Pope v. Com.

• Citation: 360 S.E.2d 352,234 Va. 114
• Decision Date: 04 September 1987
• Docket Number: Nos. 861109,861110,s. 861109
• Parties: Carlton Jerome POPE v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 352

360 S.E.2d 352

234 Va. 114

Carlton Jerome POPE v. COMMONWEALTH of Virginia.

Record Nos. 861109, 861110.

Supreme Court of Virginia.

Sept. 4, 1987.

Gordon B. Tayloe, Jr., William R. Brown (Cooper & Davis, P.C., Portsmouth, on brief), for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

RUSSELL, Justice.

Carlton Jerome Pope was convicted by a jury of capital murder (Code § 18.2-31(d)), robbery, malicious wounding, attempted robbery, and four counts of using a firearm in the commission of a felony. At the conclusion of the first stage of the bifurcated trial, the jury fixed his punishment at life imprisonment for robbery, ten years for attempted robbery, twenty years for malicious wounding, and four years for each of the four firearm offenses. At the penalty stage, the jury heard evidence of the defendant's history and evidence in mitigation. After further deliberation, the jury returned a unanimous verdict fixing Pope's punishment at death for capital murder, based on the "future dangerousness" predicate of the statute. After reviewing a presentence report and after a further hearing, the court entered judgment on the jury verdicts by final orders entered September 3, 1986. Pope's appeal of his capital murder conviction has been consolidated with the automatic review of his death sentence required by Code § 17-110.1. We have also certified from the Court of Appeals of Virginia the record of Pope's related convictions, pursuant to Code § 17-116.06, and have given all the related appeals priority on our docket.

I. THE EVIDENCE

Pursuant to established principles of appellate review, the evidence will be stated in the light most favorable to the Commonwealth. On the evening of January 12, 1986, Marcie Ann Kirchheimer was a passenger in the front seat of a two-door "little Sunbird" owned and driven by her sister, Cynthia Gray. Cynthia drove to "Nick's Pool Hall" in downtown Portsmouth in search of a man named James Taylor. When they arrived, Marcie left the car and knocked on the door of the pool hall, but found the establishment closed. As Marcie returned to the car, Pope, who was across the street, called to them to ask if they were looking for Taylor. He walked to the car, identified himself as "Carl," and told them that Taylor had left the pool hall.

Pope asked Cynthia if she would give him a ride home. She agreed, and Pope got into the back seat of the car, where he sat on the right side, behind Marcie. Cynthia first drove to James Taylor's mother's house, where Marcie left the car to talk with Taylor's mother for a few minutes. Taylor was absent, and Marcie told his mother that they would return in ten or fifteen minutes. Marcie then rejoined Cynthia and Pope in the car. Pope directed Cynthia to Bagley Street. During the drive, Cynthia was drinking from a bottle of wine. She passed the bottle back to Pope, who also drank from it.

When the car arrived at Bagley Street, Pope told Cynthia to stop on the left side, "the wrong side of the road as [they] were travelling." Marcie opened the passenger door and pulled the seat forward to let Pope out. Immediately after emerging from the car, Pope turned toward the women, pointed a pistol at them, and said, "give me all your money." Startled, the women made no immediate response and Pope fired a shot into Cynthia's head. Marcie reached up and grappled with Pope for the gun. Pope "pulled free" and "started to run off, and took two or three steps off, and turned around." Pope then shot Marcie in the back of the head and "took off running."

Cynthia was bleeding from the head and was slumped over the steering wheel. Marcie, knowing that she, too, had been shot, "halfway sat on [Cynthia] in the middle of the car," turned on the car's emergency blinkers and drove as fast as she could to Portsmouth General Hospital. Marcie drove to a door she thought was the emergency entrance, jumped out of the car and ran to the door. Finding the door locked and that entrance no longer in use, she ran back past Cynthia's car and entered the front lobby of the hospital. There, she encountered two police officers, William Mutter and George Vick. The officers heard Marcie's screams and followed her as she ran back to the car. They found Cynthia dead from a gunshot wound to the right temple. The bullet had passed through the brain and exited in front of the left ear. Marcie was admitted to the hospital. She had a bullet wound behind the right ear. The same bullet had subsequently passed through her left shoulder and exited under her left arm. Later, in court, Marcie positively identified Pope as the assailant.

Upon arriving at the car, the police officers called for assistance and preserved the condition of the car until it could be examined. The wine bottle from which Cynthia and Pope had been drinking was found on the driver's seat and was turned over to a fingerprint examiner who found that it bore a print which positively matched a fingerprint taken from Carlton Pope.

Marcie had had no purse, and testified that Pope had taken nothing from her, but Cynthia's purse was missing after the shooting. Cynthia had been carrying a clutch-type purse with a zipper closure which she left open. It was lying "right in between the bucket seats" as the women drove to Nick's Pool Hall. During that drive, Cynthia took her checkbook out of the purse momentarily and then replaced it in the purse, which remained between the bucket seats. After the shooting, the purse was missing but the police found the checkbook on the floor of the car between the passenger seat and the door on the passenger side, through which Pope had left the car. Marcie testified that it was not Cynthia's practice to leave the checkbook on the floor or to leave "things like that strewn about the car." Marcie last saw the purse between the bucket seats, and did not see it after the shooting. While she did not see Pope remove it, she testified that it was in his view and that he had ample opportunity "to grab it without me seeing him."

II. PRE-TRIAL MOTIONS

A. Motion for Private Investigator

Before trial, Pope moved the court to appoint an investigator to "comb the neighborhood" for potential witnesses. The court denied the motion, noting that we have recently held that an indigent defendant has no constitutional right to the appointment, at public expense, of a private investigator. Gray v. Commonwealth, 233 Va. 313, 330, 356 S.E.2d 157, 166 (1987); Watkins v. Commonwealth, 229 Va. 469, 478, 331 S.E.2d 422, 430 (1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986); Quintana v. Commonwealth, 224 Va. 127, 135, 295 S.E.2d 643, 646 (1982), cert. denied, 460 U.S. 1029, 103 S.Ct. 1280, 75 L.Ed.2d 501 (1983). On appeal, Pope argues that the appointment of a private investigator is required by an analogy to the reasoning in Ake v. Oklahoma, 470 U.S. 68, 83-84, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985). We do not agree. Ake applies only to the appointment of an independent psychiatrist to assist an indigent defendant who has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor in his defense, or where the prosecution intends to rely on psychiatric evidence to prove the defendant's future dangerousness. See Pruett v. Commonwealth, 232 Va. 266, 275 n. 3, 351 S.E.2d 1, 7 n. 3 (1986); Tuggle v. Commonwealth, 230 Va. 99, 104-108, 334 S.E.2d 838, 841-43 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3309, 92 L.Ed.2d 722 (1986). Ake is inapplicable here. We adhere to our holding in Watkins.

B. Motion for Personal Inspection of Evidence by Defendant

Pope moved the court to permit him personally to inspect the Commonwealth's evidence before trial. The court ruled that defense counsel was entitled to view the physical evidence, but that the defendant was not entitled to be present. When an accused is represented by counsel, the requirements of Rule 3A:11, as we construe it, are satisfied when defense counsel is afforded the opportunity to inspect the Commonwealth's evidence. The record shows that defense counsel took full advantage of his opportunity to inspect the physical evidence before trial. No authority is cited, and none exists in Virginia, for the asserted right of a defendant, who is represented by counsel, to inspect the evidence personally.

C. Motion for Change of Venue

Pope made pre-trial motions for a change of venue and for sequestration of the jury, based on pre-trial publicity in Portsmouth concerning the offense. The court took the motions under advisement until voir dire had been completed in order to determine whether the veniremen had been affected by the publicity. After voir dire questioning disclosed that the publicity had had no substantial impact on the veniremen, the court denied both motions.

The court was able to select twenty prospective jurors and four alternates from thirty-three veniremen. Of the nine veniremen excluded on voir dire, eight were excused for reasons unrelated to pre-trial publicity and one had personal knowledge of the details of the case. Of the twenty-four remaining prospective jurors, six had been exposed to publicity concerning the case, but none of these was sensible of any bias toward the accused, none had formed an opinion of guilt or innocence, and all stated their willingness to decide the case solely upon the law and the evidence.

The relative ease with which an impartial jury was empaneled negates the "widespread prejudice" which a defendant must show in order to justify a change of venue. See Stockton v. Commonwealth, 227 Va. 124, 137, 314 S.E.2d 371, 380, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The presumption is that the defendant can receive a fair trial in the locality in which the offense occurred, and the defendant has the burden of showing "widespread prejudice" to rebut...