Cantrell v. Com., 840269

• Citation: 229 Va. 387,329 S.E.2d 22
• Decision Date: 26 April 1985
• Docket Number: No. 840269,840269
• Parties: William Jeffery CANTRELL v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 22

329 S.E.2d 22

229 Va. 387

William Jeffery CANTRELL v. COMMONWEALTH of Virginia.

Record No. 840269.

Supreme Court of Virginia.

April 26, 1985.

John C. Lowe, Charlottesville (S. Strother Smith, III, Abingdon, Lowe & Jacobs, Ltd., Charlottesville, on brief), for appellant.

John H. McLees, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: All the Justices.

RUSSELL, Justice.

After an earlier trial had ended in a hung jury, William Jeffery Cantrell was convicted of the first-degree murder of his wife, Judy, and of the use of a firearm in the commission of the murder. The second jury fixed punishment at life imprisonment for murder, plus one year on the firearm charge. We granted him an appeal limited to three issues: whether his due process rights were infringed when private counsel, employed by the victim's family, played the dominant role in the prosecution; whether the court erred in excluding expert medical opinion testimony proffered in support of the defense theory of the case; and whether the court erred in instructing the jury with respect to the necessity for proof of malice.

The evidence was entirely circumstantial. Judy Cantrell was killed by two shotgun blasts as she was climbing the steps toward the side door of the Cantrell home, about 9:00 p.m. on December 8, 1981, while returning alone from a karate class. Her husband, the defendant, was at home, but the couple's only child was visiting the defendant's parents, who lived next door. The shotgun belonged to the defendant and was kept in the home.

Within a few minutes after the shotgun blasts were heard, the defendant called his parents' home for help. The rescue squad arrived soon thereafter and found Judy dead at the foot of the steps, outside the home, and the defendant lying unconscious. He was taken to the Norton Community Hospital where he recovered consciousness but was hysterical, incoherent, and hyperventilating. His blood pressure was elevated and his face flushed. He had superficial facial scratches and an inconspicuous bruise on the forehead. There were no marks on the back of the head and no signs of serious head injury.

The defendant gave a statement to the police in which he said that he had entered his home about 6:40 p.m., thinking that nobody was present. He said that as he entered the kitchen, he was "struck over the head by a hard object with much force," and was seized by three persons whom he could not identify. He said that he "passed out," and when he "came to," his hands and legs were tied, he was face down on the linoleum floor of the kitchen, and a large man was sitting on his back. He said that he was hit on the head several times with a hard object, that the assailants would frequently "bang [his] head on the floor," that a water glass was broken on the back of his head, and that he was kicked in the stomach. He testified that he heard sounds indicating that the house was being ransacked and then heard his wife's car pull into the carport. He called out to warn her, but was again hit over the right ear and on the back of the head with a hard object, after which he heard two shotgun blasts. He said he then heard the perpetrators gathering up the goods they had stolen from the house and running out the back door. He eventually freed himself from his bonds, found his wife dead of shotgun wounds at the foot of the steps leading to the side door, called his parents for help, and "after going into shock, woke up at Norton Community Hospital."

The police found the Cantrell home in disarray, but many items of value, including Judy's rings, a camera, and several firearms, were undisturbed. The defendant gave the police a list of items missing from the home. These items were found in a field on the Cantrell property. Although rain and snow fell that night, a tracking dog was brought to the scene about three hours after the murder. The dog found a scent leading from the back of the house to a boundary fence around the field in which the missing items were recovered, but found no trail leading away from the property. Instead, the dog returned to the house. A palm print found inside the house belonged neither to the defendant nor to Judy, but no other fingerprints were recovered at the scene, on the shotgun, or on the items found in the field. A soil sample taken from a bathroom window sill matched soil behind the house, but was different from samples taken from defendant's shoes. A broken drinking glass was found on the kitchen floor.

Four months after the murder, a Wise County deputy sheriff received an anonymous telephone call in which a man with a voice which sounded "similar" to the defendant's suggested that a search of a planter box outside a hardware store in the town of Pound would reveal evidence which would convict another man of the crime. Under newly disturbed soil in the planter box, the deputy found a pistol and underwear from the Cantrell home and two old photographs of Judy. A witness testified that he had seen the defendant in Pound, near the flower box, three days before the anonymous call was received.

The Commonwealth introduced evidence that the defendant, at the time of the murder, had been conducting an adulterous relationship for a year with a married woman. Both parties to the relationship professed continuing devotion to their respective spouses and a strong desire to preserve their marriages.

Carl McAfee, a lawyer in private practice in Wise County, was employed by the parents of Judy Cantrell to "help to get Jeff Cantrell convicted." Judy's father testified that he incurred fees due to Mr. McAfee amounting to $10,100.00 for these services. Mr. McAfee testified that he had not been formally appointed as a special prosecutor or as an assistant Commonwealth's Attorney, was not being paid by the Commonwealth, and had not taken any oath of office. He frankly informed the jury on voir dire that he was "employed by [Judy's parents]" to "assist the Commonwealth." In closing argument, he stated, "I am speaking to you in behalf of the Commonwealth as a Special Prosecutor for the family of Judy Cantrell ..." Although the Commonwealth's Attorney was present throughout the trial and took an active role, Mr. McAfee was clearly lead counsel. He examined most of the witnesses, made and responded to most of the motions and objections, and made the closing argument to the jury.

Judy Cantrell's father had also retained Mr. McAfee in a civil case to seek a change of custody of the Cantrells' only child from the defendant to Judy's parents. The defendant argues that this employment gave Mr. McAfee a conflict of interest which rendered his participation in the criminal prosecution improper to a degree which denied the defendant due process of law. The defendant points out that Mr. McAfee's task in obtaining the child's custody for his clients, the child's grandparents, would be greatly facilitated if the defendant were convicted of murder. Further, the defendant argues that a murder conviction would bar his right to inherit from his deceased wife and would set the stage for a wrongful death action against him, all to the benefit of Mr. McAfee and his civil clients. Thus, he contends, the private prosecutor had an incentive, which the Commonwealth's Attorney lacked, to secure his conviction for reasons other than the impartial administration of justice. The defendant argues: "[t]he fact that there should need to be argument to the jury that the prosecution was biased because it was bought with private money for private vengeance creates entirely the wrong atmosphere for a criminal trial." He points out that the role of privately employed prosecutors developed during a time when Commonwealth's Attorneys were not required to be members of the bar. The defendant argues that, since the adoption of statutory amendments requiring bar membership for Commonwealth's Attorneys, Code §§ 15.1-40.1 [229 Va. 392] and 24.1-86, all justification for private prosecutors has been eliminated.

The right of a citizen to hire a private prosecutor is rooted in the early common law of England. Criminal prosecutions, like civil actions, were conducted within the framework of a pure adversary system. The Crown did not provide a public prosecutor in routine felony cases; rather, the victim or his family retained private counsel to prosecute and the defendant retained counsel to defend. State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55, 57 (1979), cert. denied 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980). See generally Note, Private Prosecution--The Entrenched Anomaly, 50 N.C.L.Rev. 1171 (1972). We have approved the practice, expressly or by implication, in many of our earlier cases. McCue's Case, 103 Va. 870, 1004, 49 S.E. 623, 630 (1905); Jackson's Case, 96 Va. 107, 112, 30 S.E. 452, 453 (1898); Sawyers v. Commonwealth, 88 Va. 356, 357, 13 S.E. 708, 708 (1891); Hopper, Stiers and Lemmon's Case, 47 Va. (6 Gratt.) 684, 685 (1849). Only one conviction has been reversed because of the participation of a private prosecutor, Compton v. Commonwealth, 163 Va. 999, 1004-06, 175 S.E. 879, 882 (1934), but the reversal was ordered not because the private prosecutor appeared, but rather because he was in fact employed by the clerk and the sheriff, whose duty was to serve the court impartially.

The policy arguments advanced by the defendant for a total prohibition of privately employed prosecutors may have a sound basis in considerations of public policy, but we think it advisable to leave to the General Assembly such a basic change in the long-established common law of Virginia. Nevertheless, without disturbing the common-law rule which generally permits the appearance of private counsel to assist the prosecution, we conclude that Mr. McAfee's role, in the circumstances of this case, infringed the defendant's right to a fair and impartial trial.

The common-law right of a crime victim, or of his...