472 S.E.2d 263 (Va. 1996), 952162, Clagett v. Commonwealth

Docket Nº:952162, 952163.
Citation:472 S.E.2d 263, 252 Va. 79
Opinion Judge:[8] The opinion of the court was delivered by: Koontz
Party Name:Michael David CLAGETT v. COMMONWEALTH of Virginia.
Case Date:June 07, 1996
Court:Supreme Court of Virginia

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472 S.E.2d 263 (Va. 1996)

252 Va. 79

Michael David CLAGETT



Nos. 952162, 952163.

Supreme Court of Virginia.

June 7, 1996.

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[Copyrighted Material Omitted]

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[252 Va. 82] Melinda R. Glaubke, Norfolk (Peter T. Legler, Thomas L. Watkins, Virginia Beach, on brief), for appellant.

[252 Va. 83] Pamela A. Rumpz, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

In this appeal, we review the capital murder convictions and five death sentences imposed upon Michael David Clagett (Clagett) for the murders of Abdelaziz Gren, Wendell Parish, Karen Sue Rounds and Lam Van Son.



On October 3, 1994, two indictments were returned against Clagett. In the first indictment, Clagett was charged with robbery, Code § 18.2-58, use of a firearm in the commission of a robbery, Code § 18.2-53.1, four separate counts of capital murder during the commission of a robbery, Code § 18.2-31(4), and four separate counts of use of a firearm in the commission of murder. Code § 18.2-53.1. 1 In the second indictment, Clagett was charged with one count of multiple homicide capital murder. Code § 18.2-31(7). The second indictment predicated the charge of multiple homicide capital murder on the killing of all four victims as part of the same act or transaction.

A jury trial began on June 26, 1995 and spanned ten trial days. At the conclusion of the guilt phase, the jury convicted Clagett of all charges. At the conclusion of the penalty phase, the jury returned a verdict of five death sentences, based upon a finding of both future dangerousness and vileness. The trial court entered judgment on the jury verdict. Additional sentences totaling 43 years on the lesser charges were also imposed. Other aspects of the proceedings relevant to this appeal, in which forty assignments of error are made, will be recounted in the opinion where specific issues are addressed.

[252 Va. 84]



Guilt Phase

We will review the evidence in the light most favorable to the Commonwealth, the prevailing party below. Cheng v. Commonwealth,

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240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). Richard T. Reed, a regular patron, arrived at the Witchduck Inn (the Inn), a tavern and restaurant in Virginia Beach, about midnight on June 30, 1994. Although the Inn usually remained open until 2:00 a.m., Reed found that the front door was locked. Reed could hear music playing inside.

Although he knew that it would normally be kept locked, Reed went to the rear door entrance to the Inn and found it unlocked. Upon entering the Inn, he discovered the bodies of Lam Van Son, the Inn's owner, Inn employees Wendell Parish and Karen Sue Rounds, and Abdelaziz Gren, an Inn patron. Each victim had been shot once in the head. The Inn's cash register was open and empty.

Based upon information supplied by Denise Holsinger, Clagett's girlfriend, Clagett was identified as a suspect in the killings. He was arrested on July 1, 1994 on a public intoxication charge. Once in custody, Clagett was served with arrest warrants for the murders. Clagett confessed to the killings, admitting that he and Holsinger had intended to "rob" the Inn and that Holsinger had taken approximately $400 from the cash register. Additional facts developed during the guilt phase of the trial will be recounted later in the opinion.

Penalty Phase

The Commonwealth presented evidence of Clagett's history of brutal domestic violence against his former wife. The jury was shown two photographs of the wound sustained by Lam Van Son. The lead investigator testified that Clagett showed great remorse for his acts during his confession. Additional facts developed during the penalty phase of the trial will be recounted later in the opinion.



Because Clagett did not address in his brief the issues raised in assignments of error 5, 17, 19, 28, 29, and 35 he has waived [252 Va. 85] them. 2 Rule 5:27. Also, the argument advanced on appeal with respect to assignment of error 14 relating to the cross-examination of Reed was not made before the trial court; accordingly, we will not consider that assignment of error. Rule 5:25.



Clagett has raised a number of issues that we have rejected in previous decisions. Finding no reason to modify our previously expressed views, we reaffirm our earlier decisions and reject the following contentions.

Clagett requested a bill of particulars which, in effect, would have required the Commonwealth to produce all the evidence it intended to introduce during the guilt and penalty phases of the trial. We have previously held that this is not a proper use of a bill of particulars. Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218, 223, cert. denied, 502 U.S. 834, 112 S.Ct. 113, 116 L.Ed.2d 82 (1991).

Clagett requested the assistance of an expert medical witness to examine his former spouse in order to refute her claims of domestic violence. We have previously held that an indigent defendant is not entitled to every resource he requests from the trial court. The Commonwealth is required to provide only those resources necessary for a basic, adequate defense. O'Dell v. Commonwealth, 234 Va. 672, 686, 364 S.E.2d 491, 499, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988); see also Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433-34, 30 L.Ed.2d 400 (1971).

Clagett sought additional peremptory challenges during jury selection. We have repeatedly

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held that there is no right to additional peremptory challenges. See, e.g., Strickler v. Commonwealth, 241 Va. 482, 489, 404 S.E.2d 227, 232, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d 337 (1991).

Clagett objected to the introduction of a videotape of a news interview he gave to a local reporter on the ground that the Commonwealth had failed to show that the reporter was not available. [252 Va. 86] The interview was admissible as a party admission, and, thus, not subject to exclusion under the hearsay rule. Quintana v. Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654 (1982),cert. denied, 460 U.S. 1029, 103 S.Ct. 1280, 75 L.Ed.2d 501 (1983).

Clagett asserts under numerous theories that the Virginia death penalty statutes are unconstitutional. We have previously addressed each of these contentions, sustaining in each instance the constitutionality of our death penalty statutes. See, e.g., Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75, cert. denied, --- U.S. ----, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994)(meaningful guidance to the jury on factors to consider in fixing the death penalty); 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) (appellate review of capital cases is adequate); Stewart v. Commonwealth, 245 Va. 222, 229, 427 S.E.2d 394, 399-400, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993)(future dangerousness predicate is not impermissibly vague); 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)(instructing jury on consideration of mitigating factors).



A number of the issues raised by Clagett concern rulings committed to the trial court's discretion. In each of the following instances we find no evidence to support a finding of an abuse of that discretion, and, accordingly, we hold that no error occurred.

The trial court permitted the jury to be shown a videotape of the crime scene in which two of the bodies had been moved from their original positions by emergency personnel. The trial court instructed the jury as to this fact. Accordingly, it was not an abuse of discretion to permit the jury to view the videotape. Washington v. Commonwealth, 228 Va. 535, 552, 323 S.E.2d 577, 588 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985).

During the guilt phase, the Commonwealth called Wendy Singer as a witness. Clagett objected to her testimony and moved for a mistrial on the ground that Singer had been identified as a potential witness only shortly before trial and that the Commonwealth had indicated that she would be called only during the penalty phase. Whether an occurrence at trial "is so prejudicial as to require a mistrial is a question of fact to be resolved by the trial court in each particular case." Beavers v. Commonwealth, 245 Va. 268, 280, 427 [252 Va. 87] S.E.2d 411, 420, cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 130 (1993). Even accepting Clagett's assertions as true, he was nonetheless informed that Singer was a potential witness prior to trial. Accordingly, there was no prejudice to Clagett.

Clagett objected to the introduction of a crime scene photograph during redirect examination of the medical examiner. On cross-examination of this witness, Clagett had questioned whether an examination of the crime scene photographs would have been beneficial to her investigation. She conceded that they would have been beneficial, but that she had not examined any crime scene photographs. On redirect, the Commonwealth produced a crime scene photograph and asked whether the position of the body of the victim would in some way alter the witness's conclusions in her report. Clagett asserted that the admission of the photograph was erroneous in that it was duplicative and that the gruesomeness of the photograph was prejudicial. He raised a similar objection to the introduction of the two photographs showing the wounds of Lam...

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