Chandler v. Com.

• Decision Date: 03 March 1995
• Docket Number: 940976,Nos. 940975,s. 940975
• Citation: 455 S.E.2d 219,249 Va. 270
• Court: Virginia Supreme Court
• Parties: Lance Antonio CHANDLER v. COMMONWEALTH of Virginia. Record

Page 219

455 S.E.2d 219

249 Va. 270

Lance Antonio CHANDLER v. COMMONWEALTH of Virginia.

Record Nos. 940975, 940976.

Supreme Court of Virginia.

March 3, 1995.

Buddy A. Ward, Fairfax, for appellant.

Linwood T. Wells, Jr., 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 Lance Antonio Chandler, along with his convictions for use of a firearm in the commission of murder, robbery, conspiracy to commit robbery, and use of a firearm in the commission of a robbery.

I. Proceedings

Chandler was tried in the Circuit Court of Halifax County upon indictments charging capital murder, use of a firearm in the commission of capital murder, robbery, use of a firearm in the commission of a robbery, and conspiracy to commit robbery. Code §§ 18.2-31(4), -53.1, -58, -22(a)(2). 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 Chandler of all offenses and fixed the following sentences: 25 years' imprisonment for robbery, 2 years for each of the firearm counts, and 10 years for conspiracy.

Following the presentation of evidence at the penalty phase of the capital murder trial, the jury fixed Chandler's punishment at death based on the future dangerousness predicate. 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 Chandler's appeal of his capital murder conviction in Record No. 940975 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 also have certified Chandler's appeal of his non-capital murder convictions from the Court of Appeals, Record No. 940976, 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.

On the evening of February 7, 1993, Chandler and Geraldine Fernandez were drinking beer and "doing cocaine" at Fernandez's house. Sometime during the evening, Fernandez, Chandler, Dwight Wyatt, and George Boyd discussed robbing Mother Hubbard's, a local convenience store. Chandler told them they could get a gun from Henry Chappell. Chandler had previously given Chappell a fully-loaded revolver and had asked Chappell to hide the gun for him.

Fernandez drove the three men and Bernice Murphy, Chandler's girlfriend, to South Boston, where Wyatt retrieved the gun from Chappell. Wyatt opened the gun and saw that it was loaded. Chandler also checked the gun. Fernandez then drove to Mother Hubbard's, where the men got out of the car and went into the store. Before the men left the car, Wyatt gave the gun to Chandler.

Following their plan, Wyatt and Boyd went to the back of the store to steal some beer while Chandler stayed at the front. Chandler asked the store clerk, William Howard Dix, for money. Chandler had told his accomplices that Dix was "a little slow" and would not give them any trouble. Dix, however, did not react to Chandler's demands for the money. Chandler then pointed the gun at Dix, closed his eyes, and said "boom, boom" while he pulled the trigger. The gun did not go off. Chandler fired a second time and a bullet entered Dix's head through his upper lip. Chandler, Boyd, and Wyatt then ran from the store. Boyd was carrying a case of beer. During the robbery, Fernandez and Murphy had been driving around the area. When Fernandez saw the three men, she picked them up and drove away.

Around 11:00 p.m., Terry Hughes went into Mother Hubbard's and discovered Dix on the floor in a pool of blood, and called the rescue squad. Dix died from the gunshot wound. Dr. William Massello, the medical examiner, testified that the bullet had bruised Dix's spinal cord, which blocked brain signals and, in turn, paralyzed the muscles used in breathing.

III. Pre-Trial Issues

A. Change of Venue

Chandler assigns error to the trial court's refusal to grant a change of venue. Chandler claims that pre-trial newspaper coverage of the crimes subjected him to prejudicial pre-trial publicity. The newspaper articles included statements by the Commonwealth's attorney that Chandler was the individual who had killed Dix, that Chandler was a "likely candidate" for the death penalty, and that Chandler had sought a plea bargain.

A change of venue based on pre-trial publicity is required when the defendant demonstrates that there is "widespread" prejudice against him and that such prejudice would, with reasonable certainty, prevent a fair trial. Mueller v. Commonwealth, 244 Va. 386, 398, 422 S.E.2d 380, 388 (1992), cert. denied, 507 U.S. 1043, 113 S.Ct. 1880, 123 L.Ed.2d 498 (1993). Whether to grant a motion for a change of venue is a matter of judicial discretion, and we will reverse the decision of the trial judge only for an abuse of that discretion. Id. 244 Va. at 398, 422 S.E.2d at 389.

Chandler relies on three articles which were published by the local newspapers to support his claim of prejudicial publicity. Chandler does not allege that the Commonwealth's attorney's statements reported in these articles were inaccurate. One of the articles was published nine months before trial and the remaining two appeared three months before trial. During the jury selection process it became clear that few of the prospective jurors had read or could remember the details of the articles. Of the original 60-member venire, only two individuals indicated that they had read the articles and could not give Chandler a fair trial. The trial court removed those two prospective jurors from the panel.

This record does not demonstrate that the pre-trial publicity in this case prejudiced Chandler and prevented him from receiving a fair trial. Therefore, the trial court did not abuse its discretion in denying Chandler's motion for a change of venue.

B. Constitutionality of the Death Penalty

Chandler filed a pre-trial motion asking the trial court to declare the Virginia death penalty statutes unconstitutional on a number of grounds. The trial court denied that motion. On appeal, Chandler again raises some of the same issues, all of which we have considered and rejected in previous cases:

(1) Imposition of the death penalty does not violate the Eighth Amendment of the United States Constitution as repugnant to society's evolving standards of decency. Mickens v. Commonwealth, 247 Va. 395, 402, 442 S.E.2d 678, 683, cert. granted and judgment vacated on other grounds, 513 U.S. 922, 115 S.Ct. 307, 130 L.Ed.2d 271 (1994); Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

(2) The Virginia statutes provide for adequate consideration of aggravating and mitigating circumstances. Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75, cert. denied sub nom. Breard v. Virginia, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994).

(3) The term "future dangerousness" is not unconstitutionally vague. Mickens, 247 Va. at 403, 442 S.E.2d at 684; Smith, 219 Va. at 477, 248 S.E.2d at 148-49.

(4) Allowing, but not requiring, a trial judge to reduce a sentence of death to life imprisonment on a showing of "good cause" is not unconstitutional. Breard, 248 Va. at 76, 445 S.E.2d at 675-76.

(5) Consideration of hearsay evidence or information in a presentence report during the sentencing phase of a capital murder case is not unconstitutional. O'Dell v. Commonwealth, 234 Va. 672, 701-02, 364 S.E.2d 491, 507-08, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988).

(6) The procedures for appellate review of death penalty cases, including expedited review, provide a meaningful appeal and are constitutional. Payne v. Commonwealth, 233 Va. 460, 473-74, 357 S.E.2d 500, 508-09, cert. denied, 484 U.S. 933, 108 S.Ct. 308, 98 L.Ed.2d 267 (1987); Smith v. Commonwealth, 239 Va. 243, 253, 389 S.E.2d 871, 876, cert. denied, 498 U.S. 881, 111 S.Ct. 221, 112 L.Ed.2d 177 (1990).

We find nothing in Chandler's arguments here that warrants a change in our previous positions.

IV. Jury Selection

Following the voir dire, the Commonwealth used peremptory strikes to remove three African-Americans from the panel: William Yarborough; Annie Ewell; and Robert Williams. Chandler argued at trial, as he does here, that because one-third of the members of the venire were African-American, the prosecution's three strikes constituted 60% of its available strikes. Chandler contends that using 60% of the strikes to remove African-Americans "Americans from the jury panel was disproportionate and in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The prosecution responded that it struck Yarborough based on his statements that he would find it difficult to impose the death penalty. Ewell was struck because she stated that she did not believe in the death penalty and because she was related to two individuals who had been prosecuted in the past and defended by Chandler's defense counsel. Finally, the Commonwealth struck Williams because he was "remarkably noncommunicative" during the voir dire.

When a party alleges that peremptory strikes were racially based in violation of Batson, the trial court must consider the basis of the challenges, the reasons proffered for the strikes, and any argument presented that such reasons, even if race-neutral, are pretextual, to determine whether the challenger has met his burden of proving purposeful discrimination in the selection of a jury panel. Buck v. Commonwealth, 247 Va. 449, 451, 443 S.E.2d 414, 415 (1994). In this case, the trial court concluded that Chandler had not sufficiently shown purposeful discrimination in the selection of...