442 S.E.2d 678 (Va. 1994), 931646, Mickens v. Commonwealth

Docket Nº931646, 931647.
Citation442 S.E.2d 678, 247 Va. 395
Opinion Judge[10] Stephenson
Party NameWalter MICKENS, Jr. v. COMMONWEALTH of Virginia.
Attorney[7] Bryan L. Saunders (Warren F. Keeling, on brief), for appellant.
Case DateApril 15, 1994
CourtSupreme Court of Virginia

Page 678

442 S.E.2d 678 (Va. 1994)

247 Va. 395

Walter MICKENS, Jr.

v.

COMMONWEALTH of Virginia.

Nos. 931646, 931647.

Supreme Court of Virginia.

April 15, 1994.

Page 679

[Copyrighted Material Omitted]

Page 680

[247 Va. 397] Bryan L. Saunders (Warren F. Keeling, on brief), for appellant.

Robert Q. Harris, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., Virginia B. Theisen, Asst. Atty. Gen., on brief), for appellee.

Page 681

[247 Va. 395] Present: All the Justices.

[247 Va. 397] STEPHENSON, Justice.

In these appeals, we review a capital murder conviction and a death sentence imposed upon Walter Mickens, Jr., together with a conviction of attempted forcible sodomy.

[247 Va. 398]

I

PROCEEDINGS

In the first phase of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, a jury found Mickens guilty of the capital murder of Timothy Jason Hall, i.e., the willful, deliberate, and premeditated killing of Hall in the commission of, or subsequent to, attempted forcible sodomy, in violation of Code § 18.2-31(5). The jury also found Mickens guilty of attempted forcible sodomy and fixed his punishment for that offense at 10 years' imprisonment.

In the second phase of the trial, the jury fixed Mickens' punishment at death for the capital murder of Hall, based upon both the "vileness" and the "future dangerousness" predicates. Code § 19.2-264.2. After considering a post-sentence report, prepared by a probation officer pursuant to Code § 19.2-264.5, the trial court imposed the sentences fixed by the jury and entered judgments thereon.

We have consolidated the automatic review of Mickens' death sentence with his appeal of the capital murder conviction. Code § 17-110.1(F). By order entered November 12, 1993, Mickens' appeal of the attempted forcible sodomy conviction was certified from the Court of Appeals. Code § 17-116.06. We have consolidated that appeal with the capital murder appeal and have given both appeals priority on our docket. Code § 17-110.2.

II

THE CRIMES

Having prevailed at trial, the Commonwealth is entitled to have the evidence and all reasonable inferences deducible therefrom stated in the light most favorable to the Commonwealth. On March 28, 1992, Timothy Jason Hall, age 17, resided with 14-year-old Raheem Gordon and Gordon's father in an apartment located at 28th and Washington Streets in the City of Newport News. Hall and Gordon were roommates, and they often exchanged clothes, including shoes.

That day, between 7:00 and 8:00 p.m., Hall gave Gordon a ride, in Hall's automobile, to a party at the nearby Towers apartment building. At the time, Hall was wearing a pair of Gordon's Nike brand "Cross Trainer" tennis shoes. He also was wearing blue jeans and a shirt imprinted with either the word, "Duke," or the words, "Miami Hurricanes." Hall had intended to return to the party, but he never did. Neither Gordon nor his father ever saw Hall after that evening.

[247 Va. 399] Vincent West and Bruce Mitchell also attended the party. About 8:00 p.m., they left the party and went to a nearby convenience store. After purchasing a few items and leaving the store, they sat in a park adjacent to the Towers apartment building. While sitting there, West and Mitchell saw a man with a bicycle, hiding in some bushes and looking at them. The man later was identified as the defendant, Mickens.

The following day, Gordon saw Hall's automobile. It was parked on West Avenue, near 28th Street, close to the Towers apartment building and in the same place it had been parked the previous night.

On March 30, 1992, about 12:30 p.m., Chris Basford was walking along the James River between 25th and 30th Streets when he saw a body beneath an abandoned construction company building. The body of a male Caucasian was lying face down on a mattress under a sheet of plywood. The body was nude from the waist down, except for white athletic socks, and its legs were spread apart approximately 12 inches. The victim was identified as Timothy Jason Hall.

Pubic hairs were recovered from the victim's buttocks. Bloody "transfer" stains were evident on the outsides of the victim's thighs, and a white liquid substance was observed close to the victim's anus. 1 Cigarette

Page 682

butts lying near the mattress also were recovered, and the mattress cover was seized for scientific examination. Nearby, the police found a pair of men's blue jeans and white underwear shorts that had washed up in the surf of the river. Gordon identified the clothes as those worn by Hall on the evening of March 28, 1992.

An autopsy revealed 143 separate "sharp force injuries" to the victim's body. Of the injuries, 62 were paired stab injuries that could have been caused by a multiple-blade knife, 13 were single stab wounds, and three were paired incised wounds.

The medical examiner who performed the autopsy concluded that the victim had bled to death and that 25 of the 143 wounds were fatal. The fatal wounds included four pairs of stab wounds that punctured the right lung, three single stab wounds that punctured the left lung, seven stab wounds to the skull that penetrated the brain, a stab wound to the forehead that also penetrated the brain, one pair of stab wounds that perforated the liver, and a pair of stab wounds to the right neck that severed the carotid artery and the jugular vein.

The medical examiner opined that the fatal wounds may not have caused instant death. Instead, she estimated that the victim could have [247 Va. 400] lived as long as 30 to 40 minutes after infliction of the last wound and that, during this time, the victim may have been conscious.

On the evening of April 4, 1992, the police were informed that a black male, wearing a blue and white jacket and riding a bicycle, had assaulted a juvenile. Responding to this information, Police Officer D.A. Seals and Detective Dallas Mitchell found Mickens riding a bicycle in the parking area of the abandoned construction company building.

Seals exited the police car, displayed his badge, and approached Mickens. Mickens, thereupon, fled on his bicycle. Shortly thereafter, Seals and Mitchell again came upon Mickens as he was being detained by other police officers. Mickens was arrested at 7:00 p.m. on the charges involving the juvenile.

Mickens agreed to talk with the police after being advised of his Miranda rights. Officer Mitchell told Mickens that he knew Mickens had killed Hall, but the officer did not tell Mickens how Hall had been murdered. In denying involvement in Hall's murder, Mickens said, "You didn't find any knife on me; did you?"

The following morning, warrants were obtained charging Mickens with Hall's murder and attempted sodomy. When Officer Seals handed Mickens copies of the warrants, Mickens said, "I accept the warrants, I accept the charges." Seals asked Mickens what was meant by that statement, and Mickens responded, "Mother f__r, if I told you I accept the warrants that means I'm guilty, don't it?"

On April 7, 1992, the police found Michael Jacobs wearing the Nike brand "Cross Trainer" tennis shoes that Hall had been wearing when Gordon had last seen Hall alive. Jacobs told the police that he had bought the shoes from Mickens for $5.00 the previous week.

An examination of the pubic hairs removed from Hall's buttocks revealed that they were from an African-American and were alike in "all identifiable microscopic characteristics" to the pubic hair sample taken from Mickens. The expert who examined the hairs further testified that the hairs could not have originated from Hall because he was a Caucasian. The witness also stated that tissue was attached at the roots of the hairs, indicating the hairs had been forcibly removed, possibly by the rubbing of the genitals against Hall's buttocks.

An examination of a stain found on the mattress cover revealed human sperm. Through DNA analysis (RFLP type) 2 of the sperm and of blood samples taken from Hall and Mickens, the expert determined that

Page 683

Hall could not have produced the stain. The expert determined [247 Va. 401] further that Mickens' DNA pattern matched the DNA pattern in the stain on the mattress cover. The witness also stated that the approximate percentages of the population that could have deposited the stain was one in 27,000 Caucasians, one in 6,000 African-Americans, and one in 2,000 Hispanics.

The cigarette butts and certain other hairs recovered at the crime scene also were subjected to DNA analysis (PCR type). 3 Both Hall and Mickens had D.Q. Alpha type 1.2, 4. The expert making the comparisons determined that Mickens could not be eliminated as the source of the hairs and of the saliva on the cigarette butts. Mickens smoked cigarettes, and Hall was never known to smoke cigarettes.

Tyrone Brister testified that, when he and Mickens shared a holding cell at the courthouse on March 26, 1993, he asked Mickens why he was in the cell. Mickens answered, "They said I stabbed somebody 140 something times in the head." Mickens then lowered his voice and said, "which I did." Mickens also told Brister that "they" said he also sodomized the victim and stole his sneakers. Again, Mickens lowered his voice and said, "which I did."

III

PRETRIAL MATTERS

A

Motion to Prohibit Imposition of Death Penalty

Mickens filed and argued a pretrial motion to prohibit the imposition of the death penalty. In the motion, he advanced a number of arguments challenging the constitutionality of Virginia's death penalty scheme. The trial court overruled the motion as to each ground, and Mickens advances some of the same arguments on appeal. 4

[247 Va. 402]

1

Mickens contends that the death penalty is unconstitutional per se. He argues that our society's standards of decency have evolved to the point that capital punishment no longer can be tolerated. To allow a state to impose the death penalty, he asserts, constitutes cruel and unusual punishment, in...

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32 practice notes
  • 445 S.E.2d 670 (Va. 1994), 931730, Breard v. Commonwealth
    • United States
    • Virginia Supreme Court of Virginia
    • June 10, 1994
    ...675 the jury to find beyond a reasonable doubt that aggravating factors outweigh mitigating factors. Answered in Mickens v. Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684 (1994). Furthermore, the court failed to properly instruct the jury about how it should consider mitigating evidenc......
  • 450 S.E.2d 365 (Va. 1994), 940445, Williams v. Commonwealth
    • United States
    • Virginia Supreme Court of Virginia
    • November 4, 1994
    ...fixing the death penalty. Rejected in Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75 (1994), and Mickens v. Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684 (1994). B. As written and administered, the statutes fail to adequately inform the jury that a death sentence may b......
  • 452 S.E.2d 669 (Va. 1995), 940533, Wilson v. Commonwealth
    • United States
    • Virginia Supreme Court of Virginia
    • January 13, 1995
    ...v. Commonwealth, 248 Va. 68, 445 S.E.2d 670, cert. denied, --- U.S. ----, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994); Mickens v. Commonwealth, 247 Va. 395, 442 S.E.2d 678, cert. granted and judgment vacated, 513 U.S. ----, 115 S.Ct. 307, 130 L.Ed.2d 271 (1994). [249 Va. 106] Conclusion We find n......
  • Moneymaker v. Commonwealth, 012301 VACA, 0641-00-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 23, 2001
    ...may be established by the conduct or statements of the accused and may be proven by circumstantial evidence. Mickens v. Commonwealth, 247 Va. 395, 408, 442 S.E.2d 678, 687 (1994) (citing Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969)). Although an overt act is require......
  • Request a trial to view additional results
31 cases
  • 445 S.E.2d 670 (Va. 1994), 931730, Breard v. Commonwealth
    • United States
    • Virginia Supreme Court of Virginia
    • June 10, 1994
    ...675 the jury to find beyond a reasonable doubt that aggravating factors outweigh mitigating factors. Answered in Mickens v. Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684 (1994). Furthermore, the court failed to properly instruct the jury about how it should consider mitigating evidenc......
  • 450 S.E.2d 365 (Va. 1994), 940445, Williams v. Commonwealth
    • United States
    • Virginia Supreme Court of Virginia
    • November 4, 1994
    ...fixing the death penalty. Rejected in Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75 (1994), and Mickens v. Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684 (1994). B. As written and administered, the statutes fail to adequately inform the jury that a death sentence may b......
  • 452 S.E.2d 669 (Va. 1995), 940533, Wilson v. Commonwealth
    • United States
    • Virginia Supreme Court of Virginia
    • January 13, 1995
    ...v. Commonwealth, 248 Va. 68, 445 S.E.2d 670, cert. denied, --- U.S. ----, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994); Mickens v. Commonwealth, 247 Va. 395, 442 S.E.2d 678, cert. granted and judgment vacated, 513 U.S. ----, 115 S.Ct. 307, 130 L.Ed.2d 271 (1994). [249 Va. 106] Conclusion We find n......
  • Moneymaker v. Commonwealth, 012301 VACA, 0641-00-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 23, 2001
    ...may be established by the conduct or statements of the accused and may be proven by circumstantial evidence. Mickens v. Commonwealth, 247 Va. 395, 408, 442 S.E.2d 678, 687 (1994) (citing Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969)). Although an overt act is require......
  • Request a trial to view additional results
1 books & journal articles
  • The Decline of Due Process in Capital Sentencing: Ramdass v. Angelone
    • United States
    • Capital University Law Review Nbr. 30-1, May 2002
    • May 1, 2002
    ...9 (Va. 1995). [227] Brief for Respondent at 32, Ramdass v. Angelone, 530 U.S. 156 (2000) (No. 99- 7000). [228] Mickens v. Commonwealth, 442 S.E.2d 678, 681-83 (Va. 1994). [229] Mickens, 457 S.E.2d at 9. [230] Mickens v. Virginia, 513 U.S. 922 (1994). [231] Mickens, 457 S.E.2d at 10. [232] I......