Chichester v. Com.

• Decision Date: 16 September 1994
• Docket Number: Nos. 940130 and 940131,s. 940130 and 940131
• Court: Virginia Supreme Court
• Parties: Carl Hamilton CHICHESTER, v. COMMONWEALTH of Virginia. Record

Page 638

448 S.E.2d 638

248 Va. 311

Carl Hamilton CHICHESTER, v. COMMONWEALTH of Virginia.

Record Nos. 940130 and 940131.

Supreme Court of Virginia.

Sept. 16, 1994.

R. Randolph Willoughby; Bryant A. Webb, for appellant.

Katherine P. Baldwin, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: All the Justices.

WHITING, Justice.

On March 1, 1993, Carl Hamilton Chichester was indicted for (1) the capital murder of Timothy A. Rigney, (2) the robbery of Rigney, (3) the use of a firearm in the commission of Rigney's murder, and (4) the use of a firearm during Rigney's robbery.

In the first stage of a bifurcated trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, a jury convicted Chichester of all four charges and fixed his punishment at imprisonment for the following terms: life for the second charge; two years for the third charge; and four years for the fourth charge. In the second stage of the capital murder trial, the jury fixed his punishment at death based on a finding of "future dangerousness."

After the jury returned its verdicts, the court found Chichester guilty of the four offenses and referred the cases to the probation officer of the court "to thoroughly investigate and report to the Court on December 2, 1993." After considering the probation officer's report covering all four charges, the court imposed the sentences fixed by the jury.

Chichester 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 from his capital murder conviction. We have also certified Chichester's appeal of his robbery and firearm convictions from the Court of Appeals. Code § 17-116.06. Pursuant to Code § 17-110.1(F), we have consolidated those appeals with our automatic review of the sentence of death.

I. EVIDENCE

Since the Commonwealth prevailed in the trial court, we state 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).

Near 10:30 p.m. on August 16, 1991, just before Little Caesars Pizza Restaurant (Little Caesars) in the Manaport Shopping Center in Manassas was to close, two black men wearing dark clothing, "home-made" masks, and gloves entered the restaurant. One man was about three inches taller than the other and both men were armed with semi-automatic pistols.

The shorter man immediately jumped over the service counter, ordered Denise Matney, a restaurant employee, to open one cash register. The shorter man took at least $100 from the register. When Matney was unable to open the second register, the shorter man went into a back room and returned with Rigney, the manager. Although both Matney and Rigney tried to open the register, they were unable to do so. When Rigney indicated that they could not open the register, the taller man, who was standing in front of the counter, shot Rigney in the left upper chest. The bullet pierced a major artery of Rigney's heart, causing him to bleed to death.

After shooting Rigney, the taller man bent down and retrieved the ejected cartridge case from the floor. Both men then ran from Little Caesars toward the rear of the shopping center.

On the night of Rigney's murder, no one at the scene could identify the two men. However, shortly after the murder, Detective William Van Cuyk canvassed the neighborhood for possible witnesses. In doing so, Van Cuyk ascertained from Jack Gill Burdette, Jr., who was walking behind the Manaport Shopping Center between the hours of 10:00 and 11:00 on the night of Rigney's murder, that Burdette had seen two men running in the rear of the shopping center from the area of Little Caesars "dressed in practically black." On February 18, 1993, Burdette told Van Cuyk that he had recognized one of the two men as Chichester, a person with whom he had had "dealings." Burdette testified that in his first interview he had not told Van Cuyk that he had recognized Chichester because he was concerned about the safety of his family.

The bullet that killed Rigney was examined by Julian J. Mason, Jr., a forensic scientist specializing in firearms identification. Mason testified that it was a "Winchester Western brand 380 auto, silver tip hollow-point bullet." The police also took an impression of a latent shoe print left on the counter by the shorter man's right shoe. That print was later processed by Robert B. Hallett, a forensic scientist specializing in the examination and comparison of shoe print impressions left at crime scenes. The police then furnished Hallett with a pair of shoes they had seized from the home of Shelton McDowell, a suspect in the robbery. Hallett compared the design, size, and evidence of wear "according to the mannerism of the principal wearer of that shoe," and a particular "identifying" small cut in the shoe. Hallett identified the right shoe of the pair seized from McDowell's home as the shoe that made the shoe print on the counter.

Police also suspected that McDowell and Chichester were the two armed, masked black men involved in the robbery of employees of Joe's Pizza, another pizza restaurant in the Manassas area, just before it closed the night of August 7, nine days before Rigney's murder.

No one at the scene of the August 7 crime could identify either man. However, Rebecca Sue Hamilton, an employee of Joe's Pizza who had been working during an earlier shift that day, but who was not present at the robbery, identified both men from a photographic spread. Their photographs indicated that they were black. Hamilton testified that Chichester entered the restaurant in the afternoon before the robbery, used the rest room, asked when the restaurant closed, took a menu, and left. Hamilton further testified that less than 30 minutes later, McDowell entered the restaurant, used the rest room, and left.

Near 10:30 p.m. on August 7, two armed and masked black men entered Joe's Pizza just before closing time. One man was taller than the other. Mark Thomas Walls, then 16 years old, was working at Joe's Pizza and had his back to the customer area. Walls became aware of the entry when the taller man put his hand on his shoulder. When Walls pushed him, the man "said something like, 'You think I'm joking with you'.... Then he pulled out a gun."

The taller man grabbed Walls by the hair on the back of his head and held the gun to his head. As Walls saw the man start to pull the trigger, Walls jerked his head and the bullet missed him. The taller man then retrieved the ejected cartridge casing from the floor. However, on the way out, he apparently dropped the casing because Hamilton found it under a counter several days later and gave it to the police.

The police later recovered the spent bullet from the wall of a nearby building. Mason compared that bullet and the cartridge casing with the bullet and casing from his test firing of a nine millimeter semi-automatic pistol which police seized on December 12, 1991, from a motel room occupied by Chichester and Mercedes Brown, Chichester's girl friend. Mason opined that this pistol had fired the bullet from the casing found at Joe's Pizza.

Brown, who had lived with Chichester in three different Manassas area motels from October to December 1991, testified that Chichester kept the nine millimeter pistol in the room, and that sometimes he took it with him when he left the room. On one occasion, when police came to the motel room looking for a juvenile, Chichester threw the pistol out the window. After the police left, at Chichester's request, Brown retrieved it. After the police had seized his nine millimeter pistol on December 12, Chichester told Brown that they had taken "one of his best guns."

Christopher Jose McLean stayed with Chichester and Brown in one of the motel rooms for one or two weeks in November and December 1991. McLean testified that the gun the police had seized from Chichester's motel room appeared to be the same gun he had seen in the motel room and in Chichester's car. When Chichester discovered that the police had seized the pistol, he told McLean, "They got my baby."

At some time in November or December of 1991, Chichester asked Richard Fairfax to sell a gun for him. Fairfax agreed to do so, and they drove to McDowell's house some time after midnight. McDowell was standing outside when they arrived and Fairfax heard Chichester tell McDowell that, "[W]e was going to take care of this." Chichester got out of the car, walked away from it with McDowell, and had a further conversation out of Fairfax's hearing.

Fairfax and Chichester then went to Maryland, where Fairfax knew he could sell the gun. As they were proceeding on the Capital Beltway, a police officer overtook them with his cruiser's blue lights flashing. After the cruiser passed them, Chichester told Fairfax that "he would have to do [the officer]" if the officer stopped them because "he had a body on the gun."

Although Fairfax testified that Chichester and the man who bought the gun in Maryland referred to it as a nine millimeter gun, Fairfax said that the gun he sold did not look like the nine millimeter gun that was seized from Chichester and shown to Fairfax during his testimony. Fairfax testified the seized nine millimeter gun looked "somewhat" like another gun he had seen in Chichester's car during the trip. Mason testified that because of similarities in appearance, 380 semi-automatic pistols are often mistakenly referred to as nine millimeter semi-automatic pistols.

When he was arrested on January 7, 1992, Chichester told Detective Clifford R. Sowards that he did not know McDowell. However, other testimony established a close relationship between the two men. Chichester's mother testified that McDowell and...