Burns v. Com.

Decision Date02 March 2001
Docket NumberRecord No. 001880.,Record No. 001879
PartiesWilliam Joseph BURNS v. COMMONWEALTH of Virginia.
CourtVirginia Supreme Court

William B. Allen, Woodstock (Timothy S. Coyne, Winchester; Allen & Allen; Fowler, Griffin, Coyne, Coyne & Patton, on briefs), for appellant.

Pamela A. Rumpz, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.


KINSER, Justice.

A jury convicted William Joseph Burns of the capital murder of Tersey Elizabeth Cooley in the commission of rape and/or forcible sodomy in violation of Code § 18.2-31, statutory burglary in violation of Code § 18.2-90, rape in violation of Code § 18.2-61, and forcible sodomy (anal intercourse) in violation of Code § 18.2-67.1 At the conclusion of the penalty phase of a bifurcated trial, the jury recommended that Burns be sentenced to death on the capital murder conviction, finding that "there is a probability that [Burns] would commit criminal acts of violence that would constitute a continuing serious threat to society" and that his conduct in committing the offense was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder." The jury also sentenced Burns to 18 years on the statutory burglary conviction, and to life imprisonment on each of the convictions for rape and forcible sodomy. After reviewing the post-sentence report required by Code § 19.2-264.5, the trial court sentenced the defendant in accordance with the jury verdicts.

Burns appealed his non-capital convictions to the Court of Appeals pursuant to Code § 17.1-406. We certified that appeal (Record No. 001880) to this Court under the provisions of Code § 17.1-409 for consolidation with the defendant's appeal of his capital murder conviction (Record No. 001879) and the sentence review mandated by Code § 17.1-313. After considering Burns' assignments of error, the record, and argument of counsel, we find no error and will affirm the judgments of the circuit court.


Applying familiar principles of appellate review, we will recite the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party before the circuit court.2Johnson v. Commonwealth, 259 Va. 654, 662, 529 S.E.2d 769, 773, cert. denied, ___ U.S. ___, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000); Walker v. Commonwealth, 258 Va. 54, 60, 515 S.E.2d 565, 568 (1999),cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829 (2000). We also accord that evidence all inferences fairly deducible from it. Horton v. Commonwealth, 255 Va. 606, 608, 499 S.E.2d 258, 259 (1998) (citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).


During the day on September 20, 1998, Burns was drinking heavily at his trailer in Baker, West Virginia. He resided there with his wife, Penny Marlene Cooley Burns, and her two sons. Apparently some home repairs were not going well, and Burns became increasingly angry with his wife. Because Burns had previously assaulted and battered Penny on several occasions when he was drinking, she became concerned for her safety and decided to leave their residence. She had left Burns once before when he was drinking. On that occasion, Penny went to her mother's house in Edinburg, Virginia, and stayed there a few days before returning home.3

When Penny left her home on September 20th, she did not go to her mother's home. Instead, she took a circuitous route unfamiliar to Burns to the home of her friends, Amanda and Leonard Funkhouser.4 On the way to their house, Penny stopped several times to telephone her mother. Penny wanted her mother to know that Penny had left Burns and would be staying at the Funkhousers' house. Penny also wanted to warn her mother not to let Burns into Cooley's home if he came there.5 However, Penny was never able to reach her mother, even after she arrived at the Funkhousers' residence.

Around midnight, Burns showed up at the Funkhousers' house and asked Penny to go home with him. She refused. Burns then left but returned about an hour later. He remained outside the Funkhousers' home in his car until the next morning. When the Funkhousers left for work that morning, they did not want to leave Penny alone in their home. So, Leonard took Penny to work with him. At Leonard's suggestion, Penny then went on a commercial truck run to Ohio and Pennsylvania with a friend of Leonard's. While in Pennsylvania, Penny learned about her mother's murder during a telephone conversation with Penny's son.

Around noon on September 21, 1998, Penny's sister, Linda Yvonne Heres, went to the home of her 73-year old mother. When Linda arrived at Cooley's home, she discovered that the screen on the kitchen door had been pushed in, and she later realized that a window pane in the kitchen door had been broken. After Linda entered the house, she yelled for her mother but heard no response. Linda then proceeded into her mother's bedroom and found her mother's unclothed, dead body lying on the floor.6 Cooley's face was partially covered by a mattress that had been pulled from the bed, and her lower dentures were lying on the floor about four feet from her jaw. The bedroom was in disarray, and the bedclothes were scattered around the room.

Frances Patricia Field, Assistant Chief Medical Examiner for the Northern Virginia District Medical Examiner's Office, performed an autopsy on Cooley's body. Dr. Field reported that Cooley had "multiple injuries about the head," including abrasions and bruises on the right forehead; beside the right eyebrow; on the white part of the eyeball; on the right and left jaw lines; on the neck; and on the right cheek, chin, and mouth. Cooley also had large bruises on her upper chest and lower neck. Cooley's inner lips were likewise bruised, and Dr. Field testified that the injuries to Cooley's gums and lips were consistent with her dentures having been in place at the time of the assault. Finally, Cooley sustained 24 fractures to her ribs. Dr. Field determined that the cause of death was "blunt force trauma to [Cooley's] chest, with rupture of the heart" and compression of the neck. There was also a tearing of Cooley's pericardium, causing blood to spill out of the heart into the chest cavity. Dr. Field opined that a broken rib probably had punctured the heart, although direct force applied to the chest might have ruptured the heart. Because bleeding is rapid when the heart is ruptured, Dr. Field concluded that death occurred within two to three minutes after Cooley's heart ruptured.

After Linda found her mother's body, she called "911." Soon thereafter, the police and rescue squad arrived at the scene. Larry W. Green, Sheriff of Shenandoah County, subsequently decided to set up a "traffic-canvassing detail" to ascertain if any drivers had traveled through the area where Cooley's house was located between approximately 7:00 p.m. on September 20th and 11:30 a.m. on September 21st. As Sheriff Green was moving a flare on the roadway south of the Cooley residence, a vehicle approached him. Sheriff Green testified that he "was in the center of the road, walking with the flare, and, of course, that stopped the car, and [he] approached the driver's side." Burns was operating that vehicle. After Burns stopped and before Sheriff Green could say anything, Burns asked, "What's going on? That's my mother-in-law's house." Upon realizing that Burns was a relative of the decedent, Sheriff Green asked him to speak with Garlan Gochenour, a lieutenant with the Shenandoah County Sheriff's Office, who would explain what had happened.

Burns then walked over to a nearby police cruiser and got into the right front seat as Gochenour got into the left front seat. Gochenour informed Burns about Cooley's death and then advised Burns of his Miranda rights. Burns told Gochenour that he had not been in the victim's house within the last five days or within the last year. However, Burns admitted that he had driven by Cooley's home on September 21st between 1:00 a.m. and 1:30 a.m., but insisted that he had merely turned around in the driveway and then proceeded to the Funkhouser residence.

Upon realizing that Burns had been at the crime scene during the approximate time when the murder occurred, Gochenour asked Burns to go to the sheriffs department to be fingerprinted. Burns agreed and drove his own vehicle to the sheriffs department, where he later was fingerprinted. While at the sheriffs office, Gochenour again advised Burns of his Miranda rights, and during subsequent questioning, Burns stated that he had been at a gas station near Cooley's residence at approximately 2:52 a.m. and again at approximately 6:35 a.m. on September 21st. In fact, Burns subsequently produced receipts for items that he had purchased at the station, and explained that he kept the receipts because he was on probation and needed to account for every place that he went. Gochenour also talked with Burns about a Physical Evidence Recovery Kit (PERK Kit), and Burns agreed to go to the hospital so that samples of his hair and bodily fluids could be obtained for the PERK Kit. Gochenour and John Thomas, an investigator with the Shenandoah County Sheriffs Office, accompanied Burns to the hospital, where the samples were taken.

On September 26th, Burns returned to the sheriffs office. After advising Burns of his Miranda rights, Gochenour interviewed him again. This time, Burns admitted that he was in the victim's home on the night of the murder. Burns stated that, when he entered the house, he encountered a black male who had already murdered Cooley. According to Burns, he killed that man and disposed of the body because Burns did not want his wife to find out that a black man had raped and murdered her mother. Burns...

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