Jefferson v. Com.

• Citation: 214 Va. 747,204 S.E.2d 258
• Parties: Malcolm Marvin JEFFERSON v. COMMONWEALTH of Virginia.
• Decision Date: 22 April 1974
• Court: Virginia Supreme Court

Page 258

204 S.E.2d 258

214 Va. 747

Malcolm Marvin JEFFERSON v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

April 22, 1974.

Rehearing Denied June 10, 1974.

V. Cassel Adamson, Jr., Richmond, for plaintiff in error.

Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARMAN, Justice.

Malcolm Marvin Jefferson was convicted in the trial court of killing a prison guard. At the time the offense was committed defendant was an inmate of a Virginia penal institution. He appeals the judgment of the trial court imposing the death penalty, fixed by the jury's verdict and made mandatory by statute. Code § 53--291.

Code § 53--291 provides, in pertinent part:

'It shall be unlawful for an inmate in a penal institution as defined in § 53--9 or in the custody of an employee thereof to do any of the following:

'(1) To kill, wound or inflict bodily injury upon (a) such employee or (b) any other person lawfully admitted to such penal institution, except another inmate, or (c) who is supervising or working with inmates; or

'(2) To escape from such penal institution or from any person in charge of such inmate; or

* * *

* * *

'An inmate guilty of such killing as is mentioned in this section, or any act therein mentioned from which death ensues to such employee or person shall be guilty of first degree murder and be punished by death . . ..'

The defendant argues that the death penalty is cruel and unusual punishment, is unconstitutional Per se and prohibited by the Eighth Amendment to the United States Constitution, a position in which he finds support from only two Justices of the majority in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). We have considered and rejected the argument advanced by the defendant on many past occasions, most recently in Bloodgood v. Commonwealth, 212 Va. 253, 183 S.E.2d 737 (1971), and Fogg v. Commonwealth, 208 Va. 541, 159 S.E.2d 616 (1968). Nothing has transpired since Bloodgood and Fogg, including the decision in Furman, to impair the validity of our holding that the death penalty is not unconstitutional Per se. We affirm that holding here.

The defendant acknowledges that Furman deals with discretionary imposition of the death penalty and is limited to a statutory scheme which allows an arbitrary selective process to determine whether a defendant found guilty of a capital crime will receive a death sentence or some lesser penalty.

While conceding that death is the only penalty which may be imposed upon conviction of killing a prison guard under Code § 53--291, Brown v. Commonwealth, 132 Va. 606, 111 S.E. 112 (1922), the defendant argues that 'the statute's operation inevitably requires the exercise of a broad range of uncontrolled selective discretion' by Commonwealth's attorneys and trial judges and that the Governor of Virginia could extend executive clemency. He contends this discretionary authority invalidates Code § 53--291 under Furman.

The substance of this argument is that a statute imposing the death penalty is constitutionally infirm under Furman where any discretion may be exercised by any authority at any time, either before, during or after trial.

We do not so construe Furman. The constitutional infirmity there was found in the discretion exercised in fixing punishment, be it by a jury or a judge. Furman's application is thus limited to statutes which permit such discretion to be exercised.

The defendant would also have us apply Furman on the ground that the jury could have found the defendant guilty of a lesser included offense and could have fixed a penalty other than death. This claim must fail for Code § 53--291 provides but one grade of offense and one penalty for the slaying of a prison guard, no lesser included offenses being embraced within that facet of the statute.

The defendant raises a due process argument claiming that Code § 53--291 is unconstitutional because of the classification of persons to whom it applies. We find no merit in the claim. See Hart v. Virginia, 298 U.S. 34, 56 S.Ct. 672, 80 L.Ed. 1030 (1936), and the cases cited therein.

In discussing the assignment of error relating to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth.

Jefferson and another convict, James Edward Washington, guarded by six prison guards, were transported from the prison at State Farm to the Powhatan County Courthouse in Powhatan, Virginia, on the morning of November 22, 1971. Prior to the trip each convict was searched and then restrained and secured with handcuffs attached to a waist chain. After the party arrived at the courthouse at approximately 9:25 a.m., the defendant and Washington were escorted into the building and seated just inside the bar near the front of the courtroom.

Raul Monte and Brown Snyder remained on guard with the convicts while the other guards were stationed outside the building. Snyder stayed with the prisoners near the front of the courtroom. Monte seated himself near the door in the rear.

Approximately five minutes later Washington advised Snyder that he needed to visit the restroom. Snyder, after advising Monte of Washington's request, accompanied Washington toward the toilet which was located through a doorway at the front of the courtroom. Washington suddenly turned and attempted to grab the gun which Snyder was wearing in a holster at his side. A struggle ensued between Washington and Snyder. At this point Snyder was hit from the rear by Jefferson, who had been seated nearby. In the ensuing struggle between Snyder and the two convicts, the participants fell to the floor. Two or three shots were fired from Snyder's gun, which had been seized by one of the convicts.

Monte, alerted by the disturbance, ran toward the front of the courtroom to assist Snyder. In so doing, Monte tripped and fell to his knees about the time the first shots were fired. After Monte regained his feet and started toward Snyder and the convicts, additional shots were fired.

John D. Netherland, one of the outside guards, heard the shots and ran to the courtroom. As Netherland entered the courtroom he did not observe Monte or Snyder who were concealed from his view by the bar enclosure. Monte, who had been fatally wounded, was lying on his back on the floor. Snyder was still on the floor attempting to recover a gun which he observed there. Netherland observed a man dressed in prison clothing going through a door to the judge's chambers at the front of the courtroom. Netherland observed the door close and, a few moments later when the door reopened, Netherland fired a shot which struck this door approximately three or four feet above the floor.

He then observed another man dressed in prison garb 'coming out from behind the judge's bench' in a 'crouched' position. He observed this man '(d)ive through the jury room door into the jury room.' He fired a shot in that direction which struck a chair, a table top, and lodged in a door facing. Netherland then fired a third shot which struck the jury room door '(a) little to the right and above the door knob.'

Both Jefferson and Washington subsequently surrendered. Jefferson, who came out of the judge's chambers, had his right hand free. The handcuffs were 'dangling' from his left wrist. Washington's right hand was also free of the handcuffs which were still affixed to his left wrist when he surrendered from the jury room. The waist chain on each of the convicts had been disengaged from the handcuffs.

An autopsy on Monte's body disclosed that both of the wounds which he suffered in his back were 'close shots,' the clothing around each wound being impregnated with residue from a gunshot fired in close proximity to the victim.

The defendant now challenges the sufficiency of this evidence to support two instructions given without objection by the trial court. ¹

We find no error in granting these instructions. While the evidence did not, as the defendant argues, definitely establish 'who pulled the trigger,' this is not important. The evidence does establish, beyond a reasonable doubt, that the victim was killed in an escape attempt in which both Jefferson and Washington participated. The evidence also conclusively establishes that the fatal shots were fired by one of the two convicts.

Whether Jefferson actually fired the shots is immaterial since he was either a principal in the first degree or a principal in the second degree. Under Code § 18.1--11 principals in the second degree are punished as though principals in the first degree.

We, likewise, find no merit in the defendant's argument that the statute applies only to a killing within the penal institution to which Jefferson was confined. Ruffin v. Commonwealth, 62 Va. (21 Grat.) 790, 793--94 (1871).

The defendant assigns error because the defendant's trial was held in the courtroom which was the scene of the killing. He underpins this argument by citing a number of cases including Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679 (1923); Yeary v. Holbrook, 171 Va. 266, 198 S.E. 441 (1938); Crockett v. Commonwealth, 187 Va. 687, 47 S.E.2d 377 (1948); and Kearns v. Hall, 197 Va. 736, 91 S.E.2d 648 (1956). These cases all deal with jury misconduct or an unauthorized view and are inapposite.

Here the case was tried in the courtroom where the court regularly sits. The jury was at all times under the control and direction of the court. The record shows the defendant was personally...