Clark v. Com.

• Citation: 257 S.E.2d 784,220 Va. 201
• Decision Date: 30 August 1979
• Docket Number: No. 790092,790092
• Parties: James T. CLARK, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 784

257 S.E.2d 784

220 Va. 201

James T. CLARK, Jr. v. COMMONWEALTH of Virginia.

Record No. 790092.

Supreme Court of Virginia.

Aug. 30, 1979.

Robert T. Hall, Fairfax (Richard J. Colten, Hall, Surovell, Jackson & Colten, P. C., Fairfax, on brief), for appellant.

Vera S. Warthen, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

On August 29, 1978, a jury convicted James T. Clark, Jr., of willful, deliberate and premeditated murder for hire, Code § 18.2-31(b), and, after a penalty proceeding, recommended that his punishment be death. Code §§ 19.2-264.3, -264.4. On November 21, 1978, a sentencing hearing was held during which the trial court considered a post sentence report, the testimony of the defendant and the defendant's parents, as well as argument of counsel. Code § 19.2-264.5. At the conclusion of this proceeding, the court confirmed the jury's verdict and ordered that Clark be executed. The defendant sought and is entitled to this appellate review as a matter of right.

The evidence at trial established that George Harold Scarborough was found dead in his Springfield, Virginia townhouse around 10:00 p. m. on January 31, 1978. The body was lying on the floor, just inside the front door. An autopsy revealed that the victim had died as a result of five gunshots to the head and chest. A police investigation disclosed that the townhouse had been ransacked. A bottle of chloroform and a knife were found near the body, which was lying on a green toss pillow.

Approximately five months after the slaying, defendant Clark was arrested in Los Angeles, California. Investigators Guy C. Boggess and Larry Oliff of the Fairfax County (Virginia) Police Department questioned Clark concerning the Scarborough murder. After being informed of his constitutional rights, defendant executed a waiver and made a statement confessing to the murder. A few hours after this initial confession the Virginia officers, after again advising Clark of his constitutional rights, elicited and recorded a second statement, which was transcribed and subsequently read, corrected, and signed by Clark. It was this detailed account that the Commonwealth relied upon at trial to link the defendant with the murder.

In his statement Clark said that he was visiting his second cousin, Charles Daniel Clark said that he and Stewart were paid $1,200 before the murder with the understanding that $5,800 would follow after Scarborough was killed. On a tip from Holler that Scarborough was returning home from a trip, the men, on January 31, 1978, broke into the victim's townhouse by jimmying the glass patio door. They ransacked the home, attempting to simulate a burglary. Waiting for Scarborough, they planned their attack as they drank and ate from the victim's refrigerator. When Scarborough arrived, Stewart, who was armed with a knife, grabbed him from behind and tried to chloroform him. When Scarborough broke free, Clark, who had a gun, ordered him to stop resisting. The victim continued to struggle, and Clark "shot him at pointblank," using a green toss pillow to muffle the noise.

Stewart, one night in January 1978, when Stewart got a call from a friend, Mrs. Betty M. Holler, who offered Stewart $7,000 to commit a murder. Stewart, in turn, asked Clark if he would kill someone for $3,500 and when Clark consented, the deal was settled. Subsequently the men met with Holler, who gave them Scarborough's name, address, phone number, description, and a bottle of chloroform "(t)o put the victim out." A trip was also made to the victim's place of work so that Holler could point him out to Clark and Stewart. Clark stated that Holler was acting for Scarborough's wife, Jamie, in arranging the murder.

With Scarborough dead, Clark stated the he removed $435 from the back pocket of the deceased and that he and Stewart left, taking with them the money, a few other items of personal property, and some steaks from the victim's refrigerator. They went home and joined their girl friends, played records, ate the steaks, drank alcohol, and called Holler to report to her "(t)he beast is deceased."

At the conclusion of the Commonwealth's evidence, the defense called no witnesses. The jury subsequently returned a guilty verdict. In the evidence entered as to sentencing, the Commonwealth showed that Clark had previously been convicted in Maryland for conspiracy to distribute controlled drugs, and he had been sentenced to serve three years in the penitentiary. Additionally, Investigator Boggess stated that in the course of his general conversations with Clark, the defendant never indicated that he was sorry for what happened. In fact, Boggess stated that Clark said he was not sorry for what happened, only sorry that he was caught.

We consider the defendant's assignments of error questioning his conviction and the sentence imposed on him.

EXCLUSION OF JUROR

The defendant argues that the trial court erred in excluding Ms. Ellen Ellis as a juror because of her predisposition against capital punishment. Ellis was examined at length by counsel and by the court. Her testimony establishes that her views on the imposition of the death penalty were such as to inhibit her from considering such a penalty.

At the outset of her examination by the court, she stated flatly, "I am against capital punishment." When asked if she could impartially consider death as a possible penalty in a capital case, she responded: "I can't state that I could be impartial. I feel that I might be ultimately reluctant to impose a guilty sentence if it required the death penalty, yes." When asked if her views would prevent her from considering the death penalty when the only punishment she could give would be life imprisonment or death, she responded, "I think it could inhibit me, yes." Upon further questioning she responded with such answers as "but I do have a conviction that the death penalty is it is not the best punishment in such a case"; "I don't think I could convict" ; "I don't think I could vote for conviction if he would have to be (executed)." In a final exchange she was asked whether, after finding a defendant guilty, she could consider imposition of a death sentence where her only choices were death and life imprisonment. Ms. Ellis responded, "I have a very real fear that I couldn't sentence someone to death."

A juror may not constitutionally be excluded for cause merely because he or she may have voiced a general objection to the death penalty or expressed conscientious or religious scruples against its imposition. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We said in Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), Cert. denied, --- U.S. ----, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979), and Lewis v. Commonwealth, 218 Va. 31, 235 S.E.2d 320 (1977), that a prerequisite for such juror exclusion is an irrevocable commitment to vote against the death penalty. In the instant case testimony given by Ellis revealed that she would automatically vote against such penalty. Her responses were sufficient to communicate an unmistakably clear commitment against the death penalty, and we hold that the trial court did not err in so finding.

THE DEFENDANT'S CONFESSION

The defendant moved the court to suppress his confession, alleging that it was involuntary and was made under coercion and duress.

On June 21, 1978, Clark was interrogated at the Los Angeles City Jail by Investigators Boggess and Oliff. He was advised of his constitutional rights and signed an acknowledgment form. Clark then made a confession after inquiring as to the penalty for the crime with which he was charged and being correctly informed that the punishment was either death by electrocution or life imprisonment. The confession is 49 pages in length, and each page is initialed by the defendant who made 23 corrections before signing it. Specifically, Clark claims that he interpreted remarks made by Investigator Boggess to mean that if he cooperated and confessed, the court would not sentence him to death. ¹ The defendant further says that his confession was coerced by Boggess because he claims the officer told him that the Commonwealth's Attorney was considering charging Clark's girl friend with being an accessory. Clark said he understood that if he cooperated with the officers, no charges would be brought against his girl friend.

Boggess testified emphatically that he made no promises whatsoever to the defendant and did not threaten or coerce him in any way. The officer denied that he told the defendant that it would be better for him if he confessed. Responding to Clark's allegation regarding the defendant's girl friend, Boggess testified that he told the defendant that the Commonwealth's Attorney might charge the defendant's friends who accompanied him from Virginia to California. Clark admitted that Boggess said that only the Commonwealth's Attorney would decide whether to charge his girl friend.

Aside from the fact that the evidence would not support a finding that Clark's confession was made to aid his girl friend, the rule is that "a confession is not Per se invalid merely because the confessor implicates himself in an effort to secure the best possible disposition of a charge pending against a relative or friend." Ferguson v. Boyd, 566 F.2d 873, 878, n. 7 (4th Cir. 1977). The confession in this case was admittedly given after the defendant had twice been given his Miranda warnings. He admits that he knew his rights and knew that the statements he made could be used against him. The confession is clear, coherent, and unambiguous. Relying upon the testimony of the defendant and the officers who took the confession, the trial court found that the statement was voluntarily and knowingly given, and that there was no police misconduct involved. These findings...