Martin v. Com.
| Citation | 271 S.E.2d 123,221 Va. 436 |
| Decision Date | 10 October 1980 |
| Docket Number | No. 800519,800519 |
| Parties | Vincent Lamont MARTIN v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Robert N. Johnson, Robert H. Herring, Jr., Richmond, for appellant.
Richard B. Smith, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.
In the first stage of a bifurcated proceeding conducted pursuant to Code §§ 19.2-264.3 and -264.4, a jury convicted the defendant, Vincent Lamont Martin, of capital murder 1 in the willful, deliberate, and premeditated killing of a law enforcement officer for the purpose of interfering with the performance of the officer's official duties. Code § 18.2-31(f). Then, in the second stage, the jury fixed the defendant's punishment at death. At a subsequent sentencing hearing, the trial court imposed the death sentence. Code § 19.2-264.5. The defendant is here for automatic review of his death sentence, consolidated with his appeal from his conviction. Code § 17-110.1(A) and -110.1(F).
In the view we take of the case, it is unnecessary to set out the evidence in detail. A brief summary of the case made by the Commonwealth's evidence will suffice.
In the early morning hours of November 13, 1979, Michael Patrick Connors (sometimes referred to in the record as Michael Patrick Conners) was on duty as a patrolman with the Richmond Police Department. He was a member of the uniform division and, on the night in question, was assigned to patrol a designated area in a marked police car.
During Connors' shift, the defendant participated with others in the robbery of a convenience store on West Grace Street in Richmond. The robbers made their getaway in a waiting car.
Before the police broadcast a report of the robbery, Officer Connors stopped the getaway car, apparently for a traffic violation, several blocks from the robbery scene. Connors alighted from his cruiser and was met by the defendant at the rear of the stopped car. When the defendant asked the officer what he wanted, Connors ordered the defendant to return to his car. The defendant fired six or seven shots at Connors. The defendant then fled in the car with his companions. Connors was left mortally wounded with five shots in the head, face, and neck. His service revolver remained strapped in its holster.
Before the trial below, the defendant moved to dismiss his capital murder indictment on the ground that the death penalty statutes applicable to his case are unconstitutional. After argument, the trial court denied the motion. On appeal, this denial is the subject of a principal assignment of error upon which the defendant bases a contention that he should not have been prosecuted for, or convicted of, capital murder. We begin with a consideration of this assignment.
The defendant advances several arguments against the death penalty statutes. First, he says that death by electrocution 2 causes "the needless imposition of pain before death and acute mental and emotional suffering while awaiting execution of sentence." Therefore, the defendant maintains, "execution by electrocution constitutes cruel and unusual punishment in contravention of the Eighth Amendment to the Constitution."
The United States Supreme Court, however, has held that death by electrocution is not a constitutionally impermissible mode of punishment. In re Kemmler, 136 U.S. 436, 447-48, 10 S.Ct. 930, 933-934, 34 L.Ed. 519 (1890). This court has followed Kemmler and adopted the same view. Hart v. Commonwealth, 131 Va. 726, 743, 109 S.E. 582, 587 (1921).
Second, the defendant contends that Code § 19.2-264.2 is unconstitutionally vague in permitting imposition of the death penalty for future criminal acts which, according to the defendant, "might not in themselves be severe." Here, the defendant refers to that portion of Code § 19.2-264.2 which permits imposition of the death penalty for a capital offense where, after consideration of the past criminal record of the accused, the court or jury finds there is "a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society." 3 The defendant argues this statutory language permits imposition of the death penalty on the basis of "anticipated crimes which would not constitute an offense against the person or, if so, would not be of the magnitude to warrant consideration in returning the sentence of death."
The ready answer to this attack upon Code § 19.2-264.2 is that the challenge already has been asserted and rejected. In Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979), we noted that the language in Code § 19.2-264.2 concerning probable future acts of violence was identical with the wording of the Texas statute upheld in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). We said in Smith and reiterate here: "We see no constitutional vagueness in that language." 219 Va. at 477, 248 S.E.2d at 148.
Third, the defendant asserts that Code § 18.2-31(f), specifically relating to the killing of a law enforcement officer, is unconstitutionally vague in permitting imposition of the death penalty where the killing, in the words of the statute, is "for the purpose of interfering with the performance of (the officer's) official duties." The defendant argues that the quoted language is so vague "as to render an indictment under this section void." The statute is deficient, the defendant asserts, because it permits imposition of the death penalty without proof that the officer "was acting in the lawful discharge of an official duty." To illustrate the defect, the defendant suggests that, under the statute, "any time an individual, who happens to be a police officer, on or off duty is killed, that killing necessarily will interfere with the performance of the decedent's official duties." 4
We do not believe that Code § 18.2-31(f) suffers unconstitutional vagueness. The section does not permit imposition of the death penalty just because a murder victim happens to be a law enforcement officer. By its clear terms, the section makes purpose a key factor in any prosecution thereunder; the death penalty may be imposed only where the Commonwealth proves beyond a reasonable doubt that the killing of a law enforcement officer is accompanied by the purpose of interfering with the performance of his official duties.
In the present case, the trial court correctly interpreted and applied Code § 18.2-31(f) by imposing upon the Commonwealth the affirmative burden of proving the existence of the purpose stated in the statute. 5 For this reason, we reject an additional argument advanced against Code § 18.2-31(f), viz., that in violation of the rule enunciated in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), this section creates a conclusive presumption in favor of the Commonwealth and shifts to the defense the burden of proving the nonexistence of the stated purpose. We hold that the trial court did not err in refusing to dismiss the capital murder indictment.
This brings us to consideration of an assignment of error challenging the refusal of the trial court to exclude a prospective juror, Gloria W. Cromwell, for cause. In response to a series of questions propounded on voir dire by the trial judge and the prosecutor, Mrs. Cromwell indicated that she had never before served on a jury, that she was not "sensible" of any bias or prejudice against the defendant, that she knew of no reason "whatsoever" why she could not give the defendant a fair trial, that she would "try" to judge the testimony impartially, and that she would listen to all the testimony and base her decision "solely on the evidence and the law given to (her) by the Court." Then, upon further examination, the following occurred:
BY MR. HERRING (defense counsel): (Continuing)
Q. Mrs. Cromwell, if the Court tells you, as I believe the Court has told you, that the burden is on the Commonwealth to prove each and every element of the offenses and that Mr. Martin does not have to put on any evidence, would you be able to follow that instruction?
A. Yes.
Q. Do you feel at the present time, right now, that Mr. Martin has to prove that he is innocent?
A. Yes, I feel he has to prove, you know-
Q. That Mr. Martin has to prove that he is innocent?
A. Yes.
Q. Mrs. Cromwell, I'm sorry, but I want to ask you again. I want to make certain that I understand...
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