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| [1] | THE SUPREME COURT OF THE STATE OF VIRGINIA |
| [2] | Record Nos. 992525 and 992526 |
| [3] | 2000.VA.0042342 <http://www.versuslaw.com> |
| [4] | April 21, 2000 |
| [5] | SHERMAINE A. JOHNSON V. COMMONWEALTH OF VIRGINIA |
| [6] | Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and Kinser, JJ.,
and Stephenson, Senior Justice |
| [7] | The opinion of the court was delivered by: Justice Barbara Milano Keenan |
| [8] | FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D'Alton, Jr.,
Judge |
| [9] | In these appeals, we review the capital murder conviction and death sentence
imposed on Shermaine A. Johnson, along with his conviction for rape. |
| [10] | I. PROCEEDINGS |
| [11] | On January 6, 1997, petitions were issued in the Juvenile and Domestic
Relations District Court of the City of Petersburg (juvenile court) against
Johnson, charging him with the July 11, 1994 rape and capital murder of
Hope Denise Hall. Johnson was 16 years old at the time these offenses were
committed. Notice of the juvenile court proceedings was provided to Johnson's
guardian and grandmother, Virginia Dancy. After a hearing, the juvenile
court found probable cause to believe that Johnson had committed the crimes
alleged and entered an order certifying the charges to the grand jury. |
| [12] | On April 17, 1997, the grand jury of the Circuit Court of the City of
Petersburg (the circuit court) indicted Johnson on charges of capital murder
in the commission of rape or attempted rape in violation of Code § 18.2-31(5),
and rape in violation of Code § 18.2-61. Johnson filed numerous pretrial
motions and requests for continuances during the ensuing 14 months. On June
17, 1998, Johnson filed a motion to dismiss the indictments, arguing that
the circuit court had not complied with the requirements of former Code
§ 16.1-296(B). This statute required the circuit court, within a "reasonable
time" after receiving the case from the juvenile court, to review the
records and enter an order either remanding the case to the juvenile court
or advising the Commonwealth's Attorney that he may seek indictments. |
| [13] | The circuit court entered an order dated June 29, 1998, stating that it
had reviewed Johnson's records from the juvenile court and, upon that review,
authorized the Commonwealth's Attorney to seek indictments. The grand jury
returned new indictments on July 2, 1998, and the circuit court later granted
the Commonwealth's motion to enter a nolle prosequi on the original indictments.
The circuit court also entered an order stating that "[a]ll papers,
documents, orders, motions, responses, letters, and arguments" contained
in the court files of the original indictments were "transferred and
incorporated" in the files of the new indictments. |
| [14] | In the first stage of a bifurcated jury trial conducted under Code § 19.2-264.3,
the jury convicted Johnson of the offenses charged in the new indictments.
In the penalty phase of the trial, the jury fixed his punishment for capital
murder at death, based on findings of both "future dangerousness"
and "vileness." |
| [15] | In a post-trial motion, Johnson sought dismissal of the indictments on
the ground that the Commonwealth had failed to provide notice of the transfer
proceedings in juvenile court to Johnson's father, in violation of former
Code §§ 16.1-263 and -264. The trial court denied the motion, finding that
"proper notice as contemplated by the statute" had been given.
After considering the pre-sentence report and victim impact statements,
the trial court sentenced Johnson to life imprisonment on the rape charge
and, in accordance with the jury verdict, to death on the capital murder
charge. |
| [16] | We consolidated the automatic review of Johnson's death sentence with
his appeal of the capital murder conviction. Code § 17.1-313(F). We also
certified Johnson's appeal of his rape conviction from the Court of Appeals
and consolidated that appeal with his capital murder appeal. Code § 17.1-409. |
| [17] | II. THE EVIDENCE |
| [18] | We will state the evidence presented at trial in the light most favorable
to the Commonwealth, the prevailing party below. Walker v. Commonwealth,
258 Va. 54, 60, 515 S.E.2d 565, 568 (1999), cert. denied, ___ U.S. ___,
120 S.Ct. 955 (2000); Jackson v. Commonwealth, 255 Va. 625, 632, 499 S.E.2d
538, 543 (1998), cert. denied, 525 U.S. 1067 (1999); Roach v. Commonwealth,
251 Va. 324, 329, 468 S.E.2d 98, 101, cert. denied, 519 U.S. 951, (1996).
On July 11, 1994, the nude body of 22-year-old Hope Denise Hall was found
on the bedroom floor of her apartment in Petersburg. She had been stabbed
15 times, including fatal stab wounds to her back, chest, and neck. |
| [19] | Hall's body had abrasions on the nose and left cheek. The body also had
a broken, ragged fingernail that Dr. Deborah Kay, an assistant chief medical
examiner for the Commonwealth, testified was a "defense-type"
injury. Dr. Kay also testified that death "is not generally immediate"
with wounds such as those suffered by Hall, and that she initially would
have remained conscious after the wounds were inflicted. |
| [20] | The police found blood on two "steak" knives, which were lying
on a counter in Hall's kitchen. Blood was also found on a piece of a broken
drinking glass located on the kitchen counter, and there was additional
blood on the kitchen counter and floor. The police recovered from the kitchen
floor an earring, five strands of hair, and a partial shoe print containing
some blood. The matching earring was found in Hall's bedroom. |
| [21] | The outside door to Hall's apartment was locked, and the police found
a partial fingerprint and smears of blood on the inside panel of that door,
which was located near the kitchen. The police recovered two additional
"steak" knives, one on Hall's bed and one in her bathroom. The
telephone wires in her bedroom had been pulled out of the wall. |
| [22] | A smear of blood and blood splatters were located on the bedroom wall
near the victim's body. The police found additional blood on the bedroom
floor, dresser, sheets, and bedspread. There was no sign of forced entry
into the apartment. |
| [23] | DNA Evidence |
| [24] | Jean M. Hamilton, a forensic scientist employed by the Virginia Division
of Forensic Science, testified that she performed DNA testing using the
"polymerase chain reaction," or PCR, technique on evidence recovered
from the crime scene and a blood sample and vaginal swabs collected from
Hall's body during an autopsy. Hamilton concluded that the DNA from the
blood found on the knife on the bed, the knives in the kitchen, the kitchen
countertop, and the front door all matched the DNA from Hall's blood sample. |
| [25] | Hamilton determined that the DNA from Hall's blood did not match the DNA
from the blood on the handle of the knife found in the bathroom. However,
the blood from the broken glass in the kitchen and one bloodstain on the
bedspread contained a mixture of Hall's DNA and DNA from the same person
whose blood was on the handle of the knife found in the bathroom. |
| [26] | Hamilton testified that DNA from sperm detected in two semen stains on
the sheets and DNA from another stain on the bedspread came from the same
person as the DNA from the blood on the bathroom knife. However, the DNA
from the sperm detected in the vaginal swab taken from Hall's body came
from more than one person. |
| [27] | Early in the investigation, an acquaintance of Hall, Leroy Quick, III,
who had been observed knocking on the door of Hall's apartment on the night
of the murder, was suspected of committing these crimes. Hamilton analyzed
the DNA from a sample of Quick's blood. Based on her analysis, Hamilton
eliminated Quick as a possible source of the DNA found on all the evidence
she had analyzed. |
| [28] | Hamilton then performed a more discriminating type of DNA analysis, known
as "restriction fragment length polymorphism" or RFLP testing,
on the DNA from two semen stains found on the sheet and the bedspread. After
obtaining the DNA profile from those two stains, Hamilton searched the DNA
data bank maintained by the Division of Forensic Science to determine if
the DNA profile obtained from the crime scene evidence matched any DNA profile
on record in the DNA data bank. Hamilton did not find a matching DNA profile
at the time of her initial search in March 1996, at which time there were
about 5,000 samples in the DNA data bank. |
| [29] | In August 1996, Hamilton performed a second search of the DNA data bank
after about 2,500 more samples had been added to the bank. Hamilton's second
search revealed that one DNA profile contained in the data bank was consistent
with the DNA profile that she had obtained from the crime scene evidence.
This matching DNA profile belonged to the defendant, Shermaine A. Johnson,
who was incarcerated in the Southampton Correctional Institute. |
| [30] | Hamilton performed DNA testing, using the PCR technique, on another sample
of Johnson's blood that was in the custody of the City of Franklin Police
Department. Hamilton concluded that the DNA profile of Johnson, who is an
African-American, matched the DNA found on the handle of the knife retrieved
from the bathroom, some of the semen stains on the sheets, the semen stain
on the bedspread, and some of the sperm in the vaginal swab. Based on the
results of this PCR test, Hamilton estimated that this particular DNA profile
would occur in about one out of 980 people in the Black population, or about
one-tenth of 1% of that population. |
| [31] | Sergeant Thomas Patrick of the Petersburg Bureau of Police obtained a
search warrant, which he executed on Johnson at the Southampton Correctional
Institute. Pursuant to the search warrant, Patrick obtained another blood
sample from Johnson, as well as head and pubic hair samples. George Li,
a supervising forensic scientist with the Virginia Division of Forensic
Science, conducted RFLP testing on DNA from the blood sample obtained from
Johnson and compared it to the DNA found at the crime scene. Li concluded
that Johnson's DNA matched the DNA from semen stains on the sheet and bedspread.
Li estimated that the probability of randomly selecting an individual other
than Johnson with the same DNA profile as that found in the evidence taken
from the crime scene was about one in one million in the Black population. |
| [32] | Li also conducted PCR testing on the DNA from the blood sample obtained
from Johnson, and compared the results with the DNA on the knife found in
the bathroom and semen stains found on the sheets and bedspread. Based on
the less discriminating PCR technique, Li estimated that the probability
of a person other than Johnson having a DNA profile matching the DNA from
the crime scene evidence was one in 980 in the Black population. |
| [33] | Johnson's Statements to Police |
| [34] | After Hamilton made the initial match of the DNA taken from the crime
scene with Johnson's DNA profile obtained from the data bank, three police
officers from the Petersburg Police Bureau interviewed Johnson at the Southampton
Correctional Institute in August 1996. Upon signing a written waiver of
his Miranda rights, Johnson told the police officers that he had been in
Petersburg "quite a bit" during the summer of 1994 and had spent
"a lot" of time at the apartment complex where Hall lived. His
cousin and another acquaintance lived in other buildings in the same complex.
Johnson stated that on the night Hall was murdered, he encountered her in
a hallway and that they went inside her apartment and began kissing on her
living room couch. Johnson stated that an African-American man with a light
complexion who had a "fade" haircut knocked on Hall's door, entered
the apartment, and began arguing with Johnson. According to Johnson, this
man threatened him with a knife and pushed him out of the apartment. |
| [35] | Johnson denied being present in any room in Hall's apartment other than
the living room and denied being cut or injured in any way while in the
apartment. On further questioning, Johnson stated that he had not met Hall
in the outside hallway, but had knocked on her door. |
| [36] | Other Crimes Evidence |
| [37] | Prior to trial, the Commonwealth gave Johnson notice that it intended
to present evidence during the guilt phase of the trial that Johnson had
raped 21-year-old Lavonda Scott on July 2, 1994, and 15-year-old Janel Chambliss
on August 31, 1994. Over Johnson's objection, the trial court permitted
both Scott and Chambliss to testify about these crimes, after finding that
there were "numerous" similarities between the crimes committed
against Scott and Chambliss and the pending charges against Johnson. |
| [38] | The trial court cited the following factors in its decision to permit
the testimony of Scott and Chambliss. All three victims were young African-American
women. Scott and Chambliss both knew Johnson and allowed him to enter their
homes. There was no sign of forced entry into Hall's apartment. Johnson
assaulted both Scott and Chambliss after requesting a glass of water. He
then seized knives from their kitchens. There was a broken drinking glass
in Hall's kitchen, and the knives used to kill Hall came from her kitchen. |
| [39] | Johnson forced both Scott and Chambliss to remove all their clothing before
raping them. Hall's body was totally nude and her clothes were found near
her body. Johnson threatened both Scott and Chambliss, stating that he would
kill them if they did not follow his directions. When Chambliss resisted
and struggled with Johnson, he stabbed her. There was evidence of a struggle
in Hall's apartment and Hall was fatally stabbed. All three crimes occurred
within a 90-day period in 1994. *fn1 |
| [40] | Aggravating Factors |
| [41] | During the penalty phase of the trial, the Commonwealth presented evidence
that in addition to the rapes of Scott, Chambliss, and Hall, Johnson committed
two other rapes in 1994. The two victims of these other crimes testified
at the penalty phase. The evidence showed that in January 1994, Johnson
raped a 13-year-old girl as she was walking down a flight of stairs inside
her apartment building in New Jersey. Johnson grabbed her from behind, held
a "steak" knife to her throat, demanded that she remove her clothes,
and raped her. In June 1994, Johnson raped a 15-year-old girl in a friend's
apartment in New York City. Johnson stopped the girl on the street and lured
her to his friend's apartment, where he threatened her with a knife, forced
her to remove her clothing, and raped her. |
| [42] | III. ISSUES PREVIOUSLY DECIDED |
| [43] | On appeal, Johnson raises certain arguments that we have resolved in previous
decisions. Since we find no reason to modify our previously expressed views,
we reaffirm our earlier holdings and reject the following arguments: |
| [44] | A. Imposition of the death penalty constitutes cruel and unusual punishment
in violation of the United States Constitution and the Constitution of Virginia.
Rejected in Yarbrough v. Commonwealth, 258 Va. 347, 360 n.2, 519 S.E.2d
602, 607 n.2 (1999); Jackson, 255 Va. at 635, 499 S.E.2d at 545; Goins v.
Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert. denied, 519 U.S.
887 (1996). |
| [45] | B. Virginia's death penalty statutes fail to provide meaningful guidance
to the jury. Rejected in Yarbrough, 258 Va. at 360 n.2, 519 S.E.2d at 607
n.2; Cherrix v. Commonwealth, 257 Va. 292, 299, 513 S.E.2d 642, 647, cert.
denied, ___ U.S. ___, 120 S.Ct. 177 (1999); Roach, 251 Va. at 336, 468 S.E.2d
at 105; Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75,
cert. denied, 513 U.S. 971 (1994). |
| [46] | C. The "vileness" factor is unconstitutionally vague and overbroad.
Rejected in Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at
299, 513 S.E.2d at 647; Beck v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d
898, 907, cert. denied, 522 U.S. 1018 (1997). |
| [47] | D. The "future dangerousness" factor is unconstitutionally vague
and unconstitutionally permits the consideration of unadjudicated conduct.
Rejected in Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at
299, 513 S.E.2d at 647; Clagett v. Commonwealth, 252 Va. 79, 86, 472 S.E.2d
263, 267 (1996), cert. denied, 519 U.S. 1122 (1997). |
| [48] | E. Virginia's penalty phase instructions do not adequately instruct the
jury concerning mitigation. Rejected in Yarbrough, 258 Va. at 360 n.2, 519
S.E.2d at 607 n.2; Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Swann v.
Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert. denied, 513 U.S.
889 (1994). |
| [49] | F. The post-verdict review of the death sentence by the trial court does
not satisfy constitutional standards because the trial court may consider
hearsay evidence contained in a pre-sentence report and is not required
to set aside the death sentence upon a showing of good cause. Rejected in
Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at 299, 513 S.E.2d
at 647; Breard, 248 Va. at 76, 445 S.E.2d at 675. |
| [50] | Iv. PRETRIAL MATTERS |
| [51] | Juvenile Transfer Issues |
| [52] | Johnson argues that the circuit court erred in denying his motions to
dismiss both sets of indictments. He first asserts that the original indictments
were void because the circuit court failed to review the transfer record
from the juvenile court under former Code § 16.1-296(B) before the original
indictments were obtained. He also argues that the original indictments
were void under Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999)(per
curiam), because the Commonwealth had failed to notify Johnson's father
of the transfer hearing in the juvenile court. We disagree with Johnson's
arguments. |
| [53] | The requirement of former Code § 16.1-296(B), that the circuit court review
the transfer documents from the juvenile court before allowing the Commonwealth
to seek indictments, was inapplicable to Johnson's case. This review was
not required because Johnson previously had been tried and convicted as
an adult in the Circuit Court of Southampton County for the rape of Lavonda
Scott. Code § 16.1-271 provides in relevant part: |
| [54] | Any juvenile who is tried and convicted in a circuit court under the provisions
of this article shall be considered and treated as an adult in any criminal
proceeding resulting from any future alleged criminal acts. . . . |
| [55] | All procedures and dispositions applicable to adults charged with such
a criminal offense shall apply in such cases. . . . The provisions of this
article regarding a transfer hearing shall not be applicable to such juveniles. |
| [56] | The rape of Lavonda Scott occurred on July 2 or 3, 1994, and the present
offenses took place days later on July 11, 1994. Thus, the rape and capital
murder of Hope Hall were "future alleged criminal acts" within
the meaning of Code § 16.1-271, and Johnson was not entitled to the protection
that the transfer statutes afford a juvenile offender who has not previously
been tried and convicted as an adult in a circuit court. Accordingly, since
Johnson's prior conviction as an adult eliminated the requirement of former
Code § 16.1-296(B) that the circuit court review the transfer proceedings,
his claim that the review was not performed in a timely manner has no merit. |
| [57] | The provisions of Code § 16.1-271 also invalidate Johnson's claim that
the indictments were void because his father was not provided notice of
the transfer proceedings in the juvenile court. Under the plain language
of Code § 16.1-271, a juvenile who has been convicted as an adult in a circuit
court is not entitled to a transfer hearing in the juvenile court. Since
Johnson had no right to a transfer hearing, the notice requirements pertaining
to such a hearing are inapplicable and do not provide a basis for challenging
either set of indictments returned in this case. |
| [58] | Johnson next contends that the Commonwealth's failure to try the charges
against him within five months of his preliminary hearing violated his right
to a speedy trial under Code § 19.2-243. He asserts that the 16-month interval
between the preliminary hearing and trial is attributable solely to the
Commonwealth's failure to seek a timely review of the transfer documents
from the juvenile court. |
| [59] | The record demonstrates that there is no merit to Johnson's claim. Johnson's
preliminary hearing and resulting probable cause determination occurred
in the juvenile court on March 20, 1997. Johnson either requested or agreed
to every continuance granted by the circuit court under the original indictments,
and Johnson conceded this fact in argument before the circuit court. When
the time attributable to those continuances is subtracted from the total
time this case was pending in the circuit court before trial, the record
shows that Johnson was tried within the time restrictions imposed by Code
§ 19.2-243. *fn2 See Townes v. Commonwealth,
234 Va. 307, 323, 362 S.E.2d 650, 659 (1987) cert. denied, 485 U.S. 971
(1988); Robinson v. Commonwealth, 28 Va. App. 148, 155-56, 502 S.E.2d 704,
708 (1998); Watkins v. Commonwealth, 26 Va. App. 335, 347-48, 494 S.E.2d
859, 865 (1998). |
| [60] | Johnson also argues that the trial court erred in incorporating in the
present case, which was tried under the new indictments, all pleadings filed
and rulings made under the original indictments. He contends that the circuit
court lacked jurisdiction to take this action after the original indictments
had been terminated by nolle prosequi, asserting that a new preliminary
hearing in the juvenile court was required. Johnson also contends that because
the original indictments were terminated by nolle prosequi, all pretrial
proceedings conducted under the original indictments were effectively nullified.
Thus, he argues that there were no rulings or pleadings before the trial
court that could have been incorporated in the prosecution on the new indictments.
We disagree. |
| [61] | As discussed above, since Johnson previously had been tried and convicted
as an adult for rape, the Commonwealth was not required to institute new
proceedings in the juvenile court. Code § 16.1-271. Instead, the Commonwealth
was entitled to consider and treat Johnson as an adult and obtain new indictments
in the circuit court. See Code § 19.2-217; Payne v. Warden of Powhatan Correctional
Center, 223 Va. 180, 183, 285 S.E.2d 886, 887-88 (1982). |
| [62] | The new indictments were identical to the old indictments and, thus, presented
exactly the same issues that Johnson raised before the circuit court in
the original indictments. The nolle prosequi of the original indictments
did not invalidate the trial court's rulings in that case, but simply terminated
the original prosecution and discharged Johnson from liability on those
indictments. See Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269,
273 (1977), cert. denied, 434 U.S. 1016 (1978). The circuit court was not
required to rehear the same matters and reissue the same rulings simply
because the Commonwealth mistakenly had concluded that the original indictments
may have been invalid. Thus, we hold that the circuit court's decision to
incorporate the prior rulings in the present case was a proper exercise
of the court's discretion. *fn3 |
| [63] | Motions to Suppress Fruits of Search Warrant |
| [64] | Johnson argues that the 32-day interval between the time Hamilton first
matched DNA from the crime scene with Johnson's DNA profile in the DNA data
bank, and the time the search warrant was executed, constituted an "unreasonable
delay." He contends that the evidence obtained as a result of the search
warrant, namely, the blood sample, hair samples, and his statement to the
police, should have been suppressed based on this "unreasonable delay."
We disagree. |
| [65] | There is no fixed standard or formula establishing a maximum allowable
interval between the date of events recited in an affidavit and the date
of a search warrant. United States v. McCall, 740 F.2d 1331, 1336 (4th Cir.
1984); Huff v. Commonwealth, 213 Va. 710, 715, 194 S.E.2d 690, 695 (1973);
Perez v. Commonwealth, 25 Va. App. 137, 142-43, 486 S.E.2d 578, 581 (1997).
Instead, a warrant will be tested for "staleness" by considering
whether the facts alleged in the warrant provided probable cause to believe,
at the time the search actually was conducted, that the search conducted
pursuant to the warrant would lead to the discovery of evidence of criminal
activity. McCall, 740 F.2d at 1336; Perez, 25 Va. App. at 142, 486 S.E.2d
at 581; see United States v. Akram, 165 F.3d 452, 456 (6th Cir. 1999); Huff,
213 Va. at 715-16, 194 S.E.2d at 695. |
| [66] | Here, Johnson's contention of "staleness" fails because the
DNA from the crime scene evidence and his DNA profile from the DNA data
bank, which were "matched" by Hamilton and formed the basis for
issuance of the warrant, were not subject to change over the 32-day period
at issue. The blood and hair samples taken from Johnson pursuant to the
search warrant also were not subject to change over this time period. See
State v. Baker, 956 S.W.2d 8, 13 (Tenn. Crim. App. 1997)(holding that samples
of person's blood, saliva, and hair cannot become "stale.") Thus,
we hold that the search warrant was valid and the trial court did not err
in refusing to suppress the evidence at issue. Since the search warrant
was valid, we also conclude that there is no merit in Johnson's allegation
that the statement he made to the police should have been suppressed as
a fruit of the search conducted pursuant to that warrant. |
| [67] | Constitutionality of Virginia's DNA Data Bank |
| [68] | Johnson argues that the statutes providing for the Commonwealth's DNA
data bank, Code §§ 19.2-310.2 through -310.7 (DNA statutes), which include
a requirement that all convicted felons submit blood samples for DNA testing,
violate various constitutional rights. He contends that these statutes violate
the Fourth Amendment guarantee against unreasonable searches and seizures,
the Fifth Amendment protection against self-incrimination, and the Eighth
Amendment guarantee against cruel and unusual punishment. He further contends
that the DNA statutes violate his constitutional right of due process. Johnson
also relies on the parallel provisions of the Constitution of Virginia that
articulate these constitutional rights. Finally, Johnson contends that these
statutes are arbitrary and unreliable, fail to establish meaningful restrictions
on the seizure and dissemination of DNA material, and constitute an "undue
delegation of [legislative] powers." We disagree with Johnson's arguments. |
| [69] | The DNA statutes do not deny a criminal defendant any constitutional rights.
Although we have not considered previously the issues Johnson raises, the
United States Court of Appeals for the Fourth Circuit has addressed the
constitutionality of Virginia's DNA statutes in two cases. In Jones v. Murray,
962 F.2d 302 (4th Cir.) cert. denied, 506 U.S. 977 (1992), the Court concluded
that the procurement of a blood sample for DNA analysis from a convicted
felon under Code § 19.2-310.2 does not violate the Fourth Amendment guarantee
against unreasonable searches and seizures. The Court held that "in
the case of convicted felons who are in the custody of the Commonwealth,
we find that the minor intrusion caused by the taking of a blood sample
is outweighed by Virginia's interest . . . in determining inmates' 'identification
characteristics specific to the person' for improved law enforcement."
Id. at 307 (quoting Code § 19.2-310.2); see also Ewell v. Murray, 11 F.3d
482, 484 (4th Cir. 1993), cert. denied, 511 U.S. 1111 (1994). We agree with
this conclusion and hold that it is equally applicable to the guarantee
against unreasonable searches and seizures set forth in Article I, Section
10 of the Constitution of Virginia. |
| [70] | We also conclude that the Fifth Amendment right against self-incrimination,
and the parallel right afforded by Article I, Section 8 of the Constitution
of Virginia, are not violated by the DNA statutes. The taking of a blood
sample does not implicate any rights against self-incrimination, because
such an act is not testimonial or communicative in nature. Schmerber v.
California, 384 U.S. 757, 761 (1966); Shumate v. Commonwealth, 207 Va. 877,
880, 153 S.E.2d 243, 245 (1967); Lawrence v. Bluford-Brown, 1 Va. App. 202,
204, 336 S.E.2d 899, 900-01 (1985). Thus, the withdrawal of blood from a
convicted felon to provide a DNA sample for inclusion in the DNA data bank
in accordance with Code § 19.2-310.2 does not violate the felon's constitutional
protection against self-incrimination. |
| [71] | Next, we conclude that the DNA statutes do not violate the Eighth Amendment
guarantee against cruel and unusual punishment, and the parallel right secured
by Article 1, Section 9 of the Constitution of Virginia. The DNA statutes
are not penal in nature. Ewell, 11 F.3d at 485; Jones, 962 F.2d at 309.
Therefore, there is no merit to Johnson's contention that the above rights
are "subverted" by the requirement that a DNA blood sample be
taken from persons convicted of a felony. |
| [72] | We also disagree with Johnson's argument that the DNA statutes violate
federal constitutional rights of due process and the due process provisions
of Article I, Section 11 of the Constitution of Virginia. In support of
his argument, Johnson states merely that the DNA statutes do not "require
that notice be given to individuals whose DNA is seized." This argument
has no merit because the enactment of the statutes themselves in 1990 provided
notice that all persons convicted of a felony will be required to give a
blood sample for DNA analysis. |
| [73] | We also reject Johnson's arguments that the DNA statutes are arbitrary
and unreliable, fail to establish meaningful restrictions on the seizure
and dissemination of DNA material, and constitute an "undue delegation
of [legislative] powers." The statutes apply uniformly to every convicted
felon, and the use of the information collected from each felon is restricted
to law enforcement purposes. Code §§ 19.2-310.2, -310.5, and -310.6. Further,
since Johnson does not explain why the statutes are an "undue delegation"
of powers, we do not address this argument because we are unable to discern
its substance. |
| [74] | Batson Challenge |
| [75] | During jury selection, the prosecutor used all five of her peremptory
strikes to remove African-Americans from the venire. Johnson asserted a
challenge to the panel under Batson v. Kentucky, 476 U.S. 79 (1986). After
noting that the jury panel, which included two alternate jurors, was comprised
of ten African-Americans, one Hispanic, and three Caucasians, the trial
court ruled that Johnson had failed to establish a prima facie case of racial
exclusion under Batson. The trial court stated: "It's clear the jury
is predominantly black . . . . There was no questioning in the voir dire
or anything to suggest any racial inferences. So I do not find that a prima
facie case has been made." |
| [76] | Johnson argues on appeal that the trial court violated the holding in
Batson in failing to require the prosecutor to state race-neutral reasons
for each of her peremptory strikes. In response, the Commonwealth contends
that the trial court did not err under Batson because the circumstances
surrounding the prosecutor's use of her peremptory strikes did not raise
an inference that these strikes were made to exclude potential jurors based
on their race. We agree with the |
| [77] | Commonwealth. |
| [78] | In Batson, the Supreme Court stated the requirements for establishing
a prima facie case of purposeful discrimination in the selection of a petit
jury. The Court held that to establish such a prima facie case, |
| [79] | the defendant first must show that he is a member of a cognizable racial
group . . . and that the prosecutor has exercised peremptory challenges
to remove from the venire members of the defendant's race. Second, the defendant
is entitled to rely on the fact, as to which there can be no dispute, that
peremptory challenges constitute a jury selection practice that permits
"those to discriminate who are of a mind to discriminate." . .
. Finally, the defendant must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that practice
to exclude the veniremen from the petit jury on account of their race. Batson,
476 U.S. at 96. |
| [80] | The trial court's determination whether discrimination has occurred in
the selection of a jury is entitled to great deference. Id. at 98 n.21. |
| [81] | The defendant has the burden of producing a record that supports a prima
facie case of purposeful discrimination. United States v. Escobar-De Jesus,
187 F.3d 148, 164 (1st Cir. 1999), cert. denied, ___U.S.___, 68 U.S.L.W.
3534 (U.S. Feb.22, 2000)(No. 99-7685); Atkins v. Commonwealth, 257 Va. 160,
174, 510 S.E.2d 445, 454 (1999); Kasi v. Commonwealth, 256 Va. 407, 421,
508 S.E.2d 57, 65 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 2399 (1999);
see Batson, 476 U.S. at 96-97. The fact that the prosecution has excluded
African-Americans by using peremptory strikes does not itself establish
such a prima facie case under Batson. See 476 U.S. at 96-97; United States
v. Sangineto-Miranda, 859 F. 2d 1501, 1521 (6th Cir. 1988). A defendant
also must identify facts and circumstances that raise an inference that
potential jurors were excluded based on their race. Batson, 476 U.S. at
96; Escobar-De Jesus, 187 F.3d at 164. |
| [82] | The composition of the jury that ultimately is sworn is a relevant consideration
in reviewing a Batson challenge. Sangineto-Miranda, 859 F.2d at 1521-22;
see Escobar-DeJesus, 187 F.3d at 165. The jury selected in this case was
comprised overwhelmingly of African-Americans. We also observe that none
of the prosecutor's questions or statements to the venire indicated that
the prosecutor was of a mind to discriminate in her exercise of peremptory
strikes. |
| [83] | In addition, no other facts or circumstances in the present record support
an inference of purposeful discrimination by the prosecutor in the jury
selection process. Therefore, we conclude that the record supports the trial
court's ruling that Johnson failed to make a prima facie showing of purposeful
discrimination under Batson. Since Johnson failed to establish such a prima
facie case, the prosecutor was not required to provide a racially neutral
explanation for her exercise of peremptory strikes. |
| [84] | Appointment of Co-Counsel |
| [85] | Johnson next argues that the trial court erred in denying his request
for the appointment of co-counsel with specialized knowledge relating to
DNA evidence to assist his court-appointed attorney in addressing issues
presented by the Commonwealth's use of such evidence. Johnson contends that
he was denied effective assistance of counsel because his court-appointed
attorney, by his own admission, did not have the expertise necessary to
evaluate the DNA evidence linking Johnson to these crimes. |
| [86] | We find no merit in these arguments. Johnson withdrew his request for
appointment of co-counsel prior to trial and instead asked the trial court
to appoint a DNA expert, which request was granted. *fn4
Therefore, by withdrawing his request for co-counsel in the trial court,
Johnson has waived his claim that the trial court erred in denying his request
for co-counsel with specialized knowledge relating to the use of DNA evidence.
Further, to the extent that Johnson has raised a claim of ineffective assistance
of counsel in this argument, we do not consider that contention in this
appeal. See Roach, 251 Va. at 335 n.4, 468 S.E.2d at 105 n.4; Hall v. Commonwealth,
30 Va. App. 74, 82, 515 S.E.2d 343, 347 (1999); 1990 Va. Acts of Assembly,
ch. 74 (repealing Code § 19.2-317.1, which provided for direct appeal of
certain ineffective assistance of counsel claims); see also Walker v. Mitchell,
224 Va. 568, 570, 299 S.E.2d 698, 699 (1983). |
| [87] | Photographs of Victim |
| [88] | On this subject, Johnson has assigned error on the following basis: |
| [89] | "The trial court erred in denying [d]efendant's motion to exclude
certain photographs of the victim." However, Johnson has not addressed
this assignment of error in his brief, except with regard to "buttons"
displaying a photograph of the victim worn by certain members of the public
while in the courtroom. Therefore, our consideration of this assignment
of error will be limited to the buttons worn in the courtroom, and we will
not consider the trial court's admission of photographs of the victim into
evidence during trial. See Rules 5:27, 5:17(c)(4). |
| [90] | Johnson contends that Hall's family and friends were allowed to wear "campaign-size"
buttons displaying Hall's photograph in the courtroom. Johnson asserts that
although the jurors were not seated close enough to the audience to identify
Hall's image on the buttons, they could tell that the buttons "ha[d]
something to do with" Hall and, thus, the jurors were improperly influenced. |
| [91] | We find no merit in this argument. There is nothing in the record to support
Johnson's contention that any of the jurors saw buttons displaying Hall's
photograph. When Johnson raised his objection to the buttons at the beginning
of trial, the court ruled that the spectators would not be permitted to
display the buttons in any manner that would allow the jurors to see them.
The court also ruled that anyone wearing a button was required to refrain
from any contact with any of the jurors. After the trial court stated these
rulings, Johnson did not object to the adequacy of the trial court's response
or later argue that any spectator had violated the trial court's instructions.
Thus, Johnson has waived any objection to the trial court's rulings in response
to his request that the buttons "not be displayed." Rule 5:25. |
| [92] | v. GUILT PHASE ISSUES |
| [93] | Other Crimes Evidence |
| [94] | Johnson argues that the trial court erred in admitting the testimony of
Lavonda Scott and Janel Chambliss during the guilt phase of his trial. He
asserts that the facts in the cases of Scott, Chambliss, and Hall contain
no common aspects that are so distinctive or idiosyncratic that they would
permit an inference that the same person committed all three crimes. We
disagree. |
| [95] | The standard governing the admission of evidence of other crimes in the
guilt phase of a criminal trial is well established. Generally, evidence
that shows or tends to show that a defendant has committed a prior crime
is inadmissible to prove the crime charged. Guill v. Commonwealth, 255 Va.
134, 138, 495 S.E.2d 489, 491 (1998); Woodfin v. Commonwealth, 236 Va. 89,
95, 372 S.E.2d 377, 380 (1988), cert. denied, 490 U.S. 1009 (1989); Kirkpatrick
v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). |
| [96] | There are several exceptions to the general rule excluding this type of
evidence. Among other exceptions, evidence of other crimes is admissible
when relevant to show a perpetrator's identity, if certain requirements
are met. We discussed those requirements in Chichester v. Commonwealth,
248 Va. 311, 326-27, 448 S.E.2d 638, 649 (1994), cert. denied, 513 U.S.
1166 (1995): |
| [97] | [O]ne of the issues upon which "other crimes" evidence may be
admitted is that of the perpetrator's identity, or criminal agency, where
that has been disputed. Proof of modus operandi is competent evidence where
there is a disputed issue of identity. |
| [98] | [E]vidence of other crimes, to qualify for admission as proof of modus
operandi, need not bear such an exact resemblance to the crime on trial
as to constitute a "signature." Rather, it is sufficient if the
other crimes bear a "singular strong resemblance to the pattern of
the offense charged." That test is met where the other incidents are
"sufficiently idiosyncratic to permit an inference of pattern for purposes
of proof," thus tending to establish the probability of a common perpetrator. |
| [99] | If the evidence of other crimes bears sufficient marks of similarity to
the crime charged to establish that the defendant is probably the common
perpetrator, that evidence is relevant and admissible if its probative value
outweighs its prejudicial effect . . . The trial court, in the exercise
of its sound discretion, must decide which of these competing considerations
outweighs the other. Unless that discretion has been clearly abused, we
will affirm the trial court's decision on this issue. Id. (quoting Spencer
v. Commonwealth, 240 Va. 78, 89-90, 393 S.E.2d 609, 616-17, cert. denied,
498 U.S. 908 (1990)(citations omitted)); see also Turner v. Commonwealth,
259 Va. ___, ___, ___ S.E.2d ___, ___ (2000) decided today; Guill, 255 Va.
at 138-39, 495 S.E.2d at 491-92. |
| [100] | Applying the Spencer standard, we conclude that the trial court did not
abuse its discretion in admitting the testimony of Scott and Chambliss in
the guilt phase of the trial. The three crimes bear a singular strong resemblance
to one another, based on common incidents that are sufficiently idiosyncratic
to establish the probability of a common perpetrator. In addition, the record
supports a finding that the probative value of this evidence of other crimes
outweighed its potential prejudicial effect. |
| [101] | The crimes committed against Scott, Chambliss, and Hall occurred within
a 60-day period. The victims were all young African-American women. Each
victim knew Johnson, and there were no signs of forced entry into the dwellings
in which the crimes occurred. In each case, the attacker used a "steak"
knife that he obtained in the victim's dwelling. Each victim was raped,
and the attacker stabbed the victims who resisted him. |
| [102] | The attacker asked Scott and Chambliss for a drink of water before he
attacked them, and a bloodstained broken drinking glass was found in the
kitchen of Hall's apartment. Hamilton estimated that the DNA from the blood
found on the broken glass, which matched Johnson's DNA, would occur once
in 980 times in the Black population. Finally, the attacker ordered both
Scott and Chambliss to disrobe completely, and Hall's clothes were found
intact on the floor of her apartment near her nude body. |
| [103] | Chain of Custody of Blood Sample |
| [104] | Johnson argues that the trial court erred in admitting into evidence the
analysis of the blood sample taken from him for inclusion in the DNA data
bank while he was incarcerated at Southampton Correctional Institute in
September 1995. He asserts that the Commonwealth did not establish the chain
of custody of the blood sample, and he contends that the Commonwealth had
"insufficient controls . . . to conclusively track a sample once it
reaches the lab to insure that one specimen is not mixed with another."
We find no merit in this argument. |
| [105] | A chain of custody is properly established when the Commonwealth's evidence
provides reasonable assurance that the sample to be admitted at trial is
the same sample, and in the same condition, as when it was first obtained.
Vinson v. Commonwealth, 258 Va. 459, 469, 522 S.E.2d 170, 177, (1999); Pope
v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357 (1987), cert. denied,
485 U.S. 1015 (1988). Thus, under this standard, the Commonwealth is not
required to eliminate every conceivable possibility of substitution, alteration,
or tampering. Pope, 234 Va. at 121, 360 S.E.2d at 357; Alvarez v. Commonwealth,
24 Va. App. 768, 776, 485 S.E.2d 646, 650 (1997). |
| [106] | In the present case, the Commonwealth proved that Ann Chavis drew Johnson's
blood, and that she taped and initialed the vial containing the sample before
delivering it to Deborah Harrell. Harrell kept the sample in her custody
until delivering it to Diane Hamilton at the Division of Forensic Science
DNA laboratory. The sample remained in the custody and control of the DNA
laboratory until it was analyzed. |
| [107] | We also note that under Code § 19.2-187.01, an attested report of analysis
from the Division of Forensic Science is prima facie evidence of custody
from the time a sample is received by the laboratory until it is released
after testing. Johnson presented no evidence to overcome the Commonwealth's
introduction of this prima facie evidence, or the direct evidence of actual
custody of the blood sample. Therefore, the Commonwealth met its burden
of demonstrating a reasonable assurance that Johnson's blood sample was
the same sample, and in the same condition, as when it first was obtained. |
| [108] | Testimony of DNA Expert Witnesses |
| [109] | Johnson contends that Jean Hamilton and George Li lacked sufficient expertise
to testify concerning "population and statistical genetics." Thus,
he disputes the admission of their testimony regarding the statistical probability
that someone other than Johnson would have the same DNA profile as the donor
of the DNA found on evidence collected from Hall's apartment. We disagree
with Johnson's argument. |
| [110] | The issue whether a witness is qualified to testify as an expert on a
given subject is a matter submitted to the trial court's discretion, and
the trial court's ruling in this regard will not be disturbed on appeal
unless it plainly appears that the witness was not qualified. Spencer v.
Commonwealth, 238 Va. 275, 305, 384 S.E.2d 775, 792 (1989), cert. denied,
493 U.S. 1036 (1990); Lane v. Commonwealth, 223 Va. 713, 718, 292 S.E.2d
358, 361 (1982); Wileman v. Commonwealth, 24 Va. App. 642, 647, 484 S.E.2d
621, 624 (1997). |
| [111] | Li testified that he was the supervisor of forensic biology examiners
at the Division of Forensic Science laboratory in Richmond, and that he
also conducted forensic biology examinations as part of his duties. Li holds
a Master of Science degree in forensic science. He received training in
DNA analysis, including statistical issues involved in such analysis, from
the Federal Bureau of Investigation. Li had trained both investigators and
technicians on the theory and technique of DNA typing, and was an instructor
in the graduate program in forensic science at Virginia Commonwealth University.
He had performed DNA analyses on thousands of samples and previously had
qualified as an expert witness in the field of forensic science. He explained
that forensic DNA analysis involves a determination whether a person can
be eliminated as a source of DNA found at a crime scene, as well as a determination
regarding how frequently a particular DNA profile appears in the general
population. |
| [112] | Hamilton testified that she holds a Master of Science degree in forensic
science, and has been employed by the Commonwealth Division of Forensic
Science for 12 years as a forensic scientist. She also completed undergraduate
and graduate level courses in statistics. Hamilton explained that part of
her work in DNA analysis involves an assessment of the approximate frequency
that a particular DNA profile appears in the general population. She also
stated that she previously has testified as an expert witness regarding
such probabilities. Based on this foundation testimony, we conclude that
the trial court did not abuse its discretion in allowing Li and Hamilton
to testify concerning the statistical probabilities at issue in this case. |
| [113] | Evidence of Third Party Guilt |
| [114] | Johnson argues that the trial court erred in refusing to allow him to
present testimony that would have proved that Leroy Quick, III, was the
person who raped and murdered Hope Hall. Johnson proffered the testimony
of Natalie Williams, Hall's co-worker, who would have testified that Hall
received flowers from Quick shortly before she was murdered, and that Hall
told Williams that Hall did not "want to have anything to do with"
Quick because he was "crazy." Johnson also proffered the testimony
of three women who worked in the rental office of Hall's apartment complex
who would have testified that within 30 days before the murder, Hall expressed
"concern and apprehension" about a person she used to date. *fn5
One of these rental office workers, Dolores Reid, also would have testified
that about one month before the murder, she saw Leroy Quick grab Hall in
an attempt to "get her to go from one room to another." |
| [115] | We find no merit in Johnson's argument that the trial court abused its
discretion in refusing to admit this evidence. Proffered evidence "that
merely suggests a third party may have committed the crime charged is inadmissible;
only when the proffered evidence tends clearly to point to some other person
as the guilty party will such proof be admitted." Soering v. Deeds,
255 Va. 457, 464, 499 S.E.2d 514, 518 (1998). We have stated that "a
large discretion must and should remain vested in the trial court as to
the admission of this class of testimony." Karnes v. Commonwealth,
125 Va. 758, 766, 99 S.E. 562, 565 (1919); see also Oliva v. Commonwealth,
19 Va. App. 523, 527, 452 S.E.2d 877, 880 (1995); Weller v. Commonwealth,
16 Va. App. 886, 890, 434 S.E.2d 330, 333 (1993). |
| [116] | In Karnes, we reversed a defendant's conviction because the trial court
refused to admit evidence of death threats that a third party had made to
the victim shortly before she was murdered. 125 Va. at 766-67, 99 S.E. at
565. In Oliva, the Court of Appeals reversed a defendant's conviction because
the trial court excluded testimony from a witness who had observed someone
other than the defendant, but who resembled him, running from the scene
of the crime. 19 Va. App. at 528-29, 452 S.E.2d at 881. |
| [117] | In contrast to the evidence at issue in Karnes and Oliva, the proffered
testimony at issue here bore no direct relation to the crimes charged. Instead,
the proffered testimony tended to prove only that Hall had a poor relationship
with Quick, and such evidence would have invited the jury to speculate that
these difficulties caused Quick to rape and murder Hall. Moreover, Hamilton
testified that she had eliminated Quick as a possible source of the DNA
found on the crime scene evidence. Thus, we hold that the trial court did
not abuse its discretion in excluding the proffered evidence. |
| [118] | Sufficiency of Evidence of Rape |
| [119] | Johnson argues that the trial court erred in denying his motion to strike
the rape charge and the reference to rape or attempted rape in the capital
murder charge. He contends that the evidence was insufficient to support
a finding of rape because there was no evidence of trauma to Hall's vaginal
area, no evidence of penetration, and only one injury, a ragged fingernail,
that could be considered a defensive injury. We disagree with Johnson's
argument. |
| [120] | "Rape is defined as 'sexual intercourse against the victim's will
by force, threat, or intimidation.'" Wilson v. Commonwealth, 249 Va.
95, 100, 452 S.E.2d 669, 673, cert. denied, 516 U.S. 841 (1995)(quoting
Hoke v. Commonwealth, 237 Va. 303, 310, 377 S.E.2d 595, 599, cert. denied,
491 U.S. 910 (1989)); see Code § 18.2-61. "Penetration by a penis of
a vagina is an essential element of the crime of rape; proof of penetration,
however slight the entry may be, is sufficient." Moore v. Commonwealth,
254 Va. 184, 186, 491 S.E.2d 739, 740 (1997)(quoting Elam v. Commonwealth,
229 Va. 133, 115, 326 S.E.2d 685, 686 (1985)). |
| [121] | Hamilton testified that the DNA from the sperm taken from Hall's vagina
matched Johnson's DNA sample. The presence of Johnson's sperm in Hall's
vagina alone is sufficient to support the finding that penetration occurred.
Spencer, 238 Va. at 284, 384 S.E.2d at 780. The evidence also was overwhelming
that Hall did not consent to having sexual intercourse with Johnson. Hall
sustained 15 stab wounds in her struggle with her attacker. She also sustained
facial abrasions, and she had a broken fingernail that Dr. Deborah Kay characterized
as a "defense-type" injury. Thus, the trial court did not err
in refusing to strike the rape charge and the reference to rape and attempted
rape in the capital murder charge. |
| [122] | VI. SENTENCE REVIEW |
| [123] | Passion and Prejudice |
| [124] | Under Code § 17.1-313(C), we review the death sentence imposed on Johnson
to determine whether it (1) was imposed under the influence of passion,
prejudice, or any other arbitrary factor; or (2) is excessive or disproportionate
to the penalty imposed in similar cases, considering both the crime and
the defendant. Johnson contends that the jury imposed the death sentence
based on passion after the Commonwealth presented emotional testimony from
Hall's mother and the father of Hall's young son, as well as the testimony
of the two victims of the rapes Johnson committed in New Jersey and New
York. We find no merit in this argument. |
| [125] | The victim impact evidence received in this case addressed the substantial
impact that Hall's murder had on the lives of her mother and her son. This
testimony plainly was admissible for the jury's consideration in the sentencing
process. See Payne v. Tennessee, 501 U.S. 808, 827 (1991); Kasi, 256 Va.
at 422, 508 S.E.2d at 65; Beck, 253 Va. at 381, 484 S.E.2d at 903. In addition,
the evidence of other rapes committed by Johnson was admissible since it
was relevant to the jury's determination of future dangerousness. See Orbe
v. Commonwealth, 258 Va. 390, 401, 519 S.E.2d 808, 814 (1999); Walker, 258
Va. at 64, 515 S.E.2d at 571. Based on our independent review of the entire
record as required by Code § 17.1-313(C)(1), we conclude that there is no
evidence that the death sentence was "imposed under the influence of
passion, prejudice or any other arbitrary factor." *fn6 |
| [126] | Excessiveness and Proportionality |
| [127] | Johnson contends that the death sentence imposed in this case is disproportionate
and excessive when compared to the penalties imposed on other 16-year-old
males who committed like offenses. In support of his argument, he cites
the dissenting opinion in Jackson, 255 Va. at 652-56, 499 S.E.2d at 555-57.
We disagree with Johnson's argument. |
| [128] | In conducting our proportionality review, we must determine whether "other
sentencing bodies in this jurisdiction generally impose the supreme penalty
for comparable or similar crimes, considering both the crime and the defendant."
Jenkins v. Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992), cert.
denied, 507 U.S. 1036 (1993); see also Hedrick v. Commonwealth, 257 Va.
328, 342, 513 S.E.2d 634, 642 cert. denied, ___ U.S. ___, 120 S.Ct. 376
(1999). We compare the record in this case with the records of other capital
murder cases, including those cases in which a life sentence has been imposed.
We have examined the records of all capital cases reviewed by this Court
pursuant to Code § 17.1-313(E). Since the jury imposed the death sentence
based on both the future dangerousness and vileness predicates, we give
particular consideration to other capital murder cases in which the death
penalty was obtained under both predicates. |
| [129] | Johnson's age at the time he committed the offenses is only one factor
to consider in determining whether other juries generally impose the death
sentence for similar crimes. The record also shows that he committed five
rapes within a seven-month period. Johnson beat and stabbed one rape victim,
in addition to inflicting multiple stab wounds in his murder of Hall. The
stab wounds inflicted on Hall that resulted in her murder reflect an aggravated
battery of the victim and an escalating pattern of violence in Johnson's
commission of the five rapes cited above. |
| [130] | Juries in this Commonwealth generally, with some exceptions, have imposed
the death sentence for convictions of capital murder based on findings of
future dangerousness and vileness in which the underlying predicate crimes
involved violent sexual offenses and the defendant had committed violent
offenses on other occasions. See, e.g., Vinson, 258 Va. 459, 522 S.E.2d
170; Cherrix, 257 Va. 292, 513 S.E.2d 642; Hedrick, 257 Va. 328, 513 S.E.2d
634; Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), cert.
denied, 520 U.S. 1224 (1997); Wilson, 249 Va. at 105, 452 S.E.2d at 676;
Williams v. Commonwealth, 248 Va. 528, 450 S.E.2d 365 (1994), cert. denied,
515 U.S. 1161 (1995); Breard, 248 Va. at 89, 445 S.E.2d at 682; Mueller
v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992) cert. denied, 507 U.S.
1043 (1993); Spencer, 238 Va. 295, 384 S.E.2d 785; Coleman v. Commonwealth,
226 Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984). Based
on this review, we hold that Johnson's death sentence is neither excessive
nor disproportionate to penalties imposed by other sentencing bodies in
the Commonwealth for comparable crimes, considering both the crime and the
defendant. |
| [131] | VII. CONCLUSION |
| [132] | We find no reversible error in the judgments of the trial court. Having
reviewed Johnson's death sentence pursuant to Code § 17.1-313, we decline
to commute the sentence of death. Accordingly, we will affirm the trial
court's judgments. |
| [133] | Record No. 992525 - Affirmed. Record No. 992526 - Affirmed. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [134] | *fn1 While the trial court found that
all three crimes occurred within a 90- day period, the record reflects that
they occurred within a 60-day period in July and August, 1994. |
| [135] | *fn2 Although Johnson contended in the
circuit court that his constitutional right to a speedy trial also was violated,
he has not asserted this argument on appeal. |
| [136] | *fn3 At oral argument in these appeals,
Johnson argued for the first time that if Code § 16.1- 271 required that
he be treated as an adult, then the original indictments, and all pretrial
proceedings conducted pursuant to those indictments, were void because the
juvenile court lacked jurisdiction to initiate any proceedings against Johnson.
We find no merit in this argument, because the original indictments were
obtained pursuant to the circuit court's jurisdiction over Johnson, which
existed independently of the proceedings in juvenile court. See Code § 19.2-
217. We also note that Johnson agreed at oral argument that the new indictments,
under which he was tried and convicted, were valid. |
| [137] | *fn4 Johnson elected not to call his
appointed DNA expert as a witness. |
| [138] | *fn5 Johnson also argues on appeal that
the trial court erred in refusing to admit testimony from two of Hall's
neighbors who saw Quick approach Hall's apartment the night she was murdered.
However, the record reveals that the defense presented the testimony of
these two neighbors. The defense also called Officer Carter Burnette of
the Petersburg Bureau of Police who testified concerning the neighbors'
statements and their identification of Quick from photographic lineups. |
| [139] | *fn6 At oral argument in this appeal,
Johnson argued for the first time that the trial court erred in failing
to instruct the jury that he was ineligible for parole, pursuant to Simmons
v. South Carolina, 512 U.S. 154, 168- 69 (1994). We do not consider this
argument on appeal because Johnson failed to raise it in the trial court
or in his brief filed with this court. See Rules 5:25 and 5:17(c). We also
observe that when the jury inquired whether a life sentence would allow
the possibility of parole, and the trial court instructed the jury to follow
the instructions given and not concern itself with "what happens after
sentence," Johnson did not raise an objection. |
| [1] | THE SUPREME COURT OF THE STATE OF VIRGINIA |
| [2] | Record Nos. 992525 and 992526 |
| [3] | 2000.VA.0042342 <http://www.versuslaw.com> |
| [4] | April 21, 2000 |
| [5] | SHERMAINE A. JOHNSON V. COMMONWEALTH OF VIRGINIA |
| [6] | Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and Kinser, JJ.,
and Stephenson, Senior Justice |
| [7] | The opinion of the court was delivered by: Justice Barbara Milano Keenan |
| [8] | FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D'Alton, Jr.,
Judge |
| [9] | In these appeals, we review the capital murder conviction and death sentence
imposed on Shermaine A. Johnson, along with his conviction for rape. |
| [10] | I. PROCEEDINGS |
| [11] | On January 6, 1997, petitions were issued in the Juvenile and Domestic
Relations District Court of the City of Petersburg (juvenile court) against
Johnson, charging him with the July 11, 1994 rape and capital murder of
Hope Denise Hall. Johnson was 16 years old at the time these offenses were
committed. Notice of the juvenile court proceedings was provided to Johnson's
guardian and grandmother, Virginia Dancy. After a hearing, the juvenile
court found probable cause to believe that Johnson had committed the crimes
alleged and entered an order certifying the charges to the grand jury. |
| [12] | On April 17, 1997, the grand jury of the Circuit Court of the City of
Petersburg (the circuit court) indicted Johnson on charges of capital murder
in the commission of rape or attempted rape in violation of Code § 18.2-31(5),
and rape in violation of Code § 18.2-61. Johnson filed numerous pretrial
motions and requests for continuances during the ensuing 14 months. On June
17, 1998, Johnson filed a motion to dismiss the indictments, arguing that
the circuit court had not complied with the requirements of former Code
§ 16.1-296(B). This statute required the circuit court, within a "reasonable
time" after receiving the case from the juvenile court, to review the
records and enter an order either remanding the case to the juvenile court
or advising the Commonwealth's Attorney that he may seek indictments. |
| [13] | The circuit court entered an order dated June 29, 1998, stating that it
had reviewed Johnson's records from the juvenile court and, upon that review,
authorized the Commonwealth's Attorney to seek indictments. The grand jury
returned new indictments on July 2, 1998, and the circuit court later granted
the Commonwealth's motion to enter a nolle prosequi on the original indictments.
The circuit court also entered an order stating that "[a]ll papers,
documents, orders, motions, responses, letters, and arguments" contained
in the court files of the original indictments were "transferred and
incorporated" in the files of the new indictments. |
| [14] | In the first stage of a bifurcated jury trial conducted under Code § 19.2-264.3,
the jury convicted Johnson of the offenses charged in the new indictments.
In the penalty phase of the trial, the jury fixed his punishment for capital
murder at death, based on findings of both "future dangerousness"
and "vileness." |
| [15] | In a post-trial motion, Johnson sought dismissal of the indictments on
the ground that the Commonwealth had failed to provide notice of the transfer
proceedings in juvenile court to Johnson's father, in violation of former
Code §§ 16.1-263 and -264. The trial court denied the motion, finding that
"proper notice as contemplated by the statute" had been given.
After considering the pre-sentence report and victim impact statements,
the trial court sentenced Johnson to life imprisonment on the rape charge
and, in accordance with the jury verdict, to death on the capital murder
charge. |
| [16] | We consolidated the automatic review of Johnson's death sentence with
his appeal of the capital murder conviction. Code § 17.1-313(F). We also
certified Johnson's appeal of his rape conviction from the Court of Appeals
and consolidated that appeal with his capital murder appeal. Code § 17.1-409. |
| [17] | II. THE EVIDENCE |
| [18] | We will state the evidence presented at trial in the light most favorable
to the Commonwealth, the prevailing party below. Walker v. Commonwealth,
258 Va. 54, 60, 515 S.E.2d 565, 568 (1999), cert. denied, ___ U.S. ___,
120 S.Ct. 955 (2000); Jackson v. Commonwealth, 255 Va. 625, 632, 499 S.E.2d
538, 543 (1998), cert. denied, 525 U.S. 1067 (1999); Roach v. Commonwealth,
251 Va. 324, 329, 468 S.E.2d 98, 101, cert. denied, 519 U.S. 951, (1996).
On July 11, 1994, the nude body of 22-year-old Hope Denise Hall was found
on the bedroom floor of her apartment in Petersburg. She had been stabbed
15 times, including fatal stab wounds to her back, chest, and neck. |
| [19] | Hall's body had abrasions on the nose and left cheek. The body also had
a broken, ragged fingernail that Dr. Deborah Kay, an assistant chief medical
examiner for the Commonwealth, testified was a "defense-type"
injury. Dr. Kay also testified that death "is not generally immediate"
with wounds such as those suffered by Hall, and that she initially would
have remained conscious after the wounds were inflicted. |
| [20] | The police found blood on two "steak" knives, which were lying
on a counter in Hall's kitchen. Blood was also found on a piece of a broken
drinking glass located on the kitchen counter, and there was additional
blood on the kitchen counter and floor. The police recovered from the kitchen
floor an earring, five strands of hair, and a partial shoe print containing
some blood. The matching earring was found in Hall's bedroom. |
| [21] | The outside door to Hall's apartment was locked, and the police found
a partial fingerprint and smears of blood on the inside panel of that door,
which was located near the kitchen. The police recovered two additional
"steak" knives, one on Hall's bed and one in her bathroom. The
telephone wires in her bedroom had been pulled out of the wall. |
| [22] | A smear of blood and blood splatters were located on the bedroom wall
near the victim's body. The police found additional blood on the bedroom
floor, dresser, sheets, and bedspread. There was no sign of forced entry
into the apartment. |
| [23] | DNA Evidence |
| [24] | Jean M. Hamilton, a forensic scientist employed by the Virginia Division
of Forensic Science, testified that she performed DNA testing using the
"polymerase chain reaction," or PCR, technique on evidence recovered
from the crime scene and a blood sample and vaginal swabs collected from
Hall's body during an autopsy. Hamilton concluded that the DNA from the
blood found on the knife on the bed, the knives in the kitchen, the kitchen
countertop, and the front door all matched the DNA from Hall's blood sample. |
| [25] | Hamilton determined that the DNA from Hall's blood did not match the DNA
from the blood on the handle of the knife found in the bathroom. However,
the blood from the broken glass in the kitchen and one bloodstain on the
bedspread contained a mixture of Hall's DNA and DNA from the same person
whose blood was on the handle of the knife found in the bathroom. |
| [26] | Hamilton testified that DNA from sperm detected in two semen stains on
the sheets and DNA from another stain on the bedspread came from the same
person as the DNA from the blood on the bathroom knife. However, the DNA
from the sperm detected in the vaginal swab taken from Hall's body came
from more than one person. |
| [27] | Early in the investigation, an acquaintance of Hall, Leroy Quick, III,
who had been observed knocking on the door of Hall's apartment on the night
of the murder, was suspected of committing these crimes. Hamilton analyzed
the DNA from a sample of Quick's blood. Based on her analysis, Hamilton
eliminated Quick as a possible source of the DNA found on all the evidence
she had analyzed. |
| [28] | Hamilton then performed a more discriminating type of DNA analysis, known
as "restriction fragment length polymorphism" or RFLP testing,
on the DNA from two semen stains found on the sheet and the bedspread. After
obtaining the DNA profile from those two stains, Hamilton searched the DNA
data bank maintained by the Division of Forensic Science to determine if
the DNA profile obtained from the crime scene evidence matched any DNA profile
on record in the DNA data bank. Hamilton did not find a matching DNA profile
at the time of her initial search in March 1996, at which time there were
about 5,000 samples in the DNA data bank. |
| [29] | In August 1996, Hamilton performed a second search of the DNA data bank
after about 2,500 more samples had been added to the bank. Hamilton's second
search revealed that one DNA profile contained in the data bank was consistent
with the DNA profile that she had obtained from the crime scene evidence.
This matching DNA profile belonged to the defendant, Shermaine A. Johnson,
who was incarcerated in the Southampton Correctional Institute. |
| [30] | Hamilton performed DNA testing, using the PCR technique, on another sample
of Johnson's blood that was in the custody of the City of Franklin Police
Department. Hamilton concluded that the DNA profile of Johnson, who is an
African-American, matched the DNA found on the handle of the knife retrieved
from the bathroom, some of the semen stains on the sheets, the semen stain
on the bedspread, and some of the sperm in the vaginal swab. Based on the
results of this PCR test, Hamilton estimated that this particular DNA profile
would occur in about one out of 980 people in the Black population, or about
one-tenth of 1% of that population. |
| [31] | Sergeant Thomas Patrick of the Petersburg Bureau of Police obtained a
search warrant, which he executed on Johnson at the Southampton Correctional
Institute. Pursuant to the search warrant, Patrick obtained another blood
sample from Johnson, as well as head and pubic hair samples. George Li,
a supervising forensic scientist with the Virginia Division of Forensic
Science, conducted RFLP testing on DNA from the blood sample obtained from
Johnson and compared it to the DNA found at the crime scene. Li concluded
that Johnson's DNA matched the DNA from semen stains on the sheet and bedspread.
Li estimated that the probability of randomly selecting an individual other
than Johnson with the same DNA profile as that found in the evidence taken
from the crime scene was about one in one million in the Black population. |
| [32] | Li also conducted PCR testing on the DNA from the blood sample obtained
from Johnson, and compared the results with the DNA on the knife found in
the bathroom and semen stains found on the sheets and bedspread. Based on
the less discriminating PCR technique, Li estimated that the probability
of a person other than Johnson having a DNA profile matching the DNA from
the crime scene evidence was one in 980 in the Black population. |
| [33] | Johnson's Statements to Police |
| [34] | After Hamilton made the initial match of the DNA taken from the crime
scene with Johnson's DNA profile obtained from the data bank, three police
officers from the Petersburg Police Bureau interviewed Johnson at the Southampton
Correctional Institute in August 1996. Upon signing a written waiver of
his Miranda rights, Johnson told the police officers that he had been in
Petersburg "quite a bit" during the summer of 1994 and had spent
"a lot" of time at the apartment complex where Hall lived. His
cousin and another acquaintance lived in other buildings in the same complex.
Johnson stated that on the night Hall was murdered, he encountered her in
a hallway and that they went inside her apartment and began kissing on her
living room couch. Johnson stated that an African-American man with a light
complexion who had a "fade" haircut knocked on Hall's door, entered
the apartment, and began arguing with Johnson. According to Johnson, this
man threatened him with a knife and pushed him out of the apartment. |
| [35] | Johnson denied being present in any room in Hall's apartment other than
the living room and denied being cut or injured in any way while in the
apartment. On further questioning, Johnson stated that he had not met Hall
in the outside hallway, but had knocked on her door. |
| [36] | Other Crimes Evidence |
| [37] | Prior to trial, the Commonwealth gave Johnson notice that it intended
to present evidence during the guilt phase of the trial that Johnson had
raped 21-year-old Lavonda Scott on July 2, 1994, and 15-year-old Janel Chambliss
on August 31, 1994. Over Johnson's objection, the trial court permitted
both Scott and Chambliss to testify about these crimes, after finding that
there were "numerous" similarities between the crimes committed
against Scott and Chambliss and the pending charges against Johnson. |
| [38] | The trial court cited the following factors in its decision to permit
the testimony of Scott and Chambliss. All three victims were young African-American
women. Scott and Chambliss both knew Johnson and allowed him to enter their
homes. There was no sign of forced entry into Hall's apartment. Johnson
assaulted both Scott and Chambliss after requesting a glass of water. He
then seized knives from their kitchens. There was a broken drinking glass
in Hall's kitchen, and the knives used to kill Hall came from her kitchen. |
| [39] | Johnson forced both Scott and Chambliss to remove all their clothing before
raping them. Hall's body was totally nude and her clothes were found near
her body. Johnson threatened both Scott and Chambliss, stating that he would
kill them if they did not follow his directions. When Chambliss resisted
and struggled with Johnson, he stabbed her. There was evidence of a struggle
in Hall's apartment and Hall was fatally stabbed. All three crimes occurred
within a 90-day period in 1994. *fn1 |
| [40] | Aggravating Factors |
| [41] | During the penalty phase of the trial, the Commonwealth presented evidence
that in addition to the rapes of Scott, Chambliss, and Hall, Johnson committed
two other rapes in 1994. The two victims of these other crimes testified
at the penalty phase. The evidence showed that in January 1994, Johnson
raped a 13-year-old girl as she was walking down a flight of stairs inside
her apartment building in New Jersey. Johnson grabbed her from behind, held
a "steak" knife to her throat, demanded that she remove her clothes,
and raped her. In June 1994, Johnson raped a 15-year-old girl in a friend's
apartment in New York City. Johnson stopped the girl on the street and lured
her to his friend's apartment, where he threatened her with a knife, forced
her to remove her clothing, and raped her. |
| [42] | III. ISSUES PREVIOUSLY DECIDED |
| [43] | On appeal, Johnson raises certain arguments that we have resolved in previous
decisions. Since we find no reason to modify our previously expressed views,
we reaffirm our earlier holdings and reject the following arguments: |
| [44] | A. Imposition of the death penalty constitutes cruel and unusual punishment
in violation of the United States Constitution and the Constitution of Virginia.
Rejected in Yarbrough v. Commonwealth, 258 Va. 347, 360 n.2, 519 S.E.2d
602, 607 n.2 (1999); Jackson, 255 Va. at 635, 499 S.E.2d at 545; Goins v.
Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert. denied, 519 U.S.
887 (1996). |
| [45] | B. Virginia's death penalty statutes fail to provide meaningful guidance
to the jury. Rejected in Yarbrough, 258 Va. at 360 n.2, 519 S.E.2d at 607
n.2; Cherrix v. Commonwealth, 257 Va. 292, 299, 513 S.E.2d 642, 647, cert.
denied, ___ U.S. ___, 120 S.Ct. 177 (1999); Roach, 251 Va. at 336, 468 S.E.2d
at 105; Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75,
cert. denied, 513 U.S. 971 (1994). |
| [46] | C. The "vileness" factor is unconstitutionally vague and overbroad.
Rejected in Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at
299, 513 S.E.2d at 647; Beck v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d
898, 907, cert. denied, 522 U.S. 1018 (1997). |
| [47] | D. The "future dangerousness" factor is unconstitutionally vague
and unconstitutionally permits the consideration of unadjudicated conduct.
Rejected in Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at
299, 513 S.E.2d at 647; Clagett v. Commonwealth, 252 Va. 79, 86, 472 S.E.2d
263, 267 (1996), cert. denied, 519 U.S. 1122 (1997). |
| [48] | E. Virginia's penalty phase instructions do not adequately instruct the
jury concerning mitigation. Rejected in Yarbrough, 258 Va. at 360 n.2, 519
S.E.2d at 607 n.2; Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Swann v.
Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert. denied, 513 U.S.
889 (1994). |
| [49] | F. The post-verdict review of the death sentence by the trial court does
not satisfy constitutional standards because the trial court may consider
hearsay evidence contained in a pre-sentence report and is not required
to set aside the death sentence upon a showing of good cause. Rejected in
Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at 299, 513 S.E.2d
at 647; Breard, 248 Va. at 76, 445 S.E.2d at 675. |
| [50] | Iv. PRETRIAL MATTERS |
| [51] | Juvenile Transfer Issues |
| [52] | Johnson argues that the circuit court erred in denying his motions to
dismiss both sets of indictments. He first asserts that the original indictments
were void because the circuit court failed to review the transfer record
from the juvenile court under former Code § 16.1-296(B) before the original
indictments were obtained. He also argues that the original indictments
were void under Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999)(per
curiam), because the Commonwealth had failed to notify Johnson's father
of the transfer hearing in the juvenile court. We disagree with Johnson's
arguments. |
| [53] | The requirement of former Code § 16.1-296(B), that the circuit court review
the transfer documents from the juvenile court before allowing the Commonwealth
to seek indictments, was inapplicable to Johnson's case. This review was
not required because Johnson previously had been tried and convicted as
an adult in the Circuit Court of Southampton County for the rape of Lavonda
Scott. Code § 16.1-271 provides in relevant part: |
| [54] | Any juvenile who is tried and convicted in a circuit court under the provisions
of this article shall be considered and treated as an adult in any criminal
proceeding resulting from any future alleged criminal acts. . . . |
| [55] | All procedures and dispositions applicable to adults charged with such
a criminal offense shall apply in such cases. . . . The provisions of this
article regarding a transfer hearing shall not be applicable to such juveniles. |
| [56] | The rape of Lavonda Scott occurred on July 2 or 3, 1994, and the present
offenses took place days later on July 11, 1994. Thus, the rape and capital
murder of Hope Hall were "future alleged criminal acts" within
the meaning of Code § 16.1-271, and Johnson was not entitled to the protection
that the transfer statutes afford a juvenile offender who has not previously
been tried and convicted as an adult in a circuit court. Accordingly, since
Johnson's prior conviction as an adult eliminated the requirement of former
Code § 16.1-296(B) that the circuit court review the transfer proceedings,
his claim that the review was not performed in a timely manner has no merit. |
| [57] | The provisions of Code § 16.1-271 also invalidate Johnson's claim that
the indictments were void because his father was not provided notice of
the transfer proceedings in the juvenile court. Under the plain language
of Code § 16.1-271, a juvenile who has been convicted as an adult in a circuit
court is not entitled to a transfer hearing in the juvenile court. Since
Johnson had no right to a transfer hearing, the notice requirements pertaining
to such a hearing are inapplicable and do not provide a basis for challenging
either set of indictments returned in this case. |
| [58] | Johnson next contends that the Commonwealth's failure to try the charges
against him within five months of his preliminary hearing violated his right
to a speedy trial under Code § 19.2-243. He asserts that the 16-month interval
between the preliminary hearing and trial is attributable solely to the
Commonwealth's failure to seek a timely review of the transfer documents
from the juvenile court. |
| [59] | The record demonstrates that there is no merit to Johnson's claim. Johnson's
preliminary hearing and resulting probable cause determination occurred
in the juvenile court on March 20, 1997. Johnson either requested or agreed
to every continuance granted by the circuit court under the original indictments,
and Johnson conceded this fact in argument before the circuit court. When
the time attributable to those continuances is subtracted from the total
time this case was pending in the circuit court before trial, the record
shows that Johnson was tried within the time restrictions imposed by Code
§ 19.2-243. *fn2 See Townes v. Commonwealth,
234 Va. 307, 323, 362 S.E.2d 650, 659 (1987) cert. denied, 485 U.S. 971
(1988); Robinson v. Commonwealth, 28 Va. App. 148, 155-56, 502 S.E.2d 704,
708 (1998); Watkins v. Commonwealth, 26 Va. App. 335, 347-48, 494 S.E.2d
859, 865 (1998). |
| [60] | Johnson also argues that the trial court erred in incorporating in the
present case, which was tried under the new indictments, all pleadings filed
and rulings made under the original indictments. He contends that the circuit
court lacked jurisdiction to take this action after the original indictments
had been terminated by nolle prosequi, asserting that a new preliminary
hearing in the juvenile court was required. Johnson also contends that because
the original indictments were terminated by nolle prosequi, all pretrial
proceedings conducted under the original indictments were effectively nullified.
Thus, he argues that there were no rulings or pleadings before the trial
court that could have been incorporated in the prosecution on the new indictments.
We disagree. |
| [61] | As discussed above, since Johnson previously had been tried and convicted
as an adult for rape, the Commonwealth was not required to institute new
proceedings in the juvenile court. Code § 16.1-271. Instead, the Commonwealth
was entitled to consider and treat Johnson as an adult and obtain new indictments
in the circuit court. See Code § 19.2-217; Payne v. Warden of Powhatan Correctional
Center, 223 Va. 180, 183, 285 S.E.2d 886, 887-88 (1982). |
| [62] | The new indictments were identical to the old indictments and, thus, presented
exactly the same issues that Johnson raised before the circuit court in
the original indictments. The nolle prosequi of the original indictments
did not invalidate the trial court's rulings in that case, but simply terminated
the original prosecution and discharged Johnson from liability on those
indictments. See Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269,
273 (1977), cert. denied, 434 U.S. 1016 (1978). The circuit court was not
required to rehear the same matters and reissue the same rulings simply
because the Commonwealth mistakenly had concluded that the original indictments
may have been invalid. Thus, we hold that the circuit court's decision to
incorporate the prior rulings in the present case was a proper exercise
of the court's discretion. *fn3 |
| [63] | Motions to Suppress Fruits of Search Warrant |
| [64] | Johnson argues that the 32-day interval between the time Hamilton first
matched DNA from the crime scene with Johnson's DNA profile in the DNA data
bank, and the time the search warrant was executed, constituted an "unreasonable
delay." He contends that the evidence obtained as a result of the search
warrant, namely, the blood sample, hair samples, and his statement to the
police, should have been suppressed based on this "unreasonable delay."
We disagree. |
| [65] | There is no fixed standard or formula establishing a maximum allowable
interval between the date of events recited in an affidavit and the date
of a search warrant. United States v. McCall, 740 F.2d 1331, 1336 (4th Cir.
1984); Huff v. Commonwealth, 213 Va. 710, 715, 194 S.E.2d 690, 695 (1973);
Perez v. Commonwealth, 25 Va. App. 137, 142-43, 486 S.E.2d 578, 581 (1997).
Instead, a warrant will be tested for "staleness" by considering
whether the facts alleged in the warrant provided probable cause to believe,
at the time the search actually was conducted, that the search conducted
pursuant to the warrant would lead to the discovery of evidence of criminal
activity. McCall, 740 F.2d at 1336; Perez, 25 Va. App. at 142, 486 S.E.2d
at 581; see United States v. Akram, 165 F.3d 452, 456 (6th Cir. 1999); Huff,
213 Va. at 715-16, 194 S.E.2d at 695. |
| [66] | Here, Johnson's contention of "staleness" fails because the
DNA from the crime scene evidence and his DNA profile from the DNA data
bank, which were "matched" by Hamilton and formed the basis for
issuance of the warrant, were not subject to change over the 32-day period
at issue. The blood and hair samples taken from Johnson pursuant to the
search warrant also were not subject to change over this time period. See
State v. Baker, 956 S.W.2d 8, 13 (Tenn. Crim. App. 1997)(holding that samples
of person's blood, saliva, and hair cannot become "stale.") Thus,
we hold that the search warrant was valid and the trial court did not err
in refusing to suppress the evidence at issue. Since the search warrant
was valid, we also conclude that there is no merit in Johnson's allegation
that the statement he made to the police should have been suppressed as
a fruit of the search conducted pursuant to that warrant. |
| [67] | Constitutionality of Virginia's DNA Data Bank |
| [68] | Johnson argues that the statutes providing for the Commonwealth's DNA
data bank, Code §§ 19.2-310.2 through -310.7 (DNA statutes), which include
a requirement that all convicted felons submit blood samples for DNA testing,
violate various constitutional rights. He contends that these statutes violate
the Fourth Amendment guarantee against unreasonable searches and seizures,
the Fifth Amendment protection against self-incrimination, and the Eighth
Amendment guarantee against cruel and unusual punishment. He further contends
that the DNA statutes violate his constitutional right of due process. Johnson
also relies on the parallel provisions of the Constitution of Virginia that
articulate these constitutional rights. Finally, Johnson contends that these
statutes are arbitrary and unreliable, fail to establish meaningful restrictions
on the seizure and dissemination of DNA material, and constitute an "undue
delegation of [legislative] powers." We disagree with Johnson's arguments. |
| [69] | The DNA statutes do not deny a criminal defendant any constitutional rights.
Although we have not considered previously the issues Johnson raises, the
United States Court of Appeals for the Fourth Circuit has addressed the
constitutionality of Virginia's DNA statutes in two cases. In Jones v. Murray,
962 F.2d 302 (4th Cir.) cert. denied, 506 U.S. 977 (1992), the Court concluded
that the procurement of a blood sample for DNA analysis from a convicted
felon under Code § 19.2-310.2 does not violate the Fourth Amendment guarantee
against unreasonable searches and seizures. The Court held that "in
the case of convicted felons who are in the custody of the Commonwealth,
we find that the minor intrusion caused by the taking of a blood sample
is outweighed by Virginia's interest . . . in determining inmates' 'identification
characteristics specific to the person' for improved law enforcement."
Id. at 307 (quoting Code § 19.2-310.2); see also Ewell v. Murray, 11 F.3d
482, 484 (4th Cir. 1993), cert. denied, 511 U.S. 1111 (1994). We agree with
this conclusion and hold that it is equally applicable to the guarantee
against unreasonable searches and seizures set forth in Article I, Section
10 of the Constitution of Virginia. |
| [70] | We also conclude that the Fifth Amendment right against self-incrimination,
and the parallel right afforded by Article I, Section 8 of the Constitution
of Virginia, are not violated by the DNA statutes. The taking of a blood
sample does not implicate any rights against self-incrimination, because
such an act is not testimonial or communicative in nature. Schmerber v.
California, 384 U.S. 757, 761 (1966); Shumate v. Commonwealth, 207 Va. 877,
880, 153 S.E.2d 243, 245 (1967); Lawrence v. Bluford-Brown, 1 Va. App. 202,
204, 336 S.E.2d 899, 900-01 (1985). Thus, the withdrawal of blood from a
convicted felon to provide a DNA sample for inclusion in the DNA data bank
in accordance with Code § 19.2-310.2 does not violate the felon's constitutional
protection against self-incrimination. |
| [71] | Next, we conclude that the DNA statutes do not violate the Eighth Amendment
guarantee against cruel and unusual punishment, and the parallel right secured
by Article 1, Section 9 of the Constitution of Virginia. The DNA statutes
are not penal in nature. Ewell, 11 F.3d at 485; Jones, 962 F.2d at 309.
Therefore, there is no merit to Johnson's contention that the above rights
are "subverted" by the requirement that a DNA blood sample be
taken from persons convicted of a felony. |
| [72] | We also disagree with Johnson's argument that the DNA statutes violate
federal constitutional rights of due process and the due process provisions
of Article I, Section 11 of the Constitution of Virginia. In support of
his argument, Johnson states merely that the DNA statutes do not "require
that notice be given to individuals whose DNA is seized." This argument
has no merit because the enactment of the statutes themselves in 1990 provided
notice that all persons convicted of a felony will be required to give a
blood sample for DNA analysis. |
| [73] | We also reject Johnson's arguments that the DNA statutes are arbitrary
and unreliable, fail to establish meaningful restrictions on the seizure
and dissemination of DNA material, and constitute an "undue delegation
of [legislative] powers." The statutes apply uniformly to every convicted
felon, and the use of the information collected from each felon is restricted
to law enforcement purposes. Code §§ 19.2-310.2, -310.5, and -310.6. Further,
since Johnson does not explain why the statutes are an "undue delegation"
of powers, we do not address this argument because we are unable to discern
its substance. |
| [74] | Batson Challenge |
| [75] | During jury selection, the prosecutor used all five of her peremptory
strikes to remove African-Americans from the venire. Johnson asserted a
challenge to the panel under Batson v. Kentucky, 476 U.S. 79 (1986). After
noting that the jury panel, which included two alternate jurors, was comprised
of ten African-Americans, one Hispanic, and three Caucasians, the trial
court ruled that Johnson had failed to establish a prima facie case of racial
exclusion under Batson. The trial court stated: "It's clear the jury
is predominantly black . . . . There was no questioning in the voir dire
or anything to suggest any racial inferences. So I do not find that a prima
facie case has been made." |
| [76] | Johnson argues on appeal that the trial court violated the holding in
Batson in failing to require the prosecutor to state race-neutral reasons
for each of her peremptory strikes. In response, the Commonwealth contends
that the trial court did not err under Batson because the circumstances
surrounding the prosecutor's use of her peremptory strikes did not raise
an inference that these strikes were made to exclude potential jurors based
on their race. We agree with the |
| [77] | Commonwealth. |
| [78] | In Batson, the Supreme Court stated the requirements for establishing
a prima facie case of purposeful discrimination in the selection of a petit
jury. The Court held that to establish such a prima facie case, |
| [79] | the defendant first must show that he is a member of a cognizable racial
group . . . and that the prosecutor has exercised peremptory challenges
to remove from the venire members of the defendant's race. Second, the defendant
is entitled to rely on the fact, as to which there can be no dispute, that
peremptory challenges constitute a jury selection practice that permits
"those to discriminate who are of a mind to discriminate." . .
. Finally, the defendant must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that practice
to exclude the veniremen from the petit jury on account of their race. Batson,
476 U.S. at 96. |
| [80] | The trial court's determination whether discrimination has occurred in
the selection of a jury is entitled to great deference. Id. at 98 n.21. |
| [81] | The defendant has the burden of producing a record that supports a prima
facie case of purposeful discrimination. United States v. Escobar-De Jesus,
187 F.3d 148, 164 (1st Cir. 1999), cert. denied, ___U.S.___, 68 U.S.L.W.
3534 (U.S. Feb.22, 2000)(No. 99-7685); Atkins v. Commonwealth, 257 Va. 160,
174, 510 S.E.2d 445, 454 (1999); Kasi v. Commonwealth, 256 Va. 407, 421,
508 S.E.2d 57, 65 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 2399 (1999);
see Batson, 476 U.S. at 96-97. The fact that the prosecution has excluded
African-Americans by using peremptory strikes does not itself establish
such a prima facie case under Batson. See 476 U.S. at 96-97; United States
v. Sangineto-Miranda, 859 F. 2d 1501, 1521 (6th Cir. 1988). A defendant
also must identify facts and circumstances that raise an inference that
potential jurors were excluded based on their race. Batson, 476 U.S. at
96; Escobar-De Jesus, 187 F.3d at 164. |
| [82] | The composition of the jury that ultimately is sworn is a relevant consideration
in reviewing a Batson challenge. Sangineto-Miranda, 859 F.2d at 1521-22;
see Escobar-DeJesus, 187 F.3d at 165. The jury selected in this case was
comprised overwhelmingly of African-Americans. We also observe that none
of the prosecutor's questions or statements to the venire indicated that
the prosecutor was of a mind to discriminate in her exercise of peremptory
strikes. |
| [83] | In addition, no other facts or circumstances in the present record support
an inference of purposeful discrimination by the prosecutor in the jury
selection process. Therefore, we conclude that the record supports the trial
court's ruling that Johnson failed to make a prima facie showing of purposeful
discrimination under Batson. Since Johnson failed to establish such a prima
facie case, the prosecutor was not required to provide a racially neutral
explanation for her exercise of peremptory strikes. |
| [84] | Appointment of Co-Counsel |
| [85] | Johnson next argues that the trial court erred in denying his request
for the appointment of co-counsel with specialized knowledge relating to
DNA evidence to assist his court-appointed attorney in addressing issues
presented by the Commonwealth's use of such evidence. Johnson contends that
he was denied effective assistance of counsel because his court-appointed
attorney, by his own admission, did not have the expertise necessary to
evaluate the DNA evidence linking Johnson to these crimes. |
| [86] | We find no merit in these arguments. Johnson withdrew his request for
appointment of co-counsel prior to trial and instead asked the trial court
to appoint a DNA expert, which request was granted. *fn4
Therefore, by withdrawing his request for co-counsel in the trial court,
Johnson has waived his claim that the trial court erred in denying his request
for co-counsel with specialized knowledge relating to the use of DNA evidence.
Further, to the extent that Johnson has raised a claim of ineffective assistance
of counsel in this argument, we do not consider that contention in this
appeal. See Roach, 251 Va. at 335 n.4, 468 S.E.2d at 105 n.4; Hall v. Commonwealth,
30 Va. App. 74, 82, 515 S.E.2d 343, 347 (1999); 1990 Va. Acts of Assembly,
ch. 74 (repealing Code § 19.2-317.1, which provided for direct appeal of
certain ineffective assistance of counsel claims); see also Walker v. Mitchell,
224 Va. 568, 570, 299 S.E.2d 698, 699 (1983). |
| [87] | Photographs of Victim |
| [88] | On this subject, Johnson has assigned error on the following basis: |
| [89] | "The trial court erred in denying [d]efendant's motion to exclude
certain photographs of the victim." However, Johnson has not addressed
this assignment of error in his brief, except with regard to "buttons"
displaying a photograph of the victim worn by certain members of the public
while in the courtroom. Therefore, our consideration of this assignment
of error will be limited to the buttons worn in the courtroom, and we will
not consider the trial court's admission of photographs of the victim into
evidence during trial. See Rules 5:27, 5:17(c)(4). |
| [90] | Johnson contends that Hall's family and friends were allowed to wear "campaign-size"
buttons displaying Hall's photograph in the courtroom. Johnson asserts that
although the jurors were not seated close enough to the audience to identify
Hall's image on the buttons, they could tell that the buttons "ha[d]
something to do with" Hall and, thus, the jurors were improperly influenced. |
| [91] | We find no merit in this argument. There is nothing in the record to support
Johnson's contention that any of the jurors saw buttons displaying Hall's
photograph. When Johnson raised his objection to the buttons at the beginning
of trial, the court ruled that the spectators would not be permitted to
display the buttons in any manner that would allow the jurors to see them.
The court also ruled that anyone wearing a button was required to refrain
from any contact with any of the jurors. After the trial court stated these
rulings, Johnson did not object to the adequacy of the trial court's response
or later argue that any spectator had violated the trial court's instructions.
Thus, Johnson has waived any objection to the trial court's rulings in response
to his request that the buttons "not be displayed." Rule 5:25. |
| [92] | v. GUILT PHASE ISSUES |
| [93] | Other Crimes Evidence |
| [94] | Johnson argues that the trial court erred in admitting the testimony of
Lavonda Scott and Janel Chambliss during the guilt phase of his trial. He
asserts that the facts in the cases of Scott, Chambliss, and Hall contain
no common aspects that are so distinctive or idiosyncratic that they would
permit an inference that the same person committed all three crimes. We
disagree. |
| [95] | The standard governing the admission of evidence of other crimes in the
guilt phase of a criminal trial is well established. Generally, evidence
that shows or tends to show that a defendant has committed a prior crime
is inadmissible to prove the crime charged. Guill v. Commonwealth, 255 Va.
134, 138, 495 S.E.2d 489, 491 (1998); Woodfin v. Commonwealth, 236 Va. 89,
95, 372 S.E.2d 377, 380 (1988), cert. denied, 490 U.S. 1009 (1989); Kirkpatrick
v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). |
| [96] | There are several exceptions to the general rule excluding this type of
evidence. Among other exceptions, evidence of other crimes is admissible
when relevant to show a perpetrator's identity, if certain requirements
are met. We discussed those requirements in Chichester v. Commonwealth,
248 Va. 311, 326-27, 448 S.E.2d 638, 649 (1994), cert. denied, 513 U.S.
1166 (1995): |
| [97] | [O]ne of the issues upon which "other crimes" evidence may be
admitted is that of the perpetrator's identity, or criminal agency, where
that has been disputed. Proof of modus operandi is competent evidence where
there is a disputed issue of identity. |
| [98] | [E]vidence of other crimes, to qualify for admission as proof of modus
operandi, need not bear such an exact resemblance to the crime on trial
as to constitute a "signature." Rather, it is sufficient if the
other crimes bear a "singular strong resemblance to the pattern of
the offense charged." That test is met where the other incidents are
"sufficiently idiosyncratic to permit an inference of pattern for purposes
of proof," thus tending to establish the probability of a common perpetrator. |
| [99] | If the evidence of other crimes bears sufficient marks of similarity to
the crime charged to establish that the defendant is probably the common
perpetrator, that evidence is relevant and admissible if its probative value
outweighs its prejudicial effect . . . The trial court, in the exercise
of its sound discretion, must decide which of these competing considerations
outweighs the other. Unless that discretion has been clearly abused, we
will affirm the trial court's decision on this issue. Id. (quoting Spencer
v. Commonwealth, 240 Va. 78, 89-90, 393 S.E.2d 609, 616-17, cert. denied,
498 U.S. 908 (1990)(citations omitted)); see also Turner v. Commonwealth,
259 Va. ___, ___, ___ S.E.2d ___, ___ (2000) decided today; Guill, 255 Va.
at 138-39, 495 S.E.2d at 491-92. |
| [100] | Applying the Spencer standard, we conclude that the trial court did not
abuse its discretion in admitting the testimony of Scott and Chambliss in
the guilt phase of the trial. The three crimes bear a singular strong resemblance
to one another, based on common incidents that are sufficiently idiosyncratic
to establish the probability of a common perpetrator. In addition, the record
supports a finding that the probative value of this evidence of other crimes
outweighed its potential prejudicial effect. |
| [101] | The crimes committed against Scott, Chambliss, and Hall occurred within
a 60-day period. The victims were all young African-American women. Each
victim knew Johnson, and there were no signs of forced entry into the dwellings
in which the crimes occurred. In each case, the attacker used a "steak"
knife that he obtained in the victim's dwelling. Each victim was raped,
and the attacker stabbed the victims who resisted him. |
| [102] | The attacker asked Scott and Chambliss for a drink of water before he
attacked them, and a bloodstained broken drinking glass was found in the
kitchen of Hall's apartment. Hamilton estimated that the DNA from the blood
found on the broken glass, which matched Johnson's DNA, would occur once
in 980 times in the Black population. Finally, the attacker ordered both
Scott and Chambliss to disrobe completely, and Hall's clothes were found
intact on the floor of her apartment near her nude body. |
| [103] | Chain of Custody of Blood Sample |
| [104] | Johnson argues that the trial court erred in admitting into evidence the
analysis of the blood sample taken from him for inclusion in the DNA data
bank while he was incarcerated at Southampton Correctional Institute in
September 1995. He asserts that the Commonwealth did not establish the chain
of custody of the blood sample, and he contends that the Commonwealth had
"insufficient controls . . . to conclusively track a sample once it
reaches the lab to insure that one specimen is not mixed with another."
We find no merit in this argument. |
| [105] | A chain of custody is properly established when the Commonwealth's evidence
provides reasonable assurance that the sample to be admitted at trial is
the same sample, and in the same condition, as when it was first obtained.
Vinson v. Commonwealth, 258 Va. 459, 469, 522 S.E.2d 170, 177, (1999); Pope
v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357 (1987), cert. denied,
485 U.S. 1015 (1988). Thus, under this standard, the Commonwealth is not
required to eliminate every conceivable possibility of substitution, alteration,
or tampering. Pope, 234 Va. at 121, 360 S.E.2d at 357; Alvarez v. Commonwealth,
24 Va. App. 768, 776, 485 S.E.2d 646, 650 (1997). |
| [106] | In the present case, the Commonwealth proved that Ann Chavis drew Johnson's
blood, and that she taped and initialed the vial containing the sample before
delivering it to Deborah Harrell. Harrell kept the sample in her custody
until delivering it to Diane Hamilton at the Division of Forensic Science
DNA laboratory. The sample remained in the custody and control of the DNA
laboratory until it was analyzed. |
| [107] | We also note that under Code § 19.2-187.01, an attested report of analysis
from the Division of Forensic Science is prima facie evidence of custody
from the time a sample is received by the laboratory until it is released
after testing. Johnson presented no evidence to overcome the Commonwealth's
introduction of this prima facie evidence, or the direct evidence of actual
custody of the blood sample. Therefore, the Commonwealth met its burden
of demonstrating a reasonable assurance that Johnson's blood sample was
the same sample, and in the same condition, as when it first was obtained. |
| [108] | Testimony of DNA Expert Witnesses |
| [109] | Johnson contends that Jean Hamilton and George Li lacked sufficient expertise
to testify concerning "population and statistical genetics." Thus,
he disputes the admission of their testimony regarding the statistical probability
that someone other than Johnson would have the same DNA profile as the donor
of the DNA found on evidence collected from Hall's apartment. We disagree
with Johnson's argument. |
| [110] | The issue whether a witness is qualified to testify as an expert on a
given subject is a matter submitted to the trial court's discretion, and
the trial court's ruling in this regard will not be disturbed on appeal
unless it plainly appears that the witness was not qualified. Spencer v.
Commonwealth, 238 Va. 275, 305, 384 S.E.2d 775, 792 (1989), cert. denied,
493 U.S. 1036 (1990); Lane v. Commonwealth, 223 Va. 713, 718, 292 S.E.2d
358, 361 (1982); Wileman v. Commonwealth, 24 Va. App. 642, 647, 484 S.E.2d
621, 624 (1997). |
| [111] | Li testified that he was the supervisor of forensic biology examiners
at the Division of Forensic Science laboratory in Richmond, and that he
also conducted forensic biology examinations as part of his duties. Li holds
a Master of Science degree in forensic science. He received training in
DNA analysis, including statistical issues involved in such analysis, from
the Federal Bureau of Investigation. Li had trained both investigators and
technicians on the theory and technique of DNA typing, and was an instructor
in the graduate program in forensic science at Virginia Commonwealth University.
He had performed DNA analyses on thousands of samples and previously had
qualified as an expert witness in the field of forensic science. He explained
that forensic DNA analysis involves a determination whether a person can
be eliminated as a source of DNA found at a crime scene, as well as a determination
regarding how frequently a particular DNA profile appears in the general
population. |
| [112] | Hamilton testified that she holds a Master of Science degree in forensic
science, and has been employed by the Commonwealth Division of Forensic
Science for 12 years as a forensic scientist. She also completed undergraduate
and graduate level courses in statistics. Hamilton explained that part of
her work in DNA analysis involves an assessment of the approximate frequency
that a particular DNA profile appears in the general population. She also
stated that she previously has testified as an expert witness regarding
such probabilities. Based on this foundation testimony, we conclude that
the trial court did not abuse its discretion in allowing Li and Hamilton
to testify concerning the statistical probabilities at issue in this case. |
| [113] | Evidence of Third Party Guilt |
| [114] | Johnson argues that the trial court erred in refusing to allow him to
present testimony that would have proved that Leroy Quick, III, was the
person who raped and murdered Hope Hall. Johnson proffered the testimony
of Natalie Williams, Hall's co-worker, who would have testified that Hall
received flowers from Quick shortly before she was murdered, and that Hall
told Williams that Hall did not "want to have anything to do with"
Quick because he was "crazy." Johnson also proffered the testimony
of three women who worked in the rental office of Hall's apartment complex
who would have testified that within 30 days before the murder, Hall expressed
"concern and apprehension" about a person she used to date. *fn5
One of these rental office workers, Dolores Reid, also would have testified
that about one month before the murder, she saw Leroy Quick grab Hall in
an attempt to "get her to go from one room to another." |
| [115] | We find no merit in Johnson's argument that the trial court abused its
discretion in refusing to admit this evidence. Proffered evidence "that
merely suggests a third party may have committed the crime charged is inadmissible;
only when the proffered evidence tends clearly to point to some other person
as the guilty party will such proof be admitted." Soering v. Deeds,
255 Va. 457, 464, 499 S.E.2d 514, 518 (1998). We have stated that "a
large discretion must and should remain vested in the trial court as to
the admission of this class of testimony." Karnes v. Commonwealth,
125 Va. 758, 766, 99 S.E. 562, 565 (1919); see also Oliva v. Commonwealth,
19 Va. App. 523, 527, 452 S.E.2d 877, 880 (1995); Weller v. Commonwealth,
16 Va. App. 886, 890, 434 S.E.2d 330, 333 (1993). |
| [116] | In Karnes, we reversed a defendant's conviction because the trial court
refused to admit evidence of death threats that a third party had made to
the victim shortly before she was murdered. 125 Va. at 766-67, 99 S.E. at
565. In Oliva, the Court of Appeals reversed a defendant's conviction because
the trial court excluded testimony from a witness who had observed someone
other than the defendant, but who resembled him, running from the scene
of the crime. 19 Va. App. at 528-29, 452 S.E.2d at 881. |
| [117] | In contrast to the evidence at issue in Karnes and Oliva, the proffered
testimony at issue here bore no direct relation to the crimes charged. Instead,
the proffered testimony tended to prove only that Hall had a poor relationship
with Quick, and such evidence would have invited the jury to speculate that
these difficulties caused Quick to rape and murder Hall. Moreover, Hamilton
testified that she had eliminated Quick as a possible source of the DNA
found on the crime scene evidence. Thus, we hold that the trial court did
not abuse its discretion in excluding the proffered evidence. |
| [118] | Sufficiency of Evidence of Rape |
| [119] | Johnson argues that the trial court erred in denying his motion to strike
the rape charge and the reference to rape or attempted rape in the capital
murder charge. He contends that the evidence was insufficient to support
a finding of rape because there was no evidence of trauma to Hall's vaginal
area, no evidence of penetration, and only one injury, a ragged fingernail,
that could be considered a defensive injury. We disagree with Johnson's
argument. |
| [120] | "Rape is defined as 'sexual intercourse against the victim's will
by force, threat, or intimidation.'" Wilson v. Commonwealth, 249 Va.
95, 100, 452 S.E.2d 669, 673, cert. denied, 516 U.S. 841 (1995)(quoting
Hoke v. Commonwealth, 237 Va. 303, 310, 377 S.E.2d 595, 599, cert. denied,
491 U.S. 910 (1989)); see Code § 18.2-61. "Penetration by a penis of
a vagina is an essential element of the crime of rape; proof of penetration,
however slight the entry may be, is sufficient." Moore v. Commonwealth,
254 Va. 184, 186, 491 S.E.2d 739, 740 (1997)(quoting Elam v. Commonwealth,
229 Va. 133, 115, 326 S.E.2d 685, 686 (1985)). |
| [121] | Hamilton testified that the DNA from the sperm taken from Hall's vagina
matched Johnson's DNA sample. The presence of Johnson's sperm in Hall's
vagina alone is sufficient to support the finding that penetration occurred.
Spencer, 238 Va. at 284, 384 S.E.2d at 780. The evidence also was overwhelming
that Hall did not consent to having sexual intercourse with Johnson. Hall
sustained 15 stab wounds in her struggle with her attacker. She also sustained
facial abrasions, and she had a broken fingernail that Dr. Deborah Kay characterized
as a "defense-type" injury. Thus, the trial court did not err
in refusing to strike the rape charge and the reference to rape and attempted
rape in the capital murder charge. |
| [122] | VI. SENTENCE REVIEW |
| [123] | Passion and Prejudice |
| [124] | Under Code § 17.1-313(C), we review the death sentence imposed on Johnson
to determine whether it (1) was imposed under the influence of passion,
prejudice, or any other arbitrary factor; or (2) is excessive or disproportionate
to the penalty imposed in similar cases, considering both the crime and
the defendant. Johnson contends that the jury imposed the death sentence
based on passion after the Commonwealth presented emotional testimony from
Hall's mother and the father of Hall's young son, as well as the testimony
of the two victims of the rapes Johnson committed in New Jersey and New
York. We find no merit in this argument. |
| [125] | The victim impact evidence received in this case addressed the substantial
impact that Hall's murder had on the lives of her mother and her son. This
testimony plainly was admissible for the jury's consideration in the sentencing
process. See Payne v. Tennessee, 501 U.S. 808, 827 (1991); Kasi, 256 Va.
at 422, 508 S.E.2d at 65; Beck, 253 Va. at 381, 484 S.E.2d at 903. In addition,
the evidence of other rapes committed by Johnson was admissible since it
was relevant to the jury's determination of future dangerousness. See Orbe
v. Commonwealth, 258 Va. 390, 401, 519 S.E.2d 808, 814 (1999); Walker, 258
Va. at 64, 515 S.E.2d at 571. Based on our independent review of the entire
record as required by Code § 17.1-313(C)(1), we conclude that there is no
evidence that the death sentence was "imposed under the influence of
passion, prejudice or any other arbitrary factor." *fn6 |
| [126] | Excessiveness and Proportionality |
| [127] | Johnson contends that the death sentence imposed in this case is disproportionate
and excessive when compared to the penalties imposed on other 16-year-old
males who committed like offenses. In support of his argument, he cites
the dissenting opinion in Jackson, 255 Va. at 652-56, 499 S.E.2d at 555-57.
We disagree with Johnson's argument. |
| [128] | In conducting our proportionality review, we must determine whether "other
sentencing bodies in this jurisdiction generally impose the supreme penalty
for comparable or similar crimes, considering both the crime and the defendant."
Jenkins v. Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992), cert.
denied, 507 U.S. 1036 (1993); see also Hedrick v. Commonwealth, 257 Va.
328, 342, 513 S.E.2d 634, 642 cert. denied, ___ U.S. ___, 120 S.Ct. 376
(1999). We compare the record in this case with the records of other capital
murder cases, including those cases in which a life sentence has been imposed.
We have examined the records of all capital cases reviewed by this Court
pursuant to Code § 17.1-313(E). Since the jury imposed the death sentence
based on both the future dangerousness and vileness predicates, we give
particular consideration to other capital murder cases in which the death
penalty was obtained under both predicates. |
| [129] | Johnson's age at the time he committed the offenses is only one factor
to consider in determining whether other juries generally impose the death
sentence for similar crimes. The record also shows that he committed five
rapes within a seven-month period. Johnson beat and stabbed one rape victim,
in addition to inflicting multiple stab wounds in his murder of Hall. The
stab wounds inflicted on Hall that resulted in her murder reflect an aggravated
battery of the victim and an escalating pattern of violence in Johnson's
commission of the five rapes cited above. |
| [130] | Juries in this Commonwealth generally, with some exceptions, have imposed
the death sentence for convictions of capital murder based on findings of
future dangerousness and vileness in which the underlying predicate crimes
involved violent sexual offenses and the defendant had committed violent
offenses on other occasions. See, e.g., Vinson, 258 Va. 459, 522 S.E.2d
170; Cherrix, 257 Va. 292, 513 S.E.2d 642; Hedrick, 257 Va. 328, 513 S.E.2d
634; Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), cert.
denied, 520 U.S. 1224 (1997); Wilson, 249 Va. at 105, 452 S.E.2d at 676;
Williams v. Commonwealth, 248 Va. 528, 450 S.E.2d 365 (1994), cert. denied,
515 U.S. 1161 (1995); Breard, 248 Va. at 89, 445 S.E.2d at 682; Mueller
v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992) cert. denied, 507 U.S.
1043 (1993); Spencer, 238 Va. 295, 384 S.E.2d 785; Coleman v. Commonwealth,
226 Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984). Based
on this review, we hold that Johnson's death sentence is neither excessive
nor disproportionate to penalties imposed by other sentencing bodies in
the Commonwealth for comparable crimes, considering both the crime and the
defendant. |
| [131] | VII. CONCLUSION |
| [132] | We find no reversible error in the judgments of the trial court. Having
reviewed Johnson's death sentence pursuant to Code § 17.1-313, we decline
to commute the sentence of death. Accordingly, we will affirm the trial
court's judgments. |
| [133] | Record No. 992525 - Affirmed. Record No. 992526 - Affirmed. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [134] | *fn1 While the trial court found that
all three crimes occurred within a 90- day period, the record reflects that
they occurred within a 60-day period in July and August, 1994. |
| [135] | *fn2 Although Johnson contended in the
circuit court that his constitutional right to a speedy trial also was violated,
he has not asserted this argument on appeal. |
| [136] | *fn3 At oral argument in these appeals,
Johnson argued for the first time that if Code § 16.1- 271 required that
he be treated as an adult, then the original indictments, and all pretrial
proceedings conducted pursuant to those indictments, were void because the
juvenile court lacked jurisdiction to initiate any proceedings against Johnson.
We find no merit in this argument, because the original indictments were
obtained pursuant to the circuit court's jurisdiction over Johnson, which
existed independently of the proceedings in juvenile court. See Code § 19.2-
217. We also note that Johnson agreed at oral argument that the new indictments,
under which he was tried and convicted, were valid. |
| [137] | *fn4 Johnson elected not to call his
appointed DNA expert as a witness. |
| [138] | *fn5 Johnson also argues on appeal that
the trial court erred in refusing to admit testimony from two of Hall's
neighbors who saw Quick approach Hall's apartment the night she was murdered.
However, the record reveals that the defense presented the testimony of
these two neighbors. The defense also called Officer Carter Burnette of
the Petersburg Bureau of Police who testified concerning the neighbors'
statements and their identification of Quick from photographic lineups. |
| [139] | *fn6 At oral argument in this appeal,
Johnson argued for the first time that the trial court erred in failing
to instruct the jury that he was ineligible for parole, pursuant to Simmons
v. South Carolina, 512 U.S. 154, 168- 69 (1994). We do not consider this
argument on appeal because Johnson failed to raise it in the trial court
or in his brief filed with this court. See Rules 5:25 and 5:17(c). We also
observe that when the jury inquired whether a life sentence would allow
the possibility of parole, and the trial court instructed the jury to follow
the instructions given and not concern itself with "what happens after
sentence," Johnson did not raise an objection. |
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