Andrews v. Commonwealth Of Va.

• Citation: 280 Va. 231,699 S.E.2d 237
• Decision Date: 16 September 2010
• Docket Number: 100375.,Record No. 100374
• Parties: Joshua Wayne ANDREWSv.COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

280 Va. 231

699 S.E.2d 237

Joshua Wayne ANDREWSv.COMMONWEALTH of Virginia.

Record Nos. 100374, 100375.

Supreme Court of Virginia.

Sept. 16, 2010.

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From the Circuit Court of Prince William County, Lon E. Farris, Judge.¹

Matthew L. Engle, Deputy Capital Defender (Mark Petrovich; Thomas Walsh, Fairfax; Eileen Connor; Petrovich & Walsh; Gibbons, P.C., on briefs), for appellant.

Steven A. Witmer, Senior Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General; Jerry P. Slonaker, Senior Assistant Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MIMS, JJ., and LACY, S.J.

Opinion by Justice LAWRENCE L. KOONTZ, JR.

In this appeal, we review the four capital murder convictions and death sentences imposed upon Joshua Wayne Andrews for the murders of Romanno Avellino Head and Robert Irvin Morrison. Although we will affirm Andrews' convictions, because of non-harmless errors that occurred during the penalty-determination phase of the trial, we will vacate the death sentences and remand the case for a new penalty-determination proceeding.²

I. BACKGROUND

Under familiar principles of appellate review, we will state the evidence in the light most favorable to the Commonwealth. Clagett v. Commonwealth, 252 Va. 79, 84, 472 S.E.2d 263, 265 (1996) cert. denied, 519 U.S. 1122, 117 S.Ct. 972, 136 L.Ed.2d 856 (1997). On the evening of January 2, 2002, Andrews and Jamel Crawford were at the apartment of Lavada Tucker in Alexandria. Andrews told Crawford that he wanted to go to Head's apartment in Prince William County to buy marijuana. Having no money, Andrews and Crawford devised a plan to rob Head instead. Andrews and Crawford asked Tucker to telephone Head at his apartment in order to determine how many people were present and whether he had marijuana there.

As Crawford was known to Head, the plan called for Andrews initially to enter Head's apartment alone. Once the occupants were in a secure area, Andrews was to signal Crawford, who then would join him inside to search for money and drugs. Andrews was armed with a .25 caliber pistol and asked Crawford for his pistol, which Crawford testified was a .22 caliber. Andrews cut “X's on the bullets,” indicating that this would “break the bullets up” on impact to make them more lethal. Andrews had both pistols when he and Crawford left for Head's apartment.

Morrison, who shared the apartment with Head, and their mutual friend Rutherford Berry were also at Head's apartment that evening. According to Berry, Head received a telephone call from a woman, presumably Tucker, and told Berry that the woman was coming to the apartment. Sometime later, Morrison, who was in the living room at the front of the apartment with Berry, responded to a knock at the door. He was confronted by Andrews, who displayed one of the pistols and “slid in” the apartment through the open door.

Andrews demanded to know whether anyone else was in the apartment. Morrison and Berry told Andrews that no one else was present, and Andrews ordered the two men to go down a hallway toward the back of the apartment. As they did so, Head came out of one of the bedrooms. Andrews ordered all three men to go into the bathroom. He then demanded money and drugs.

Andrews ordered the three men to remove their clothes and to get into the bathtub. He threw the clothing into the hallway and had a whispered conversation with Crawford, who had entered the apartment. Andrews then ordered the men to “get down.” When Berry protested, Andrews shot Berry, who lost consciousness. Crawford, who had moved toward the back of the apartment to search for money and drugs, fled the apartment when he heard multiple gunshots coming from the bathroom. Andrews followed him, carrying a scale, a bag of marijuana, jewelry, and some clothing.

When Berry regained consciousness a short time later, he found that Head and Morrison had been shot multiple times and had fallen on top of him in the bathtub. After extricating himself from the bathtub, Berry was able to call 911. During the 911 call, Berry told the operator that “[a] couple of black males” had shot him. Police arrived while Berry was still speaking to the 911 operator. Rescue personnel also arrived on the scene and transported all three victims to area hospitals.³

After leaving Head's apartment, Andrews and Crawford drove to a motel in Stafford County. On the way, Crawford asked Andrews why he shot the victims. Andrews told Crawford that “somebody in the bathroom didn't [comply] with what he said.” Andrews later explained to Crawford that Andrews shot Berry when he refused to lean down in the bathtub beneath the other two men because “[h]e thought it was kind of homo.” Andrews also said that he should have brought a sword because “it would have made less noise.”

At the motel, the two men each rented a room. Although Andrews paid for his own room, he told the desk clerk to register both rooms in Crawford's name. Once in the room, Andrews burned IDs from Berry's wallet, which had been among the items taken from Head's apartment.

On January 4, 2002, Andrews robbed Gary Kennedy at a convenience store in Stafford County. Kennedy was shot during the robbery, but survived. On January 7, 2002, Andrews and Crawford went to a pawnshop and sold several pieces of jewelry, including a pendant that was subsequently identified as belonging to Morrison.

Although the record does not provide details of the pair's movement after visiting the pawnshop, sometime later on January 7, 2002 or early on January 8, 2002, Andrews and Crawford traveled to New York City. In New York, Andrews and Crawford were involved in two more shootings. They ultimately were arrested following a traffic stop when New York police discovered that they were wanted by the police in Virginia. Andrews subsequently was convicted in New York of two counts of attempted second degree murder arising from the shootings there.

The record does not disclose how police came to focus their inquiries on Andrews. However, in the early afternoon of January 8, 2002, Detective Samuel E. Walker of the Prince William County Police Department swore out warrants of arrest before a magistrate charging Andrews with the murders of Head and Morrison and other felonies related to the January 2, 2002 incident. At some point during that day, pursuant to a warrant, police conducted a search at the home of Andrews' mother, Imani Taymullah, where Andrews lived. Taymullah and her husband told police that a .25 caliber Titan automatic pistol was missing or had been stolen from their home. Police obtained the serial number for the weapon and subsequently had that information entered into the National Crime Information Center (NCIC) database.⁴ Taymullah also told the police that Andrews had told her about the murders, describing the crime in graphic detail, though in doing so Andrews did not expressly admit to being the shooter.

Upon learning that Andrews had been arrested in New York City, Walker and another Prince William County police detective traveled there and interviewed Andrews about the January 2, 2002 murders as well as the murder of Clayton Kendall Breeding, who had been shot and killed in Prince William County on December 13, 2001. Ultimately, statements made by Andrews during these interrogations were suppressed by the circuit court.

Walker was subsequently notified that, following an anonymous tip, New York police had recovered two .25 caliber weapons, one of which matched the information entered into the NCIC database. Although Virginia authorities repeatedly advised New York authorities that these weapons were potentially related to the three Virginia homicides for which Andrews was the principal suspect and were assured that the evidence would be preserved, in August 2005 New York authorities advised Walker that the guns had been destroyed.

The Commonwealth did not seek to indict Andrews until he had been returned in late March 2006 to Virginia from New York, following his convictions for the attempted murders committed there. On April 3, 2006, the Prince William County grand jury returned indictments against Andrews for three counts of capital murder and various associated felonies arising from the January 2, 2002 incident at Head's apartment. Two of the capital murder indictments charged Andrews with the murders of Head and Morrison respectively during the commission of robbery or attempted robbery, Code § 18.2-31(4), while the third charged Andrews with the capital murder of Head as part of the same act or transaction in which he murdered Morrison. Code § 18.2-31(7).

In addition to the indictments for the crimes committed on January 2, 2002 at Head's apartment, Andrews also was indicted for the capital murder of Breeding and associated felonies arising from that crime. The principal evidence linking Andrews to Breeding's murder was the result of forensic testing of the bullets recovered during Breeding's autopsy, which established that they matched bullets recovered from the victims of the January 2, 2002 crimes. The Commonwealth's theory supporting the capital murder indictment was that Andrews killed Breeding during a robbery or attempted robbery that possibly was drug-related. Code § 18.2-31(4). The circuit court ultimately struck the Commonwealth's evidence as to the charge of robbery of Breeding, and the Commonwealth conceded that absent proof of the predicate gradation offense, Andrews could at most be guilty of the first degree murder of Breeding. However, the jury subsequently acquitted Andrews of Breeding's murder.

Andrews also was indicted for capital murder in violation of Code § 18.2-31(8). The indictment for this charge stated that Andrews “did feloniously, willfully, deliberately and premeditatedly kill and murder more than one person within a three-year period, to wit:...