Cantrell v. Com.

• Decision Date: 18 October 1988
• Docket Number: No. 0062-87-3,0062-87-3
• Citation: 373 S.E.2d 328,7 Va.App. 269
• Court: Virginia Court of Appeals
• Parties: William Jeffrey CANTRELL v. COMMONWEALTH of Virginia. Record

Page 328

373 S.E.2d 328

7 Va.App. 269

William Jeffrey CANTRELL v. COMMONWEALTH of Virginia.

Record No. 0062-87-3.

Court of Appeals of Virginia.

Oct. 18, 1988.

John C. Lowe (Lowe & Jacobs, Charlottesville, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen., (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.

KOONTZ, Chief Judge.

William Jeffrey Cantrell was first indicted on April 19, 1982, for first degree murder and use of a firearm in the commission of murder. At the conclusion of the first trial, a mistrial was declared because the jury was unable to reach a verdict. Following Cantrell's second trial in May 1983, he was found guilty of first degree murder and use of a firearm in the commission of murder. On appeal, the Supreme Court of Virginia reversed and remanded for a new trial on those indictments. Cantrell v. Commonwealth, 229 Va. 387, 329 S.E.2d 22 (1985). On remand, because of pre-trial publicity, venue was moved to Russell County. Cantrell was convicted in the third jury trial of first degree murder and use of a shotgun in the commission of murder. In accordance with the jury's verdicts, Cantrell was sentenced to a total of twenty-three years' imprisonment.

On appeal, Cantrell raises the following issues: (1) whether he was placed in double jeopardy by being tried on a new indictment after the trial court granted a motion to nolle prosequi the first indictment; (2) whether the murder weapon and other items found near the body were illegally seized; (3) whether his statements to the police following the murder requesting return of a shotgun were inadmissible as the fruit of an allegedly improper search and seizure; (4) whether the trial court erred in admitting testimony concerning nude pictures of Cantrell's paramour and other evidence of Cantrell's extra-marital affairs; and (5) whether the evidence was sufficient to support the jury's verdict. Finding no error, we affirm the convictions.

I. Factual Background

On December 8, 1981, at approximately 9:15 p.m., Judy Cantrell was killed by two shotgun blasts at her home as she returned from a karate class. Her husband, William Jeffrey Cantrell (hereafter Jeff Cantrell), was at home at the time. Mack Mullins, Jeff Cantrell's brother-in-law and neighbor, testified that around 9:00 p.m. he heard two loud "booms," which he thought were firecrackers. Ten or fifteen minutes later, Mullins received a call from Bill Cantrell, his father-in-law and Jeff Cantrell's father, who asked whether Mullins had been shooting firecrackers. Bill Cantrell told Mullins that Jeff Cantrell had called reporting that someone had broken into his house and requesting that someone come and help. When Mullins arrived at the residence, Jeff Cantrell was holding his wife in his arms at the foot of five brick steps at the side of the residence. Mullins discovered a shotgun on a grassy landing near the top of the steps at the corner of the house. Near the shotgun was a knife and leather case and a spent shell casing.

Police Officer David Mullins received a call from the police dispatcher at approximately 9:18 p.m. and proceeded to Jeff Cantrell's residence. Officer Mullins testified he had been patrolling U.S. Route 23, the main highway near the residence and saw no vehicles parked on the shoulder of the road below the residence. A neighbor living on the road near Jeff Cantrell's residence testified she was home the night of the murder. She testified she could hear vehicles as they traveled down the gravel road because her house was a short distance from the road. She did not hear any vehicles travel the road that evening until around 9:05 p.m., when she heard a vehicle drive by her house. She looked out the window, which she customarily did when cars drove by, and saw the victim's car. The next vehicle she saw travel the road that night was the rescue squad.

When the police arrived at the scene at approximately 9:30 p.m., the rescue squad was already there. The victim was lying in the driveway at the bottom of the brick steps. Jeff Cantrell was lying behind the victim and was being attended to by rescue squad personnel. The police officer testified he saw a karate bag and sticks near the victim's feet and some keys lying on the steps. While viewing the body, Mack Mullins or Bill Cantrell said to the officer "Come here. I want to show you the gun." Officer Mullins walked up the brick steps and found the shotgun on the grassy landing near the corner of the house, approximately six to eight feet from the entrance of the residence. Near the shotgun was a spent shell casing and a knife in a leather case. A second spent casing was still in the gun's ejector slot.

At about 9:35 p.m., the officer made a "walk through" in the house, while a fellow officer stood guard outside near the crime scene. The officer entered through the side entrance. The officer saw a woman's purse on the pool table in the ultility room. He proceeded through the utility room into the kitchen. The kitchen light was on. Numerous cabinet doors were open. A woman's wedding ring and birthstone ring were on the counter near the sink. Above the refrigerator, the open cabinet contained camera equipment. In the den, the officer noticed that the words "F--K YOU" had been written on the TV screen. The letter "K" was written in an unusual manner. The officer testified it looked like the letter "V" with a slash mark straight down in front of it. In a bedroom, the officer noticed that a number of Christmas presents had been opened. In the master bedroom, he observed women's clothing hanging out of opened dresser drawers. On top of the dresser lay two men's watches.

Cecil Bowling, a member of the rescue squad, testified concerning Jeff Cantrell's condition at the scene. Cantrell was hyperventilating and his blood pressure was "high;" however, Bowling did not recall seeing any bumps or bruises. On the way to the hospital in the ambulance, Bowling checked the reaction of Cantrell's pupils to light. He stated that Cantrell's eyes did not respond to the light. The attending emergency room physician testified that upon arrival, Cantrell was conscious, and his blood pressure was normal. Cantrell had sustained superficial scratches and some swelling of the forehead where he had a small bruise. X-rays were negative for any broken bones or a concussion. He was diagnosed as suffering from acute hysteria or a condition of extreme nervousness. The doctor prescribed valium intravenously. The following day, when Cantrell was released from the hospital, the swelling had gone and the cuts were almost cleared up.

Cantrell gave the police a list of items stolen from the residence, including flatware, $450 in currency, a clock, a movie camera, a .38 pistol, jewelry, a pocketknife, a hair dryer, Christmas presents, a plextron, a comb, money from his billfold, and a pocket watch.

On December 31, 1981, in a hand-written statement to police, Cantrell recited that, upon returning home at approximately 6:40 p.m., he entered the side entrance to the house without turning on the light in the room. He was entering the kitchen when he was struck over the head by a hard object. As he slumped, three persons grabbed him and forced him to the floor. He passed out and when he regained consciousness, his hands and legs were tied, he was lying face down on the floor and a large man was sitting on his back. When he attempted to move, he was struck or slapped. He heard one of the three men coming down the hallway put shells in a shotgun. One of the intruders came into the kitchen, got a glass of water, and broke the glass on the back of Cantrell's head. None of the men spoke.

Cantrell heard his wife's car pull into the carport and he screamed, "Judy! Judy!" He was again hit over the head with a hard object. Shortly after this he heard a gun blast, and approximately three seconds later he heard a second gun blast. At this time the person sitting on him jumped up and the three intruders left after gathering the items they stole. Cantrell freed himself, hopped to the phone, turned on a light, and called his parents to get help. He went outside and found his wife lying at the foot of the steps leading to the side entrance.

On April 17, 1982, Officer Roy Nixon received an anonymous phone call from a person claiming to have been involved in the murder. Officer Donny Ray Mullins listened on the other line. The caller informed the police they would find evidence relating to the crime located in a flower box near the Pound Hardware Store. Officer Donny Ray Mullins, who had known Jeff Cantrell for fifteen or twenty years and had spoken to him on the telephone on previous occasions, testified that the caller was Jeff Cantrell and that the voice was "very similar" to Jeff Cantrell's. When the officers went to the flower box, they discovered a white plastic bag taped with yellow tape which contained a pistol similar to the one reported stolen by Cantrell. They also found a dark blue ladies' nightgown, a pair of pink panties, and two snapshots of the victim. A witness who went to high school with Jeff Cantrell testified that three days earlier on April 14, 1982, he had seen Cantrell run across the street near the Pound Hardware Store at 10:30 or 11:00 p.m.

Jeff Cantrell's paramour testified that she and Cantrell were involved in a sexual affair in 1981, just prior to the killing, and that they had broken off the relationship shortly after the killing. She testified that Cantrell admitted to her that he was involved with other women. Cantrell had taken nude photographs of her which he displayed to others, including the victim's brother. Cantrell had shown these nude pictures of his paramour to others in the fall of 1981. Randall Dean Donahue, Jeff Cantrell's cousin and one of the persons to whom he showed the photographs, testified Cantrell stated that "if anything happened to mine and Judy's...