Wright v. Com.

• Decision Date: 26 February 1993
• Docket Number: 920811,Nos. 920810,s. 920810
• Citation: 245 Va. 177,427 S.E.2d 379
• Parties: Dwayne Allen WRIGHT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 379

427 S.E.2d 379

245 Va. 177

Dwayne Allen WRIGHT v. COMMONWEALTH of Virginia.

Record Nos. 920810, 920811.

Supreme Court of Virginia.

Feb. 26, 1993.

Leonard R. Piotrowski, Fairfax (Michael S. Arif, Martin, Arif, DeWilde & Soloway, Burke, on briefs), for appellant.

Oliver L. Norrell, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Kathleen B. Martin, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

In these appeals, we review two capital murder convictions and a death penalty imposed upon Dwayne Allen Wright, together with convictions for robbery, use of a firearm in the commission of a robbery, and attempted rape.

I PROCEEDINGS

Wright, a juvenile, was tried as an adult upon a five-count indictment charging (1) capital murder of Saba Tekle in the commission of robbery while armed with a deadly weapon, in violation of Code § 18.2-31(4); (2) capital murder of Saba Tekle subsequent to attempted rape, in violation of Code § 18.2-31(5); (3) robbery of Saba Tekle, in violation of Code § 18.2-58; (4) use of a firearm in the commission of robbery, in violation of Code § 18.2-53.1; and (5) attempted rape of Saba Tekle, in violation of Code § 18.2-61. In a single trial, a At the penalty phase of the capital murder trial, after hearing evidence in aggravation and in mitigation, the jury found the "future dangerousness" predicate to be present and unanimously fixed Wright's punishment at death for the two capital murder convictions. After considering a probation officer's report and conducting a sentencing hearing, the court sentenced Wright in accord with the jury verdict on the capital offenses.

jury found Wright guilty on all offenses as charged.

The court also sentenced Wright to life imprisonment for robbery, to 10 years' imprisonment for attempted rape, and to two years' imprisonment for use of a firearm in the commission of robbery.

We have consolidated Wright's appeal of the capital murder convictions, Record No. 920810, with the automatic review of his death sentence, Code § 17-110.1(A) and (F), and have given them priority on our docket, Code § 17-110.2. We also have certified from the Court of Appeals Wright's appeals of his non-capital convictions, Record No. 920811, and have consolidated the two records for our consideration.

II

PRETRIAL MATTERS

A Death Penalty for Juvenile

Wright was born on September 4, 1972. He was, therefore, 17 years of age when the alleged offenses occurred.

Wright concedes that "there is no substantive Eighth Amendment bar to executing seventeen (17) year olds." He contends, nonetheless, that the punishment violates society's evolving standards of decency. The Supreme Court rejected this precise contention in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), and, consistent with Stanford, we reject Wright's contention.

B Transfer Proceedings

By order entered May 2, 1991, the juvenile and domestic relations district court (the juvenile court) transferred Wright to the circuit court pursuant to the provisions of Code § 16.1-269. ¹ The juvenile court, based upon a study and report by a probation officer and other evidence, made the following findings:

1. [Wright] is not mentally retarded or criminally insane.

2. [Wright] is not, in the opinion of the Court amenable to treatment or rehabilitation as a juvenile through available facilities considering the nature of the present offenses.

3. The interests of the community require that [Wright] be placed under legal restraint or discipline.

Thereafter, Wright appealed the transfer decision to the circuit court, and that court wrote to counsel as follows:

The Court has carefully reviewed all papers, reports and orders and concluded that § 16.1-269 of the Code of Virginia (1950) has been fully complied with. There is neither a need nor a requirement for a further certification hearing in this Court. There is a clear report by a mental health professional and a clear finding by the Juvenile and Domestic Relations District Court Judge that the defendant is not mentally retarded.

Accordingly, the Attorney for the Commonwealth may seek an indictment.

On June 3, 1991, the circuit court entered an order stating that Code § 16.1-269 "has been fully complied with."

Wright contends that his rights were violated when he was transferred from the juvenile court to be tried as an adult in the circuit court. He advances three arguments in support of this contention.

First, Wright claims that his right under the Eighth Amendment of the Federal Constitution was violated because Code § 16.1-269 does not mandate consideration of his moral responsibility or psychological maturity. Relying upon Stanford, Wright argues that he was deprived of the "individualized consideration" required before a state may impose the death penalty on a juvenile. He asserts that "only those juveniles who were given individualized consideration of both their moral culpability and maturity at both the transfer and sentencing hearings" may be given the death penalty. We do not agree.

In Thomas v. Commonwealth, 244 Va. 1, 4-5, 419 S.E.2d 606, 607-08, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 343 (1992), a 17-year-old defendant waived the transfer hearing. Subsequently, he requested such a hearing, but the trial court denied his request. Id. at 7, 419 S.E.2d at 609. On appeal, Thomas contended that a transfer hearing was mandated in a capital case in order to provide the individualized consideration required by the Federal Constitution before a state may impose the death penalty. Id. In rejecting Thomas' contention, we held that the Constitution does not require transfer hearings or additional procedural safeguards for juveniles tried for capital offenses. Id. We noted that "Virginia's death penalty statutes provide for individualized consideration of all those tried on capital charges." Id. ²

Next, Wright asserts that his constitutional rights were violated because a guardian ad litem was not appointed to protect his interests at the transfer hearing. We reject this assertion.

A defendant under a disability who is represented by counsel need not have appointed to him a guardian ad litem unless a statute applicable to a particular case expressly requires such an appointment. Code § 8.01-9(B); Mickens v. Commonwealth, 178 Va. 273, 280-81, 16 S.E.2d 641, 644, cert. denied, 314 U.S. 690, 62 S.Ct. 362, 86 L.Ed. 552 (1941).

Wright was represented by counsel in the transfer hearing, and the transfer statutes (Code §§ 16.1-269 to -272) do not expressly require the appointment of a guardian ad litem. Consequently, the juvenile court was not required to appoint a guardian ad litem to represent Wright.

Finally, Wright claims that the transfer was invalid because the circuit court "failed to address the issue of 'criminal insanity.' " ³ We do not agree.

The juvenile court granted Wright's request for a mental evaluation pursuant to Code §§ 19.2-169.1 and -169.5. The evaluation was made by a qualified psychologist, and the results were given to Wright's counsel. The juvenile court expressly found that Wright "is not ... criminally insane."

An accused is presumed to be sane. Taylor v. Commonwealth, 208 Va. 316, 322, 157 S.E.2d 185, 189 (1967). If the accused intends to rely upon insanity as a defense, he must affirmatively raise the issue. Shifflett v. Commonwealth, 221 Va. 760, 769, 274 S.E.2d 305, 310 (1981). Additionally, an accused must bear the burden of proving his insanity to the satisfaction of the fact finder. Taylor, 208 Va. at 322, 157 S.E.2d at 189-90.

In his appeal of the decision to transfer him to the circuit court, Wright did not raise the question concerning his sanity. Moreover, nothing in the record suggests that Wright may be insane.

C The Confession

A short time after Wright was arrested in the District of Columbia, Thomas On the day of his arrest, Wright was advised of his Miranda rights three times, once by the Washington, D.C. police and twice by Officer Lyons. According to Lyons, Wright said he understood his rights. Before making any statement, Wright signed a consent form. Wright then related the events leading up to the crime and confessed to the shooting of Tekle.

J. Lyons, a Fairfax County police officer, went to the police station where Wright was being held. Although Officer Lyons testified that Wright did not request that his mother be present, the police made two unsuccessful attempts to contact his mother by telephone.

Wright testified that Lyons told him that "it would be better for [Wright] to come out with it. It would help [Wright] out during [his] sentence or something like that." Lyons, however, testified unequivocally that he did not make any promises of leniency to Wright.

Wright had experienced a number of prior arrests. He knew that he had the right to remain silent, to have a lawyer present, and that what he said could be used against him at trial.

Intelligence tests revealed that Wright is in the "borderline range of intelligence" and "functions in at least the low average level." A clinical psychologist who testified on Wright's behalf opined that Wright's test scores were "underestimates." His verbal scores were low because of his lack of a formal education. The witness further opined that "these tests don't measure all aspects of ... Wright's intelligence," and that Wright had "street smarts."

Wright contends that his statement to the police was involuntary and should have been suppressed. He asserts that the " 'totality of the circumstances' approach" shows that his statement was involuntary. He suggests four circumstances, viz: (1) he was a juvenile, (2) his intelligence level was "below average," (3) his mother was not present at the interrogation, and (4) he was promised leniency.

Our standard of review for determining whether an accused's statement was voluntary is set forth in Gray v. Commonwealth, 233 Va....