331 S.E.2d 422 (Va. 1985), 841551, Watkins v. Commonwealth

Docket Nº:841551, 841913.
Citation:331 S.E.2d 422, 229 Va. 469
Opinion Judge:[12] Cochran
Party Name:Johnny WATKINS, Jr. v. COMMONWEALTH of Virginia (Two Cases).
Attorney:[7] Henry G. Crider (E. L. Motley, Jr., on brief) for appellant. (Record No. 841551.)
Case Date:June 14, 1985
Court:Supreme Court of Virginia
 
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Page 422

331 S.E.2d 422 (Va. 1985)

229 Va. 469

Johnny WATKINS, Jr.

v.

COMMONWEALTH of Virginia (Two Cases).

Nos. 841551, 841913.

Supreme Court of Virginia.

June 14, 1985.

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[229 Va. 472] Henry G. Crider, Danville, (E.L. Motley, Jr., Danville, on brief), for appellant in No. 841551.

James E. Kulp, Sr., Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee in No. 841551.

Page 427

E.L. Motley, Jr., Danville, (Henry G. Crider, Danville, on brief), for appellant in No. 841913.

Frank S. Ferguson, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee in No. 841913.

[229 Va. 469] Present: All the Justices.

[229 Va. 472] COCHRAN, Justice.

A jury found Johnny Watkins, Jr. (Watkins), guilty of the capital murder of Betty Jean Barker on November 14, 1983, in the commission of robbery while armed with a deadly weapon. The jury also found Watkins guilty of the robbery itself and use of a firearm in the commission of a felony and fixed his punishment for these two offenses at confinement in the penitentiary for life and [229 Va. 473] for two years, respectively. In the bifurcated proceeding mandated by Code §§ 19.2-264.3 and -264.4, the jury fixed Watkins's punishment for capital murder at death, based upon findings of Watkins's future dangerousness and the vileness of the crime. After considering the probation officer's report filed pursuant to § 19.2-264.5, the trial court by final order entered July 13, 1984, sentenced Watkins in accordance with the jury verdicts.

In a subsequent trial, another jury found Watkins guilty of three offenses, the capital murder of Carl Douglas Buchanan on November 22, 1983, in the commission of robbery while armed with a deadly weapon, the robbery itself, and use of a firearm in the commission of a felony. The jury fixed his punishment for robbery and use of a firearm at confinement in the penitentiary for life and for two years, respectively. Based upon findings of Watkins's future dangerousness and the vileness of the crime, the jury fixed his punishment for capital murder at death. After considering the probation officer's report, the trial court by final order entered September 28, 1984, sentenced Watkins in accordance with the jury verdicts.

In each of the capital murder cases, we have consolidated the automatic review of the death sentence with Watkins's appeal from his conviction and have given them priority on our docket. Although the two cases were briefed and argued before us independently of each other, they raised many common issues. Accordingly, we are using the format of one opinion in which to incorporate our views on all issues. 1

  1. Facts.

    1. Barker Murder.

      On November 13, 1983, Betty Jean Barker reported for work as clerk at a Kwik Stop convenience store about 11:00 p.m. At 2:45 a.m. on November 14, a customer departed after paying her for gasoline. About 3:15 a.m. other customers found the clerk, apparently dead, lying on the floor behind the cash register, the drawer of which was open. The life saving crew, when called to the scene, confirmed that Barker was dead. An autopsy established that she had been struck by three bullets, one in the right cheek, one in the [229 Va. 474] upper right chest, and one in the upper left chest. The fatal shot, which perforated the lungs and aorta, was the one in the upper right chest. A fourth bullet, found in the victim's sweater, had not wounded her.

      Quentin Nash was the principal witness for the Commonwealth. As an accomplice of Watkins, he had been convicted of the crimes but had not been sentenced. Nash testified that he and Watkins left a card game about 1:30 a.m. on November 14 in Watkins's car. Watkins said he was tired of being "broke" and was going to "rob a place," and then said he was going to the Kwik Stop market to "rob that place." Nash agreed to act as a lookout. They arrived at the Kwik Stop about 2:40 a.m., purchased gas, but then drove across the street because there were other customers in the store. At 3:00 a.m., when they saw the clerk was alone, they returned; Watkins entered the store while Nash remained

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      in the car. Nash, reconsidering the proposed robbery, went in to persuade Watkins not to commit the crime. Watkins, however, had purchased cigarettes. When Barker opened the cash register, Watkins shot her twice, causing her to fall to the floor. Watkins ordered Nash to take the cash register. As Nash ran from the premises with the cash drawer, he saw Watkins leaning over the counter with the firearm in his hand. When Watkins returned to the car, the men left the scene of the crimes. Nash testified that he refused to accept from Watkins any of the money obtained in the robbery. It was established that the amount of $89.89 had been taken by the robbers.

      In their investigation of the Buchanan murder, the police found a .22-caliber pistol in a jacket belonging to Watkins. There was uncontradicted expert testimony that one of the bullets removed from Barker's body had been fired from this pistol.

    2. Buchanan Murder.

      In the early morning hours of November 22, 1983, Carl Douglas Buchanan was the sole employee working at Fast Fare, a convenience store. It was established that he was alive about 1:30 a.m. A customer who entered the store between 1:45 and 1:50 a.m. observed the cash register open and the money drawer missing. Looking behind the counter, he found Buchanan's body. The police ascertained that there was missing from the cash register the sum of $34.73, including a $2.00 bill whose serial number had been recorded. Local merchants were notified of the existence of [229 Va. 475] this bill. Later on November 22, Darnell Watkins (Darnell), Watkins's brother, was identified as the person who had tendered the bill that day in paying a store account.

      Obtaining a search warrant for Darnell's apartment, the police discovered that the brothers shared a bedroom. The officers found in a jacket in their bedroom credit cards, a driver's license, and other items belonging to Carl Buchanan. In another jacket bearing Watkins's employee identification badge, they found eight empty cartridges and a .22-caliber pistol loaded with six live bullets.

      Darnell was the principal witness for the Commonwealth. He admitted his participation in the crimes, for which he had been convicted but not sentenced.

      Darnell testified that about midnight on November 21, his brother offered to drive him to a store for cigarettes. On the way, Watkins said, "I might rob some place." After finding one store closed, they proceeded to Fast Fare, which Watkins entered while Darnell remained in the car. No other customers were in the store. Darnell saw his brother point a weapon at the clerk, saw the clerk fall backward, and saw Watkins go to the other side of the counter and take the cash drawer from the cash register. Hearing two shots, Darnell observed Watkins bending down behind the counter. When Watkins returned to the car with the cash drawer and a wallet, he drove away with his brother. Darnell asked Watkins if he had shot the clerk; Watkins replied that he had shot him three or four times in the head and chest. Watkins told Darnell the wallet contained about $40. From the proceeds of the robbery he gave Darnell $42 in repayment of a loan.

      Darnell also testified that his brother later attempted to persuade him to accept responsibility for the robbery while Watkins accepted responsibility for the murder under the belief that such separation of guilty conduct would enable Watkins to avoid execution. This testimony was corroborated by a relative in whose apartment the brothers lived.

      An autopsy established that Carl Buchanan had been struck by four bullets, one near the left temple, one in the left upper chest, one in the left mid-chest, and one in the right lower back. Either of the chest wounds would have been fatal. The uncontradicted expert testimony was that one of the bullets removed from Buchanan's chest had been fired from the .22-caliber pistol found in Watkins's jacket.

      [229 Va. 476]

  2. Pretrial Proceedings.

    1. Barker Murder.

      1. Motion to Suppress.

        Watkins made a pretrial motion to suppress statements given by him to the police.

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        Testimony at the suppression hearing revealed that both Darnell and Watkins were taken to Danville Police headquarters following the search of their apartment on November 22. About 11:00 p.m. the same day, police interrogated Watkins. He was first advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), after which he signed a written waiver of his rights. During questioning, when Watkins stated he wanted to see a lawyer, the interrogation terminated. An officer reduced to writing Watkins's responses during this interview, but Watkins refused to sign the statement.

        About 1:00 a.m., Watkins was informed he was being charged with capital murder. He asked why he was being charged. Before giving any explanation, an officer again advised him of his constitutional rights and Watkins executed a second written waiver of his rights. He was then told that Darnell had implicated him in the murder and robbery of Carl Buchanan at the Fast Fare market. When Watkins expressed disbelief, police played for him a portion of Darnell's recorded statement. At Watkins's request, he was allowed to see his brother, and a police officer testified that Watkins asked Darnell, "Did you really snitch on me?" According to the officer, Darnell admitted that he had done so. Watkins then declined to talk about the shooting or take a polygraph test, saying that he wanted "to think about it."

        ...

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