Whitley v. Com.

• Citation: 286 S.E.2d 162,223 Va. 66
• Decision Date: 22 January 1982
• Docket Number: No. 811071,811071
• Parties: Richard Lee WHITLEY v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 162

286 S.E.2d 162

223 Va. 66

Richard Lee WHITLEY v. COMMONWEALTH of Virginia.

Record No. 811071.

Supreme Court of Virginia.

Jan. 22, 1982.

Warren W. McLain, Norman A. Townsend, Arlington (Kendrick, Gearheart, Aylor & Lockowandt, Arlington, Graber, Stetler & Townsend, Alexandria, on briefs), for appellant.

Richard B. Smith, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ., and HARRISON, Retired Justice.

POFF, Justice.

In a bifurcated trial of an indictment under Code § 18.2-31(d), a jury convicted Richard C. Whitley of capital murder in the commission of robbery while armed with a deadly weapon and fixed his punishment at death. The trial court confirmed the conviction, considered the probation report, and imposed the sentence fixed by the jury. We have consolidated Whitley's statutory right of sentence review with his appeal from the conviction and accorded the case priority on our docket.

The evidence leaves no doubt that Whitley killed Phebe Parsons, his next-door neighbor. The 63 year-old widow lived alone, and the crime, committed the night of July 25, 1980, a Friday, was not discovered until the following Monday. The investigating officers found a mass of dried blood on the floor inside the front door and a trail of blood leading to Mrs. Parsons' nude body which was lying beneath a pile of clothes and other articles on the floor beside her bed. Her blood-soaked clothing and a link from a watchband (later identified as Whitley's) lay on the floor near the front door. The home was in disarray and the victim's wallet was missing from her purse which was hanging on a hook near the back door.

An autopsy revealed a neck laceration 4 3/4"" long, gaping to 2"", a ligature mark on the neck, a 1/2"'' cut on the forehead, and several abrasions and contusions on the upper back and right elbow. An umbrella of conventional design had been inserted into the vaginal cavity, puncturing the vaginal wall and bruising the small intestine. A collapsible umbrella had been forced into the rectal cavity, piercing the wall and damaging a major artery. The medical examiner testified that there was "very little evidence of hemorrhage" in either cavity, a circumstance which indicated that "the individual had little, if any, heartbeat at the time they were inserted or was dead." In his opinion, death was caused by the neck wound or strangulation.

According to several statements Whitley made to the police, all of which were admitted into evidence, Whitley had gone to Mrs. Parsons' home early in the evening of July 25 to use her telephone. He called his employer, Garry Monohan, who agreed to come to Whitley's home to repair his "broken down" car. When two hours had passed and Monohan had not arrived, the defendant returned to Mrs. Parsons' home and made a second call. As he approached the front door to leave, Mrs. Parsons stopped him and "we were talking about my wife and going to church and everything and the next thing I know she was dead." Whitley explained to the officers that "there had been some trouble" with his wife's 10 year-old daughter by a previous marriage and that both had left him.

Whitley admitted that he had choked Mrs. Parsons with his hands, strangled her with a rope, and cut her jugular vein with a Boy Scout pocketknife as she prayed for her life. He lifted her from the floor near the front door, dragged her to the bedroom, and attempted, without success, to place her on the bed. He did not remember removing her clothes or inserting the umbrellas in her body, and he denied that he had engaged in any sexual conduct. Abandoning his effort to get her body on the bed, he "ransacked" the house, "looking for a gun." Finding none, he took Mrs. Parsons' car keys and credit cards from her purse, replaced the purse on its hook, left by the back door, and fled in Mrs. Parsons' car. Arrested in Florida, Whitley confessed his guilt and waived extradition.

Mrs. Parsons' daughter testified that, during the month before the murder, Whitley had indicated an interest in buying a car she owned. Called as a defense witness, Whitley's employer testified that he had paid Whitley his wages, $112.45, on the day of the crime. Monohan was never asked to verify Whitley's statement that he had telephoned him that night.

Addressing the conduct of the guilt phase of his trial, Whitley assigns multiple evidentiary and constitutional errors and asks us to reverse his conviction. In the alternative, he prays that we commute his sentence of death to imprisonment for life.

I. THE GUILT TRIAL

A. Sufficiency of the Evidence

Code § 18.2-31 defines capital murder as a "willful, deliberate and premeditated killing" in the commission of certain felonies. The defendant argues that "the Commonwealth failed to prove beyond a reasonable doubt that the killing was premeditated." While the intent to kill must be the product of premeditation, in the determination of premeditation vel non the interval between the formation of the intent and the killing itself is not a controlling consideration. Hairston v. Commonwealth, 217 Va. 429, 431-32, 230 S.E.2d 626, 628 (1976). Yet, time may be relevant. According to Whitley's own extra-judicial statements, he choked his victim with his hands; from some source undisclosed by the record, he obtained a rope and strangled her; then, taking his knife from his pocket, he cut her throat. Plainly, this was not a killing conceived and executed instantaneously. Whitley had ample time to meditate and deliberate, and the savage techniques he employed evince a calculated, persistent intent to kill a defenseless person.

The defendant contends that the statements he gave the police support a different theory, viz., that "something in Mr. Whitley's conversation with his victim about church and his wife and stepdaughter provoked the fatal attack," that the killing was an act of "passion and uncontrolled rage," and that this hypothesis is inconsistent with the jury's conclusion that the killing was premeditated. Obviously, the jury did not find this hypothesis reasonable, and we hold that the evidence was sufficient to sustain its conclusion.

Challenging the sufficiency of the evidence on another point, the defendant maintains that his conviction of capital murder in the commission of armed robbery "cannot be sustained unless there is evidence ... that he formed the specific intent to steal from the victim either before or during the killing". If the intent was not formed until the victim was dead, he says, "the taking would at most constitute a larceny and the killing first-degree murder." Pointing to certain comments the Commonwealth's Attorney made in closing argument which tend to endorse that view, Whitley relies upon the fact, uncontradicted of record, that all the property stolen was taken after Mrs. Parsons expired. Thus, he reasons, there was no evidence to prove that the murder was committed with intent to rob.

In oral argument, the Attorney General suggested that the language of Code § 18.2-31(d) could be construed to mean that first-degree murder is a capital offense when the killing and the crime of armed robbery are part of a continuing criminal enterprise. So construed, the statute does not require the Commonwealth to prove the coexistence of the intent to kill and the intent to steal. While such may be a viable construction, we need not decide that here. Reviewing the conviction under the statute as construed at trial, we consider whether the evidence was sufficient to support the conclusion that the murder was committed with intent to rob.

Clearly, the theft Whitley confessed constituted robbery rather than simple larceny. Robbery, defined at common-law as "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation", Jones v. Commonwealth, 218 Va. 18, 21, 235 S.E.2d 313, 315 (1977), is a crime against the person of the victim rather than a crime against property. While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs. For purposes of the common-law definition, a corpse is a "person" if "the taking occurs minutes after the victim is killed". Wm. Patterson v. Commonwealth, 222 Va. 653, 664, 283 S.E.2d 212, 219 (1981). The question, then, is whether robbery was the motive for the killing.

Criminal intent, a state of mind, may be, and often must be, shown by circumstantial evidence. Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). Whitley contends that, in light of the circumstances disclosed by his extra-judicial statements and the physical evidence, the jury should have found that the killing was the act of a "sexual psychopath" and that the larceny was committed "only as an after-thought." But the fact that the larceny did not occur until after he had killed his victim does not prove that his decision to steal was an after-thought. And the jury logically could have concluded that both sex and robbery motivated his conduct.

Moreover, Whitley's hypothesis, offered in mitigation of the grade of his offense, is legally significant only if it is reasonably supported by the evidence viewed in the light most favorable to the Commonwealth. His theory ignores certain facts bearing upon the question of intent. Whitley had expressed an interest in acquiring a car owned by Mrs. Parsons' daughter. On the night of the crime, Whitley's car was "broken down." His next-door neighbor owned a car. Whitley stole Mrs. Parsons' car. The jury was not required to believe Whitley's statement that his purpose in entering Mrs. Parsons' home was to use her telephone, and the jury doubtless noted that the person to whom the calls allegedly were made was never asked to verify the allegation. Considering the totality...