Breard v. Com.

• Decision Date: 10 June 1994
• Docket Number: 931731,Nos. 931730,s. 931730
• Citation: 248 Va. 68,445 S.E.2d 670
• Court: Virginia Supreme Court
• Parties: Angel Francisco BREARD v. COMMONWEALTH of Virginia. Record

Page 670

445 S.E.2d 670

248 Va. 68

Angel Francisco BREARD v. COMMONWEALTH of Virginia.

Record Nos. 931730, 931731.

Supreme Court of Virginia.

June 10, 1994.

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[248 Va. 71] Richard J. McCue, Falls Church, and Robert L. Tomlinson, II, Arlington, for appellant.

Donald R. Curry, Sr. Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

[248 Va. 68] Present: All the Justices.

[248 Va. 71] STEPHENSON, Justice.

These appeals require review of a capital murder conviction and sentence of death imposed upon Angel Francisco Breard (Record No. 931730) and of Breard's conviction of attempted rape (Record No. 931731).

I PROCEEDINGS

Breard was indicted for capital murder, i.e., the willful, deliberate, and premeditated killing of Ruth Dickie in the commission of, or subsequent to, rape or attempted rape. Code § 18.2-31(5). Breard also was indicted for the attempted rape of Dickie.

In the first phase of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, a jury convicted Breard of capital murder. The jury also convicted Breard of attempted rape, fixed his imprisonment at 10 years, and imposed a $100,000 fine.

In the second phase of the trial, the jury fixed Breard's punishment at death for the capital murder, premised upon findings of [248 Va. 72] both the "vileness" and the "future dangerousness" predicates. Code § 19.2-264.2. After considering a report prepared by a probation officer pursuant to Code § 19.2-264.5, the trial court sentenced Breard in accord with the jury verdicts.

We have consolidated the automatic review of Breard's death sentence with his appeal of the capital murder conviction. Code § 17-110.1(F). By order entered November 29, 1993, Breard's appeal of the attempted rape conviction was certified from the Court of Appeals. Code § 17-116.06. That appeal has been consolidated with the capital murder appeal, and both have been given priority on our docket. Code § 17-110.2.

II THE CRIMES

In February 1992, the victim, Ruth Dickie, resided alone at 4410 North Fourth Road, Apartment 3, in Arlington County. She was 39 years of age and unmarried. Breard was living in an apartment a short distance from Dickie's apartment.

About 10:00 or 10:15 p.m. on February 17, 1992, Dickie left an Arlington restaurant. About 10:30 or 10:45 p.m., Ann Isch, who lived in an apartment directly below Dickie's, heard Dickie and a man arguing loudly in the hall. Isch heard Dickie say, "[K]eep your hands off me." According to Isch, the arguing continued as she heard Dickie and the man enter Dickie's apartment. Almost immediately thereafter, when everything became quiet, Isch called the apartment complex maintenance man.

Upon receiving Isch's call, the maintenance man, Joseph King, went to Dickie's apartment. King knocked on the apartment door and heard "something that sounded like something being drug across the floor." After

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receiving no response to his knocking, King called the police

When the police arrived, King gave them a master key. Upon entering the apartment, the police found Dickie lying on the floor. She was on her back, naked from the waist down, and her legs were spread wide. She was bleeding profusely and did not appear to be breathing.

The police observed a "shiny ... dried ... body fluid" on Dickie's pubic hair and on her inner thigh. Hairs were found clutched in her bloodstained hands and on her left leg. Dickie's underpants had been torn from her body. The police found [248 Va. 73] Dickie's eyeglasses, without one lens, in the living room, and the missing lens was found under her body. A telephone receiver located near her head was covered with blood. In the room where Dickie's body was found, the police also found her shoes and her pants with some buttons missing. Dickie's purse was on the floor just inside the front door, and her set of keys was on the floor between her legs.

An autopsy revealed that Dickie had sustained five stab wounds to the neck. Two of the wounds would have caused her death.

The body fluid found on Dickie's pubic hair and inner thigh was subjected to a serological examination and identified as semen. No semen was detected on vaginal or anal swabs.

In the course of their investigation, the police obtained a sample of Breard's blood and samples of his head and pubic hair. The hair samples were subjected to microscopic examination, and the blood sample was subjected to enzyme testing and DNA analysis.

The foreign hairs found on Dickie's body were determined to be identical in all microscopic characteristics to the hair samples taken from Breard. The hairs found clutched in Dickie's hand were Caucasian hairs "microscopically like" Dickie's own head hair and bore evidence that they had been pulled from her head by the roots.

The semen found on Dickie's pubic hair matched Breard's enzyme typing in all respects. On all five of the genetic probes used in the DNA testing, Breard's DNA profile matched the DNA profile of the semen found on Dickie's body.

Breard is a native of Argentina, and his DNA profile occurs in only one in seventeen million members of the Hispanic population. Only 1.7% of the general population has Breard's enzyme typing.

At trial, Breard testified in his own defense. He stated that, on the night of February 17, 1992, he left his apartment armed with a knife because he thought he would "try to do someone," meaning that he "wanted to use the knife to force a woman to have sex with [him]." Breard admitted that he engaged Dickie in conversation on the street, followed her to her apartment, argued with her, and forced himself into her apartment. Breard also admitted that he stabbed Dickie, removed her pants, and got "on top of her." While he was on Dickie, he heard someone knocking on the door. He "got scared," opened a kitchen window, jumped to the ground, and fled. Breard also testified that, at the time, he believed that he was under a curse placed upon him by his ex-wife's father.

[248 Va. 74]

III CLAIMS PREVIOUSLY DECIDED

Breard presents a number of claims without offering sufficient reasons to warrant deviation from our previously expressed views. Therefore, we will adhere to our prior holdings and reject these claims. Breard's claims and our prior holdings are set forth below.

A

The trial court erred in refusing to grant a pretrial evidentiary hearing on the constitutionality of death by electrocution. This claim was rejected in Ramdass v. Commonwealth, 246 Va. 413, 419, 437 S.E.2d 566, 569 (1993).

B

The trial court erred in denying Breard's motion to prohibit the imposition of the death penalty for the following reasons:

1

Virginia's death penalty statutes are unconstitutional because they do not require

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the jury to find beyond a reasonable doubt that aggravating factors outweigh mitigating factors. Answered in Mickens v. Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684 (1994). Furthermore, the court failed to properly instruct the jury about how it should consider mitigating evidence. Answered by Satcher v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826 (1992), cert. denied, 507 U.S. 933, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993)

2

Virginia's "vileness" and "future dangerousness" aggravating factors are unconstitutionally vague and inherently unreliable. Answered in Mickens, 247 Va. at 403, 442 S.E.2d at 684.

3

The "future dangerousness" aggravating factor is unconstitutionally applied because the jury is permitted to consider evidence of unadjudicated acts of misconduct without an instruction that [248 Va. 75] such acts must be proved beyond a reasonable doubt. Answered by Satcher, 244 Va. at 228, 421 S.E.2d at 826; Stockton v. Commonwealth, 241 Va. 192, 210, 402 S.E.2d 196, 206, cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991).

4

The death penalty is arbitrarily and discriminatorily imposed, is repugnant to society's "evolving standards of decency," and is excessive. Answered by Satcher, 244 Va. at 228, 421 S.E.2d at 826. The death penalty constitutes cruel and unusual punishment per se. Answered by Spencer v. Commonwealth, 238 Va. 275, 280-81, 384 S.E.2d 775, 777-78 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990).

5

The trial court erred in denying Breard additional preemptory challenges. Answered by Beavers v. Commonwealth, 245 Va. 268, 273, 427 S.E.2d 411, 416, cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 130 (1993).

6

The trial court erred in denying individual and sequestered voir dire. Answered by Stewart v. Commonwealth, 245 Va. 222, 229, 427 S.E.2d 394, 399, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993).

7

A defendant who is sentenced to death in Virginia is denied a meaningful appellate review. Answered by Satcher, 244 Va. at 228, 421 S.E.2d at 826.

8

Code § 19.2-264.5 is unconstitutional because it allows the trial court to consider hearsay information contained in a presentence report. Answered by O'Dell v. Commonwealth, 234 Va. 672, 701-02, 364 S.E.2d 491, 507-08 cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988).

[248 Va. 76]

C

The trial court erred in denying Breard's motion for a bill of particulars. Answered by Ramdass, 246 Va. at 419, 437 S.E.2d at 570; Satcher, 244 Va. at 231, 421 S.E.2d at 828; Strickler v. Commonwealth, 241 Va. 482, 490, 404 S.E.2d 227, 233, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d 337 (1991). These cases hold that a bill of particulars is not required if the indictment gives an accused notice of the nature and character of the offense charged. In the present case, the indictment gave Breard such notice.

IV Constitutionality of Trial Court's Review of Death Sentence

Breard claims that Code § 19.2-264.5 is unconstitutional because "the death penalty can be imposed even when there has been a showing of good cause that a life sentence is appropriate." He further asserts that "[t]his process is also unconstitutional because...