Swann v. Com., s. 931434

• Decision Date: 25 February 1994
• Docket Number: Nos. 931434,931435,s. 931434
• Citation: 441 S.E.2d 195,247 Va. 222
• Parties: Calvin Eugene SWANN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 195

441 S.E.2d 195

247 Va. 222

Calvin Eugene SWANN v. COMMONWEALTH of Virginia.

Record Nos. 931434, 931435.

Supreme Court of Virginia.

Feb. 25, 1994.

[247 Va. 224] Lawrence D. Gott, Danville (Phyllis Marie Mosby, on brief), for appellant.

Donald R. Curry, Sr. Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: All the Justices.

WHITING, Justice.

On November 7, 1992, Conway Forrest Richter was shot and killed at his home in Danville. Six weeks later, Calvin Eugene Swann was indicted for the following crimes arising from that homicide: (1) capital murder in the commission of a robbery while armed with a deadly weapon; (2) robbery; (3) burglary; (4) use of a sawed-off shotgun during the robbery; and (5) possession of a firearm after a previous felony conviction.

At trial on the capital murder and robbery charges, a jury found Swann guilty of both crimes and fixed his punishment for the robbery at life imprisonment. In the second phase of the bifurcated capital murder trial, the jury fixed Swann's punishment at death, upon a finding of "future dangerousness." Code § 19.2-264.4. After considering a probation officer's report and hearing additional argument, the court imposed the sentences fixed by the jury on both charges. ¹

Swann is before this Court for automatic review of his death sentence, Code § 17-110.1(A), and we have consolidated that review with the appeal of his capital murder conviction. Code § 17-110.1(F). Also, we have certified Swann's appeal of his robbery conviction from the Court of Appeals, transferring jurisdiction over that appeal to this Court pursuant to Code § 17-110.1(A), thereby consolidating the robbery and capital murder appeals.

Since the Commonwealth prevailed in the trial court, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth. Mueller v. Commonwealth, 244 Va. 386, 390, 422 S.E.2d 380, 383 (1992), cert. denied, 507 U.S. 1043, 113 S.Ct. 1880, 123 L.Ed.2d 498 (1993); Cheng v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990).

EVIDENCE

On November 6, 1992, Calvin Eugene Swann and Melvin Frazier, Jr., were looking for someone to rob. However, they abandoned the plan.

The next night, Swann wanted to "shoot" cocaine and needed money to buy it. Arming himself with his shotgun, Swann left his house in search of a "house to rob." Because Swann had encountered physical resistance from a victim of one of Swann's prior burglaries, Swann felt that he needed the shotgun as protection in his planned robbery.

As Swann roamed the streets of Danville near 10:00 p.m., he walked past Richter's house and noticed the front door was open. Wearing a face mask and carrying his shotgun, Swann opened the storm door, entered the living room, and saw Richter seated at his kitchen table eating supper. Swann pointed the shotgun at Richter and said, "This is a stickup."

According to Swann, Richter got up from the kitchen table and charged toward Swann, who "duck[ed] down a little bit to aim, then ... aimed and shot [Richter]" from a distance of eight to ten feet. Although Richter was struck in the center of his chest and bled profusely, he kept coming toward Swann, grabbed him, and pushed him out the front door.

After Richter collapsed on the front porch, Swann went through Richter's pockets, removed Although Richter died within 30 minutes of being shot, his body was not discovered until the next morning. Finding shotgun pellets embedded in Richter's chest, the police began looking for a shotgun and discovered that on November 30, Swann had sold his shotgun to Sherman Douglas Lee.

approximately $60 from Richter's wallet, and fled. Swann attempted to destroy the evidence of his involvement in Richter's murder by washing his bloody jacket and shotgun, throwing away other bloody clothes, and hiding the shotgun.

On December 22, after obtaining Swann's waiver of the rights articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), David L. Dalton, a Danville police detective, interviewed him in the city jail where Swann was serving a sentence imposed on other charges. Initially, Swann denied having or selling a shotgun. However, after Dalton revealed police information inconsistent with Swann's denial, Swann changed his story. In his first written statement, Swann admitted that he had sold his shotgun to Lee, but denied knowledge of these crimes. Swann suggested that if there were any bloody clothes at his house, those clothes could have been worn by Frazier, who knew that Swann had the shotgun and who "got caught with some of [Swann's] shells."

Shortly after Swann signed this statement, Dalton tried to provoke a reaction from Swann by telling him that the police were planning to conduct scientific experiments on some of the physical evidence found at the scene. Dalton also advised Swann that a so-called "Retinal Image Machine" was being developed which would reflect the "last impression or vision" that a dead person had seen. However, Swann did not react, nor did he retract his written statement.

According to Dalton, Swann became "defensive" when Dalton later told Swann the police (1) knew that Swann had told another person that he had killed Richter, (2) knew that Swann had washed his bloody clothes shortly after killing Richter, and (3) "had enough to prove that he did commit the murder and if there was a robbery involved that it would be capital murder and ... he could get death." Swann asked Dalton what the courts would do with him if he were found to have a mental problem and whether he "could get the electric chair if he was found mentally insane." After some discussion of Swann's prior confinements in a mental institution, Swann finally confessed to killing Richter and agreed to "tell [Dalton] about it." The substance of Swann's subsequent written account of Richter's robbery and murder is contained in the preceding statement of the evidence.

After indictment, on Swann's motion, the court appointed Dr. Stanton E. Samenow, a clinical forensic psychologist, to examine Swann and assist in his defense. Following Dr. Samenow's examination, Swann gave the notice required by Code § 19.2-264.3:1(E) that he would present the testimony of an expert witness to support a claim in mitigation if he should be convicted of capital murder. Accordingly, on the Commonwealth's motion, the court appointed Dr. Arthur Centor, another clinical forensic psychologist, to evaluate Swann concerning "the existence or absence of mitigating circumstances relating to [Swann's] mental condition at the time of the offense." Code § 19.2-264.3:1(F). Both psychologists and Dr. Miller M. Ryans, a psychiatrist called as a witness by Swann, testified during the sentencing phase of the trial.

ISSUES PREVIOUSLY DECIDED

Swann raises legal issues that we have previously decided adversely to his contentions. Swann advances no persuasive reasons to modify our views, and we perceive none. Therefore, we adhere to our previous rejection of these contentions and will not discuss them beyond citing representative cases in which the contentions were expressly rejected. These contentions are:

A. Capital murder defendants are constitutionally entitled to extra peremptory challenges of jurors. Rejected in Beavers v. Commonwealth, 245 Va. 268, 273, 427 S.E.2d 411, 416, cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 130 (1993); Stewart v. Commonwealth, 245 Va. 222, 229, 427 S.E.2d 394, 399, cert. denied, 510 U.S. 848, 114 B. Capital murder defendants have a constitutional right to individual and sequestered voir dire of prospective jurors. Rejected in Stewart v. Commonwealth, 245 Va. at 229, 427 S.E.2d at 399, and Fisher v. Commonwealth, 236 Va. 403, 410-11, 374 S.E.2d 46, 50 (1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201 (1989).

S.Ct. 143, 126 L.Ed.2d 105 (1993); Quesinberry v. Commonwealth, 241 Va. 364, 371, 402 S.E.2d 218, 223, cert. denied, 502 U.S. 834, 112 S.Ct. 113, 116 L.Ed.2d 82 (1991); and [247 Va. 228] Buchanan v. Commonwealth, 238 Va. 389, 405, 384 S.E.2d 757, 767 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990).

C. The capital murder and death penalty statutes in Virginia are unconstitutional in the following respects:

1. The provisions for penalty phase instructions inadequately inform the jury regarding its consideration of mitigation evidence. Rejected in Satcher v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826 (1992), cert. denied, 507 U.S. 933, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993), and Watkins v. Commonwealth, 229 Va. 469, 490-91, 331 S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986).

2. The "future dangerousness" predicate of Code § 19.2-264.4 is impermissibly vague. Rejected in Stewart, 245 Va. at 229, 427 S.E.2d at 399-400, Satcher, 244 Va. at 227, 421 S.E.2d at 826, and M. 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). ²

3. The statutory scheme impermissibly allows admission of evidence of unadjudicated crimes in the sentencing phase without requiring proof of the commission of those crimes beyond a reasonable doubt. Rejected in Satcher, 244 Va. at 228, 421 S.E.2d at 826, and Stockton v. Commonwealth, 241 Va. 192, 210, 402 S.E.2d 196, 206, cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991).

4. The statutory scheme impermissibly permits admission of hearsay evidence in the probation officer's post-sentence report. Rejected in O'Dell v. Commonwealth, 234 Va. 672, 701-702, 364 S.E.2d 491, 507-508, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988).

5. The statutory appellate review procedures for death penalty cases, as written and as applied, violate a defendant's constitutional rights. Rejected in Satcher, 244 Va. at 228, 421 S.E.2d at 826, ...