Avent v. Com.

Citation688 S.E.2d 244,279 Va. 175
Decision Date15 January 2010
Docket NumberRecord No. 090537.
PartiesCardell Lamont AVENT v. COMMONWEALTH of Virginia.
CourtSupreme Court of Virginia

Charles C. Cosby, Jr. (Boone, Beale & Cosby, on brief), Richmond, for appellant.

Alice T. Armstrong, Assistant Attorney General II (William C. Mims, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice DONALD W. LEMONS.

Cardell Lamont Avent ("Avent") was convicted by a jury on charges of first-degree murder in violation of Code § 18.2-32 and use of a firearm in the commission of a felony in violation of Code § 18.2-53.1. In this appeal, we consider multiple assignments of error arising from these convictions.

I. FACTS AND PROCEEDINGS BELOW1

On August 17, 2005, police officers in Brunswick County, Virginia, responded to a call for a "welfare check" on William David Thomas, Jr. ("William"), whom the caller had not seen in several days. Upon arriving on William's property, Major Brian Roberts ("Major Roberts") testified at trial that he detected a "very strong odor, like a dead carcass." Once inside William's residence, Major Roberts saw blood stains throughout the house: "in the bathtub," "in ... the victim's bedroom upstairs," and "on the steps." When William's body was not located inside his residence, the deputies searched the curtilage of his property. The search led the officers to a "chicken coop" that had a "wood door" with "a cinderblock on the ground against it." Once deputies removed the cinderblock and opened the door, there was a "completely overwhelming," "unbelievable odor."

Immediately inside the chicken coop, officers encountered "a black fender well" and "blue plastic foam insulation." Upon removing those items, "a head of a human being was exposed, and flies just swarmed." Major Roberts testified to finding a "very, very badly decomposed body." He described the head, later identified through dental records as William's, as having "[p]art of the face almost looked like it melted off or rotted off."

Captain Kent Washburn2 ("Captain Washburn") also testified to the presence of blood throughout the house, on walls, the bathtub, and floors. In the bucket for the well outside William's home, Captain Washburn discovered a "soiled shirt that appeared to have stained blood on it, and there was a hole in the chest area." Officers also recovered a comforter, a sheet to a bed, and gun parts from the well. The bed in William's bedroom had no sheets on it, and there were "ammonia and bleach bottles" in his bedroom. A piece of the gun had "gr[a]y duct tape" on it and the name "Winchester."

After receiving a "Crime Solver's tip," Major Roberts and Captain Washburn traveled to the Navajo County Jail in Kayenta, Arizona, where they encountered Avent and Thomas, daughter of decedent William; both Avent and Thomas were "people of interest in this murder case." During their time together, Major Roberts observed no injuries on Avent. Captain Washburn interviewed Avent and testified that Avent's demeanor during the interviews was "[v]ery calm; no signs of being nervous or upset; showed no emotion; no signs of crying; and basically, did not ask anything about the Thomas family."

Over two days of interviews, Captain Washburn advised Avent of his Miranda rights and had Avent sign a written Miranda waiver. Captain Washburn obtained "three written statements" from Avent, one in Avent's own handwriting, the other two in question-and-answer format transcribed by Captain Washburn, which detailed Avent's involvement in William's death. Avent signed each page of his statements. Captain Washburn made an audio recording of the last statement Avent gave on the first day of interrogation in Arizona. During the trial the audio recording was played for the jury.3

Prior to trial, Avent made a motion to suppress the statements he gave in Arizona to Captain Washburn and Major Roberts on the grounds that the statements were made involuntarily. Major Roberts, Captain Washburn, and Avent each testified at the hearing on the motion to suppress.

Major Roberts testified that Avent was neither threatened nor offered leniency in exchange for his cooperation. Captain Washburn testified that the interrogation lasted "roughly three and a half hours, four hours. It was on and off, after [Avent] had been given breaks" to use the restroom and to have something to drink. Avent was fed dinner and never complained of discomfort.

Major Roberts was only present for the "initial meeting," in which Avent was given Miranda warnings and made his first verbal statement. Major Roberts "got disgusted" with the "lies" Avent told the officers during the first interview and so Major Roberts "got up and walked out and went back to interview" Thomas.

Avent described himself during the interrogation as "calm" and "comfortable." Avent further testified that he had been given food and an opportunity to sleep, and he was given his Miranda rights. He testified that while he understood the rights, he did not waive those rights until after his interrogation. Avent said he was "scared" after Major Roberts "got so mad that he slammed his hand down on the table and told me ... if I didn't cooperate with him ... that they were going to charge my ass with capital murder and that's a life or death sentence."

Avent testified that the officers never touched him, and he did not feel threatened or scared by Captain Washburn. On a number of occasions during the hearing, Avent responded that he understood what was occurring during the interrogation. At the conclusion of the testimony, the trial court denied the motion to suppress, finding that there was "no threat of a murder charge, no threat of physical harm, [and] no promises of leniency." Further, the trial court found that Avent was "a man of at least average intelligence," Avent himself said "he was comfortable [during the interrogation]," and Avent "never complained about his comfort or any physical discomforts."

Avent also made a Batson motion, arguing that the Commonwealth's exercise of all five of its peremptory strikes on African-American potential jurors was racially motivated in violation of Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Avent is African-American. In particular, Avent challenged two of the strikes exercised by the Commonwealth: Frema Draughn ("Draughn") and Chiquita Easter ("Easter").

The Commonwealth gave two reasons for the strike of Draughn. The first was that her son was "recently stopped in a traffic stop and had marijuana," but he was not charged. The second was that both Draughn and her father had an affiliation with Saint Paul's College, and the Commonwealth noted that there was "friction" between the Commonwealth and the college because the Commonwealth "tr[ies] to prosecute some of [its] students" and its "chief of security was recently arrested for sex crimes." However, during voir dire, Draughn indicated that while her father had worked with "Saint Paul's security," he was "currently deceased." Avent argued that Draughn's son's alleged marijuana possession had nothing to do with her, and he noted that the affiliation with the college was a "positive rather than negative."

The Commonwealth also cited two reasons for its strike of Easter. First, during voir dire "she appeared to be sleeping." Second, she "has been sued multiple times in civil matters, owes money," and she indicated on her intake form that she had a disability, but the Commonwealth was unclear of what that disability was.

The trial court denied Avent's Batson motion, holding that all five strikes were made for "facially valid race-neutral reasons" and Avent failed to demonstrate that the Commonwealth's race-neutral reasons were "mere [pretext] and not supported by the evidence." The trial court then impaneled the jury, and began the trial.

At trial, Captain Washburn read Avent's written statements into evidence. In Avent's hand-written statement, Avent stated that he, Thomas and her three children went to William's house so Thomas could "get her checks." Thomas entered William's house "[t]hrough a window on the porch. She moved the storm door and went inside through a window." His narrative continued:

[Thomas] went in the house to get her checks. I heard arguing, so I went in the house. Next thing I know, I was hit. I falled [sic] down on the floor while still being hit. I, Cardell, looked up and it was her father. He then put his hands around my neck and started choking me. I was afraid for my life. I started wiggling trying to get away.

He stopped and went upstairs. I followed behind him slow to see what he was doing. When I got upstairs, I was hit with a board a few times. Once again, I was afraid for my life, so I turned my head away, at the same time, pulled out the gun and shot it one time; not noticing where I was shooting at, I just wanted him to stop hitting me. I turned back around, and he was running towards me still, so I took the gun and only hit once. He was still fighting me, so I kept on hitting him until he stopped. [Thomas] then came upstairs.

I was scared, so we dragged him outside to the shed. I then went to the car to check on the kids. After I checked on the kids, I went to see what [Thomas] was doing. She was cleaning up. I wiped off a few things, I can't remember what they are, and then we left. Got to North Carolina she gave her checks to John, and we came to Arizona.

In response to Captain Washburn's questions, Avent estimated that the altercation with William occurred "between August 7th and the 11th of 2005" at "around 1:00 P.M. or 2:00 P.M." Avent said that he followed William upstairs because he "was mad, because [William] had choked [him]." Avent "wanted to tell [William] that [William] was wrong for hitting [Avent] and tell him why [Avent] was down the[re], but [William] kept hitting [Avent]." When Avent got upstairs, William "swung a board at [Avent] and kept on...

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