Spencer v. Com.

• Citation: 238 Va. 563,385 S.E.2d 850
• Decision Date: 10 November 1989
• Docket Number: 890580,Nos. 890579,s. 890579
• Parties: Timothy Wilson SPENCER v. COMMONWEALTH of Virginia (Two Cases). Record
• Court: Supreme Court of Virginia

Page 850

385 S.E.2d 850

238 Va. 563

Timothy Wilson SPENCER v. COMMONWEALTH of Virginia (Two Cases).

Record Nos. 890579, 890580.

Supreme Court of Virginia.

Nov. 10, 1989.

Jeffrey L. Everhart (David J. Johnson, Tuck & Everhart, Richmond, on brief), for appellant.

Donald R. Curry, Sr. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richard A. Conway, Asst. Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., and COMPTON, STEPHENSON, RUSSELL, THOMAS, ^* WHITING and LACY, JJ.

STEPHENSON, Justice.

In a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, Timothy Wilson Spencer was convicted of the capital murder of Dr. Susan Hellams, i.e., the willful, deliberate, and premeditated murder during the commission of, or subsequent to, rape, former Code § 18.2-31(e) (1987 Cum.Supp.). The jury also convicted Spencer of the rape of Hellams, of the forcible sodomy of Hellams, and of burglary, i.e., breaking and entering Hellams' dwelling house in the nighttime with intent to commit rape.

The jury fixed Spencer's punishment at death for the capital murder conviction, at life imprisonment for both the rape and the sodomy convictions, and at 20 years' imprisonment for the burglary conviction. Following a sentencing hearing, the trial court imposed the penalties fixed by the jury and entered final judgments on the jury verdicts.

We consolidated Spencer's appeal of the capital murder conviction with the automatic review of his death sentence, Code §§ 17-110.1(A) and -110.1(F), and gave them priority on our docket, Code § 17-110.2 (Record No. 890579). On May 17, 1989, we ordered that Spencer's appeals of the rape, sodomy, and burglary convictions be certified from the Court of Appeals for our review (Record No. 890580). We consolidated these appeals with the appeal and review of the capital murder conviction and death sentence.

I

Pursuant to well-established principles of appellate review, we must view the evidence and all inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial. Dr. Hellams, a resident in neurosurgery at the Medical College of Virginia, was last seen alive about 10:50 p.m., on October 2, 1987. At that time, she was in the area of 9th and Capitol Streets in the City of Richmond and was preparing to return to her Southside Richmond home located at 514 West 31st Street.

On October 2, 1987, Spencer resided at 1500 Porter Street in the City, a distance of approximately 1.8 miles from Hellams' residence. The record shows it takes approximately 17 minutes to walk that distance. Spencer left his residence at 7:45 p.m., on October 2, and did not return until 1:45 a.m., on October 3.

Dr. Hellams' husband, Marcel Sleg, returned to the couple's home about 1:30 to 1:40 a.m., on October 3. After taking a shower, Sleg observed that his wife was not in their bed, and shortly thereafter he discovered her dead body on the floor of the bedroom closet. The police received Sleg's telephone call for assistance at 1:56 a.m.

Hellams' body was nude above the waist. Her skirt and slip had been pulled up, and her underpants had been removed. She was wearing red socks and a red shoe on her left foot.

Two ligatures were around Hellams' neck, one made from a red belt and the other from a blue cloth belt. Hellams' wrists were tied tightly together behind her back with an electrical extension cord and another blue belt. Another belt was around the lower portion of Hellams' left leg.

A six-foot high security fence enclosed the rear yard of the victim's residence. A second-story porch was immediately outside Hellams' bedroom window. A large portion of the screen from the bedroom window had been cut and removed and was found by the police on the floor of the porch. The screen and window were intact when Sleg last left the house.

The medical examiner testified that "ligature strangulation" caused Hellams' death. The medical examiner also testified that the victim had sustained a fractured nose, a blunt force injury to the lower lip that had caused bleeding and swelling, and various other contusions and abrasions. "[C]urva-linear marks" with "black material embedded in the abrasion" were found on the back of the victim's right leg. The medical examiner opined that such marks are typical of those made by the edge of a shoe.

The medical examiner also found body fluids on the victim's back and in the gluteal fold, right beneath the buttocks. This fluid had the strong musky odor of seminal fluid. The victim had sustained small mucosal tears of the anal ring. The medical examiner testified that these injuries are consistent with the anus having been penetrated "by a hard object, such as a penis."

The Commonwealth's expert serologist identified spermatozoa on the swabs taken from the victim's vagina, rectum, and perianal region. The serologist also identified seminal fluid and spermatozoa on Hellams' skirt and slip.

A sample of Spencer's blood was analyzed by the serologist. The analysis revealed that Spencer is a type O secretor, PGM type 1, PGM subtype 1+, and peptidase A type 1. Only 13 percent of the population, including men, women, and children, have this particular combination of blood types.

Hellams was a non-secretor, PGM type 2-1, PGM subtype 2+1-, and peptidase A type 1. Hellams' husband is a non-secretor, PGM type 2-1, and PGM subtype 2+1+.

The serologist identified type O secretions on the swabs taken by the medical examiner from the victim's perianal area. The serologist also identified type O secretions in the seminal fluid found on the victim's skirt and slip. The serologist testified that the identified secretions must have originated from a third party because both Hellams and Sleg were non-secretors. The expert further stated that the secretions in the seminal fluid found on the victim's skirt and slip were consistent with Spencer's type and inconsistent with Sleg's type. Additionally, the secretions in the seminal fluid found on the perianal swabs were consistent with a combination of the blood types of Spencer and the victim and inconsistent with a combination of the blood types of the victim and her husband.

Spencer's blood sample and a sample of the seminal fluid found on the victim's slip were subjected to a "DNA Printing" procedure. ^{1 1} The DNA printing procedure established that the DNA molecules extracted from Spencer's known blood sample matched the DNA molecules extracted from the seminal fluid found on the victim's slip. ²

The defense presented no evidence in the guilt phase of the trial.

II

As in Spencer v. Commonwealth, 238 Va. 275, 280-81, 384 S.E.2d 775, 777 (1989) (Spencer I ), and in Spencer v. Commonwealth, 238 Va. 295, 302, 384 S.E.2d 785, 790 (1989) (Spencer II ) (which were decided the same day), Spencer again challenges the constitutionality of the death penalty statutes, "both on their face and as applied." He first contends that "[t]he death penalty is, in all circumstances, cruel and unusual punishment prohibited by the eighth and fourteenth Amendments to the United States Constitution." We considered and rejected this contention in Spencer I and in Spencer II. In doing so, we adhered to our repeated holding that the death penalty does not constitute cruel and unusual punishment. See, e.g., Hoke v. Commonwealth, 237 Va. 303, 306, 377 S.E.2d 595, 597, cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989); Pope v. Commonwealth, 234 Va. 114, 121-22, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 716 (1988); Gray v. Commonwealth, 233 Va. 313, 320, 356 S.E.2d 157, 160-61, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); Beaver v. Commonwealth, 232 Va. 521, 527, 352 S.E.2d 342, 345-46, cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987); Stockton v. Commonwealth, 227 Va. 124, 134-35, 314 S.E.2d 371, 378, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Whitley v. Commonwealth, 223 Va. 66, 77-78, 286 S.E.2d 162, 168-69, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982); Bassett v. Commonwealth, 222 Va. 844, 851, 284 S.E.2d 844, 849 (1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982); Martin v. Commonwealth, 221 Va. 436, 439-40, 271 S.E.2d 123, 125-26 (1980); Clark v. Commonwealth, 220 Va. 201, 212, 257 S.E.2d 784, 791 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980); and Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). Accordingly, we reject Spencer's contention that the death penalty constitutes cruel and unusual punishment.

Spencer also contends that the death penalty statutes are unconstitutional because the sentencing procedure provided for in the statutes "gives improper and excessive authority to the jury." We previously rejected this claim in Smith, 219 Va. at 476-78, 248 S.E.2d at 148-49, and we reaffirm that holding.

We also reject Spencer's contention that the statutory aggravating factors are unconstitutionally vague. See, e.g., Spencer II, 238 Va. at 302, 384 S.E.2d at 790; Hoke, 237 Va. at 305, 377 S.E.2d at 597; Gray, 233 Va. at 320-21, 356 S.E.2d at 161 (compiling cases). ³

III

In a pretrial hearing on the admissibility of the DNA print identification evidence, Dr. Richard J. Roberts, Assistant Director of the Cold Spring Harbor Laboratory in New York, testified as an expert for the Commonwealth. While qualifying Dr. Roberts as an expert, the Commonwealth, over Spencer's objection, was permitted to show that the director of the laboratory had won the Nobel Prize. On appeal, Spencer contends that this testimony was irrelevant and prejudicial, and, therefore, the trial court "violated [his] rights to due process, equal protection and a fair trial as guaranteed by the 5th, 6th and 14th Amendments to the United States Constitution."

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