235 S.E.2d 320 (Va. 1977), 761041, Lewis v. Commonwealth

Docket Nº:761041.
Citation:235 S.E.2d 320, 218 Va. 31
Opinion Judge:[10] Carrico
Party Name:Tony Edward LEWIS v. COMMONWEALTH of Virginia.
Attorney:[7] William J. Rhodes, Jr., for plaintiff in error.
Case Date:June 10, 1977
Court:Supreme Court of Virginia
 
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Page 320

235 S.E.2d 320 (Va. 1977)

218 Va. 31

Tony Edward LEWIS

v.

COMMONWEALTH of Virginia.

No. 761041.

Supreme Court of Virginia.

June 10, 1977.

Page 321

[218 Va. 32] William J. Rhodes, Jr., Franklin, for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

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

CARRICO, Justice.

On March 23, 1975, a riotous disturbance occurred at Southampton Correctional Center, a penal institution in Southampton County. As a result, the defendant, Tony Edward Lewis, was indicted for the murder and robbery of one prison guard, for the robbery of another guard, and for attempted escape. On January 13, 1976, a jury convicted the defendant of all the charges and fixed his punishment at death for the murder, 40 years imprisonment for the two robberies, and 5 years for the attempted escape. On April 12, 1976, the trial court confirmed the verdicts and imposed the sentences fixed by the jury.

The defendant was scheduled to die on June 15, 1976, but we granted a stay to enable him to seek an appeal. Then, on October 20, 1976, the Governor commuted the defendant's death sentence to life imprisonment. Later, we awarded the defendant a writ to consider his allegations of error concerning his convictions.

The evidence shows that on March 23, 1975, the defendant was confined in building C-1 at Southampton Correctional Center, where he was serving a 25-year sentence for a prior conviction of felony. On the same date, Officers Ronald Albert Barnes and Alfred Lynch were employees of the correctional center, assigned to building C-1.

[218 Va. 33] Approximately 9:30 p.m. on March 23, Officer Barnes was attacked in the corridor of the cell block in building C-1 by an

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inmate, Michael Cross. Barnes was beaten into unconsciousness. When Officer Lynch attempted to aid Barnes, he was grabbed from behind and pinioned by the defendant, preventing the rescue effort. The defendant then dragged Lynch the length of the corridor to an isolation cell, forced him to unlock the door, and pushed him inside. A voice from the corridor instructed the cell's inmate, Vernon Joe, to "take everything (Lynch) had." 1 Vernon Joe removed Lynch's keys and money, threw the items into the corridor, and departed the cell.

Meanwhile, Cross had dragged Officer Barnes along the corridor toward the isolation cell. Midway, when Barnes appeared to regain consciousness, Cross hit and kicked him, and he relapsed into unconsciousness. The defendant and Vernon Joe then joined the attack upon Barnes, with the defendant kicking and "stomping" the officer. Cross removed Barnes' keys and money and handed the items to the defendant. Thereupon, assisted by Vernon Joe, the defendant dragged Officer Barnes along the corridor and threw him into the isolation cell with Officer Lynch.

Armed with Lynch's keys, Vernon Joe gained access to a master lever and opened the cell doors. Using a hammer obtained from the guard office, the defendant "beat" the padlock off a cell door not opened by the master lever.

Freed from their cells, a number of the inmates left the building. During the ensuing confusion, a guard observed the defendant and other inmates attempting to climb the 13-foot chain link and barbed wire fence surrounding the prison compound. Because unarmed, the guard merely ordered the inmates to leave the fence area. Unable to scale the fence, the defendant fell back inside the prison compound and ran.

After the tumult had subsided, Officer Barnes was transported to a Richmond hospital. The next morning, he died from his injuries.

[218 Va. 34]

I.

Change of Venue

On the day of trial, the defendant moved for a change of venue, asserting that the "publicity of the event, in all forms, is conclusively detrimental to a fair, impartial trial." After argument, the trial court denied the motion.

In arguing his motion, the defendant focused his complaint upon four articles appearing in a Norfolk newspaper generally circulated in Southampton County, the locale of the trial. The articles do not appear in the record, so we do not know their contents. The Commonwealth's Attorney, however, represented to the trial court that the articles were merely factual in nature and were non-prejudicial. The Commonwealth's Attorney asserted also that the last article appeared approximately six months before the trial date. The defendant did not then, and does not now, refute the prosecutor's representations. Furthermore, of the 24 prospective jurors examined on voir dire, only one had read about the case, and he disavowed any resulting prejudice.

In denying the motion for a change of venue, the trial court found the attendant publicity unlikely to influence or inflame the jury. Whether a change of venue should have been granted was a matter within the sound discretion of the trial court. Under the circumstances of this case, the court did not abuse its discretion. Jefferson v. Commonwealth, 214 Va. 747, 754, 204 S.E.2d 258, 264 (1974); Greenfield v. Commonwealth, 214 Va. 710, 716-17, 204 S.E.2d 414, 419-20 (1974).

II.

Jury Selection

(a)

On voir dire examination, the trial court asked the prospective jurors whether they

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had "any religious or conscientious scruples or objections against the imposition of capital punishment." One member of the panel, Tessie Grant, responded affirmatively. The court then asked Grant whether his objection was "absolute." Again, Grant answered affirmatively. Finally, when the court inquired of Grant whether, "in any proper case," he could impose the death [218 Va. 35] penalty, he replied, "No, sir." Upon challenge by the Commonwealth's Attorney, the court excused Grant for cause.

Relying upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the defendant contends the trial court erred in excusing prospective juror Grant. We disagree with the defendant. Witherspoon stands for the proposition that a sentence of death cannot be carried out if the jury imposing or recommending the sentence is chosen by excluding veniremen simply because they voice general objections to capital punishment. But Witherspoon recognizes that a prospective juror may be excused for cause if he states that he could never vote to impose the death penalty or that he would refuse even to consider its imposition in the case before the court. Accord, Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).

Here, prospective juror Grant admitted that his objection to the death penalty was "absolute" and...

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