Boggs v. Com.

• Decision Date: 14 June 1985
• Docket Number: 850170,Nos. 841860,s. 841860
• Citation: 331 S.E.2d 407,229 Va. 501
• Parties: Richard T. BOGGS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 407

331 S.E.2d 407

229 Va. 501

Richard T. BOGGS v. COMMONWEALTH of Virginia.

Record Nos. 841860, 850170.

Supreme Court of Virginia.

June 14, 1985.

Darell Sayer, Portsmouth, (Anthony J. Nicolo, Sayer & Nicolo, Portsmouth, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: All the Justices.

POFF, Justice.

A jury convicted Richard T. Boggs, 21 years of age, of robbery and, in the same trial, capital murder in the commission of robbery. On the robbery conviction, the jury fixed the penalty at imprisonment for life. After hearing evidence of aggravating circumstances and circumstances in mitigation of the offense in a separate proceeding, see Code §§ 19.2-264.3 and -264.4, the jury fixed the penalty on the homicide conviction at death. The trial court, following consideration of the probation report required by Code § 19.2-264.5, entered final judgments confirming the convictions and imposing the penalties fixed by the jury.

Pursuant to Code § 17-116.05:1, Boggs filed a petition for appeal of his robbery conviction in the Court of Appeals. We entered an order on March 5, 1985 certifying the robbery appeal to this Court and consolidating that appeal with Boggs' appeal of his capital murder conviction. Code § 17-116.06(B)(1). In turn, we have consolidated the capital murder appeal with the automatic review of the death penalty, Code § 17-110.1, and accorded the two appeals and the penalty review priority on our docket, Code § 17-110.2. The four questions presented by the petition for appeal of the robbery conviction are subsumed in and addressed by the briefs filed in the capital case, and our adjudication of those issues applies to both appeals.

In his several challenges to the facial constitutionality of the capital-murder statutes, raised by motions in limine and renewed at trial, Boggs makes no argument which has not been considered and rejected by this Court in earlier cases, and we devote this opinion to the other questions raised on brief and to the penalty review mandated by statute.

I. THE EVIDENCE OF RECORD

Boggs does not question the sufficiency of the competent evidence to support the two convictions. Rather, he contends that the trial court committed multiple errors which entitle him to new trials on the charges or to commutation of the death penalty, and we look to all the evidence adduced at the suppression hearing, the guilt trial, and the penalty trial.

Treeby Shaw, an 87-year-old widow, was murdered and robbed in her home in the Cradock community on the night of January 25, 1984. The homicide squad compiled a list of 20 people they "wanted to talk with". One was Richard T. Boggs, a close neighbor. Boggs, who worked at night while attending college during the day, was not considered "a prime suspect" and, for more than three weeks, was never questioned about the crimes.

At 1:15 a.m. on February 17, 1984, Officer Frank Cohn received a radio report from the police dispatcher that a black pedestrian had been struck by a blue Volkswagen operated by a "white [driver] with blonde hair." Lonnie Penn, who witnessed the event, testified that he pursued the Volkswagen in his car until it stopped at a gasoline station. Penn tried to persuade the driver, the sole occupant of the Volkswagen, "to go to the scene of the crime". Instead, the driver "[t]ook off down the freeway". Penn followed, blowing his horn and "flashing" his headlights. Officer Cohn observed the two vehicles, gave chase, and eventually stopped the Volkswagen on the shoulder of the road. The driver, later identified as Boggs, "jumped out ... and started to run" but stopped at Cohn's command. Cohn "pushed him up against the Volkswagen", which had "visible damage on the front end", and began a body search. Boggs protested, "Hey, man, I didn't do nothing. That nigger jumped off the sidewalk onto the front of my car."

At this point, Officer Richard A. Markel, who had heard the dispatcher's description of the Volkswagen and its driver, arrived on the scene, overheard Penn's conversation with Officer Cohn, and "placed [Boggs] under arrest for a hit and run felony investigation and DUI."

The pedestrian died of his injuries and, at 2:40 a.m., Officer T.E. Dail administered the Miranda warnings and Boggs signed a waiver authorizing the officer to question him on charges of "involuntary manslaughter" and "felony hit/run". Then, in his own handwriting, Boggs made and signed a statement which the Commonwealth introduced at the suppression hearing. According to that statement, "a black male ran directly into left front fender" and Boggs stopped his car at a gas station, walked back to look for the pedestrian, "did not see anyone", and "then left scene of accident."

When Detective Allen R. Harvey, an officer assigned to the homicide squad, learned that Boggs was in custody, he "talked to him briefly, more or less, informally, as a possible witness". He did not consider it necessary to advise him of his Miranda rights. Harvey had heard that Boggs had attempted to sell a ring to Leon Rawls, but he "had no idea at that point if it was connected with Treeby Shaw's case or not." The conversation, memorialized in a written statement identified as "2-17-84 0325 Hrs", was introduced at the suppression hearing. The exhibit shows that Harvey inquired when Boggs had seen Mrs. Shaw last, where he was on the night she was killed, and whether he knew "anyone who would want to hurt Mrs. Shaw". Harvey made no accusations and Boggs made no incriminating statements.

Meanwhile, the Volkswagen had been towed to police headquarters. Sometime "between three and four o'clock", Officer Markel conducted an inventory search of the vehicle. Markel testified that this was a matter of "police department policy", designed to furnish the owner a list of his property and to protect the police against false claims of theft from an impounded vehicle. Markel opened the trunk and picked up what he described as a "heavy" blue bag. When he opened the bag, he found two boxes, one bearing the name "Shaw", and a plastic pouch containing silverware inscribed "Treeby".

Markel interrupted the inventory and notified Harvey that he had discovered the fruits of the Shaw robbery, and Harvey obtained a warrant and conducted a further search. At 6:25 a.m., Harvey told Boggs about the silverware and advised him that the police "had evidence that would link him to the murder of Treeby Shaw, and he was at that point a suspect." In the company of Detective James E. Roberts, Harvey administered the Miranda warnings, Boggs signed a waiver of his rights, and the two officers interrogated him. The interview was reduced to writing and, at 7:10 a.m., Boggs subscribed the document and initialed each of the five pages.

Boggs' confession was detailed and unequivocal. He acknowledged that he had "preplanned the murder" of Mrs. Shaw. At 7:00 p.m., he "knocked on her door for a friendly visit, to borrow a book". In his pocket he carried "a round hunk of steel about 4 inches long and 1 inch in diameter". She offered him tea, and he "drank 3 cups" while they talked. "It was about 8:30," he said, "I started pounding her in the head with the metal weapon. There was no struggle. She fell on the first blow to the head. I continually pounded her head ... and she didn't die. So I went in the kitchen and got a butcher knife and I repeatedly stabbed her, until I heard no more breathing." Boggs "searched the house for money." Finding only "one $10.00 bill and small change" which "wasn't enough to support my habit of drugs", he collected her silverware in a bag, removed the rings from her fingers, and tried, unsuccessfully, "to take her T.V." He said that the rings were "in Norfolk pawn shops under the name of Mark Smith" and that the metal bar and silverware were in his car. In a statement, which was unresponsive to any question asked, Boggs said, "I want to kill niggers, I'm a cold blooded killer". Boggs added that he had consumed a "six pack" the night before but that he was not drunk during the interview.

The trial court overruled the motion to suppress this confession and, over the defendant's objection, the Commonwealth introduced it at the guilt trial. Boggs also objected to certain other evidence admitted during the guilt phase which we will detail later in this opinion.

At the penalty trial, Boggs testified in his own behalf. Honorably discharged from the Army, he enrolled in Tidewater Community College and found a nighttime job with a plastics firm. He admitted killing and robbing Mrs. Shaw whom he had known "as a close neighbor" all his life. He "felt horrible about it for a long time." In explanation of his conduct, he said that he had been using drugs "[s]ince junior high school" and had used some the day of the crime.

On cross-examination, Boggs was asked to read the confession he had signed. He confirmed the truth of its contents and enlarged upon the details. Clarifying an ambiguity in the sequence of events, he said that he conducted the search for the silverware in an interval of time between the assault with the metal bar and the stabbing. Before he got the butcher knife from the kitchen, he "could hear her breathing in the next room." He stabbed her in several places and, responding affirmatively to the Commonwealth's questions, he acknowledged that he "didn't draw the knife all the way out" but, instead, repeatedly "jammed it back ... in that same hole".

As evidence in mitigation of the offense, Boggs called a number of witnesses. Several friends and relatives testified that they had known him as a kind, considerate, and respectful youth. His father read a letter written by his son, expressing sorrow for the trouble he had caused so many people, and his mother testified that he was "absolutely devastated" and "so ashamed of his own life". Dr. E. Daniel Kay, Jr., a psychiatrist, opined that...