Wilson v. Com.

• Decision Date: 13 January 1995
• Docket Number: 940674,Nos. 940533,s. 940533
• Citation: 249 Va. 95,452 S.E.2d 669
• Court: Virginia Supreme Court
• Parties: Kenneth L. WILSON v. COMMONWEALTH of Virginia. Record

Page 669

452 S.E.2d 669

249 Va. 95

Kenneth L. WILSON v. COMMONWEALTH of Virginia.

Record Nos. 940533, 940674.

Supreme Court of Virginia.

Jan. 13, 1995.

James E. Ellenson (Lyn M. Simmons, on brief), for appellant.

Richard B. Smith, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: All the Justices.

LACY, Justice.

In this appeal, we review the capital murder conviction and death penalty imposed upon Kenneth L. Wilson, along with his convictions for attempted rape, grand larceny, two counts of malicious wounding, and three counts of abduction, all arising from the same series of events.

I. Proceedings

Wilson was tried upon indictments charging capital murder, attempted rape, grand larceny, two counts of malicious wounding, two counts of abduction, and one count of abduction with intent to defile. Code §§ 18.2-31(5), -47, -48, -51, -67.5, and -95. At the conclusion of the first stage of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, the jury convicted Wilson of all offenses. The jury fixed the following sentences: 10 years imprisonment for attempted rape; 12 months in jail and a $2,500 fine for grand larceny; 10 and 20 years imprisonment for the two counts of malicious wounding; and 10, 10, and 35 years for the three counts of abduction.

At the penalty phase of the capital murder trial, the jury heard evidence on aggravating and mitigating circumstances and fixed Wilson's punishment at death, based upon both the vileness and future dangerousness predicates. After considering the probation officer's report and conducting a sentencing hearing, the trial court imposed all the sentences fixed by the jury.

We have consolidated Wilson's appeal of the capital murder conviction in Record No. 940533 with the automatic review of his death sentence to which he is entitled, Code §§ 17- 110.1(A) and -110.1(F), and have given them priority on our docket. Code § 17-110.2. We have also certified Wilson's appeal of his noncapital murder convictions from the Court of Appeals, Record No. 940674, and have consolidated the two appeals for consideration.

II. The Evidence

We review the evidence in the light most favorable to the Commonwealth, the prevailing party at trial.

Around 3:00 a.m. on March 27, 1993, Wilson entered the home of the decedent, Jacqueline M. Stephens, where she lived with her 12-year-old daughter, Altomika. Takeshia Banks, a 14-year-old friend of Altomika's, was spending the night in the Stephens' home. Ms. Stephens, Altomika, and Takeshia each knew Wilson, who lived next door and was a cousin of Altomika's father, Alton "Pinkey" Bumpers.

Ms. Stephens, clothed in a bathrobe, confronted Wilson and repeatedly insisted that he leave. He refused and put a knife to her throat. Although Altomika was frightened and began to run for help, she returned when Wilson threatened to kill her mother if she left.

Wilson forced everyone upstairs. Altomika and Takeshia were ordered into Altomika's bedroom and Wilson took Ms. Stephens into her bedroom. While with Wilson, Altomika heard her mother say, "Kenny, why you doing this to me? I go with Pinkey, why you doing this to me?" Approximately 25 minutes later, Ms. Stephens and Wilson went to the girls' room. Wilson ordered Ms. Stephens to tell the girls not to say anything and she obeyed. Ms. Stephens then proceeded to take a shower.

While Ms. Stephens was in the shower, Wilson took Altomika to her mother's bedroom and tied her to the bed. He returned to the other bedroom, ordered Takeshia to disrobe, and tied her to the bed. Shortly thereafter, Wilson retrieved Altomika, tied her to the bed with Takeshia, and blindfolded each girl. During this time, a next door neighbor, who heard unusual noises coming from the Stephens' home, repeatedly knocked on the Stephens' door. No one answered, but at one point the neighbor saw Wilson, whom he recognized, looking out of Ms. Stephens' bedroom window.

Ms. Stephens, still in the shower, asked Wilson if she could get out, but was ordered to remain where she was. Wilson then proceeded to stab and cut both girls. He stabbed Altomika in the throat and twisted the knife. Wilson was naked as he assaulted the girls. During the attack, Takeshia began to scream. Ms. Stephens left the shower and confronted Wilson in the hallway. Altomika then heard a sound which she believed was her mother falling down the stairs.

While Wilson was out of the room, the girls untied themselves from the bed, locked the bedroom door, and pushed a dresser against it. Wilson returned with Ms. Stephens and ordered her to tell the girls to unlock the door or he would kill her. The girls complied and Wilson then ordered Ms. Stephens to instruct the girls to tie themselves back up. Wilson secured their bindings more tightly, again blindfolded them, and gagged them with dirty socks and underwear. He then left the room with Ms. Stephens.

Altomika testified that she heard Wilson demanding, "Where your car keys at? Where your car keys at? You can talk, talk." Altomika did not hear any response. She then heard Wilson go downstairs, open and shut the door, and say, "Ha, ha, you all think I'm going. I ain't going nowhere." Wilson then began laughing and returned to the girls' bedroom. Although the girls were still blindfolded, Altomika testified that Wilson said, "I know you all can see," as he "played" with a knife in front of the girls' faces. Frightened, Takeshia began moving and screaming. Wilson responded, "You thought I was going to stab you again. I was just trying to scare you."

Wilson left the girls and renewed his demands to Ms. Stephens, "Where are your keys? You better give them to me." Altomika testified that Ms. Stephens suddenly began screaming and then "all of a sudden she just stopped screaming." Soon after, Wilson came into the girls' room, threatening, "If you all tell anybody I'll kill you all. If the police come, you all tell them somebody broke in. I'm going to go call the police for you all." He then left the house.

The neighbor saw Wilson leave the Stephens' home and drive away in Ms. Stephens' vehicle at approximately 6:30 a.m. Immediately thereafter, the neighbor summoned the police. Before the police arrived, Altomika called to her mother but received no answer. Takeshia testified that all she could hear was Ms. Stephens' coughing. When the police arrived, they found Ms. Stephens' body tied to her bed, arms and legs spread apart, and covered with blood. Pubic hairs and a dried white substance that appeared to be semen were observed on her body. Two knives, one blade badly bent, were found lying on the floor at the foot of the bed.

At trial, the medical examiner who performed the autopsy testified that Ms. Stephens had at least ten knife wounds, including two stab wounds to the chest, either of which would have been independently fatal. In addition, Ms. Stephens suffered several longitudinal cuts to the throat. Internal bleeding from the stab wounds to the chest was determined to be the cause of death. The medical examiner stated that none of Ms. Stephens' injuries would have rendered her unconscious during the attack.

III. Issues Not Preserved for Appeal

Wilson's assignments of error 3, 4, 5, 6, 7, and 8 state constitutional challenges to: lack of direction for the jury's discretion regarding "vileness" and "future dangerousness" factors; the vagueness of such factors; the use of prior convictions in sentencing; the death penalty; death by electrocution; and lack of adequate instructions on mitigation. These issues were not raised before the trial court and, therefore, cannot be considered here. Rule 5:25; Bunch v. Commonwealth, 225 Va. 423, 434, 304 S.E.2d 271, 278, cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983).

IV. The Guilt Phase Issues

A. Attempted Rape

Wilson contends that the evidence is insufficient to sustain his conviction of attempted rape. He asserts that the evidence fails to prove the necessary elements of intent to rape or an overt act beyond preparation.

Rape is defined as "sexual intercourse against the victim's will by force, threat, or intimidation." Hoke v. Commonwealth, 237 Va. 303, 310, 377 S.E.2d 595, 599, cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989); see also Code § 18.2-61. To establish an attempt to commit rape, the Commonwealth must prove (1) an intent to commit the crime, and (2) some direct, but ineffectual, act toward its commission sufficient to amount to the commencement of the consummation of the crime. Wright v. Commonwealth, 245 Va. 177, 193, 427 S.E.2d 379, 390 (1993), vacated and remanded on other grounds, --- U.S. ----, 114 S.Ct. 2701, 129 L.Ed.2d 830, aff'd on remand, 248 Va. 485, 450 S.E.2d 361 (1994) (citing Chittum v. Commonwealth, 211 Va. 12, 15, 174 S.E.2d 779, 781 (1970)).

1. Intent

Wilson argues that the evidence does not show that he possessed the intent to commit rape. First, Wilson asserts that cases of attempted rape usually involve evidence of statements showing an intent to engage in the sex act. See, e.g., Chittum, 211 Va. at 16, 174 S.E.2d at 781 (victim ordered to lie down and defendant stated that he would "be gentle"); Granberry v. Commonwealth, 184 Va. 674, 676, 36 S.E.2d 547, 547 (1946) (victim instructed to lie down, pull up dress, and take down pants). Therefore, Wilson argues that, because there is no evidence that he made any statements showing an intent to engage in sex, the required intent was not proven. In addition, Wilson states that an intent to commit rape cannot be inferred in the instant case because the facts clearly evidence an intent to murder, not to rape. See Ingram v. Commonwealth, 192 Va. 794, 803, 66 S.E.2d 846, 851 (1951).

Although we agree that Wilson intended to murder Ms. Stephens, we do not subscribe to his assertion that a statement evidencing his intent to rape her is necessary to establish the requisite intent. "Intent is a state...