Mu'Min v. Commonwealth

Majid Mu’Min David Michael Allen Dawud a/k/a Virginia

Commonwealth Record No. 890899 March Whiting, Carrico, C.J., Russell, Hassell,

Present: JJ., Compton, Stephenson, Senior Justice Poff, Rollison; Benjamin, R. D. Lawrie Steven Wayne Fahy; Ronald for appellant. Attorney General Sue (Mary

David A. Assistant Rosenberg, General, Attorney brief), Terry, appellee. Court. opinion POFF delivered the

SENIOR JUSTICE Allen, Mu’Min, known as David Michael Dawud also Majid murder. capital charging on an indictment jury tried (e) and (c), (d), subsections grounds defined in Invoking the three (3), (4), 1988) (now, of Vol. subsections Code 18.2-31 (Repl. § killing had the alleged (5) 18.2-31), of the indictment § in a confined prisoner “was a while the accused been committed of an custody while in the or facility State or local correctional thereof, while or in the of robbery, while commission employee with the or sub- deadly during armed commission of weapon, sequent rape”.

The verdict form submitted to the in the first of the jury phase three quoted grounds alleged bifurcated trial the the indictment and instructed the to “strike out” “that do jury any ground you through find reasonable doubt.” The marked beyond jury ground guilty the third and returned a verdict the based first and second grounds. verdict form submitted to the in the of jury penalty phase

the trial the of quoted language 19.2-264.4(C) Code defining § “dangerousness” the and the “vileness” predicates instructed the to strike out jury the either “if language either predicate do not you find.” The unanimously jury, “having considered the offense,” evidence of the mitigation returned the form unaltered and “unanimously . . . at death.” punishment After re- fix[ed] viewing the 19.2-264.5, probation by Code report required § trial court entered judgment confirming the conviction and impos- ing the fixed penalty We jury. have consolidated the de- fendant’s appeal conviction with the automatic review of sentence, Code 17-110.1(A) (F), and accorded both § docket, priority our Code 17-110.2.

I. THE EVIDENCE Most of the facts and circumstances related to the attack which led victim’s are death from the drawn defendant’s testi- mony trial. Convicted in 1973 of first degree murder and sen- tenced to a term of 48 years, defendant was an inmate at Haymarket Field Unit On the morning September #26. 1988, he and five other were prisoners Virginia transported Department Transportation’s Dale City Headquarters (VDOT) where they assigned were to a work detail by a VDOT supervised employee.

During the course of his morning, work that the defendant damaged the point a screwdriver which he with the repaired use aof bench grinder. At the time same he used the grinder to a short sharpen (sometimes of metal piece “high- referred as a way screwdriver, into the of a spike”) added a shape wooden han- dle, and attached the device to his pocket shirt with a holder fash- ioned from a paper When work crew clip. suspended lunch, operations for the defendant crossed perimeter fence a distance of Route 95 along approximately walked Interstate and There, Plaza, he entered a center. shopping a mile Ashdale store, Floors, opera- and of the inquired a retail City carpet Dale tor, oriental carpets. about Gladys Napwasky, Mrs. and a heated she challenged quoted, defendant the prices

The defendant, she “started According to the argument ensued.1 in nigger “spit . . and that” and screaming nigger . this [his] hand, and she open her with his defendant slapped face.” The floor, he fell to the in As the defendant genitals. kicked him the “down right and them pulled the of her “caught part pants” top with a “slashed” at him Napwasky . . . Mrs. thighs.” . . straight her off and . went defendant steak knife. The “pushed in and . . and hit her the chest up for the shirt and . came pocket the nose and coming “Blood was from hit her in the neck.” up . . The de- of blood . from neck.” mouth and ... trickle okay”, sure she was placed fendant “checked her to make pulse wound, sleeve of neck and “took the wet washcloth on the [his] kit, searching . While for a first aid . . her face.” wiped shirt and He that he explained in coins. the defendant found four dollars coins ice from a intending purchase left the store to use the his center to apply machine located in the vending shopping mind, and he re-entered the store Changing victim’s wounds. his could remember that things “started all wiping [he] [he] VDOT, he blood he washed had touched.” When returned shirt, shoes, bag it in the trash off his bloody “put from his took used weapon it the trash can.” He discarded the and threw in he testified that had highway. The defendant along the attack his victim. raped lying Mrs. Napwasky A store found carpet customer A testified paramedic the floor and called rescue squad. on the floor in a blood pool had found her “face on her up back that she was naked body”; that was around her head upper had pulled and brassiere been below the waist and her blouse breasts; “she was beating, her heart was although her above tfiat “no . . . fluid for it to there was because pulseless” breathless punc- identified 16 cuts and actually autopsy report pump.” wound, chest, neck face, neck, arm. A and left ture wounds on four inches A wound vein. jugular three inches severed deep, pets Other evidence for eleven years. showed, however, that Dale City Floors had not stocked oriental car cavity left chest the left Evidence of deep lung. penetrated injuries” numerous “blunt-force trauma on her found face and forehead. The victim’s area was genital undisturbed.

The Commonwealth introduced the of several of the testimony defendant’s fellow inmates his conduct ar- concerning following rest. One witness testified that the defendant had fallen to his knees, crying saying that he had killed somebody. Another said the defendant had told him that he had murdered and robbed his victim. A third prisoner testified that the defendant had conceived an escape involving the use of a plan violence. In trial, search of the defendant’s cell while awaiting he was the au- thorities found a of metal taken from a piece typewriter page stand and ear bracket from a pair of Both spectacles. appeared to have been sharpened.

II. PRE-TRIAL ISSUES A. Constitutional Challenges The defendant filed a motion to dismiss the indictment on ground that the murder are capital statutes unconstitutional. The trial court rejected the challenges several de articulated a tailed memorandum. The defendant the memoran incorporated dum in his brief filed in this Court. All the arguments urged by the defendant have been rejected. considered and See the deci sions cited in Spencer 563, 568-69, 238 Va. 385 S.E.2d 853-54 (1989); Watkins v.

Va. 385 S.E.2d (1989); 56-7 Buchanan v. Common wealth, 389, 412-13, (1989), cert. denied, ___ U.S. ___, (1990); 110 S.Ct. 880 and Pope Com monwealth, 114, 121-22, U.S. 1015 We reaffirm our decisions

those cases.

B. to Motion Suppress The trial court overruled the defendant’s motion to suppress statements had he made to an officer in two interviews conducted his prior that, scream, to arrest. he stated Initially, hearing a upon he had entered the carpet store find “a white guy” “long with blond hair” who “bending was with over” “his down” pants pulled and a . . “lady . laying through on the floor” alive but “bleeding fled, said, her mouth nose”. The white man Mu’Min [and] Abandoning that ac- door.” “went out the defendant [back] he entered the later, had acknowledged defendant count and had struck Mrs. rug an oriental about inquire store to prices. significant over during twice a bitter quarrel Napwasky inconsis- irreconcilably were two statements Mu’Min’s respects, than his trial. incriminating testimony no more They tent. were ruling selective permitting por trial court’s Attacking the evidence, be into read extra-judicial of his statements tions be voluntary were not that his statements defendant contends aon cause, while he was “incarcerated were made says, they scared”, and at time while he “was tired and charge”, prior with counsel.” legal speak was no given “opportunity when he “merely Investigator said what on brief that he He declares Investigator belief that the misguided him in the say wanted him.” going help to be statements is an issue of defendant’s Admissibility court, evaluates the credibility which decided the [trial] witnesses, testimony, resolves conflicts in the decide as whole. The court must the evidence weighs relin- intelligently knowingly whether the defendant The court’s determination rights. and abandoned his quished of the circum- totality is a of fact based question disturbed on finding appeal This will not be stances. factual wrong. unless plainly

Watkins v. 475 U.S. (1985) (citations omitted), cert. 429-30 testimony of the recording A of a transcript tape review The evidence of coercion. hearing discloses no at the suppression by single hours a two interviews were conducted appropriate advised definitively, repeatedly and investigator; fully, the officer ex- and the defendant Miranda rights; Mu’Min of each of his rights. waived those pressly training experience, and by was both

The defendant qualified, Mu’Min, of graduate a waiver. to make a knowing voluntary in business school, college degree a a had earned private “prep” testimony his languages. and was in four administration literate that, acknowledged response he hearing, at the suppression he had investigator, agreed by to him questions propounded warnings, that he understood each element of the Miranda that he recorded, that, because being knew the interviews were he had been to defend him at represented by attorney appointed trial, his 1973 he was aware that already murder he entitled Nevertheless, he the advice counsel. assented to the readily . . question “willing whether he was to talk . a consulting without having or lawyer lawyer present.” hold We that the record the trial completely supports ruling denying court’s the defendant’s motion to his ex suppress tra-judicial statements.

C. Discovery trial, Prior filed a Mu’Min motion the Common- require wealth to disclose “the danger- factual basis” for claim of future ousness, one for the statutory predicates death penalty. Spe- cifically, requested detailed information concerning evidence of convictions, prior unadjudicated criminal charges, psychological evaluations, and any threatening statements made the defen- by dant which the Commonwealth intended to at the introduce pen- alty that, information, trial. Defense counsel claimed without such “the arises of trial possibility by ambush”. motion,

The trial court granted the and the Commonwealth with the complied defendant’s The request. Commonwealth then moved for disclosure2 those mitigation “facts in defendant in- tends to introduce at the penalty Commonwealth’s phase”. “we Attorney explained that are for same merely asking thing as defense asked of the Commonwealth”. Granting the Common- motion, wealth’s the court stated is purpose discovery “to total prevent surprise” “runs both discovery [in] directions”.

On appeal, Mu’Min contends the trial infringed court his due rights process limiting the Commonwealth’s discov ery rights to those granted 11(c) Rule 3A: and Code expressly by 19.2-264.3:1(D).3 that, as Assuming deciding without Mu’Min consequence It is of plead no that both Mu’Min and the Commonwealth labelled their ings irrelevant; substance, particulars. judged as motions bills of The titles are their pleadings discovery. two are motions for argument right If surprise Mu’Min’s can be read as a claim to “ambush” the holding right we reaffirm our recent no such Bennett v. exists. Com monwealth, 303, denied, (1988), U.S. __, Va. 236 374 311 cert. 490 (1989). 109 S.Ct. 1765 442 mo the Commonwealth’s granting the trial court erred in

argues, as tion, was not invited assuming further that the error contends, we hold that such error was any General Attorney 4 doubt. beyond harmless a reasonable was couched in broad information the defendant disclosed The Indeed, to Mu’Min’s order discovery generalizations. response a of the mitigating more than routine recitation contained little a reference a 19.2-264.4(B) enumerated in Code to factors § did not contain the names of evaluations”. It “history psychiatric intended of witnesses or other evidence Mu’Min any potential Moreover, at penalty transcript proceedings to offer. to no evidence rebut trial shows that the Commonwealth offered mitigation. in The de- testimony Mu’Min adduced as evidence a prejudiced by claim that he was logically pre- fendant cannot motion when granting discovery trial the Commonwealth’s order which the Commonwealth an his disclosed nothing gave response unfair trial. advantage

D. Selection Jury Questions 1. Content trial, list advance of defense counsel submitted approval designed, ju in to determine what questions part, prospective seen, read, the case. Such are questions ror had or heard about bar “content The trial court type questions”. characterized at as and Mu’Min such propound questions, refused allow counsel denial of that the court’s refusal constituted “a argues appeal to “trial right due law” a violation of his process impartial jury”.5 4 3A:ll(c) (D) Although would not a mere violation of Rule or Code 19.2-264.3:1 § review, Dowling stringent require see United this “more standard” of harmless error

States, ___ U.S. ___, ___, (1990), applied we that standard 110 S.Ct. have here because Mu’Min frames the issue in constitutional terms. ruling argues express of Code “violated the mandate Mu’Min also the court’s paragraph which directs The second of that statute 8.01-358”. defendant refers issue, juror, open knowing anything the same relative to a fact in disclose [to] “[a] statute, Construing court.” we have said: otherwise, wishes, statutory propound any question party right, or A has no party a full questioning court afford a extend dire ad must voir infinitum. jurors opportunity prospective “stand indifferent and fair to ascertain whether cause,” parties judge discretion to determine whether but the trial retains the opportunity to do so. have had sufficient LeVasseur v. U.S.

Sixteen of the 20 members of the had indicated on jury panel voir information from the dire that had some news they acquired media or from conversations with acquaintances. reply ques- tions both the propounded, during court and counsel the course of an examination that consumed 172 the tran- pages attested, all script, members of the panel collectively and in four, groups that had not formed based they any opinion upon the information they had were not sensible of acquired, bias mind, or could prejudice, enter the box with an jury open were able to render fair and verdict impartial based upon law and the evidence admitted at trial.

We agree with the that Attorney General an opportunity the kind of “content pose the defendant is questions” not proposed Haldeman, matter of See right. United States v. 559 F.2d 67-8 (D.C. 1976) (en banc), Cir U.S. (1977) (affirming rejection trial court’s of “content questions” voir dire related to pre-trial information a publicity). person about acquires a case from others or not to be the may may prove facts of the case as developed by evidence admitted at trial. Such may information or may induce a to form an person opinion before trial. Any formed before trial opinion may may or not af fect a person’s ability as a juror reach a different conclusion at trial. course,

Of parties litigant whether may properly inquire juror has prospective information acquired about the case before trial. It does not follow that have litigants a constitutional right know what information They is. are entitled to know only whether the juror, in reliance prospective upon information ac and, quired, so, has formed an if whether opinion juror can yet 8.01-358; “stand indifferent in the cause”. Code Briley L.E. 180, 184-87, 154-55 (1981).

To hold that the mere existence of notion any preconceived accused, more, as to the guilt or innocence anof without is to rebut the sufficient of a presumption prospective juror’s would be impartiality to establish an It impossible standard. is sufficient if the can juror aside his lay impression opin- ion and render a verdict based on the evidence presented court. Dowd, omitted). 723 (1961) (citations U.S.

Irvin v. case, Court this rule in a later the Supreme Quoting applying dire, ex- “My who had said on voir juror of a upheld seating him is now I would find right such perience accused] [the Florida, 802 n.5 421 U.S. guilty.” Murphy Here, had none of the members seated on formed panel trial, and based the information before opinion acquired oath that could stand indifferent in they all had affirmed on hold, therefore, disal cause. We the trial court did not err in lowing content defendant. questions proposed by Two 2. Jurors Seating dire, during voir Mu’Min moved Renewing objections raised contends that trial strike two cause. On he jurors appeal, overruling court in his motions to strike Alexandria Santi- erred alternate, that Dailey. argues a and He ago, Gregory prospective because, he she “had Santiago impartial says, patron- Ms. was not dire Mrs. during ized and referred voir City Dale Floors” her first name”. Napwasky “by she Santiago shows Ms. had said that transcript had been but “friendly”,

“knew that their Gladys”, relationship by defense reply that “we weren’t friends.” questions put counsel, not she affirmed that her contacts with the victim did that she not “aware of opinion”, “cause form [her] a and was “able to render fair bias or that she and prejudice”, knowledge and set aside Mrs. impartial verdict [her] Napwasky”. seating of Mr. on challenges Dailey ground

Mu’Min and hampered that “his deliberations would rushed been] [have by lengthy service in a hardship jury the financial caused us, Mr. no Dailey case.” to the record before made According ser- hardship what his hardship. financial Asked plea personal cause, said, vice “I’m com- jury doing telephone on the would munications, small it I work for is very and the company believed, This, he right now.” would their business jeopardize his hamper” somewhat could make him feel “rushed” and “could as a to deliberate. ability juror 8.01-341.2, jury serve on a duty person’s

Under Code § cause . . . would serving jury deferred or limited “if may be inconvenience.” The privi such occupational a person particular of the trial the discretion the statute makes available at lege, one court, is juror to the purely personal prospective altogether unrelated to the inconvenience suffered by the person’s employer.

We find no merit in these assignments of error. Every by Code 8.01-358 and question contemplated Rule required by § 3A:14 was addressed to these jurors court and prospective Every counsel. response Santiago Dailey made fully supports judge’s trial conclusion that both were to sit on the qualified and we will his jury, rulings.6 uphold

III. GUILT TRIAL ISSUES

A. Evidentiary Rulings One of the elements of one of the forms of the offense charged the indictment was the status of the accused at the time the committed, i.e., offense was that he was then “a prisoner confined in a state or local correctional Code facility”.7 18.2- 31(c). status, As proof of Mu’Min’s the Commonwealth offered evidence at the guilt trial a copy the order of conviction of first degree murder entered against Mu’Min in 1973. In with keeping its ruling against a motion that defense counsel had made in limine, the trial court admitted the order over the defendant’s ob jection. On appeal, defendant argues evidence of prior crimes is inevitably prejudicial and that references the Common Attorney wealth’s made in the presence jury to the facts disclosed by that order compounded prejudice. Accordingly, brief, On complains generally Mu’Min also trial court’s voir dire . . . was “[t]he essentially inquiry juror’s [concerning limited capital punishment] whether a views prevent, would substantially impair, choosing punishment Although one or the other.” objection the ground dire, defendant had raised during object this voir he failed to seating any juror ground. Applying on that procedural Rule 5:25 in a similar con text, we challenge have refused to death-qualifying question. consider a party “If a objects rulings during prospective juror, made the voir subsequently dire of a but fails to object seating juror, to the party of that objections.” Spencer has waived the voir dire Commonwealth, 295, 306, 785, v. 238 (1989). Va. 384 apply S.E.2d 793 We that rule to complaint. Mu’Min’s term, Defining this jury the trial court instructed the as follows: facility An inmate of a state correctional remains an inmate at all times until he is released proper authority. from that status state An inmate who es- capes custody during from retains the status of inmate the entire course of such an unauthorized absence. This is a correct statement of the law in this Commonwealth. See v. Common- Ruffin wealth, (21 Gratt.) 790, (1871); Commonwealth, 62 Va. 793-94 see also v. Jefferson 747, 752, 258, 204 S.E.2d rulings constituted trial court’s maintains that the the defendant agree. We do error. reversible in investigator with

A of Mu’Min’s interview transcript which, Napwasky he confessed his assault Mrs. eventually, reveals, defen- following jury. excerpt was read As to the conviction and to his prior dant initiated several references sentence imposed. fingerprints? off wipe your

WATSON: You tried off. fingerprints MU’MIN: Wipe my do Why WATSON: did that? you Because I’m a convicted murderer. MU’MIN:

[*] ^{[*] [*]} with this story didn’t forward Why you WATSON: come earlier?

MU’MIN: Because I’m convicted murderer.

[*] ^{[*] [*]} — thing it’s the back I know what same you’re MU’MIN: home. charge sitting . I was got ‘73 . . When I this murder . house, was testified that I aunt both in the My my uncle fired, certain physical a shot but because of home when and some- had similarities they up, they evidence that picked way who me someone thought one said that he he saw this, walked, since since sitting I’ve been the penitentiary incident, ‘73 .... years this the last

[*] ^{[*] [*]} — know, look, how it you MU’MIN: I mean how can murderer. good can that look for me? I’m a convicted Think it. WATSON: about Serving year

MU’MIN: a 48 sentence. references, a confession we integral parts These several Boggs See were evidence. competent have found to be voluntary, 229 Va. (1986); Bowman cert. denied 475 U.S. 1031 hold, there- (1939). We 498-99

447 fore, error, trial court’s con- resulting rulings that if from the any, the of conviction harmless the cerning by 1973 order was rendered disclosed order. own account of the same facts by defendant’s Commonwealth, 817, 252 See Schindel v. 219 Va. S.E.2d (1979) (hearsay 304 error rendered defendant’s harmless details”). the factual testimony corroborating “own ruling, argues another Mu’Min Challenging evidentiary the in the excluding copy trial court erred from evidence a regulation. a VDOT The offered the doc departmental defendant VDOT his assigned ument show that a employee supervise crew had officer work not taken oath as a as peace required and, hence, killed, regulation the that at the time the victim was he was not “a ... in the of an prisoner custody employee [of correctional within facility]” contemplation of Code 18.2- § 31(c).

We need not this consider issue. The lan jury finding guage 18.2-31(c) was only one of bases for the guilty § verdict. The jury also rested its verdict its lan finding in the guage 18.2-31(d) Mu’Min committed the “dur killing § ing commission of . armed robbery while . . with a deadly the issue weapon.” Consequently, raised is moot. appeal Cf. v. Zant U.S. Stephens, (1983) (death 462 862 al penalty upheld one though of three statutory circumstances aggravating subse Commonwealth, invalid); declared v. quently accord 229 Poyner 401, 427, 815, 830, Va. 329 S.E.2d 474 U.S. 888 (1985); Tuggle

838, 845 (1985), (1986); cert. denied 478 1010 U.S. Stout 126, 134, cert. de nied, U.S. __, S.Ct. 3263 Jury

B. Instructions The re assigns judge’s rulings defendant error to the trial fusing four instructions relating to Mu’Min’s contention that not a prisoner 18.2-31(c) within the intendment of Code and his ruling granting Commonwealth’s instruction stated, contrary (see footnote For reason we supra). just need address assignments these of error.

Mu’Min also questions another on another instruction ruling granted by the trial court. capital Instruction number defined murder terms of the three definitions in the statutory charged indictment and the elements the lesser-included offenses of first de- manslaughter. voluntary murder and degree second murder degree defined first the instruction fendant believes that erred that the trial court standard of proof incorrectly his substitute draft. refusing they 1 told the that if jury number In instruction pertinent part, murder, for three any predicates capital to find of the failed a rea- proved beyond that the Commonwealth has but find doubt: sonable and

(1) Gladys Napwasky; That the defendant killed malicious; was (2) killing That the willful, (3) killing premeditated, the deliberate That . . . degree shall him of first murder. then find you guilty Indeed, we see no ma instruction. We find no error this the substitute this definition and terial difference between draft, reject complaint. and we the defendant’s ISSUES

IV. PENALTY TRIAL A. Passion or Prejudice is re is this Court penalty imposed, Whenever the death the sentence to review record to determine quired “[w]hether of passion, prejudice of death was under the influence imposed The defen 17-110.1(C)(1). Code other factor”. any arbitrary by refusing trial committed error dant claims court a life sentence. definition of the jury’s particulars a request case, capital in an earlier We a similar claim disagree. Rejecting “tends to show that the said jury’s question actually we that the and guided unprejudiced, were jury’s dispassionate, deliberations the portentous factor relevant to consideration every earnest Delong to make.” they required decision were U.S. 929 deci that the jury’s penalty

The defendant also suggests The defen factor”. arbitrary some “other sion was the result of of a depart at trial penalty copy dant offered in evidence be shall not . . . regulation prisoner mental providing “[a] left without time.” to the Common- supervision response said, wealth’s the trial “I objection, judge question relevancy . . . .” The defendant us to commute the sentence of death urges on the that the comment influenced the “to ground judge’s jury of the disregard major defendant’s evidence in component mitigation.” reasons, First,

For two we decline to do so. shows transcript that the comment judge’s was made to the in a side-bar attorneys conference, Having conference. in mind the of such purpose we think it is that the unlikely comment was heard Sec- jury. ond, overheard, even if the comment was the trial court’s decision to overrule the Commonwealth’s objection admit the docu- ment for the cured jury’s consideration the com- any prejudice ment have caused. may

Having thorough conducted a review of the voluminous trial, record of both we find phases nothing to show that the penalty by the and confirmed imposed jury by the trial court was product or other passion, prejudice, factor. arbitrary

B. the Sentence Propriety of As Code required by we 17-110.1(C)(2), must now determine § “whether the sentence of death is excessive or disproportionate the cases, in penalty similar imposed considering both the crime and the defendant.”

1. Excessiveness A death is penalty excessive unless it is based inherently what upon has come to be known as “dangerousness the predi cate” or the “vileness predicate”. 19.2-264.4(C) Code provides:

The of death shall not be penalty unless the Com- imposed monwealth shall prove a reasonable doubt beyond that there is a based probability evidence of the upon prior history the defendant or of the surrounding circumstances the com- mission of the offense of which he is accused that he would commit criminal acts of violence that would constitute a con- tinuing serious threat to or that his conduct in com- society, vile, the mitting offense was or outrageously horri- wantonly inhuman, ble torture, in that it involved of mind depravity or aggravated to the victim. battery 450 of the statute as the court’s

Tracking language incorporated 1, based the death jury’s instruction number verdict penalty both upon predicates. challenges finding

The vileness jury’s defendant because, failed Commonwealth’s predicate says, Attorney “to his bill of and “the evidence include torture in particulars” did of mul . . . not establish torture.”8 We think evidence Mrs. grievous wounds inflicted was suffi tiple, Napwasky Commonwealth, torture, v. 228 Tuggle cient see Va. prove vacated and on other S.E.2d remanded (1985) (“torture” correctly 471 U.S. 1096 included grounds, victim, was sufficient to show vileness instruction where evidence alive, . . . was bruised and bitten on her severely still “[w]hile However, breast”). is immaterial that the instruction and jury it when verdict contained word “torture” the bill jury’s because, did not. It is immaterial as defined in Code particulars and “the includes three -264.4(C), 19.2-264.2 term ‘vileness’ §§ factors, being one factor and distinct with separate proof finding of vileness and hence a sentence of sufficient support Commonwealth, 423, 442, v. death.” Bunch 271, 282, denied, (1983). cert. 464 U.S. 977 cuts identified 16 and wounds autopsy report puncture face, neck, chest, left on the victim’s arm numerous face the evidence injuries Clearly, blunt-force to the and forehead. i.e., “a “aggravated battery was sufficient to prove battery”, which, is than the more qualitatively quantitatively, culpable M. v. minimum an act murder.” Smith necessary accomplish Commonwealth, 455, 478, 149 (1978), Va. S.E.2d Indeed, denied, stab (1979). single cert. 441 U.S. 967 wound circumstances, defi satisfy under certain be sufficient to this may, 132-33, See, nition. 237 Va. at Stout e.g., 291-92; 303, 313, S.E.2d Edmonds 474 U.S. 975 of the de history of the “evidence of the light prior commission of fendant of the the surrounding circumstances [and] offense”, was en- 19.2-264.4(C), jury Code we think § brief, says is argument sentence of death In Mu’Min that “the another advanced because, supervision government rudimentary in of the care excessive” had “exercised defendant, effect, argues In the defendant crime would not have been committed.” this penalty immunity for his escapee is entitled from the death who commits murder supervision. unpersuaded. intrepidity escaping We are in finding in that the defendant “would constitute a tirely justified continuing serious threat id. We need not recite the society”, details of that evidence. It is that we have enough found proof the vileness sufficient to predicate support imposition death makes penalty. jury findings “When separate specific circumstances, statutory aggravating of which could support death, sentence of and one of the circumstances is subsequently invalidated, circumstance, circumstances, valid remaining or Commonwealth, will the sentence.” Tuggle v. 230 Va. at support 110, 845, in, 334 S.E.2d at with Stout v. Com- quoted approval monwealth, 237 Va. at 376 S.E.2d at 292.

2. Disproportionality Code 17-110.1(C)(2) us to requires case under compare § review with “similar cases” in our making determination whether “the sentence of death is excessive or To facili- disproportionate”. tate that as comparison 17-110.1(E), directed in we have accu- mulated the records in all murder cases to come before capital this Court (including those in which the penalty was a imposed sentence) life and stored and indexed those records from apart those in all other criminal cases. cases from in- selecting ventory for of our purposes we comparison, give attention special to those in which the death was based penalty the same stat- upon utory (or predicate predicates) as that underlying penalty under review. based,

The cases in which the death it was penalty as here, both the “future dangerousness” and the predicate “vileness” are collected and predicate annotated in our recent opinion 295, 319-20, Spencer 238 Va. (1989). 799-800 See also R. Smith v. Common wealth, 239 Va. (1990). S.E.2d 871 We have compared bar, the records in those cases with the case at and we are satisfied that “juries jurisdiction in this generally su approve preme penalty comparable similar crimes.” Stamper 824 (1979), U.S. 972

V. INEFFECTIVE ASSISTANCE OF COUNSEL counsel

By that his appointed specially, charges Mu’Min trial lawyer was ineffective because failed at the trial penalty to several instructions object to certain instructions to submit as to the form trial court. These approved by well as verdict failures, and unjustifiable by he says, prejudicial are patently Commonwealth, 232 In Beaver v. Va. acceptable explanation. 521, 342, we 352 S.E.2d cert. 483 U.S. 1033 re jected such claim. just of errors of omission committed his

Defendant complains record no from trial testimony trial counsel. Yet the contains alleged of Were we to concerning counsel his acts omission. record, of defendant’s contentions on this attempt dispose attorney would be to declare the work of an we called having that attorney opportunity to be ineffective without conduct, his to explain omitted.] [citation however, that the record argues, though The defendant relates to of does not contain everything question counsel, estab- enough ineffective assistance of it contains things obviously trial failed do lish that counsel for no accept- should have been done and which there can be However, say does not able explanation. [Code § 19.2-317.1] of inef- we can where there is evidence proceed partial very a full on the fectiveness. statute record presupposes is the assistance of issue that basis for claim of ineffective conclude, therefore, We that defendant’s claim of counsel. of trial cannot be raised in this ineffective assistance counsel appeal. 537-38,

Id. at 352 S.E.2d at 351-52. 19.2-317.1,9 Code we re language of qualifying Applying § Trial counsel will be rulings. main committed to our previous “an disgrace without exposed possibility professional op the rationale by giving defend himself the record portunity Correll v. challenged his acts of omission commission”. 454, 470, S.E.2d de Va. nied, Frye accord (1987); 482 U.S. 931 Smith, R. 287-88 See 9 Code 19.2-317.1 provides: direct if be raised on A claim of ineffective assistance counsel appeal may relating contained assigned to such issue are as error if all matters fully the record trial. within of the claim of inef- n. 5. Mu’Min’s at 886 n. Va. at 271 in this appeal. be considered counsel cannot fective assistance

VI. CONCLUSION error in the conduct either phase no reversible Finding sentence, death we commute the and no cause to bifurcated trial two verdicts. confirming jury’s judgment will affirm the

Affirmed. WHITING, STEPHENSON with whom JUSTICE JUSTICE dissenting. HASSELL join, and JUSTICE all of the court excluded correctly I cannot that the trial agree who said had jurors they intended for the 16 prospective questions the offense. A trial court’s as- information about acquired pretrial for bias is jurors’ presumptively sessment of prospective potential v. correct, Yount, (1984); Pope Patton U.S. 234 Va. n.7; error, Patton, at 1031-32 Irvin absent manifest U.S. Dowd, (1961); Pope, 366 U.S. case, however, I believe there was “manifest

S.E.2d at 358. In this to es- necessary refusing any questions error” in to permit juror for assessing basis objective tablish a factual impartiality. an unusual amount of pretrial publicity.

The record discloses murder of a local resident alleged involved the charge capital degree of his sentence for first serving a convict who was part murder, After this gang. county as a member of a road murder outrage, and local citizens publicly expressed surprise, officials discovery prisoners for the of local residents safety upon fear crimes, were Mu’Min, convicted of violent per- like who had been When the with the public. mitted to work in such close contact assembled, affirma- 16 of them jurors responded were prospective had informa- of whether they “acquired to the tively question regarding other source” news media or from any tion from the offense. The trial court then asked: received, heard, or read information that you

Would the im- source, affect your that information from whatever would in this case? partiality read, seen, you’ve there that would what anyone say

Is heard, from information have you may acquired or whatever would affect so that your impartiality whatever the source could not be impartial? you seen, heard, read, or any

In view of everything you’ve source that acquired information from whatever you’ve case, who believes that could not you this is there anyone Juror, enter the box with an mind and Jury open become a the entire case is before a fixed presented reaching wait until as to or innocence of the guilt or a conclusion opinion accused? the bal- juror one to these

Only prospective responded inquiries; juror That was excused for ance remained silent. prospective cause when he said he could not be impartial. we do know what the ruling,

Because of the trial court’s had read or heard about the case before trial. jurors prospective however, know, information following regarding We do that the trial, accused, at the guilt phase not a evidence part in the local papers: published resulting 1. His assault a fellow in a suspected prisoner, broken nose. violations and his for rejection

2. His citation 23 prison pa- role on six previous applications.

3. His 1973 conviction for the murder and of a robbery Grayson driver, crime a cab with some details of the and statement County from that the death Grayson County prosecutor penalty accused was convicted. not available when the in York and juvenile Virginia. 4. His record New in engagement 5. His commission of a alleged burglary Also, there were indi- Tom” activities while a prisoner. “Peeping involved in the commission cations that a also have been rape may of this murder. trial an rights by has and constitutional to statutory

An accused counsel was afforded I do not believe that defense jury. impartial as man- jurors, a voir dire examination of meaningful prospective of this conten- The majority disposes dated Code 8.01-358. by § v. LeVasseur Common- (n.3) in a footnote by relying upon tion or wealth, right, statutory has no party where we said that “[a] 455 wishes, extend he or to voir otherwise, any question to propound 581, 304 S.E.2d at 225 Va. at ad dire questioning infinitum.” case, however, suggests in in record Nothing present 653. he any question to sought “propound defense counsel ad voir dire wishe[d], questioning or extend infinitum.” for either shall party mandates that “counsel Code 8.01-358 § is called as under who any person to examine oath right have the ... di- . . and have the to ask such juror right person . shall whether he ... is sensi- relevant ascertain rectly any question ble bias or The section further any provides prejudice.” issue, to a fact in shall dis- knowing relative juror, anything “[a] Moreover, as we close the same court.” Code 8.01-358. open § LeVasseur, full and said in court must afford fair party “[t]he jurors whether ‘stand indiffer- opportunity ascertain prospective ” 581, ent 225 Va. at S.E.2d in the cause.’ 304 at 653. 8.01-358, enacting Code the General intended Assembly § meaningful counsel a voir dire examination. Clearly, provide read, seen, juror to what a had questions pertaining prospective whether heard about case are “relevant ... ascertain Therefore, ... is sensible of bias or the court vio- prejudice.” an right jury. lated Mu’Min’s to trial statutory by impartial Constitutions, and State Additionally, “[ujnder Federal Const, Const, 1, 8, XIV; an U.S. amends. VI and Va. art. ac § ” right by jury.’ cused has a to trial Wm. Patterson ‘impartial 653, 212, v. 215 (1981). 222 Va. 283 443-44, As we opinion, illustrated fre majority construing federal decisions the Sixth Amendment quently apply right construing to an this same under art. impartial jury right also, v. Virginia 8 of the Constitution. See Mackall Com monwealth, (1988), 236 cert. 766 denied, S.Ct. (1989). is violated if right jury

An accused’s to trial an impartial voir jurors are after an dire examination. impanelled inadequate See, Turner If the examina Murray, 476 U.S. e.g., is is in two re right prejudiced tion the accused’s inadequate, his spects; right challenge, he is unable to exercise effectively 1972), Cir. (7th United States F.2d Dellinger, trial is unable to and the court U.S. jurors’ United States fairly impartiality. assess prospective 190, Davis, 1978). F.2d (5th 583 197-98 Cir.

456

Thus, when there has been unusual in a crimi pretrial publicity case, nal Court has said that there must be “fair Supreme ju in the record for the state courts’ conclusion that the support Patton, rors . . . would be 467 U.S. at 1038. More impartial.” over, where have indicated that were ex jurors they prospective similar to those posed publicity to pretrial response questions case, in this we have warned: posed proof prospec “[T]he [a fair, juror] tive is should come him and not be impartial from suggestions.” based on his mere assent to Breeden v. persuasive 297, 300, 734, (1976) 227 S.E.2d added) (citations omitted). (emphasis words, In other “in of an designed the absence examination elicit answers which basis for the court’s provide objective evaluation, the form of as- ‘merely going through obtaining jurors’ surances of is insufficient ....’” Silverthorne v. impartiality States, 627, (9th 1968) United 400 F.2d Cir. (emphasis least two of added) (citations omitted). involving our cases we have said that a trial court should have re- pretrial publicity, jected such assurances. Justus v. subjective 87, Breeden, (1980); 217 Va. at 298- 300, might 227 S.E.2d at 736-37. be willing juror “[H]owever himself, Breeden, to trust the law will not trust him.” 217 Va. at (citations omitted). 227 S.E.2d at 735 whether a can render a verdict Accordingly, juror impartially be on that juror’s [subjective] “should not assessment [based] Silverthorne, without more.” self-righteousness something Instead, F.2d at 639. a trial court must objectively indepen- juror’s assess each state of mind. dently prospective juror When a is exposed potentially prejudicial pretrial juror it is to determine whether the can publicity, necessary exposure. aside due lay impression opinion as to his own juror is to make a determination poorly placed Instead, court make this the trial should impartiality. determination. 1985) (em- (11th 763 F.2d Cir.

Jordan Lippman, is, not, or is omitted). “The issue of who added) (citation phasis decide,” Justus, 220 for the trial court to juror is one competent juror Va. at 266 S.E.2d at not the himself. Furthermore, I believe the in this case were deficient questions jurors in that could remain silent as an im- simply the prospective gave indication of a lack of bias or This the trial plied prejudice. court no effective to assess the demeanor of each opportunity pro- Moreover, disclaiming bias. even if the court had spective juror juror, an affirmation of each such an prospective required express affirmation would have an admission bias required prejudice juror before the assembled “No doubt each was sincere panel. [accused], when he that he would be fair and to the impartial said but the such a declaration before impact requiring psychological Irvin, 366 one’s fellows is often its father.” U.S. at 728. we have never addressed the of such Apparently, necessity ques dire, tions voir where at members have been to un panel exposed However, usual we have pretrial publicity. ample precedent Commonwealth, 710, such v. 214 Va. 204 questions. Greenfield S.E.2d 414 (1974), the trial court sought description what was remembered those actually by jurors who had prospective There, subjected been to pretrial we sustained the trial publicity. objective findings court’s regarding those impartiality pro who spective jurors, we noted had remembered few of the details 717, of such Id. at 204 publicity. S.E.2d at 420. not the Although discussion, subject of our an in the inspection appendices following cases indicates that “content” were likewise questions asked of jurors prospective exposed pretrial publicity. Mackall Commonwealth, 240, v. 236 Va. 372 S.E.2d (1988); 759 LeVasseur 564, 225 Va. 304 S.E.2d 644 cert. (1983), denied, 464 (1984); U.S. 1063 Bassett v. 222 Va. 844, (1982); S.E.2d 844 456 U.S. 938 Justus, 87; Breeden, 734; Greenfield, 214 Va. 204 S.E.2d 414. accused,1 and refused questions proffered by court, designed were a factual and ba- clearly provide objective sis for assessing jurors for bias.2 Some potential prospective case; tion; discuss; if an this case to mits therefore, subjected to 1 The tenor of the Without have no from whom did questions you content you; pretrial publicity necessarily opinion discussed this case with who; what; when; regarding questions proffered questions had been you approving get are the source and extent this should have been asked what formed, necessary, information; each of the and where? anyone; was: What have what is minimum, with when and where did proffered it; has of exposure whom; anyone expressed you questions, I when and believe each seen, information he recalled and read or heard pretrial publicity, if the trial court you where; get an prospective opinion what did this informa about this about juror and, per you had not affected their have felt that the honestly publicity

may however, a disclosure of what was actually impartiality; observer to conclude that could lead an impartial remembered unaware, which as in juror there was a bias of the potential examination and Breeden. “Voir dire serves protect Justus [the biases, both known and to a fair right exposing possible trial] unknown, jurors.” on the Power part potential McDonough Greenwood, U.S. Equipment citation of States v. Halde- I believe that United majority’s man, for the that the (D.C. 1976), 559 F.2d 31 Cir. proposition right,” to ask “content is “not a matter of questions” opportunity holding. of that The Haldeman Court misconstrues the essence ABA Standard “mandate agreed that a certain explicitly [d] intensity into the sources and of a venireman’s exposure inquiry into his recollection of the con- not an pretrial publicity, inquiry Moreover, added). tent Id. at 69 em- (emphasis of that publicity.” the voir dire in that defendant’s case permitted phasizing intensity counsel to determine the nature and the exposure of the Court stated: pretrial publicity, We it would have been reversible error for the agree Court to because said would jurors accept simply they they case, however, be .... In this the Court had before it fair jurors’ subjective and acted on not assurances but only also how had fol- objective relating closely they information lowed and their sources of information. Watergate addition, omitted) added). Id. at 67 n.51 In (citations (emphasis Silverthorne, and two cases in- distinguished Dellinger Haldeman dire, ground voir volving constitutionally inadequate cases failed to con- permit any questions the trial courts those cerning intensity exposure pretrial publicity. the source and See id. at 69. Silverthorne,

As in the trial court this case Dellinger the source rejected determining all voir dire aimed questions as “content” as well intensity exposure pretrial publicity, view, error to preclude In it was not questions. my necessarily however, trial some or even all of the “content” questions; Moreover, jurors “tainting” prospective could the other when it was received. the risk of examination, during excluding by courtroom each minimized the others from the have been examining groups, as the court did. them in smaller dire was even constitutionally court’s conduct of voir inadequate, Haldeman, any in its blanket refusal to permit questions under the sources and determining intensity exposure aimed at pre- case; (e.g., trial where did hear about this how you many publicity it; did hear about and when did hear you you it). times about case, under the circumstances of this the refusal my opinion, the source regarding permit questions intensity violated the accused’s stat- knowledge regarding pretrial publicity right and constitutional to trial Al- utory impartial jury. I with the in all other though agree majority I opinion respects, would reverse the of the trial court and remand the case judgment new which trial at voir dire should be appropriate questions asked.

Case Details

Case Name: Mu'Min v. Commonwealth

Court Name: Supreme Court of Virginia

Date Published: Mar 2, 1990

Citation: 389 S.E.2d 886

Docket Number: Record 890899

Court Abbreviation: Va.