Bassett v. Com., 810301

Citation222 Va. 844,284 S.E.2d 844
Decision Date04 December 1981
Docket NumberNo. 810301,810301
PartiesHerbert Russell BASSETT v. COMMONWEALTH of Virginia. Record
CourtSupreme Court of Virginia

Robert P. Geary, Richmond (Geary & Davenport, Richmond, on brief), for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

THOMPSON, Justice.

On August 22, 1980, a jury convicted Herbert Russell Bassett of murder during the commission of a robbery while armed with a deadly weapon, Code § 18.2-31(d), and of the use of a firearm in the commission of murder, Code § 18.2-53.1. The jury recommended a sentence of death. After considering a presentence report, on November 19, 1980, the trial court confirmed the jury's verdict and ordered that Bassett be executed. Code § 17-110.1(A) requires that we review the death sentence, and we have consolidated this review with Bassett's appeal of his capital murder conviction, Code § 17-110.1(F), and given them priority on our docket as mandated by Code § 17-110.2.

On the morning of November 24, 1979, a passerby discovered Albert Lee Burwell, Jr.'s naked body lying face down in a ditch along a road in eastern Henrico County. Burwell's father told the police that his sixteen-year-old son was the attendant at the Mascot Gas Station on Fairmont Avenue in Richmond. He last saw his son at the station on Friday, November 23, at approximately 5:00 p.m. According to the station's bookkeeper, Burwell's absence was noted between 10:30 p.m. and 11:00 p.m. on November 23. An inventory of Burwell's gas pump revealed a $212.00 shortage.

The forensic pathologist who performed the autopsy of Burwell found six gunshot wounds in the back, arm, and lip. Four of the six wounds revealed gun powder, indicating that the gun was fired within inches of Burwell. The pathologist stated that the two gunshot wounds of the back "had the capability for being fatal within a short interval" and "death from bleeding occurred within ten to thirty minutes."

In December, 1979, during a drug raid on Laverne Thornton's house, the Richmond police seized a .22 caliber revolver. A ballistics expert received the gun for examination and found that it had fired the shots which killed Burwell. Thornton told the police that her daughter, Belinda Atkinson, had given her the gun for protection. Atkinson stated that she had purchased the revolver for $75 from Betty Jean Winfield and that the purchase was made in the presence of Tyrone Jackson and Jeannette Green. The police arrested Jackson in December, 1979, and Winfield on January 8, 1980. A statement made by Winfield at the time of her arrest prompted Bassett's arrest the same day.

At trial, Winfield testified that when the Virginia Correctional Center for Women released her on November 20, 1979, she met Jackson, Bassett, and another man in Petersburg and that all four went to Richmond. Winfield stated that on Friday, November 23, 1979, Samuel Walker "Dap" Cook, Jr., and Jeannette Green sought her aid in buying drugs and that Bassett allowed them to "shoot" the drugs in his house. Thereafter, Winfield, Green, and Sylvia Demetress Williams (now married to Bassett) drove to Ashland to pick up Bassett's paycheck, but failed to do so. Later, Winfield, Green, Cook, and Bassett left in Bassett's car to commit a robbery near Bassett's place of employment. They abandoned this venture because of the presence of the police near the intended site.

One of the group then suggested that they rob the attendant at the Mascot Station. Winfield testified that they arrived at the station between 11:00 p.m. and midnight, and that Bassett had the two women "create a diversion" to lure Burwell behind the station where Bassett robbed him. Bassett returned to the car with Burwell at gun point, forced him to enter the car and told him to start "taking his clothes off." With Burwell in the car, Bassett, Cook, and Winfield left the station. Bassett drove for about fifteen to twenty minutes, then stopped the car and ordered Burwell to lie in the ditch. Winfield testified that Bassett ignored Burwell's plea to live and stood over Burwell and shot him several times, leaving him to die. The parties hid the gun under a dumpster near Bassett's apartment. Winfield later met Jackson, and after telling him the details of the murder, they retrieved the gun and sold it to Belinda Atkinson.

Testimony given by Cook and Green corroborated Winfield's version of the events and happenings of November 23 and 24.

Bassett denied any knowledge of Burwell's death. He admitted that he allowed Winfield to stay in his apartment over Thanksgiving, 1979, but said that on Friday, November 23, Winfield, Cook, and Green left the house together and did not return that night. Bassett testified that he spent the entire evening with his wife, children, and parents. He said that he found Winfield asleep in the house the next morning. Bassett's wife, mother, mother-in-law, and niece corroborated Bassett's alibi.

In the punishment phase of Bassett's trial, the Commonwealth established that Bassett's record revealed a 1963 conviction for unlawful wounding, with a 12-month sentence; a 1965 statutory burglary conviction, with a nine-month sentence; a 1966 conviction as an accessory after the fact in a breaking-and-entering, with a 12-month sentence; a 1966 escape conviction, with a six-month sentence; and a 1967 armed robbery conviction, with a 99-year sentence. On May 25, 1979, the Parole Board released Bassett after he had served over 12 years of the armed-robbery sentence.

Bassett does not appeal his conviction of the use of a firearm in the commission of murder, but he does raise numerous questions concerning his capital murder conviction and sentence.

I. Cruel and Unusual Punishment.

We have considered and find no merit in the argument Bassett made that the death penalty is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution or Article I, § 9 of the Virginia Constitution. See Justus v. Commonwealth, 222 Va. 667, 283 S.E.2d 905 (1981), and cases therein cited.

II. Future Dangerousness.

Code § 19.2-264.4(C) permits the imposition of the death sentence for a capital offense after the Commonwealth proves beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society. To meet its burden of proof, the Commonwealth must rely on the "prior history of the defendant" or the circumstances surrounding the commission of the offense. Bassett contends that the statute provides inadequate guidelines or standards for the fact finder to follow in making this determination.

In Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), we noted that the continuing-threat provision of Code § 19.2-264.4(C) mirrored a Texas provision approved in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and we found no constitutional vagueness in the statutory language:

In our view, [the statute] is designed to focus the fact finder's attention on prior criminal conduct as the principal predicate for a prediction of future "dangerousness". If the defendant has been previously convicted of "criminal acts of violence", i. e., serious crimes against the person committed by intentional acts of unprovoked violence, there is a reasonable "probability", i. e., a likelihood substantially greater than a mere possibility, that he would commit similar crimes in the future. Such a probability fairly supports the conclusion that society would be faced with a "continuing serious threat". [Footnote omitted.]

219 Va. at 478, 248 S.E.2d at 149. The provision has a commonsense meaning which a jury can understand and thus supplies a sufficient standard for a jury to predict future criminal conduct. Jurek, 428 U.S. at 275, 278-79, 96 S.Ct. at 2957-2958, 2959.

The fact finder looking at Bassett's criminal record could determine that his past actions establish a clear pattern of criminal conduct. The record reveals a predisposition to commit another crime upon release from custody. For example, Bassett had served 12 years of a 99-year sentence for armed robbery when he was paroled. Within six months of his release, Bassett had planned and committed the crimes involved in the instant case. The statute is not vague, and the jury reasonably could find that Bassett poses a continuing serious threat to society.

III. Change of Venue.

Bassett's first trial in June, 1980, ended in a mistrial when the jury could not agree on a verdict. The second trial commenced August 19, 1980, and Bassett claims that excessive publicity prevented a fair trial.

The presumption is that the accused can get a fair trial in the locality where the offense occurred. Hampton v. Commonwealth, 190 Va. 531, 58 S.E.2d 288 (1950). The accused has the burden of overcoming this presumption by clearly showing that a prevailing prejudice against him denies him a fair and impartial trial. Newcomer v. Commonwealth, 220 Va. 64, 255 S.E.2d 485 (1979); Farrow v. Commonwealth, 197 Va. 353, 355, 89 S.E.2d 312, 313 (1955). In Farrow, the defendant presented one affidavit, a local newspaper editorial, and two newspaper articles which were not prejudicial to the defendant or his victim. We held that the defendant failed to offer sufficient evidence to support a motion for a change of venue. In the instant case, the record reveals only a few nonprejudicial newspaper clippings. The voir dire examination indicated that only a very few of the potential jurors had knowledge of the offense and no juror stated he or she would be influenced by what had been seen or heard. The trial court properly overruled the motion for a change of venue.

IV. Prior Criminal Records of Prosecution Witnesses.

The Commonwealth presented three key...

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