Clozza v. Com.

• Citation: 321 S.E.2d 273,228 Va. 124
• Decision Date: 07 September 1984
• Docket Number: No. 832053,832053
• Parties: Albert J. CLOZZA v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 273

321 S.E.2d 273

228 Va. 124

Albert J. CLOZZA v. COMMONWEALTH of Virginia.

Record No. 832053.

Supreme Court of Virginia.

Sept. 7, 1984.

Peter T. Legler, Virginia Beach, for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: All the Justices.

COMPTON, Justice.

This is the automatic review of a sentence to death. The trial errors enumerated by the defendant involve the qualifications of jurors, sufficiency of the evidence to prove rape and premeditation, admissibility of certain photographic exhibits, and propriety of the prosecutor's closing argument. In addition to reviewing the foregoing alleged errors, we shall also determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor and whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code § 17-110.1(C).

On January 13, 1983, 13-year-old Patricia Beth Bolton was brutally murdered in the City of Virginia Beach. On the next day, defendant, Albert J. Clozza, age 22, was arrested. He subsequently was indicted for the following crimes involving the child: abduction, Code § 18.2-48; two offenses of forcible sodomy, Code § 18.2-67.1; sexual penetration with an inanimate object, Code § 18.2-67.2; aggravated sexual battery, Code § 18.2-67.3; and capital murder, that is, the wilful, deliberate, and premeditated killing of the victim during the commission of, or subsequent to, rape. Code § 18.2-31(e).

Following a jury trial that lasted for portions of nine days, the defendant was found guilty of all charges on November 3, 1983. The jury fixed punishment at separate terms of life imprisonment for each of the noncapital crimes except aggravated sexual battery, for which the jury assessed 20 years. These sentences were confirmed by the trial court and we do not have these convictions before us for review.

During the second phase of the bifurcated capital proceeding held on November 4, 1983, the jury fixed defendant's punishment at death for the capital murder. Subsequently, the trial court considered a probation officer's report and additional evidence relevant to punishment. After a hearing on November 22, 1983, the court sentenced defendant to death for the capital murder. The sentence of death is before us for review under Code § 17-110.1(A), see Rule 5:20, and we have consolidated this review with defendant's appeal of the capital murder conviction. Code § 17-110.1(F).

First, defendant argues that the trial court erred in refusing his motion to strike for cause jurors Peggy Anderson and Margaret Walton. He contends the voir-dire questioning showed they were predisposed in favor of the death penalty, and thus did not "stand indifferent in the cause," as required by Code § 8.01-358. See Rule 3A:14. The defendant bases this claim upon the jurors' affirmative responses when asked whether they believed the only "appropriate" punishment was death rather than life imprisonment, in the event the accused was found guilty of capital murder. We reject this contention.

The defendant dwells on isolated portions of the lengthy and thorough individual interrogation of these jurors. However, we do not confine our review of the correctness of the trial court's action on voir dire only to portions of the questioning. Fitzgerald v. Commonwealth, 223 Va. 615, 628, 292 S.E.2d 798, 805 (1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1235, 75 L.Ed.2d 469 (1983). In this case, the relevant portions of Anderson's voir dire cover 14 pages of printed record while the pertinent parts of Walton's questioning cover 19 pages of transcript. Our examination of the entire voir dire of these jurors reveals that both demonstrated complete objectivity about the death penalty. Neither demonstrated an unalterable bias in favor of or against imposition of the extreme penalty. See Patterson v. Commonwealth, 222 Va. 653, 659, 283 S.E.2d 212, 216 (1981). Both indicated repeatedly that they would consider the evidence objectively and follow the instructions of the court in fixing punishment. Except when confused by some of the long questions propounded by counsel and the court dealing with "appropriate" punishment, both stated that they would enter the jury box with an open mind and wait until the entire case was presented before coming to a fixed conclusion as to guilt and punishment. In sum, the record demonstrates that the views of Anderson and Walton on capital punishment would not prevent or substantially impair the performance of their duties as jurors in accordance with the instructions of the court and their oath. LeVasseur v. Commonwealth, 225 Va. 564, 584, 304 S.E.2d 644, 655 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)).

Additionally, the defendant contends that Walton should have been stricken for cause because she worked as a volunteer for the Virginia Beach Police Department. We do not agree.

Walton, the wife of a retired serviceman, stated that she responded to a public request for citizen volunteers to do non-police work for the Department. She worked six hours a day, one day a week, driving police vehicles from the City Garage to repair shops. She said that she came into direct contact with only one police officer and that she had no involvement with the activity of the Police Department in the apprehension of criminals. She indicated that she would be objective and judge with "an open mind" citizen testimony that was contrary to police testimony.

A prospective juror is not subject to automatic exclusion because of an association with law enforcement personnel, provided the juror has no knowledge of the facts of the case and demonstrates impartiality toward the parties. State v. Ballard, 337 So.2d 481, 483 (La.1976); see State v. Hunt, 37 N.C.App. 315, 319-20, 246 S.E.2d 159, 162 (1978); Eubanks v. State, 635 S.W.2d 568, 572 (Tex.Civ.App.1982). Here, Walton's voir dire shows that she was impartial and fails to show a bias against the defendant or in favor of the prosecution as a result of her volunteer police work.

Second, the defendant contends the evidence was insufficient to establish the charge of capital murder. Specifically, he argues that there was inadequate proof of rape and that the evidence failed to show premeditation. Consideration of the sufficiency question requires us to summarize the evidence. In accord with established appellate procedure, we will view the evidence, most of which was undisputed, in the light most favorable to the Commonwealth.

On Thursday, January 13, 1983, about 6:30 p.m. the victim left her family's residence in the Derby Run Trailer Park to walk alone to a bookmobile that routinely stopped near the Park on Thursday evenings. She had not returned home by about 8:00 p.m. and her father began searching the neighborhood without success. The police were called about 9:00 p.m., and the father continued searching until later in the evening.

The next morning, the father found a French book on the lawn of his home. He resumed his search and discovered his daughter's T-shirt and a blue notebook, with defendant's name in it, behind a residence near the Bolton home.

On that day, January 14, a search of the Derby Run area for the missing child was supervised by a Virginia Beach detective. Approximately 150 persons, mostly military personnel, participated in the search. Eventually, the search was concentrated in a large field adjacent to the trailer park that separated the park from higher, brush-covered, wooded ground.

About 3:00 p.m., five stacked books were found in the field with one of the child's tennis shoes. Stains from two "puddles" of blood were discovered near the books. Next, the victim's bra and her other shoe were found farther into the field from the residential area. Then, the child's blue jacket, corduroy trousers, underwear, and sock were discovered still farther into the field.

At 4:30 p.m. the child's body, unclothed except for one sock, was found by a member of the search party. The body was lying face down at the bottom of an embankment in the wooded area and was barely visible due to the surrounding brush and undergrowth. The body was encrusted with blood, vegetation-type debris, and mud.

Testimony from the medical examiners described the condition of the body. Externally, the entire front of the face was swollen and bruised. The lips were bruised, torn and crushed. The upper lip had been "stripped off the bone." The lower jaw was dislocated. The fat of the cheek was crushed and bruised from the inside.

There were scrapes on the knuckles of the hands and numerous scratch marks on the forearms, buttocks, backs of the thighs, legs, and front of the trunk. These marks apparently were made by bristles and thorns. There was bruising on the front of the knees and dirt driven into the skin. The area around the genitals was bruised. An elongated abrasion was found on the front, inside portion of the left thigh.

Internally, there was bleeding on the surface of the brain and hemorrhage of the scalp. The outer and inner lips of the vagina were bruised. There was a laceration near an area of attachment at the lower end of the inner lips of the vagina. There was tearing and bruising of the lining of the vagina. A piece of twig, three and three-quarters inches in length, had penetrated the vagina, perforated the vaginal wall, and protruded into the abdominal cavity.

Internally in the head and neck region, there was bleeding in the floor of the mouth and the soft tissues of the face. A piece of vegetation resembling a corn husk was wedged in the upper throat.

The medical opinion was that direct blows to the head by a blunt object or a fist caused the extensive injuries in that area. The medical...