Beaver v. Com., s. 850828

Decision Date16 January 1987
Docket Number850861,Nos. 850828,s. 850828
Citation232 Va. 521,352 S.E.2d 342
PartiesGregory Warren BEAVER v. COMMONWEALTH of Virginia. (Two Cases) Record
CourtVirginia Supreme Court

John H. Maclin, IV, T.O. Rainey, III, Petersburg, for appellant.

Donald R. Lee (Philip R. Brown, Hunton & Williams, Richmond, on briefs), for appellant, on ineffective assistance of counsel claim.

Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

THOMAS, Justice.

I. BACKGROUND

Gregory Warren Beaver pled guilty to capital murder, to wit: "the willful, deliberate and premeditated killing of a law-enforcement officer ... when such killing is for the purpose of interfering with the performance of his official duties." Code § 18.2-31(f). Beaver also pled guilty to the use of a firearm in the commission of a felony. Code § 18.2-53.1. After the guilty pleas were accepted, the trial court heard evidence concerning the appropriate penalty. The trial court sentenced Beaver to death on the capital murder charge and two years imprisonment on the firearm charge.

Beaver appealed the capital murder conviction to this Court. (Record No. 850828.) He appealed the firearm conviction to the Court of Appeals. We certified the firearm conviction to this Court pursuant to the provisions of Code § 17-116.06 (Record No. 850861) and have consolidated that matter with the appeal of the capital murder conviction and the automatic sentence review mandated by Code § 17-110.1.

II. FACTS

On April 12, 1985, Trooper Leo Whitt of the Virginia State Police made a routine traffic stop of a blue Camaro on Interstate 95 in Prince George County. Beaver was the driver. He was accompanied by a hitchhiker he had picked up in Florida.

Trooper Whitt approached the car on the driver's side and requested defendant's license and registration. Defendant directed the passenger to look in the glove compartment for the documents. While waiting for defendant to produce the documents, Trooper Whitt walked to the front of the automobile and appeared to write down information from a license plate which was displayed in the front windshield.

The trooper returned to the driver's side and the passenger told defendant that he could not find the license and registration. At that moment, defendant raised a gun and shot Trooper Whitt. The trooper staggered back and "let out a groaning sound." It appeared he had been shot in the shoulder. The trooper started coming forward again, grabbing for his shoulder with his left hand while attempting to reach his gun with his right hand. At that point "defendant raised the gun again and paused and aimed and shot him again the second time." This time the trooper fell to the ground. Defendant looked out the window "to see if [the trooper] was still laying there and took off down the highway."

After Beaver drove away he remarked, "Damn, I never shot a police officer before." When the passenger asked him why he had done it, Beaver said he was "not going back to jail for anybody." After defendant had driven from the interstate onto a side road he remarked, "I got away with shooting a police officer."

Beaver's case came on for trial on July 8, 1985. On that date, he pled not guilty and a jury was selected. However, on July 9, 1985, Beaver changed his plea to guilty. He was questioned extensively by the trial court concerning his plea. The trial court concluded that Beaver had a thorough understanding of "the nature and effect of his plea and of the penalties that may be imposed upon his conviction, and of the waiver of trial by jury and of appeal." The trial court accepted the written plea of guilty, found Beaver guilty of capital murder, and dismissed the jury. The trial court then held a sentencing hearing as provided in Code § 19.2-264.4(A). On September 16, 1985, Beaver was sentenced to death based on a finding of future dangerousness.

III. ISSUES

On appeal, Beaver assigns numerous errors. He contends that the trial court erred as follows:

1. In failing to grant his motion for change of venue;

2. In refusing to order a Bill of Particulars;

3. In refusing to permit the defense to retain a private investigator;

4. In refusing to grant the defendant a reasonable time to prepare his defense;

5. In refusing to grant a motion to summons a new jury panel;

6. In excluding veniremen who were irrevocably opposed to the death sentence; and

7. In employing an unconstitutional and unfair method of jury selection.

He continues with allegations that the death penalty statute and the death penalty itself are unconstitutional; on these points he contends as follows:

8. That Code § 18.2-31 is unconstitutional because it constitutes cruel and unusual punishment, is vague, and constitutes a denial of due process and equal protection of the laws;

9. That Code § 18.2-31(f) is unconstitutional because it creates a special protected class, to-wit: police officers, thus denying the defendant equal protection;

10. That the statutory construction and the conditions for imposition of the death sentence are overly broad and impermissibly vague; and

11. That death by electrocution is cruel and unusual punishment.

He goes on to make assignments of error aimed specifically at the penalty phase proceedings. In that regard he contends as follows:

12. That the trial court erred in refusing to order an independent private psychiatrist to assist in the presentation of any defense;

13. That the trial court erred in permitting the introduction of evidence concerning alleged offenses as a juvenile;

14. That the trial court erred in permitting the introduction of evidence concerning alleged yet unconvicted offenses that occurred in the State of Maryland;

15. That the trial court erred in permitting the introduction of evidence concerning alleged offenses which occurred while defendant was held in the Petersburg City Jail;

16. That there was insufficient evidence to show future dangerousness to the extent needed to impose the death sentence 17. That the death sentence in this case is excessive and disproportionate to the penalties imposed in similar cases; and

18. That the death sentence imposed in this case was imposed under the influence of passion, prejudice, and other extremely arbitrary factors.

We will discuss the various assignments of error in the three groupings set forth above.

IV. DISCUSSION
A. Effect of Defendant's Guilty Plea

The first ten assignments of error along with defendant's appeal of his firearm conviction must be disposed of on the same ground: these matters cannot be raised on appeal because Beaver pled guilty. We discussed the rule in Peyton v. King, 210 Va. 194, 169 S.E.2d 569 (1969), a case in which a criminal defendant sought habeas corpus relief for denial of his right to appeal a conviction that was based on his plea of guilty. The trial court granted the requested relief. We reversed. We held that absent a claim of a jurisdictional defect a conviction based on a guilty plea could not be appealed. We wrote as follows:

[A] voluntary and intelligent plea of guilty by an accused is, in reality, a self-supplied conviction authorizing imposition of the punishment fixed by law. It is a waiver of all defenses other than those jurisdictional, effective as such not only in the lower court but as well in this court. Where a conviction is rendered upon such a plea and the punishment fixed by law is in fact imposed in a proceeding free of jurisdictional defect, there is nothing to appeal. To take any other view would give recognition to an empty right and permit frivolous appeals for the mere sake of delay.

210 Va. at 196-197, 169 S.E.2d at 571. Accord Guthrie v. Commonwealth, 212 Va. 550, 551, 186 S.E.2d 26, 28 (1972). See also Tollett, Warden v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979) (a capital murder case in which the defendant pled guilty).

In Tollett, the United States Supreme Court reaffirmed what it said in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), concerning the effect of a guilty plea. The Tollett Court wrote as follows on the issue:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

411 U.S. at 267, 93 S.Ct. at 1608. By the same logic, the defendant in this appeal may not complain of any non-jurisdictional defects that occurred prior to his guilty plea.

Defendant has advanced no reason why the general rule should not apply in this case, and we perceive none. Therefore, we hold that defendant's firearm conviction and the matters raised by him in assignments of error one through ten, as set forth above, are not cognizable on this appeal.

B. Constitutionality of The Death Penalty

We turn now to defendant's contention that the death sentence is unconstitutional because it is cruel and unusual. In making this argument, Beaver relies upon and adopts the arguments on the same point that were made by the defendants in Martin v. Commonwealth, 221 Va. 436, 271 S.E.2d 123 (1980), Whitley v. Commonwealth, 223 Va. 66, 286 S.E.2d 162, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982), and Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). Beaver readily admits, however, that the arguments upon which he relies have been considered and rejected by this Court in the several opinions upon which he relies. We adhere to our previous rulings and we reject Beaver's argument that the death penalty...

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