfield a bench trial mobile. Following con him to Morris and sentenced Court, guilty trial found judge sus thirty years seventy-five years, sentences of current prison this murder, larceny. appeal, for twenty years grand for pended, his con evidence to support challenges sufficiency the use of his challenges first murder. Morris also degreе viction ob that was interrogations, asserting during confession made follow, we affirm For the reasons coercion. through tained Morris’ convictions.
I. FACTUALBACKGROUND Casual Morris and Houck acquaintances, same ar- frequented cades, halls and in Chesterfield On pool “hang-outs” County. of October both men night spent evening away home, hall, Mоrris at a Houck on a friend, double date with his pool Ernie Martin. Sometime after both men went to Dutch midnight, Gap boat landing join impromptu had to drink party. something Both a.m., at the landing. Around 3:00 two left the party together. Morris drove Houck’s 1983 Ford Escort to Houck’s house.
The two men watched television in the room. Later living Houck went to his bеdroom to lie down. Morris took a bowie knife belonging to Houck’s father and used the knife to cut Houck’s throat. Morris then drove the Escort to his hid house and the bowie knife in a dresser drawer in his bedroom.
Houck’s father discovered his son’s later that when body morning he returned home. Police issued a “be on the lookout” for the Escort. The a following officer encountered Morris day, patrol driving the ve- hicle and took him into for custody questioning.
The advised Morris of his Miranda rights several occa- sions, and Morris executed a written waiver when he to talk to agreed them. The transcript reveals that Morris interrogation changed his account of the death several times after he had initially admitting killed Houck. Morris claimed that Flouck had initially requested him, kill him, Morris to then claimed that Houck had assaulted but said, later “I don’t I know did it. It why just happened.” During the detectives times interrogation, several stated that Morris should Once, confess order to seek God’s in re- forgiveness. to Morris’ one оf the sponse request detectives told Morris to help, I am “pretend your psychiatrist.” detectives warned Morris that the murder would disturb and that community people would “want justice They done.” Morris that knew the they judges told would to them on Morris’ behalf. also Morris speak They told that he if might get death he did not confess. penalty trial, Hоuck’s father During testified that he normally kept bedroom, bowie knife in his concealed behind the headboard of his bed. Forensic evidence the Commonwealth showed that presented by wound, the time the fatal he was in posi-
at Houck received a prone tion, or out. passed possibly asleep
II.
THE EVIDENCE TO
SUFFICIENCY OF
PROVE
FIRST DEGREE MURDER
It rests
the trier оf fact to determine
within
province
willfully, deliberately
whether defendant acted
with premedita
Commonwealth,
268,
v.
tion in
his victim. Beavers
245 Va.
denied,
411, 420,
281, 427
cert.
In
217 Va.
Hodge
(1976),
v.
S.E.2d 692
of a mortal
inflicted
our
Court stated
wound
Supreme
or no
deadly
with little
creates аn inference
weapon
provocation
trier of
that the killer
from which the
fact
conclude
acted
may
Id. at
Commonwealth used a weapon victim. The evidence also supports unconscious possibly prone *4 the knife from a concealed loca the conclusion Morris obtained the the to locate tion in another of house. part Taking steps necessary the obtain further bolsters inference of malice. and a weapon to the The evidence presented trial judge privileged accept the found in conflicting the evidence reject Commonwealth by of the finding upon confession. the judge, crеdibility Morris’ “‘[T]he evidence, the to be given the their stands weight of witnesses and finding the of a and unless that the same as verdict footing jury, it, it be dis or without evidence cannot wrong, support plainly Commonwealth, 95, 4 Va. 354 S.E.2d App. turbed.’” v. Speight
579 Commonwealth, 611, 603, 98 Lane v. 184 35 (1987) (quoting Va. 749, S.E.2d 752 (1945)).
III. COERCION OF CONFESSIONS DURING
IN-CUSTODY INTERROGATIONS The Commonwealth has burden prove extrajudicial Commonwealth, confessions are made. v. 194 voluntarily Campbell 830, 825, 468, Va. 75 S.E.2d Absent a (1953). 471 and intel knowing waiver of the Fifth ligent against Amendment self-incrimination right counsel, and the to the of a right legal assistance confession made aby suspect in-custody interrogation is inadmissible during Arizona, 436, him. v. Miranda 384 U.S. 475 Even against (1966). when the has Fifth and suspect waived Sixth Amendment a rights, confession inadmissible if was made Miller v. involuntarily. Fenton, 104, 474 U.S. 108-09 a vol (1985). Whether confession was activity or the result of coercive is a to be untary question police legal determined a review of the of the circumstances. Id. at totality 110-12.
In of the circumstances examining totality surrounding confession, factors, must court consider myriad including defendаnt’s with the age, intelligence, background experience criminal mis justice system, purpose flagrancy any police Commonwealth, conduct, and the length the interview. Harrison v. 260, 264-65, 167, Va. 349 S.E.2d 169-70 App. (1986). totality of the circumstances also includes moral and psychological pressures to confess from official emanating sources. See v. Kauffmann 406, 400, 279, App. 8 Va. 382 S.E.2d 282 (1989).
This Court must make evi independent evaluation of the dence to determine whether the were confessions voluntary. doing so, we trial may rely observations and his find upon judge fact, toas the ultimate issue of ings except voluntariness. Goodwin App. that, individually, concedes tactics usеd in ex by are tracting confession permissible interrogation techniques.1 police. legitimacy po Mortis did not concede of one tactic used Morris contends that subject penalty wholly lice statements the effect Morris be to the death were im would However, proper. agree may we Commonwealth that in this instance the detectives have reasonably surrounding support charge capital believed that the would mur specific gen appeal, express opinion der. Because this was not the of Morris’ we no basis during interrogation. eral use of a tactic such *5 however, com- that of all of these tactics
Morris argues, synergy of will to re- environment him his depriving bined create coercive for a confession. We disagree. sist officers’ request of whether some combina- the broader addressing question Without coercion, find rise the level of we might tion of tactics interrogation do not Morris’ contention support case present that Rather, it is that Morris almost he of his will. clear deprived that was ses- to the three killing. During interrogation admitted immediately hours, changed six Morris sions over a period approximately and contradicted himself on numerous occasions. account of the death in es- tactics an effort to interrogation The detectives utilized various The surrounding killing. transcriрt tablish the actual events and the a free discourse between Morris interrogations flowing shows no that Morris’ was overborne or detectives. There is indication will coercion or sug- he made was a any product that statement trial court we cannot say gestive Accordingly, questioning. in Morris’ confession. failing suppress еrred reasons, from are af- the convictions For the foregoing appealed firmed.
Affirmed. Willis, X, concurred.
Benton, X, dissenting. and concurring do Part I not in majority join I Parts I and III of join opinion. in in II, however, prove the evidence the record does not because of Jerry Wayne Wesley killing George premeditated Houck, had months. whom hе known several acquaintance murder. is of the offense degree an element first Premeditation 480, 485, 384 S.E.2d Rhodes v. in in the first and murder degree between murder distinction in Virginia. is well established degree the second or de- is either second malicious murder first Every — the latter if premeditated, the former deliberate gree malice Furthermore, is a not. there prima presumption if facie homicide, there no fact of a but pre- from the mere arising This is and premeditation. therefrom of deliberation sumption that every the familiar rule of law stating merely way another degree, homicide murder the second prima facie reduce, the burden is the aсcused to and on elevate, Commonwealth to grade offense. *6 Commonwealth, 686, 681, 90,
Jacobs
v.
S.E.
92 (1922).
360,
166,
See also Painter v.
Va.
169-70
To
the
evidence must establish
prove premeditation,
antecedent
“(1) killing; (2) a
to the act of
reasoning process
killing,
in the
kill;
formation of a
intent to
and
the
resulting
specific
per-
(3)
formance
that act with malicious
intent.” Rhodes
The evidence that Morris and the victim were friends who had met several the months before oth- had visited each killing. They er’s home on several Morris victim Only occasions. and the were pre- sent in the victim’s home Morris killed the when victim. After Morris was stopped by police day Morris told following killing, that he had police been beer and drinking billiards on playing before to boat Friday night where going landing people gathered drink beer and out.” Morris told that saw “hang police he the victim at the boat and to drink landing began beer the victim and other friends both until hе and victim became very intoxicated.
Morris did not at In his testify trial. statement to the Morris police, different gave versions the events that occurred after left the they boat at 3:00 a.m. he landing Initially, told the that the victim al- police lowed him to take the victim’s so that he it to automobile could use visit a friend the next He said thаt the victim day. him the auto- gave mobile’s and left the keys of two Morris landing girls. company said that he fell on after asleep the victim left. When he woke pier a.m., pier next at 9:00 he Morris morning drove home. claimed that he had tried to call victim at on Saturday noon but claimed that the had been telephone disconnected. further
Upon Morris his He that he questioning, said changed story. and the victim decided to to the victim’s home after go leaving intoxicated, boat both landing. Although were that he stated drove the automobile victim while the His explanation first slept. was, had “I why he stabbed Houck don’t I just know did it. It why He he was happened.” said so intoxicated that he could not remember. movie, the watching He next were a horror vic- they said while bed, bedroom, onto his and asked Morris kill tim went into the got to the knives were on the next nightstand him. Morris said several both that he Morris said that were intoxicated and they victim’s bed. it. because the victim asked him to do stabbed victim watch- they drinking His while wеre final explanation side, him, him television, the victim cursed at struck twice ing he then into went into the bedroom. He said followed victim bed, bedroom, him the one of the knives from grabbed on pushed the victim in the throat with the bedstand next the bed stabbed a knife. at trial, testified that when arrived police
At detective about the living beer containers were strewn Saturday, 10:30 a.m. The detective also saw food the victim’s bedroom. empty room and victim eaten. The television Morris and the had cartons which had no connection with the in- knife that apparent on. A filet set was *7 the next to the victim’s bed. Based nightstand found on cident was scene, no of crime the detective found indication the upon analysis of a struggle. that the blood alcohol concentration examiner testified
The medical in the vitreous was .09 percent, the was .07 percent, in victim’s blood indicat- He testified that those levels in the urine was .10 percent. was high- that alcohol concentration victim’s blood ed the blood the victim although no defensive injuries, at an earlier time. He saw er The medical examiner further testi- on his hand. had small abrasion one wound died within minutes the received stab fied that victim incapacitating. the The wound was immediately of stab wound. that on the evidence “fbjased contends Commonwealth the ex- the of and medical the police expert crime scene and opinions found that the victim aminer, reasonably the could have trial judge bed, in when his throat was possibly defenseless lying asleep, was of product specula- of the victim’s death is only cut.” That version Moreover, the that the victim was asleep. tion. evidence proved No the tes- the scene the crime and officer concerning the testimony the versions the examiner are consistent all timony of medical statement, he greatly i.e. while was in Morris’ the incident contained he not did why he the victim but could recall intoxicated stabbed (1) to kill the asked Morris so, stabbеd the victim because victim he (2) him, and he stabbed victim because of after the victim (3) anger the cursed at him. in or in the Morris’ statement circumstances
Nothing physical any makes one more than the other. possibilities any likely are two different “one susceptible interpretations, [I]f accused, is which consistent with the innocеnce of the or jury case judge cannot trying arbitrarily adopt interpreta- Instead, tion which incriminates him.” interpretation more “[t]he favorable to accused be it should unless adopted untenable all under the facts and circumstances of the case.” Varker v. 7, 8 App. Va. Williams v. (1992) (quoting
S.E.2d 77 (1952)). Obviously, Morris’ statement that he did not knоw what or he stabbed the victim happened why does not establish premeditation. His he statement that stabbed the victim the at victim’s while both were intoxicated also not request heavily does establish de- liberation and premeditation.
The Commonwealth also asserts that the evidence proved premedi- tation bеcause could have obtained from another only part the house the bowie knife was that used stab the victim. Morris said, however, was consistently bowie knife already in bedstand the bedroom when he grabbed stabbed victim. Even if Morris’ statement disregarded, evidence does not prove the Commonwealth’s the victim’s hypothesis. father testified Although that the knife behind the usually kept headboard his bed an- bedroom, other does not testimony prove that Morris obviously went into that bedroom and obtained knife kill the victim. No evidence that Morris knew where the proved knife was concealed. No when Morris and the victim arrived at house the knife then Indeed, wаs not on the dresser the victim’s bed. *8 that on the after the another knife day killing, was victim’s Moreover, found next to the bed. nightstand as just victim, as house, not that the in likely who lived would have known where the knife bowie was concealed and would have retrieved it from the hiding place. Commonwealth’s that Morris hypothesis obtained the bowiе knife from another room is purely speculative. error,
“There is in always litigation margin representing error which both must factfinding, parties take into account. — Where one has at stake an interest party value transcending — re- error is this liberty margin his as criminal defendant him party other placing process duced as to at the conclusion factfinder persuading of. . . burden reasonable doubt.” beyond trial of guilt Randall, 357 U.S. Speiser U.S. at 364 (quoting re Winship, 513, 525-26 (1958)). a reasonable doubt beyond did not prove the evidence
Because the version events hypotheses one any element of premeditation occurred, failed prove the evidence re- I would murder. and, thus, Accordingly, first degree failed prove trial. remand for new verse the conviction