Barnes v. Com.
| Decision Date | 04 September 1987 |
| Docket Number | Nos. 870013,870014,s. 870013 |
| Citation | 234 Va. 130,360 S.E.2d 196 |
| Parties | Herman Charles BARNES v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Sa'ad El-Amin, Richmond, for appellant.
Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: All the Justices.
At a bench trial, Herman Charles Barnes was convicted of the capital murders of Clyde Jenkins and Michael Mohammed Afifi pursuant to the multiple homicide provisions of Code § 18.2- 31(g). He was also convicted of abduction for pecuniary benefit, in violation of Code § 18.2-48, and was sentenced to 50 years in prison; use of a firearm in the commission of an abduction, in violation of Code § 18.2-53.1, and was sentenced to 2 years in prison; attempted robbery, and was sentenced in accordance with Code §§ 18.2-26 and 18.2-58 to 10 years in prison; and use of a firearm in the commission of an attempted robbery (second or subsequent offense), in violation of Code § 18.2-53.1, and was sentenced to 4 years in prison. After receiving the report of a probation officer and hearing further evidence, the court imposed the death sentence for capital murder by a final order entered September 26, 1986.
Barnes' death sentence is before the Court pursuant to the automatic review provisions of Code § 17-110.1. We have consolidated that review with the defendant's appeal of his capital murder conviction. In addition, by order dated January 7, 1987, we have certified from the Court of Appeals of Virginia the record of the related convictions pursuant to Code § 17-116.06 and have given the cases priority on our docket.
The case was submitted to the trial court on a stipulation covering most of the facts. The Commonwealth offered some additional testimonial evidence and exhibits without objection. The defense offered no evidence.
On June 27, 1985, at approximately 10:00 p.m., Ricky Adams, an employee of a food market in Hampton, was sweeping the parking lot outside the market. Barnes, who was wearing a woman's stocking as a mask, walked up to Adams, unobserved, and pushed a pistol against Adams' side. He ordered Adams to enter the store as if nothing extraordinary was occurring. The store was in the process of being closed and the doors were locked when Adams approached the door with Barnes hidden behind him.
Clyde Jenkins, the 73-year-old owner of the store, saw Adams approach and unbolted the door to let him in. Barnes entered the store behind Adams. Jenkins grappled with Barnes and a struggle ensued. Barnes broke free from Jenkins and fired two shots from the .38 caliber revolver he was carrying. One shot penetrated Jenkins' chest, collapsing the left lung and perforating the aorta. The other shot entered the abdomen and lacerated the liver. Jenkins fell backward to the floor. At that point, another employee, Michael Mohammed Afifi, ran from the back of the store and jumped on Barnes' back. Again Barnes broke free. He fired a shot into Afifi's left arm and side which penetrated both lungs and ruptured the aorta. Afifi died soon thereafter of massive internal hemorrhaging.
Barnes then turned and pointed the gun at Adams, but at that moment Jenkins stirred and attempted to rise from the floor. Barnes shot Jenkins a third time and fled the store. The third shot struck Jenkins in the neck, damaging his spinal cord and causing near-total paralysis. Jenkins died, after a "stormy hospitalization" lasting over two weeks, of pneumonia complicated by liver and renal failure resulting primarily from the injuries inflicted by the first two wounds.
Barnes fled to Philadelphia, where he received permission to stay in an apartment occupied by his stepfather. On July 1, 1985, the Philadelphia police were notified that Barnes was wanted in Hampton for two murders. Virginia arrest warrants were sent to Pennsylvania and Pennsylvania arrest warrants were also issued. Thereafter, the police received an anonymous tip that Barnes was in Philadelphia and that his girlfriend, who lived in that city, knew his whereabouts. The police first contacted Barnes' girlfriend on July 26, 1985. Initially, she denied any knowledge of Barnes' whereabouts. Later, however, she told police that Barnes was staying in West Philadelphia and that she had been taken to visit him on the previous day. She told the police that she could point out the apartment. On that same day, the girlfriend led police to an apartment building and pointed to a window of the apartment where she had visited Barnes. The police also had information that Barnes had recently made calls from a public telephone booth near that building. After pointing to the window, the girlfriend immediately ducked down in the car out of fear of being seen. She was taken from the area in another police car.
The police located the position of the apartment within the building. They approached the door armed with arrest warrants for Barnes, knocked, and identified themselves as police. They heard a television and someone moving inside the apartment, but the door was not answered. After knocking again, they broke down the door and searched the apartment. They found Barnes hiding under the kitchen sink behind the closed doors of a cabinet. They arrested him and took him to a police station but removed nothing else from the apartment.
At the police station, Barnes admitted being at the food market in Hampton on the night of the killings. He further admitted that he and an accomplice had intended to rob the store but he denied being the triggerman and blamed the killings on his accomplice.
Barnes contends that, in deciding this case, the trial court erred in considering the transcript of the testimony given at the preliminary hearing by Ricky Adams, the young man whom Barnes had used as a decoy to gain entry to the store. According to Barnes, the transcript was never admitted into evidence and was improperly considered by the trial court.
One aspect of the stipulation submitted by the parties stated that "[t]he Commonwealth will not object to the defendant's introduction of a copy of the full direct and cross-examination of Ricky Adams from the preliminary hearing conducted in this matter March 28, 1986." The record shows that Barnes' counsel urged the court to consider the transcript. Barnes' counsel now complains of the court's doing just that.
After the Commonwealth advised the trial court of the stipulation concerning the preliminary hearing transcript, the court inquired if there were any objections to consideration of the transcript. The defense made no objection, but referred the court to the appropriate pages to be read.
The Commonwealth formally offered the transcript in evidence before resting its case. Again, the defense made no objection, but stated to the court: "you need to read this for your own benefit." The court then recessed in order to read the transcript, again without objection. Later, the defense moved for a mistrial because the transcript had not been offered in evidence by the defense. We hold that the defense waived any objection to the admission of the transcript in evidence, and that the Court correctly denied the motion for mistrial.
Barnes next contends that the partial confession he gave to the police in Philadelphia should have been suppressed as the "fruit of the poisonous tree" because it was the product of a warrantless entry and search of his step-father's apartment. We disagree for two reasons.
First, the entry and search were not warrantless. Although they had no search warrant for the premises, the police had valid arrest warrants for Barnes. They had reason to believe that Barnes was staying in the apartment and was actually present, and the arrest warrants gave them the limited authority to enter the apartment, search for the person described in the warrants, and arrest him. See Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). They did no more than that. Cf. Steagald v. United States, 451 U.S. 204, 219, 101 S.Ct. 1642, 1651, 68 L.Ed.2d 38 (1981) ().
Second, Barnes had the burden of showing that he had a legitimate expectation of privacy in the apartment in which he was arrested so as to confer upon him standing to challenge the entry and search. Rakas v. Illinois, 439 U.S. 128, 131, 99 S.Ct. 421, 424, 58 L.Ed.2d 387 (1978). He failed to carry that burden. The evidence shows only that he had permission to be present in the apartment. It fails to show that he had a key, that he kept property there, or that he had any right to exclude others. The Supreme Court has expressly held that the mere right to be present is insufficient to confer standing to invoke the Fourth Amendment protections to which a dwelling is entitled. Rakas, 439 U.S. at 142-43, 99 S.Ct. at 430.
Barnes also argues that the Commonwealth failed to prove premeditation in the killings of Jenkins and Afifi. Barnes contends that he was provoked into shooting the victims by their physical resistance, and that provocation establishes the absence of willfulness and premeditation. We reject Barnes' attempt to portray himself as a victim of attacks which he had to fend off by shooting Jenkins and Afifi. Barnes cites Bailey v. Commonwealth, 191 Va. 510, 62 S.E.2d 28 (1950), in support of his provocation theory. That case is factually inapposite. It did not begin as a criminal enterprise. It involved two men engaged in an argument which escalated to pushing and shoving, and then to blows. Bailey ultimately...
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