Thomas v. Com.

• Decision Date: 15 January 2010
• Docket Number: Record No. 090518.
• Citation: 688 S.E.2d 220,279 Va. 131
• Parties: Meloni THOMAS v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

688 S.E.2d 220

279 Va. 131

Meloni THOMAS v. COMMONWEALTH of Virginia.

Record No. 090518.

Supreme Court of Virginia.

January 15, 2010.

Jerry E. Waldrop, Emporia, for appellant.

Eugene Murphy, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider multiple assignments of error arising from Meloni A. Thomas' ("Thomas") convictions of first degree murder and use of firearm in the commission of a felony.

I. Facts and Proceedings Below¹

Thomas was originally indicted for murder under Code § 18.2-32, armed statutory burglary under Code § 18.2-90, and use of a firearm in commission of a felony under Code § 18.2-53.1.² After a four-day jury trial, Thomas was found guilty of both first degree murder and use of a firearm in the commission of a felony and the jury fixed her punishment at 35 years imprisonment for first degree murder and three years imprisonment for use of a firearm in the commission of a felony, for a total sentence of 38 years imprisonment. The trial court imposed the jury's verdict.

A. Pre-trial Motions

Prior to trial, Thomas filed numerous motions including a motion to quash or dismiss her indictment for murder. Thomas argued that the Virginia Model Jury Instructions allow a jury to infer malice, which "tends to cause [a] jury to ignore contrary evidence or tends to place a burden of persuasion on the defendant," and she argued that the jury instructions are thereby unconstitutional. Thomas requested the trial court dismiss the indictment of murder against her or excise the language in the jury instructions that allows an inference of malice to be drawn by the jury. The trial court denied Thomas' motion to quash the murder indictment but took the motion under advisement concerning jury instructions to be given at trial with regard to malice and murder. Ultimately, the trial court gave three instructions on malice to the jury over Thomas' objection.

Thomas also filed 17 motions in limine. Only the motions in limine relevant to this appeal will be addressed in this opinion. First, Thomas requested that the trial court prohibit the Commonwealth "from using in the jury's presence the word `murder' other than in argument as the same is conclusive, argumentative, and should be properly restricted to opening or closing arguments." The trial court denied this motion "as to issuing any `blanket prohibition' but cautioned both sides not to use language which would mislead, inflame, or prejudice the jury."

Second, Thomas requested that the trial court allow her to refer to potential punishment ranges during voir dire of the jury. The trial court ruled that neither Thomas nor the Commonwealth could "make reference to the range of punishment for any of the offenses prior to the penalty phase of the trial."

Third, Thomas moved the trial court to prohibit the Commonwealth from "display[ing] to the jury or introduc[ing] into evidence autopsy photographs/videotapes of the deceased or photographs/videotapes portraying the condition of the body of the deceased, during either the guilt phase or any necessary penalty phase, as the prejudicial effect of same outweighs any probative value." The trial court took this motion under advisement. However, during trial and after lengthy argument on this issue, the trial court ruled that the probative value of the photographs of the autopsy and the victim's remains outweighed the prejudicial effect of the photographs. Both the autopsy photographs and the photographs of the victim's remains were admitted into evidence.

Fourth, Thomas requested that the trial court prevent the Commonwealth from referring to or introducing evidence of an alleged prior assault or assault and battery by Thomas against the victim. Specifically, Thomas stated that "there was no trial and subsequent conviction" of the alleged assault or assault and battery and the evidence of such is "inadmissible to prove the offense charged at bar." The trial court made a preliminary ruling that the affidavit the victim had sworn out against Thomas was not admissible in evidence because it had not been served on Thomas until after the victim's death and there was no evidence that Thomas was aware of the affidavit. The trial court further stated that it would make its final ruling on the issue when the Commonwealth sought to introduce such evidence at trial.

Fifth, Thomas moved the trial court to prohibit "the Commonwealth from commenting on or seeking to introduce into evidence any and all statements made by Co-Defendant Cardell Avent tending to incriminate or inculpate" Thomas. Thomas and the Commonwealth "reached an understanding— which was affirmed by the Court that neither party would seek to introduce any portion of the statements of codefendant Avent ... without filing a motion in limine and getting a further ruling from the Court."

Sixth, Thomas moved the trial court to order the Commonwealth to provide her with the "names, addresses, and telephone numbers" of the four prospective Commonwealth's witnesses who may be called to testify about allegedly inculpatory statements that Thomas made to them. Absent such a ruling by the trial court, Thomas requested that the trial court appoint "an investigator to assist the Defense in locating these prospective Commonwealth's witnesses for interview" because even though Thomas had previously contacted one of the prospective witness, "the Defense has no information regarding the current whereabouts of the other three witnesses and would face extreme difficulty in locating same to interview." The trial court denied both Thomas' motion for the "names, addresses, and telephone numbers" of all the Commonwealth's witnesses and her motion for a private investigator.

Finally, Thomas requested in both her motions in limine, and a separately filed ex parte motion, that the trial court order the production of criminal record checks of "any and all prospective Commonwealth witnesses" under Code § 19.2-389 and also requested "any juvenile criminal records of any and all prospective witnesses expected to testify for the Commonwealth." The trial court denied Thomas' requests for both the criminal and juvenile records of all potential Commonwealth's witnesses. Specifically, the trial court denied Thomas' motions "unless and until [Thomas] can show relevance of the criminal history check as to a particular witness."

B. The Trial

After Thomas was arraigned, the trial court excluded two of Thomas' voir dire questions. The two voir dire questions the trial court excluded read:

17. Meloni Thomas has been indicted, which indictment was based on evidence presented by the Commonwealth alone and none by the Defense. Does the existence of that indictment have any effect on anyone's opinion of the guilt or innocence of Meloni Thomas? Would it cause anyone in any way to doubt the presumption of innocence the accused is afforded?

....

28. If any one of you were my client, would there be any reason you would not want yourself on the jury?

Thomas' attorney objected to the exclusion of the questions and argued that Thomas should be allowed to ask those voir dire questions.

The trial court then began the jury selection process. During voir dire, three prospective jurors raised their hands in response to Thomas' question, "[i]s there anyone who would give greater weight to the testimony of a police officer than to that of another witness or the accused simply because of the officer's official status?" The trial court questioned each of these three prospective jurors, and both the Commonwealth and Thomas were also allowed to further question these prospective jurors on their response. After further questioning, the trial court struck one of the prospective jurors, Mary Dettre ("Dettre"), for cause, but allowed prospective jurors Lois Finch ("Finch") and David Heizer ("Heizer") to stay in the jury pool.

In the trial court's voir dire of Dettre, the trial court asked Dettre if she "would give greater weight to the testimony of a witness who was a police officer rather than to another witness, simply because the person was a police officer." Prospective juror Dettre responded: "I kind of put police officers, sheriff's deputies on a pedestal, I guess you say" and that while she did think police officers could lie and make mistakes she would still "put more emphasis on [a police officer's] testimony."

When the trial court conducted voir dire of prospective juror Finch, she first responded that a police officer's job is "to tell the truth;" however, when asked further questions by the trial court, Finch stated that she did think police officers could lie and be mistaken and that she would "consider all the facts and circumstances surrounding the case." Furthermore, Finch stated that she did not come to court "predisposed" to "believe a police officer over other witnesses."

The trial court also conducted an individual voir dire of prospective juror Heizer. Heizer stated that he did think that police officers could lie and make mistakes and that he would not "automatically believe a police officer simply because he or she were a police officer." Heizer also stated that he "would listen to all the evidence from every witness that took the stand and any other evidence presented, and consider that all together before [he] reached a verdict." Finally, Heizer stated that he "would not believe a police officer because he was a police officer" but that "all other things being equal, and you have two people that have different testimonies, [he] would probably lean toward the police officer simply because [he] would hope that most police officers, it's their job to be impartial." The trial court struck prospective juror Dettre for cause but did not strike prospective jurors Finch and Heizer for cause, even over Thomas' motion to strike all three.

The Commonwealth's...