364 S.E.2d 491 (Va. 1988), 861219, O'Dell v. Commonwealth

Docket Nº:861219, 870157.
Citation:364 S.E.2d 491, 234 Va. 672
Opinion Judge:[10] Whiting
Party Name:Joseph Roger O'DELL v. COMMONWEALTH of Virginia.
Attorney:[7] Clive A. Stafford Smith (J. Lloyd Snook, III, on briefs), for appellant.
Case Date:January 15, 1988
Court:Supreme Court of Virginia

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364 S.E.2d 491 (Va. 1988)

234 Va. 672

Joseph Roger O'DELL



Nos. 861219, 870157.

Supreme Court of Virginia.

January 15, 1988.

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[234 Va. 677] Clive A. Stafford Smith (J. Lloyd Snook, III, Charlottesville, on briefs), for appellant.

Linwood T. Wells, Jr., and Eugene Murphy, Asst. Attys. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

[234 Va. 672] Present: All the Justices.

[234 Va. 677] WHITING, Justice.

Joseph Roger O'Dell, III 1 was indicted and tried before a jury for the capital murder of Helen C. Schartner in the commission of, or subsequent to, rape, Code § 18.2-31(e), as well as for her abduction, rape, and sodomy by force. The trial court granted O'Dell's motion to strike the evidence on the abduction charge. The jury convicted O'Dell on all the remaining counts, and fixed his punishment at 40 years each on the rape and sodomy charges. In the second phase of the bifurcated trial, the jury heard evidence of aggravating and mitigating circumstances and fixed O'Dell's sentence at death, based on his future dangerousness. The trial court imposed the death sentence after a hearing required by Code § 19.2-264.5. Overruling O'Dell's motions to set [234 Va. 678] aside the verdicts, the trial court entered judgments on all three verdicts.

We have consolidated the automatic review of O'Dell's death sentence with his appeal from the conviction of capital murder, Code §§ 17-110.1(A), -110.1(F), and given this case priority on our docket, Code § 17-110.2. We also certified O'Dell's appeals of the other two convictions from the Court of Appeals for consolidation with the capital murder appeal. Code § 17-116.06.

O'Dell elected to act as his own counsel, but the trial court appointed standby counsel to aid in his defense. Because O'Dell actively represented himself in substantial portions of the pretrial proceedings and at trial, his appellate counsel suggested in oral argument that we should not require compliance with our contemporaneous objection rule, Rule 5:25. We reject this suggestion. For the reasons enunciated in Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), another capital murder case in which the defendant proceeded pro se, we will not consider the merits of those matters to which O'Dell failed to make the proper Rule 5:25 objection at trial. Those matters are the following:

  1. The Commonwealth's Attorney's attendance at hearings in which O'Dell attempted to establish his need for experts to be paid by the Commonwealth.

  2. O'Dell's later failure to request a ruling on his motion for a change of venue. The motion was made before the venire was examined, the trial court deferred a ruling on the motion, and thereafter O'Dell never requested a ruling.

  3. The trial court's alleged failure to "adequately channel the jury's discretion."

  4. Venireman Kelly's retention.

  5. Venireman Thornton's exclusion.

  6. The trial court's failure to sequester the jury.

  7. Alleged misstatements of the law "concerning the consequence of the jury's failure to agree on sentence" and the refusal of an instruction on that issue.

  8. The admission of evidence indicating a Bible was the only article not stolen from Christianson's car.

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  9. The exclusion of evidence that Steven Watson was on probation in Virginia when O'Dell made his admission to Watson and when Watson contacted the Commonwealth's Attorney.

    [234 Va. 679] 10. Restriction of O'Dell's cross-examination of Dr. sensabaugh.

    Additionally, we will not consider a different ground of objection raised for the first time on appeal, Rule 5:25; see Jones v. Commonwealth, 230 Va. 14, 18 n. 1, 334 S.E.2d 536, 539 n. 1 (1985), on the following matters:

  10. Venireman Villandre's retention. At trial, O'Dell's objection to Villandre's retention as a juror was that he was a former military judge, not that Villandre was unable to accord O'Dell his constitutional rights.

  11. O'Dell's objection to the admission of evidence of the theft of Christianson's clothing on the ground that it was immaterial.

  12. O'Dell's objection that Steven Watson's testimony was more prejudicial than probative.

  13. O'Dell's objection to the inclusion of the word "shall" in Instruction 17.

  14. O'Dell's constitutional objections to the admission of hearsay statements in the probation officer's report.

    Furthermore, pursuant to Rule 5:27(e), we will not consider the following assignments of error which were not argued on brief: X, XIV, XV, XVIII(b), (e)(f), (g) and (h), XXIII, and XXXI.



    The Commonwealth prevailed before the jury. Therefore, in conformity with familiar appellate principles, we consider the facts in the light most favorable to the Commonwealth.

    On Tuesday, February 5, 1985, the victim, Helen Schartner, left a night club in Virginia Beach known as the County Line Lounge about 11:30 p.m. O'Dell left the same club sometime between 11:30 p.m. and 11:45 p.m. The next day, February 6, 1985, Schartner's car was found in the parking lot of the County Line Lounge. Near 3:00 p.m. the same day, Schartner's body was discovered among the reeds in a field near a muddy area behind another club, across the highway from the County Line Lounge. Tracks from tires consistent with the tires on O'Dell's car were discovered in an area near Schartner's body.

    [234 Va. 680] Schartner had been killed by manual strangulation. She also had eight separate wounds on her head caused by blows from a handgun equipped with a cylinder. These head wounds produced extensive bleeding. A handgun with a cylinder was seen in O'Dell's car about 10 days prior to the murder.

    Not more than two and a half hours after Schartner left the County Line Lounge, O'Dell entered a convenience store with blood on his face and hands, in his hair, and down the front of his clothes.

    Vaginal and anal swabs disclosed the presence of seminal fluid in the victim's vagina and anus containing enzymes consistent with those in O'Dell's seminal fluid.

    O'Dell had been living in the home of a woman friend, Connie Craig. Approximately a week before the murder, Craig ordered O'Dell from the premises. O'Dell called Craig about 7:00 a.m. on Wednesday, the morning after the murder, said that he had vomited blood all over his clothes, 2 and stated that he wanted to talk with her before he left for Florida.

    When O'Dell reached Craig's house at about 7:30 a.m., he said he wanted to sleep, and he slept until 9:30 or 10:00 o'clock that evening. When O'Dell awakened, he asked Craig how to remove the blood from his new blue-gray jacket.

    The next day, Thursday, about 1:00 p.m., O'Dell called Craig from his place of work and told her he had put his clothes in her garage, but he intended to take them out the following day. After the telephone

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    conversation, Craig read the local newspaper's account of the murder of Schartner. The account said the victim had last been seen at the County Line Lounge. When Craig remembered that O'Dell customarily visited the County Line Lounge on Tuesday nights, "something clicked." Craig went to her garage and found a paper bag containing four pieces of bloody clothing, including a pair of jeans which also had mud on them. Craig brought these clothes into the house and called the police.

    Forensic evidence established that the dried blood on two of O'Dell's articles of clothing was the same type as Schartner's in each of the 11 blood classification systems analyzed. Only three out of a thousand persons are in this blood classification. O'Dell's blood was not the same type as Schartner's. O'Dell's car was later [234 Va. 681] seized and searched, and dried blood found on objects in the car also had several enzyme markers consistent with Schartner's blood, but not O'Dell's.

    During his incarceration, O'Dell told Steven Watson, a fellow inmate, he had strangled Schartner after she refused to have sexual intercourse with him.




    Speedy Trial

    After the General District Court's finding of probable cause, O'Dell was incarcerated for 18 months before his trial commenced. Citing this delay, O'Dell claims violations of both constitutional and statutory speedy trial protections. We find no merit in either claim.

    If the delay in the commencement of trial is attributable to a defendant, there is no violation of his constitutional right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 528-29, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972); Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 26 (1983). Code § 19.2-243 requires that the trial of an incarcerated defendant commence within five months after probable cause is found. This statutory requirement, however, does not apply to delays caused by continuances granted on the incarcerated defendant's motion.

    The orders in the record show O'Dell requested the following continuances of the trial: May 16, 1985 to August 20, 1985; September 24, 1985 to November 12, 1985; November 12, 1985 to February 10, 1986; February 10, 1986 to March 31, 1986; March 31, 1986 to June 30, 1986; June 30, 1986 to August 11, 1986, or a total of approximately 14 months. Because only four months of the period are chargeable to the Commonwealth, we find no constitutional or statutory violation of O'Dell's speedy trial rights.


    Suppression Motion

    O'Dell moved the trial court to suppress the introduction of his clothing in evidence because of a police search and seizure allegedly in violation of his constitutional rights. O'Dell's grounds for [234 Va. 682] suppression ignore the facts here and the controlling constitutional principles.

    First, O'Dell contends Craig's consent to the police search of her garage was invalid because of his expectation of privacy in the garage. Craig had ordered O'Dell to leave her house a week before the search, and thereafter he had been living in his car. A few...

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