257 S.E.2d 797 (Va. 1979), 781741, Coppola v. Commonwealth

Docket Nº:781741.
Citation:257 S.E.2d 797, 220 Va. 243
Opinion Judge:[10] Cochran
Party Name:Frank COPPOLA v. COMMONWEALTH of Virginia.
Attorney:[7] Augustus Anninos; J. Gray Lawrence, Jr. (Howell, Anninos, Daugherty & Brown, on brief), for appellant.
Case Date:August 30, 1979
Court:Supreme Court of Virginia
 
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Page 797

257 S.E.2d 797 (Va. 1979)

220 Va. 243

Frank COPPOLA

v.

COMMONWEALTH of Virginia.

No. 781741.

Supreme Court of Virginia.

August 30, 1979.

Page 798

[Copyrighted Material Omitted]

Page 799

[220 Va. 245] Augustus Anninos, J. Gray Lawrence, Jr., Norfolk (Howell, Anninos, Daugherty & Brown, Norfolk, on brief), for appellant.

Alan Katz, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

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

COCHRAN, Justice.

[220 Va. 246] On September 26, 1978, Frank Coppola was convicted by a jury of capital murder during the commission of armed robbery in violation of Code § 18.2-31(d). 1 That same day, in the separate proceeding required by Code §§ 19.2-264.3 and -264.4, the jury heard evidence as to penalty and fixed Coppola's punishment at death, as authorized by Code § 18.2-10(a). After receiving the report of the probation officer, mandated by Code § 19.2-264.5, the trial court entered judgment upon the jury verdict.

Page 800

The automatic review of the death sentence imposed upon Coppola has been consolidated with the appeal of his conviction and given priority on the docket. Coppola asks that his conviction be reversed and that the case be remanded for a new trial on all issues because of alleged errors in the proceedings below, or in the alternative, that the death sentence be commuted to life imprisonment.

The evidence shows that in April, 1978, Coppola, his wife, Karen, Joseph Elliott Miltier, and Donna Mills drove to the home of Peyton and Muriel Hatchell in Newport News. The plan was for Coppola, who was disguised as a priest, to gain admittance to the house, and for Miltier to follow him into the residence for the purpose of robbing Mrs. Hatchell. The plan failed, however, when Mrs. Hatchell refused to permit Coppola to enter. Several days later, on April 22, the group decided to try another ruse to gain admittance to the Hatchell home. As directed by Coppola and Miltier, Donna Mills purchased roses which she delivered to Mrs. Hatchell at the front door. Mills was armed with a pistol given to her by Coppola. She and Mrs. Hatchell became involved in a struggle and fell down, and Coppola and Miltier then entered the house and tied up Mrs. Hatchell. In an effort to force Mrs. Hatchell to reveal where she had hidden money, Coppola struck Mrs. Hatchell in the face and repeatedly beat her head against the floor. There was evidence that Miltier also struck Mrs. Hatchell with his fist.

Hatchell returned from work during this time and was beaten in the head with a pistol by Miltier. Coppola, with socks on his hands, choked Hatchell and his wife. The robbers took $3,100 in cash from Hatchell and tied him up. They took Mrs. Hatchell's rings from her fingers and ransacked the premises, searching for more money. After Coppola, Miltier, and Mills fled from the scene of the crimes in one [220 Va. 247] of Hatchell's automobiles, and rejoined Karen Coppola, Hatchell freed himself and called for help. By the time help arrived, Mrs. Hatchell had already died as the result of the blows to her head. Investigating officers found five of her front teeth scattered throughout the house. The medical evidence was that Mrs. Hatchell had died as a result of "blunt force injuries complicated by aspiration." She had vomited while unconscious and the discharge had regurgitated into her windpipe. Her head, face and body were bruised and lacerated.

Mills was subsequently arrested in connection with the offenses against the Hatchells. At first, she denied any involvement in the crimes but later, after having entered into a plea bargain with the Commonwealth under which the Commonwealth agreed to recommend that she receive life imprisonment for Mrs. Hatchell's murder, she gave detailed information about the crimes. She testified against Miltier whose trial ended less than two weeks before Coppola's trial began, and Miltier was found guilty of capital murder by a jury which fixed his punishment at life imprisonment. Mills was the chief prosecution witness against Coppola at his trial. Hatchell, who also testified, was unable to identify Coppola as one of the assailants.

Coppola has raised on brief and in oral argument various questions as to his conviction and his sentence, which we shall discuss under separate headings.

  1. Pretrial Proceedings.

A. Change of venire.

Coppola filed a motion for a change of venue, which he supported by copies of news articles and transcripts of radio and television broadcasts to show that because of prejudicial media coverage he could not receive a fair and impartial trial in Newport News. The motion was modified to a motion for a change of venire, and, as modified, was denied. Coppola renewed the motion and alleged, in addition to the grounds previously asserted, that the extensive publicity given to the Miltier trial, in which Coppola's wife, Karen, had testified as a witness for the Commonwealth, made it impossible for Coppola to obtain a fair trial by a Newport News jury.

Page 801

A motion for a change of venire or venue is addressed to the sound discretion of the trial judge, and his action in overruling such a motion will not be reversed unless the record affirmatively shows that there has been an abuse of that discretion. Smith v. Commonwealth, 219 Va. 455, 461-62, 248 S.E.2d 135, 140 (1978), Cert. denied, --- U.S. ----, 99 S.Ct. 2419, 60 .Ed.2d 1074 (1979); Greenfield v. Commonwealth, 214 Va. 710, 716, 204 [220 Va. 248] S.E.2d 414, 419 (1974); Foster v. Commonwealth, 209 Va. 297, 302-03, 163 S.E.2d 565, 569 (1968); Pannill v. Commonwealth, 185 Va. 244, 252, 38 S.E.2d 457, 461 (1946); Webb v. Commonwealth, 154 Va. 866, 871-72, 152 S.E. 366, 367-68 (1930). The law presumes that a defendant can receive a fair trial from the citizens of the county or city in which the offense was committed and to overcome this presumption the defendant must clearly show that there is such a widespread feeling of prejudice on the part of the citizenry as will be reasonably certain to prevent a fair and impartial trial. Farrow v. Commonwealth, 197 Va. 353, 355, 89 S.E.2d 312, 313 (1955). A court may refuse to summon a jury from another county until an ineffectual effort has been made to obtain an impartial jury from the county in which the trial is to take place. Pannill v. Commonwealth, Supra, 185 Va. at 252, 38 S.E.2d at 461; Puryear v. Commonwealth, 83 Va. 51, 53, 1 S.E. 512, 514 (1887).

The mere existence of a preconceived notion as to the guilt or innocence of an accused is not sufficient to rebut the presumption of a prospective juror's impartiality, if the juror can lay aside his impression or opinion and render a verdict based upon the evidence. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

Prospective jurors in the Coppola trial were examined on Voir dire collectively by the court and individually by counsel. Only three veniremen reported that they had been influenced or prejudiced by the media coverage and they were struck for cause. All twelve of the jurors who served had been exposed to some pretrial publicity, but five stated that they were only casually or vaguely aware of any details of the crimes. Each juror stated that he or she had formed no opinion as to Coppola's guilt and could distinguish media reports from the evidence in the case. Hence, there is no evidence in the record of the Voir dire examination of any widespread prejudice against Coppola which would prevent his receiving a fair and impartial trial, See Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976), and we hold that there was no abuse of discretion by the trial court in denying his motion.

B. Exclusion of jurors.

On brief, Coppola argues that the trial court erred in striking for cause three veniremen, Ruth Lantz, Herman Henry, and Mary Raney, because of their opposition to capital punishment.

The exclusion of Ruth Lantz was based upon the following exchange:

[220 Va. 249] Court: All right. My question is, do any of you have any conscientious scruples, religious or otherwise, against imposing the death penalty where it is justified by the law and the evidence?

R. Lantz: Ruth Lantz. I'm against the death penalty for punishment for a crime.

Court: All right. Now, the fact that you are against the death penalty ma'am, would this cause you to to refuse to impose the death penalty in any case?

R. Lantz: Yes, I believe it would.

The Voir dire examination of Herman Henry produced the following questions and answers:

Mr. Robinson: Mr. Henry, at the conclusion of all the evidence, should the evidence justify it in your evaluation of the evidence and the law justify it, could you vote for the death penalty?

Henry: That will be a hard decision for me to do.

Court: The question is, sir, could you do that?

Henry: Death penalty, no, no sir.

Page 802

Robinson: Not under any circumstances, the death penalty; you could not vote for the death penalty?

Henry: I don't think so.

Robinson: Not under any circumstances?

Henry: No, sir.

On Voir dire Mary Raney answered questions as follows:

Court: Do you have any conscientious scruples or other scruples against the imposition of the death penalty wherein it is justified by the law and the evidence?

Raney: I think that there are times when that is necessary. I am not so sure that I could vote for it, however.

Court: Let me put it this way. If, at the conclusion of this case, it appeared from the evidence and from the law that the penalty of death could be lawfully imposed, as well as other penalties, would you consider that penalty, along with your options of the other penalties?

Raney: I think I would find it very difficult to vote for that even if I felt it was justified.

[220 Va. 250] Raney: I don't think I could vote for that even if I felt that it was right. I don't think I could vote for it,...

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