Stewart v. Com., s. 921500

• Citation: 427 S.E.2d 394,245 Va. 222
• Decision Date: 26 February 1993
• Docket Number: Nos. 921500,921501,s. 921500
• Court: Supreme Court of Virginia
• Parties: Kenneth Manuel STEWART, Jr. v. COMMONWEALTH of Virginia. Record

Page 394

427 S.E.2d 394

245 Va. 222

Kenneth Manuel STEWART, Jr. v. COMMONWEALTH of Virginia.

Record Nos. 921500, 921501.

Supreme Court of Virginia.

Feb. 26, 1993.

Steven R. Grant, Webster Hogeland, Bedford, for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

WHITING, Justice.

In the first phase of a bifurcated trial conducted pursuant to the provisions of Code §§ 19.2-264.3 and -264.4, a jury convicted Kenneth Manuel Stewart, Jr., of the first degree murder of his wife, Cynthia Jeanne Stewart, and the use of a firearm in the commission of that murder. The jury also convicted Stewart of the capital murder of his five-month-old son, Jonathan Edward Stewart, as a part of the same act or transaction as the killing of Cynthia Stewart, Code § 18.2-31(7), and the use of a firearm in the commission of Jonathan's murder. The jury fixed the punishments for the noncapital offenses at life imprisonment for the murder of Cynthia Stewart and two and four years imprisonment, respectively, for the use of a firearm in the two murders.

In the second phase of the trial, the jury fixed Stewart's punishment at death for the capital murder of Jonathan, based on both the "vileness" and "future dangerousness" predicates of the capital murder statute. Code § 19.2-264.4. After considering a postsentence report prepared by a probation officer under the provisions of Code § 19.2-264.5, the trial court imposed the sentences fixed by the jury.

We have consolidated our automatic review of Stewart's death sentence with his appeal of his capital murder conviction, Code § 17-110.1, and certified from the Court of Appeals Stewart's convictions of the remaining offenses. Code § 17-116.06. Also, we have given these matters priority on our docket. Code § 17-110.2.

I. FACTS

Because the Commonwealth prevailed in the trial court, we state the facts and all inferences that can reasonably be drawn from those facts in the light most favorable to the Commonwealth.

For some time prior to the December 10, 1990 birth of their child, Jonathan, Stewart and his wife had been living in a house owned by her parents in Bedford County. Stewart lost his job the following February, and the couple separated in early April 1991. Mrs. Stewart and Jonathan remained in the house, and Stewart moved to a trailer occupied by his friend Paul Brooks.

Stewart was not permitted to take Jonathan from the house, and could only visit him while Mrs. Stewart was at home. When Stewart returned from those visits, he expressed anger to Brooks because of the alleged interference of his wife's parents in his affairs and because of the restrictions placed upon his visitations with Jonathan. On one of these occasions, Stewart made a remark to Brooks to the effect that "I just ought to go ahead and kill it and get it over with, just solve this problem."

On Sunday afternoon, May 12, 1991, armed with a .25-caliber semi-automatic pistol concealed in his boot, Stewart went to visit Jonathan. During this visitation with Jonathan, Stewart claimed that he unsuccessfully attempted to persuade Mrs. Stewart to reconcile with him.

After Mrs. Stewart's alleged rejection of his pleas, Stewart shot her twice. Although Stewart remembered shooting Mrs. Stewart, initially he claimed that he remembered nothing after that shooting until he found himself driving on a New York freeway. Accordingly, the sequence of events at the scene can be reconstructed only from the following inferences that could reasonably be drawn from the physical evidence at the scene, and from the testimony of expert witnesses who interpreted the physical evidence and photographs of such evidence.

Stewart shot Mrs. Stewart in an upstairs bedroom. He fired the first shot into Mrs. Stewart's head just above the bridge of her nose at a range of six inches or less, as the two stood facing each other. When Mrs. Stewart fell, her forehead came to rest on the surface of a nearby bed, close to its foot. Stewart then fired a second shot about two inches above Mrs. Stewart's front hairline into the frontal area of her skull as she lay on the bed.

Later, Stewart went downstairs, where he killed Jonathan by firing two shots into the side of his head, near his ear. One shot was fired at a range of no more than an inch or two. Stewart then carried Jonathan's body upstairs and placed it in the arms of Mrs. Stewart's body. Some time before, Stewart had moved Mrs. Stewart's body closer to the head of the bed with some force, causing her blood to spatter on the wall above the headboard.

Stewart then turned off the kitchen stove in which Mrs. Stewart had been cooking a casserole, put the family dogs on the back porch, closed both porch doors so that the dogs could not get out, turned on Mrs. Stewart's telephone answering machine, got her house key, and locked the house. Thereafter, Stewart took his wife's car, rather than his older pickup truck, and drove it to New York State. As Stewart was driving through Bedford County, he threw the gun into undergrowth some distance from the road.

Approximately seven o'clock that same evening, Ruth Schultz, Mrs. Stewart's mother, came to the house from her nearby residence. After noticing blood in Jonathan's play pen, Mrs. Schultz went upstairs, where she found the bodies of her daughter and grandson on the bed.

About 3:00 or 4:00 a.m. on Tuesday morning, Stewart telephoned his friends Carolyn and Paul Brown, who lived in Bedford County, from Cleveland, Ohio, and told them that he had killed his wife and son and planned to "turn himself in" to the police. Shortly after noon on Wednesday, the police in a Cleveland suburb arrested Stewart for public intoxication and disorderly conduct.

At first, Stewart told the police that he lived in Cleveland. However, after receiving information from the National Criminal Information Center that there was "a double homicide warrant [for Stewart's arrest] out of Bedford County, Virginia," the police arrested Stewart on that charge and notified the sheriff's office in Bedford County.

II. ISSUES PREVIOUSLY DECIDED

Among his 44 assignments of error, Stewart raises a number of issues that, in previous decisions, we have resolved adversely to his present contentions. Because Stewart has advanced no persuasive reason to depart from those decisions, we will reaffirm them and reject Stewart's contentions. These issues and the cases resolving them follow.

1. The court should have ordered the Commonwealth to comply with one of Stewart's discovery motions to "identify the evidence, and all of it, upon which it intends to rely in seeking imposition of the death penalty based on one of the 'vileness' factors." Resolved by Strickler v. Commonwealth, 241 Va. 482, 490-91, 404 S.E.2d 227, 233, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d 337 (1991), and Quesinberry v. Commonwealth, 241 Va. 364, 371-72, 402 S.E.2d 218, 223, cert. denied, 502 U.S. 834, 112 S.Ct. 113, 116 L.Ed.2d 82 (1991).

2. Stewart should have been allowed additional peremptory strikes in the selection of a jury. Resolved by Yeatts v. Commonwealth, 242 Va. 121, 127, 410 S.E.2d 254, 258 (1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1500, 117 L.Ed.2d 639 (1992); Strickler, 241 Va. at 489, 404 S.E.2d at 232; and Spencer v. Commonwealth, 240 Va. 78, 84, 393 S.E.2d 609, 613, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990).

3. Stewart should have been allowed a voir dire examination of each venireman individually and out of the presence of the other veniremen. Resolved by Fisher v. Commonwealth, 236 Va. 403, 410, 374 S.E.2d 46, 50 (1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201 (1989).

4. The trial court should have sustained Stewart's motions to prohibit imposition of the death penalty and to dismiss the capital murder indictment because of the following constitutional infirmities:

a. Both the "vileness" and "future dangerousness" statutory predicates for imposition of the death penalty are impermissibly vague because the jury's discretion is unlimited and unguided. Resolved by Satcher v. Commonwealth, 244 Va. 220, 227, 421 S.E.2d 821, 826 (1992), and Smith v. Commonwealth, 219 Va. 455, 476-78 248 S.E.2d 135, 148-49 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

b. The death penalty is cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. Resolved by Satcher, 244 Va. at 228, 421 S.E.2d at 826, and Smith, 219 Va. at 476, 248 S.E.2d at 148.

c. The use of prior convictions and prior unadjudicated criminal conduct to establish future dangerousness violates the constitutional provisions against double jeopardy. Resolved by Watkins v. Commonwealth, 238 Va. 341, 352, 385 S.E.2d 50, 56 (1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1797, 108 L.Ed.2d 798 (1990).

d. In Virginia, defendants are denied a meaningful appellate review because this Court "has never set aside a death sentence for misapplication of an aggravating factor and has refused to consider challenges to the 'vileness' factor when there was also a finding of future dangerousness." Resolved by Edmonds v. Commonwealth, 229 Va. 303, 314-15, 329 S.E.2d 807, 815, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985), in which we rejected a similar unparticularized claim.

e. A defendant who has been sentenced to death has no meaningful appellate review by imposition of a 50-page limitation upon his opening brief under Rule 5:26. Resolved by Satcher, 244 Va. at 228, 421 S.E.2d at 826. ¹

5. The jury should have been informed of Stewart's ineligibility for parole for 30 years because that information would necessarily affect their view of his future dangerousness. Resolved by Jenkins v. Commonwealth, 244 Va. 445, 459-60, 423 S.E.2d 360, 369-70 (1992), and Watkins, 238 Va. at 351, 385 S.E.2d at 56.

III. PRETRIAL MATTERS

A. Motion for...