Correll v. Com.

• Citation: 232 Va. 454,352 S.E.2d 352
• Decision Date: 16 January 1987
• Docket Number: Nos. 860566,860567,s. 860566
• Parties: Walter Milton CORRELL, Jr. v. COMMONWEALTH of Virginia. (Two Cases) Record
• Court: Supreme Court of Virginia

Page 352

352 S.E.2d 352

232 Va. 454

Walter Milton CORRELL, Jr. v. COMMONWEALTH of Virginia. (Two Cases)

Record Nos. 860566, 860567.

Supreme Court of Virginia.

Jan. 16, 1987.

David A. Melesco, Rocky Mount, Shirley B. Jamison, Callaway (David A. Melesco, P.C., Rocky Mount, on briefs), for appellant.

Gerald T. Zerkin (Zerkin, Heard & Scovill, Richmond, on brief), for appellant, on ineffective assistance of counsel claim.

Katherine B. Toone, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

COCHRAN, Justice.

The trial court, sitting without a jury, convicted Walter Milton Correll, Jr., of capital murder for the willful, deliberate, and premeditated killing of Charles W. Bousman, Jr., in the commission of robbery while armed with a deadly weapon, Code § 18.2-31(d), and of robbery. The court sentenced Correll to life imprisonment for the robbery. Code § 18.2-58. In the second phase of the bifurcated trial, the court heard evidence of aggravating and mitigating circumstances and, finding that the killing was outrageously and wantonly vile, horrible, and inhuman, sentenced Correll to death for the capital murder. Code §§ 19.2-264.2, -264.4.

Correll noted his appeal of the robbery conviction to the Court of Appeals. We certified that appeal to this Court under the provisions of Code § 17-116.06 (Record No. 860567) for consolidation with the appeal of the capital-murder conviction and the sentence review required by Code § 17-110.1 (Record No. 860566).

Correll challenges the constitutionality of the Virginia capital-murder statutes, arguing that they violate the dictates of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), by vesting in the Commonwealth's attorney complete discretion to determine whether a defendant will be tried for capital murder. This argument has been considered and rejected in prior cases. See Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 254, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 274, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976); Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). We reaffirm that existence of discretion in prosecutors to decide whether to charge capital murder or to accept a plea to a lesser offense does not lead to arbitrary imposition of the death penalty and does not invalidate our capital-murder statutes.

I. THE EVIDENCE

In the early morning of Friday, August 16, 1985, Bousman's body, covered with brush and undergrowth, was found in a wooded section of Franklin County, about 10 yards from State Route 634. Although the upper part of the body was extensively decomposed, an autopsy revealed two stab wounds to the chest. One wound penetrated the right lung, severed the pulmonary artery, and caused Bousman's death; the other wound was such that, untreated, it would have resulted in a collapsed lung and ultimately in death. Because of the degree of decomposition, the medical examiner was unable to determine whether other, possibly fatal, wounds had been inflicted.

John Marshall Dalton, a codefendant who had entered into a plea agreement with the Commonwealth, was the Commonwealth's principal witness. He met Correll Saturday evening, August 10, 1985, at the home of Rhonda Small on Tazewell Avenue in Roanoke. Both men had been drinking; Dalton admitted that earlier in the evening he had taken a "couple of hits" of LSD. According to Dalton, he, Correll, and a third man, Richard Reynolds, left Small's home about 10:30 or 11:00 p.m. and walked until they reached a glass shop on Tazewell Avenue near the overpass at Interstate 581. As they walked, Correll initiated a conversation about "getting a car." Dalton testified that outside the glass shop Correll directed him and Reynolds to get a piece of glass, then go up the hill next to the overpass and wait. While his two companions waited on the hill, Correll remained below on Tazewell Avenue.

Dalton saw a maroon Buick automobile stop briefly beside Correll, depart, and return a few minutes later. Getting into the front passenger seat, Correll gave a hand signal for Dalton or Reynolds to approach. Dalton came to the car and, hearing the driver say he had seen someone behind the vehicle, attempted to hide under it. The driver got out; walking to the rear of the car, he discovered Dalton. Correll followed the driver, seized him in a stranglehold, and choked him until he lost consciousness. At Correll's direction, Reynolds came down the hill and used the car keys to open the trunk. Correll took the man's wallet, containing $10 and a credit card. After locking the victim in the trunk, the three men drove away in his car.

As Correll drove, Reynolds rode in the front passenger seat; Dalton sat behind them. Dalton saw Reynolds remove a knife from the console area between the front seats and then put it back. The men parked the car in Franklin County near the place where Bousman's body was later found. Unlocking the trunk, Correll took from the victim, who was still unconscious, a class ring and a pocket watch. Dalton took a necklace and pocket change.

After pulling the man from the trunk, Correll kicked him four or five times in the face as he lay on the ground; Reynolds kicked him once or twice more. Dalton helped Correll drag their victim into the woods, where Correll produced the knife that Reynolds had found in the car and threw it into the man's body. Correll withdrew the knife and gave it to Reynolds, who, Dalton asserted, merely scratched the victim's neck with it. Correll then hurled the knife into the man a second time, pulled it out again, gave it to Dalton, and told him "to get rid of it." The men departed in the victim's car; Dalton, at Correll's direction, threw the knife into water beneath a bridge. They rode around a while longer, then returned to Small's house. Correll sold the class ring later that morning for $10.

Rhonda Small testified that Correll came to her house shortly after 1:00 a.m. on August 11. He left on foot with Reynolds and Dalton between 2:00 and 2:30 a.m. and returned with them in a maroon car between 4:00 and 5:00 a.m. Correll took Small for a ride in the car, which he said belonged to his cousin. The next night Small heard that the automobile had been "torched." Correll told her "that he had killed a faggot for the car." After talking to Reynolds, however, Correll assured Small that he had not killed anyone for it.

Connie Bryant, who was with Small on August 11, testified that Correll arrived at Small's house in the early morning hours in a "brand-new burgundy looking car" with the license "LOVE-69." It was stipulated that Bousman was the owner of a 1985 Buick Somerset, maroon in color, bearing the license "LOVE-69," in which he always carried a hunting knife with a four- to five-inch blade. It was further stipulated that on August 10 Bousman possessed, among other items, a class ring, a gold pocket watch, and a gold necklace.

Lonnie Reynolds, brother of Richard Reynolds, testified that he, Richard, and Correll were walking past a burning car one night in the middle of August when Correll became nervous and began relating how he, Dalton, and Richard had acquired that car. According to Lonnie, Correll said,

"I choked the guy and put him in the trunk.... I drug the guy out of the car and commenced stomping his face into a rock.... I took a knife and threw it into his chest twice and stabbed him.... I handed the knife to Richard and Richard cut him on the side of the neck and then Richard gave the knife to John Dalton and he threw the knife away."

Investigator W.Q. Overton, Jr., of the Franklin County Sheriff's Department testified that, during questioning, Correll confessed to the killing, stating that he had stabbed Bousman twice. In prior responses to questioning, however, Correll had denied throwing the knife more than once, insisting that Reynolds and Dalton had each thrown the knife into Bousman one time.

Correll's defense consisted of Overton's testimony, based upon his investigation, that Bousman was alive as late as midnight and the testimony of four other witnesses who accounted for Correll's whereabouts from midnight until 1:30 a.m., at 2:00 a.m., about 3:00 or 3:15 a.m., and sometime between 4:00 and 4:30 a.m.

II. THE GUILT PHASE

During the questioning which followed Correll's arrest in Roanoke on August 16, Correll invoked his right to counsel ¹ but said he could not afford to hire a lawyer. No lawyer was immediately appointed for him, but discussions continued between Correll and the police. Statements he made on August 16 and 17 were not offered in evidence.

On the morning of August 18, Correll was taken to Appomattox for a polygraph test and was returned later that day to the Franklin County jail. Investigator Overton went to the jail where Correll was in a holding cell. Overton, who was unaware that Correll had requested an attorney while he was incarcerated in Roanoke, testified that Correll told him that he wanted to talk to him. While Overton was taking Correll across the street to his office, Correll said that he wanted "to explain some things about the polygraph test." Overton told Correll not to say anything until his statement could be recorded. When they reached Overton's office, a recorder was activated. Overton read the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Correll executed a waiver. Correll then confessed to involvement in the robbery and killing of Bousman, insisting, however, that he had stabbed Bousman only once. The recorder was turned off as Overton prepared to leave when, according to the officer, Correll suddenly changed his story, admitting for the first time that he had stabbed Bousman twice. The recorder was again activated;...