Cherrix v. Com.

• Decision Date: 26 February 1999
• Docket Number: Record No. 981798,Record No. 982063.
• Court: Virginia Supreme Court
• Parties: Brian Lee CHERRIX v. COMMONWEALTH of Virginia.

513 S.E.2d 642

257 Va. 292

Brian Lee CHERRIX v. COMMONWEALTH of Virginia.

Record Nos. 981798, 982063.

Supreme Court of Virginia.

February 26, 1999.

Charles R. Burke, Virginia Beach (A. Theresa Bliss, Accomac, on brief), for appellant.

Donald R. Curry, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: All the Justices.

LACY, Justice.

In this appeal, we review the capital murder conviction and death penalty imposed upon Brian Lee Cherrix, along with his convictions for forcible sodomy, two counts of using a firearm in the commission of a felony, and possessing a firearm after being convicted of a felony.

I. Facts

On the night of January 27, 1994, 23 year-old Tessa Van Hart was working as a pizza delivery person at a pizza delivery restaurant on Chincoteague Island. A man telephoned the restaurant and ordered a pizza to be delivered to an address in the "Small Piney Island" area of Chincoteague. Around 7:45 p.m., Van Hart left the restaurant to deliver the pizza.

When Van Hart failed to return from the delivery, the Chincoteague police were notified, and they began a search for Van Hart. Shortly after midnight on January 28, the police found Van Hart's vehicle behind a vacant home approximately one mile from the Small Piney Island area. Van Hart's body was found in the back seat.

An autopsy revealed that Van Hart died from two gunshot wounds to the head. The autopsy also showed that she had been sodomized and had suffered bruises and abrasions on her forehead, cheek, nose, and mouth sometime around the time of death. In the yard of the house to which Van Hart was to have delivered the pizza on January 27, the police found two bloodstains which DNA typing showed to be consistent with Van Hart's blood.

The murder of Tessa Van Hart remained unsolved for over two years. On June 3, 1996, however, Brian Lee Cherrix, who was in the Accomack County Jail pending sentencing on unrelated charges, contacted the Accomack County Sheriff, Robert Crockett. Cherrix said that he had information concerning the Van Hart murder that he would share with police in return for leniency on his pending sentencing. Cherrix told Crockett that his cousin, Robert Birch, III, had killed Van Hart. Cherrix claimed that Birch had told him in February 1994 that he, Birch, had lured Van Hart to an unoccupied residence by ordering a pizza, raped and shot her, and then discarded the rifle used in the crime in a nearby creek. Birch died in 1995.

The state police began an underwater search of the creek for the murder weapon. When Cherrix was informed that the dive team had not recovered the rifle, he agreed to go to Chincoteague to show the officers the location of the rifle according to what Birch supposedly had told him. At the search site, Cherrix directed Trooper Mark Fowler to the place he claimed that Birch had told him he had thrown the rifle. Fowler testified at trial that, while Cherrix maintained that he was only relating facts imparted to him by Birch, Cherrix would occasionally lapse into the use of the first person in describing how and where the rifle came to be located in the creek. The divers recovered a .22 caliber Marlin rifle at the location indicated by Cherrix.

Later that same day, Cherrix was taken to the City of Chesapeake, where he was interviewed by state police investigator Lloyd Dobbs. After being advised of his Miranda rights and signing a written waiver of those rights, Cherrix gave several differing versions of the story Birch supposedly had told him, all the while using hand and arm gestures to demonstrate how Birch supposedly had disposed of the rifle. Sheriff Crockett then took Cherrix back to Accomack County Jail.

Although Birch had died in 1995, the police conducted an investigation of his whereabouts on the night of the murder, and they concluded that he was not a suspect in the Van Hart murder. In August 1996, after having been sentenced on unrelated charges to 20 years imprisonment with all but nine years suspended, Cherrix was transferred to the custody of the Virginia Department of Corrections to serve his sentence.

On April 16, 1997, Cherrix was returned to Accomack County Jail on charges of uttering and grand larceny. During the drive from Brunswick Correctional Center to the Accomack County Jail, Chincoteague Assistant Police Chief Edward Lewis interviewed Cherrix regarding the Van Hart murder. After Lewis advised Cherrix of his Miranda rights and Cherrix agreed to discuss the matter, Cherrix told Lewis yet a different version of what he claimed had happened on the night of the murder, still maintaining that Birch had committed the murder.

On April 17, 1997, counsel was appointed for Cherrix's uttering and grand larceny charges. On April 25, 1997, Cherrix submitted a written request to the Accomack County Jail authorities asking to see Lewis. Lewis went to the jail to see Cherrix. After Lewis advised Cherrix of his Miranda rights and Cherrix reaffirmed that he wanted to speak with Lewis, Cherrix confessed to the murder and sodomy of Van Hart. Cherrix then accompanied Lewis and an Accomack County sheriffs deputy to Chincoteague, where he directed the officers on a tour of various locations that he had described in his confession.

II. Proceedings

Cherrix was indicted for capital murder, forcible sodomy, two counts of using a firearm in the commission of those offenses, and one count of being a felon in possession of a firearm. Code §§ 18.2-31, -67.1, -53.1, and -308.2. At the conclusion of the guilt stage of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, the jury convicted Cherrix on all counts.

After hearing evidence on the issue of punishment, the jury sentenced Cherrix to death for the capital murder, life imprisonment for the forcible sodomy, a total of eight years for using a firearm in the commission of those offenses, and five years for possessing a firearm after being convicted of a felony. Cherrix's death sentence was based upon the jury's finding of both "future dangerousness" and "vileness." See Code § 19.2-264.4. The trial court reviewed the presentence report and victim impact statements and imposed all of the sentences fixed by the jury.

Cherrix appeals his capital murder conviction, Record No. 981798. We have certified Cherrix's appeal of his non-capital convictions from the Court of Appeals, Record No. 982063, and have consolidated the two appeals.

III. Issues Previously Decided

Cherrix filed a pre-trial motion asking the trial court to declare the Virginia death penalty statutes unconstitutional on a number of grounds. He also filed pre-trial motions asking the trial court to allow the use of a jury questionnaire, to allow individual sequestered voir dire, and to supplement the trial court's voir dire with questions submitted by defense counsel in order to ascertain possible juror bias necessary to empanel an impartial jury.¹ He now appeals the trial court's denial of those motions, raising issues that we have considered and rejected in previous cases:

(1) Virginia's two statutory aggravating circumstances of "future dangerousness" and "vileness" are not unconstitutionally vague. Beck v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert. denied, ___ U.S. ___, 118 S.Ct. 608, 139 L.Ed.2d 495 (1997)("vileness"); Clagett v. Commonwealth, 252 Va. 79, 86, 472 S.E.2d 263, 267 (1996), cert. denied, 519 U.S. 1122, 117 S.Ct. 972, 136 L.Ed.2d 856 (1997)("future dangerousness").

(2) Virginia's penalty-stage instructions adequately inform the jury regarding the concept of "mitigation." Swann v. Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert. denied, 513 U.S. 889, 115 S.Ct. 234, 130 L.Ed.2d 158 (1994).

(3) The use of unadjudicated conduct to prove "future dangerousness" without proof of such conduct beyond a reasonable doubt is not unconstitutional. Goins v. Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996).

(4) Allowing, but not requiring, a trial judge to reduce a sentence of death to life imprisonment on a showing of "good cause" is not unconstitutional. Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675, cert. denied, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994).

(5) Consideration of hearsay evidence or information in a presentence report during the sentencing phase of a capital murder case is not unconstitutional. Goins, 251 Va. at 453, 470 S.E.2d at 122; 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).

(6) The review provided by this Court on direct appeal in capital cases is not unconstitutional. Mickens v. Commonwealth, 252 Va. 315, 320, 478 S.E.2d 302, 306 (1996), cert. denied, 520 U.S. 1269, 117 S.Ct. 2442, 138 L.Ed.2d 202 (1997).

(7) Capital murder defendants do not have the constitutional right to individual and sequestered voir dire of prospective jurors. 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).

(8) Capital murder defendants do not have the constitutional right to require the trial court to mail a questionnaire to all potential jurors. Strickler v. Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d 227, 232,cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d 337 (1991).

We find nothing in Cherrix's arguments here that warrants a change in our previous positions.

IV. Pre-Trial Issues

A. Failure to Suppress Cherrix's Confession

Prior to trial, Cherrix filed a motion asking the trial court to suppress all of his statements to the police "on or after June 7, 1996, in that on each and every occasion the statements secured from the defendant, if any, were obtained while the defendant was in custody and denied his right to counsel."

At the suppression hearing, Cherrix testified that he requested counsel in...