397 S.E.2d 385 (Va. 1990), 900238, Eaton v. Commonwealth

Docket Nº:900238 and 900239.
Citation:397 S.E.2d 385, 240 Va. 236
Opinion Judge:[10] Russell
Party Name:Dennis Wayne EATON v. COMMONWEALTH of Virginia.
Attorney:[7] Thomas M. Blaylock; Anthony F. Anderson for appellant.
Case Date:September 21, 1990
Court:Supreme Court of Virginia

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397 S.E.2d 385 (Va. 1990)

240 Va. 236

Dennis Wayne EATON



Nos. 900238 and 900239.

Supreme Court of Virginia.

September 21, 1990.

Page 386

[Copyrighted Material Omitted]

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[240 Va. 239] Thomas M. Blaylock; Anthony F. Anderson, for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

[240 Va. 236] Present: All the Justices.

[240 Va. 239] RUSSELL, Justice.

[240 Va. 240] On appeal, we review the capital murder conviction and death sentence imposed upon Dennis Wayne Eaton for the murder of Virginia State Master Trooper Jerry L. Hines.


    On May 1, 1989, Eaton was indicted by a Rockbridge County grand jury for capital murder under former Code § 18.2-31(f), now Code § 18.2-31(6), 1 and for the use of a firearm in the commission of a felony under Code § 18.2-53.1. On Eaton's motion, the venue was changed to Fauquier County. At the conclusion of the first stage of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, the jury convicted Eaton of both offenses. The jury fixed his punishment at imprisonment for two years on the firearm conviction. At the penalty phase of the trial, after hearing evidence in aggravation and mitigation, the jury fixed Eaton's punishment at death for capital murder, based upon his "future dangerousness." After reviewing the post-sentence report, the trial court, on January 10, 1990, entered final judgments confirming the two convictions and imposing the penalties fixed by the jury.

    We have consolidated the automatic review of Eaton's death penalty with his appeal of the capital murder conviction in Record No. 900238, Code §§ 17-110.1(A) and -110.1(F), and have given them priority on the docket, Code § 17-110.2. We have also certified from the Court of Appeals of Virginia Eaton's appeal of his firearm conviction, Record No. 900239, and have consolidated the two records for our consideration.


    Pursuant to established principles of appellate review, we will view the evidence in the light most favorable to the Commonwealth. On February 20, 1989, while under the influence of drugs and alcohol, Eaton shot and killed Walter Custer, Jr., in an orchard near the mobile home they shared in Shenandoah County. Later that day,

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    Eaton went to the Shenandoah County home of Ripley Marston, a friend and neighbor. Eaton shot, killed, and robbed his friend, taking Marston's wallet, containing $15, and [240 Va. 241] Marston's 1981 Ford Fairmont automobile. Eaton then returned to his mobile home where he joined his girlfriend, Judy Ann McDonald, who also resided there. The pair decided to flee Shenandoah County in order to avoid Eaton's scheduled court appearance the following week on unrelated burglary and larceny charges; Eaton "didn't want to go to jail." They drove south on Interstate Highway 81.

    Approximately 11:30 p.m. that evening, Virginia State Master Trooper Jerry L. Hines, who was patrolling Interstate 81 in Rockbridge County, caused the Ford to stop. Judy was operating the vehicle, and Hines, who suspected her of driving while intoxicated, called his dispatcher for a radio check on her operator's license. Soon thereafter, Hines asked for a "signal 25," which enabled all state troopers in his vicinity to receive his radio transmissions. In this transmission, Hines was heard saying, "hold still there, hold still there just a minute." In the background, a woman's voice could be heard. Virginia State Trooper Allen K. Golleher, Jr., was just minutes away when he heard Hines request assistance because "he was having a problem with a drunken driver."

    Charles W. Dees, an interstate truck driver, was driving south on Interstate 81 while Hines was in the process of arresting Judy. He "observed a man and a woman and the Trooper all standing between the two vehicles, in the headlights of the Trooper's car." Dees saw the trooper "really chewing ... out" the man who was standing a few feet in front of him while the woman was standing next to the right rear fender of the Ford. Soon thereafter, Dees again saw the Ford approximately eight miles down the road as it sped past him southbound toward Salem.

    Trooper Golleher arrived at the scene at 11:55 p.m. He found Hines' police cruiser with its motor running, the doors closed, and the flashing lights on. As Golleher approached the front of the car, he saw Hines lying dead, face-down, just beyond the bumper, in a pool of blood. Golleher rolled the trooper's body over and saw two bullet holes; one in Hines' neck and another in his chest. Hines' service revolver was still holstered, with the strap secured. Golleher found the registration to Marston's 1981 Ford on the seat of Hines' cruiser and "advised State Police Salem" that Trooper Hines had been killed and that the suspected perpetrator was headed toward Salem in a 1981 Ford. Golleher found a summons in Hines' cruiser citing Judy McDonald for a traffic offense, along with the Ford's registration card, enabling Golleher to [240 Va. 242] transmit the license number and description of the car. The dispatcher broadcast a lookout for the Ford and its occupants.

    Approximately 1:30 a.m., Salem Police Officer Michael E. Green found the Ford in the parking lot of a fast food restaurant in Salem. When Green pulled in behind the Ford, he shone a spotlight into its rear window. Green then got out of his vehicle, drew his revolver, shouted "police," and instructed the two occupants, Eaton and Judy McDonald, to put their hands on their heads. Judy reached for the floor and thereafter Green saw a pistol in Eaton's right hand. Green fired a shot at the car and Eaton put it in gear and drove out of the parking lot. A high-speed chase ensued, in which the cars attained speeds of 100 miles per hour through city streets. Several other officers in their police cruisers joined the pursuit.

    The chase ended when Eaton crashed into a street lamp post. As fire and smoke emanated from the Ford, the police officers took up positions surrounding the vehicle. Before the police could take the pair into custody, Eaton shot Judy in the left temple and then fired a shot into his own head. When they were pulled from the wreckage, Judy was dead, and Eaton was alive but unconscious. His hands were wet and bloody. Subsequently, Eaton was transported to Roanoke Memorial Hospital where he was treated for a gunshot wound to the head.

    The police recovered a .38 caliber handgun from the Ford. According to forensic

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    tests, the handgun was the weapon used to kill Custer, Marston, Hines, and Judy McDonald. Although Eaton had used the gun to shoot Custer, Marston, Judy, and himself, forensic tests for powder residue on his hands were negative. According to a forensic expert, however, prior to testing the residue could have been washed off Eaton's hands by water or blood, both of which were in abundant supply at the scene due to Eaton's injury and the fire department's efforts to douse the burning automobile. Forensic tests performed on Judy's hands demonstrated that she had also handled the weapon. Eight empty shell casings were found in Eaton's pockets. The pistol had been fired at least seven times that day, before the crash. Custer had received three shots, Marston two, and Hines two.

    Approximately 7 a.m. on February 21, 1989, shortly after Eaton received treatment for his wounds, Virginia State Police Special Agent George D. Watts approached him in his hospital room. Watts informed Eaton of his constitutional rights. Eaton indicated [240 Va. 243] that he understood by nodding his head up and down. Watts then asked Eaton if he was "willing to continue to answer questions," to which Eaton indicated "no" by shaking his head. Watts immediately ceased the questioning and left the room.

    Three days later, on February 24, 1989, Eaton was released from the hospital and transferred to the Roanoke County jail, where he was incarcerated for the alleged murder of Judy McDonald. Sergeant Jeffrey Dudley of the Salem Police Department and Detective C.R. Hottinger of the Rockingham County Sheriff's Department arrived at the jail that afternoon to meet with other officers and a Rockingham County prosecutor. Their discussion centered on unrelated burglary and larceny charges pending against Eaton in Rockingham County, for which counsel had been appointed. The prosecutor informed the officers that those charges had been "nolle prossed " earlier that day. Dudley and Hottinger then entered an interrogation room where Eaton was seated.

    The officers advised Eaton of his constitutional rights and he indicated that he understood them. The officers then proceeded to interrogate Eaton and to discuss Judy's burial. Eaton neither admitted nor denied shooting Trooper Hines. When asked whether Judy shot Hines, Eaton stated: "Judy was a good girl. Judy wouldn't hurt anybody." The interrogation eventually ceased when Eaton became confused and asked for "some time to think."

    Two days later, on February 26, Eaton sent a message to Dudley requesting that he deliver a photograph of Judy to the jail. After Dudley delivered the photograph and again advised Eaton of his constitutional rights, Eaton began asking about Judy's wounds, indicating that he thought that she was already dead when he shot her. Eaton also said that "Judy was upset ... that the trooper was going to arrest her." Additionally, Eaton related details of the murders of Custer and Marston.

    Pursuant to a plea agreement dated November 21, 1989, Eaton pleaded guilty in Shenandoah County to the first degree murder of Custer, the capital murder and robbery of Marston, and other related offenses. He was sentenced to three consecutive life terms plus 44 years. Eaton also accepted the provisions of Code § 53.1-151(B1), under which he would be ineligible for parole. He subsequently entered a guilty plea in Rockbridge...

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