Brown v. Com.

• Decision Date: 29 November 1971
• Citation: Brown v. Com., 184 S.E.2d 786, 212 Va. 515 (1971)
• Parties: Sherman BROWN v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 786

184 S.E.2d 786

212 Va. 515

Sherman BROWN v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Nov. 29, 1971.

E. Gerald Tremblay, Robert P. Boyle, Charlottesville (Tremblay & Smith, Boyle & Wood, Charlottesville, on brief), for plaintiff in error.

Robert L. Simpson, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and CARRICO, HARRISON, COCHRAN and HARMAN, JJ. HARMAN, Justice.

Sherman Brown, the defendant, was convicted of first degree murder by a jury which fixed his punishment at death. He appeals from the conviction order which sentenced him in accordance with this verdict.

Most of his assignments of error can be disposed of summarily.

The death sentence does not constitute cruel and unusual punishment in contravention of the Eighth Amendment to the United States Constitution. Bloodgood v. Commonwealth, Va., 183 S.E.2d 737, decided October 11, 1971.

And a unitary trial at which the jury determines guilt and punishment in a single trial does not impair the right of the accused to an impartial trial in contravention of the Sixth Amendment to the Constitution of the United States. Bloodgood v. Commonwealth, Supra.

Nor was the defendant constitutionally entitled to be identified at a pretrial lineup conducted for the purpose of having the perpetrator of the crime or crimes identified. Fogg v. Commonwealth, 208 Va. 541, 159 S.E.2d 616 (1968).

And the defendant, who is a black, was not constitutionally entitled to have members of his race on the jury which tried him. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 758 (1965).

The defendant challenges the sufficiency of the evidence to sustain his conviction. A detailed review of the evidence of the circumstances surrounding this murder and the evidence pointing to the defendant's guilt as the murderer leaves no doubt in our mind that this evidence, viewed in the light most favorable to the Commonwealth, amply supports the jury's verdict.

Two other issues raised by the defendant require more lengthy consideration. These are: (1) that the trial court erred in its examination of the veniremen about any scruples or belief they might have in regard to capital punishment, and (2) that the trial court erred in admitting in evidence photographs made by the medical examiner of the victim.

In his Voir dire examination of the veniremen the trial judge inquired as to whether the veniremen had scruples about or were opposed to the imposition of capital punishment. Those who answered in the affirmative were then asked whether their scruples or opposition to capital punishment were such that they would refuse to vote for imposition of the death penalty regardless of the circumstances disclosed by the evidence.

Six jurors who answered affirmatively to the latter question were dismissed for cause by the trial court. We hold, and the defendant appears to concede, that the latter question was certainly a proper one and is in accord with the rule laid down in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The defendant says, however, that the latter question was the only question which the court should have asked. He argues that the earlier inquiry violated the letter and spirit of Witherspoon since it permitted the Commonwealth to identify those veniremen who had any scruples, reservations or feeling about the death penalty even though these were insufficient to dismiss them for cause. He charges that the Commonwealth, using this information, exercised its peremptory challenges so as to eliminate all veniremen who had any reservations about or scruples against the death penalty, an assertion which is not supported by the record.

Witherspoon stands for the proposition that the death penalty may not be constitutionally imposed by a jury if it was chosen by excluding veniremen for cause simply because they voice a general objection to the death penalty. The opinion by Mr. Justice Stewart recognizes that the prosecution has a right to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt or innocence. It also recognizes that a prospective juror in a capital case may be dismissed for cause when he says that he could never vote to impose the death penalty or that he would refuse to consider its imposition in the case before the court.

An argument similar to the one advanced by the defendant here was advanced in Swain v. Alabama, Supra. There the court was concerned with a case in which the prosecution, using peremptory challenges, had struck all blacks from the jury impaneled to try a black. The court, after an extensive discussion and review of the peremptory challenge system, said:

'In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not...