422 S.E.2d 380 (Va. 1992), 920287, Mueller v. Commonwealth

Docket Nº:920287, 920449.
Citation:422 S.E.2d 380, 244 Va. 386
Opinion Judge:[10] Keenan
Party Name:Everett Lee MUELLER v. COMMONWEALTH of Virginia.
Attorney:[7] Cary B. Bowen; Christopher J. Collins (Bowen and Bowen, on brief), for appellant.
Case Date:September 18, 1992
Court:Supreme Court of Virginia

Page 380

422 S.E.2d 380 (Va. 1992)

244 Va. 386

Everett Lee MUELLER



Nos. 920287, 920449.

Supreme Court of Virginia.

September 18, 1992.

Page 381

[Copyrighted Material Omitted]

Page 382

[Copyrighted Material Omitted]

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[244 Va. 389] Cary B. Bowen, Christopher J. Collins, Richmond (Bowen and Bowen, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

[244 Va. 386] Present: All the Justices.

[244 Va. 389] KEENAN, Justice.

Charity Powers, age ten, disappeared in the early morning hours of October 6, 1990. Four months later, her body was recovered from a shallow grave near the home of Everett Lee Mueller. Mueller was arrested and thereafter confessed to her rape and murder.

At the first stage of a bifurcated trial, conducted pursuant to Code §§ 19.2-264.3 and -264.4, a jury found Mueller guilty of capital murder in violation of Code § 18.2-31(5) and -31(8) (murder in the commission of a rape, and murder of a child under 12 in the commission of an abduction). The jury also convicted Mueller of rape [244 Va. 390] and abduction with intent to defile, and it fixed his punishment at life imprisonment on each of those charges. In the penalty phase of the capital murder trial, the jury fixed Mueller's punishment for capital murder at death, based on findings of both vileness and future dangerousness. After the hearing required by Code § 19.2-264.5, the trial court imposed the sentences fixed by the jury.

Mueller is before this Court for automatic review of his death sentence and, pursuant to Code § 17-110.1, we have consolidated that review with his appeal of his capital murder conviction. We have also certified from the Court of Appeals Mueller's appeal of his noncapital convictions. Code § 17-116.06. Further, in accordance with Code § 17-110.2, we have given this matter priority on our docket. We review the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below. Cheng v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990).



The evidence at trial showed that on the evening of October 5, 1990, Taryn Potts took her daughter, Charity Powers, to a skating rink and left her there for the evening. Potts had arranged to have a friend, Steve Harris, drive Charity home from the rink later that night. However, Harris fell asleep and he did not go to the rink. When Potts arrived home at 3:00 a.m. on October 6, 1990 and discovered that Harris had not brought Charity home, she immediately contacted the police, and they began to look for her daughter.

Kevin H. Speeks, who knew Charity, testified that he saw her at a fast food restaurant near the skating rink about 12:50 a.m. on October 6, 1990. While at the restaurant, Speeks also observed a man with an unkempt appearance, who appeared to be thirty years of age and of medium height, driving a cream-colored station wagon with wood siding through the parking lot several times. As Speeks left the restaurant, he saw that the man was standing on the right

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side of the building. Speeks also saw that Charity was sitting on a curb located on the same side of the building. Sergeant Mike Spraker of the Chesterfield County Police Department testified that Mueller customarily drove a cream-colored station wagon which had wood siding.

[244 Va. 391] In conversations with the police on October 8 and 9, 1990, Mueller admitted speaking with a young, white female on the night of October 5, 1990, at a fast food restaurant that might have been near the skating rink. As a result of information gained in their investigation, the police searched for Charity's body near Mueller's home and on February 8, 1991, they found "a clump of hair and what looked like some white bone sticking out of the ground." Thereupon, the police exhumed Charity's body, which had been buried about 900 feet behind Mueller's house. An investigator also found a knife sticking in the ground about 174 feet from the grave.

The police arrested Mueller on February 12, 1991. After being advised of his Miranda rights, Mueller agreed to talk with Detective R. Wayne Garber of the Chesterfield County Police Department and John M. Palfi, an FBI special agent. Garber and Palfi interrogated Mueller for approximately four and one-half hours. During this interrogation, Mueller stated several times that he was ready to go to jail and that the police should put him in jail. Mueller did not state at any time that he wished to end the questioning. Approximately two hours into the interrogation, Agent Palfi left the room. Shortly thereafter, Mueller asked Detective Garber, "Do you think I need an attorney here?" Garber shook his head slightly from side to side while holding his arms out and his palms up in a shrug-like manner, stating, "You're just talking to us."

Several minutes later, Mueller confessed to the crime. Mueller stated that he had agreed to give Charity a ride home from the restaurant but that he drove her to his house instead. He admitted that he was thinking about having sex with her and he stated that he thought she was 18 or 19 years old. Charity was approximately 4'8"' tall and weighed 90 pounds. Mueller stated that Charity agreed to have sex with him, and she told him that she wanted to go home afterward. Mueller took Charity to the woods behind his house where he had intercourse with her. He stated that although he had a knife nearby, he did not use it.

Mueller stated that he strangled Charity to death because he was afraid that she would report the incident to the police. He also stated that he had been drinking heavily and that, the next morning, he did not know whether he had dreamed about the previous night's events or whether they actually had occurred. When he went to check the woods, he saw Charity's body. He then purchased a shovel from a local store, buried the body, and burned Charity's clothes and jewelry.

[244 Va. 392] After making this confession, Mueller led the police to the site where he had buried the body. He also showed them where he had burned the clothing and jewelry, as well as the area where he had left the knife. This was the same area where the police earlier had found a knife. Additionally, Mueller showed the police the location where he had intercourse with Charity. This area was about 15 feet from where the knife was found.

Dr. Marcella Fierro, who conducted an autopsy on Charity's body, testified that Charity's throat had been cut to the depth of one inch, resulting in a horizontal cut on the epiglottis, which is located on the trachea. She further testified that such a cut would result in the severance of the carotid artery and the jugular vein. According to Dr. Fierro, a person suffering from such an injury would die after several minutes, and there were indications that Charity had bled before her death. Based on these facts, Dr. Fierro testified that the cause of death was an "acute neck injury."

Additionally, Dr. Fierro found that, upon examining the skin over the breast area, there were "irregular holes in the area where each nipple would be." Dr. Fierro testified that she believed this condition to be the result of an injury, but she could not determine its cause or whether it had occurred

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before or after death. Dr. Fierro's examination also revealed a "big gash" on the victim's upper left thigh. Dr. Fierro stated that this could be an injury but that she could not determine whether it had occurred before or after Charity's death. However, Dr. Fierro testified that if it were an injury, it would have resulted from application of a "blunt or sharp force." Dr. Fierro also determined that there were three tears to the hymenal ring of the vagina which were consistent with sexual penetration.



Mueller's appeal raises certain legal issues which are resolved by our prior decisions. We reaffirm our previous rejection of these contentions. Therefore, we will not discuss them beyond giving citations to representative cases in which those issues were decided adversely to Mueller's claims. The issues raised here which have been expressly rejected by this Court are:

  1. The death penalty violates the United States Constitution's prohibition against cruel and unusual punishment. See George [244 Va. 393] v. Commonwealth, 242 Va. 264, 271, 411 S.E.2d 12, 16 (1991), cert. denied, 503 U.S. 973, 112 S.Ct. 1591 [118 L.Ed.2d 308] (1992); Yeatts v. Commonwealth, 242 Va. 121, 126, 410 S.E.2d 254, 258 (1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1500 [117 L.Ed.2d 639] (1992).

  2. The aggravating circumstance of "vileness" set forth in the capital murder statute is unconstitutionally vague. See Spencer v. Commonwealth, 238 Va. 563, 569, 385 S.E.2d 850, 853 (1989), cert. denied, 493 U.S. 1093 [110 S.Ct. 1171, 107 L.Ed.2d 1073] (1990) (Spencer III); Gray v. Commonwealth, 233 Va. 313, 320-21, 356 S.E.2d 157, 161, cert. denied, 484 U.S. 873 [108 S.Ct. 207, 98 L.Ed.2d 158] (1987).

  3. The verdict form was defective because it did not list the mitigating factors mentioned in the statute. See Buchanan v. Commonwealth, 238 Va. 389, 416-17, 384 S.E.2d 757, 773 (1989), cert. denied, 493 U.S. 1063 [110 S.Ct. 880, 107 L.Ed.2d 963] (1990); Watkins v. Commonwealth, 229 Va. 469, 491, 331 S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099 [106 S.Ct. 1503, 89 L.Ed.2d 903] (1986); LeVasseur v. Commonwealth, 225 Va. 564, 595, 304 S.E.2d 644, 661 (1983), cert. denied, 464 U.S. 1063 [104 S.Ct. 744, 79 L.Ed.2d 202] (1984).



    Because Mueller did not address in his brief assignments of error 7, 8, 9, 12, and 16, he is deemed to have waived them. 1 Rule 5:27(e); see Quesinberry v. Commonwealth, 241 Va. 364, 370, 402 S.E.2d 218, 222, cert. denied, 502 U.S. 834, 112 S.Ct. 113, 116...

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