Cressell v. Com.

• Decision Date: 11 July 2000
• Docket Number: Record No. 0270-99-3.
• Citation: 531 S.E.2d 1,32 Va. App. 744
• Court: Virginia Court of Appeals
• Parties: Emmett Ward CRESSELL, Jr. v. COMMONWEALTH of Virginia.

531 S.E.2d 1

32 Va. App. 744

Emmett Ward CRESSELL, Jr. v. COMMONWEALTH of Virginia.

Record No. 0270-99-3.

Court of Appeals of Virginia, Salem.

July 11, 2000.

Mark W. Claytor (Jeffrey L. Dorsey, on brief), Salem, for appellant.

Pamela A. Rumpz, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and COLEMAN and FRANK, JJ.

COLEMAN, Judge.

Emmett Ward Cressell was convicted in a jury trial of first degree murder. He was sentenced to life imprisonment and fined $100,000. On appeal, Cressell argues that the trial court erred by denying his motion for a change of venue and by failing to strike three jurors for cause. He also argues that the evidence is insufficient to support his conviction. Finding no error, we affirm.

I. BACKGROUND

On July 24, 1997, Cressell, Louis Ceparano, Hazel Anderson, Christy Harden, and G.P. Johnson spent the evening and early morning hours of July 25, celebrating Harden's twenty-first birthday. At some point in the evening, the birthday celebration moved to Ceparano's trailer. Everyone was drinking heavily except Anderson. Before the evening ended, Johnson, who was of African— American descent, became the victim of a gruesome murder. Johnson, who was intoxicated, was doused with gasoline, set afire, burned alive, and decapitated.

Hazel Anderson testified that at least twice during the evening Cressell grabbed Johnson by the shirt collar, called him a "nigger," and accused Johnson of trying to start a fight between Cressell and Ceparano. Later that evening, Cressell and Ceparano were "horseplaying" with Johnson on a mattress on the floor. Both Cressell and Ceparano stated several times that they were going to take Johnson outside and "burn him on a white cross." Anderson testified that Cressell took off Johnson's watch and, in response to Johnson's request to return the watch, Cressell stated that "where you're going, they had their own time." Cressell then grabbed Johnson's shoulders while Ceparano grabbed Johnson's legs, and together, the two carried Johnson outside. Johnson, apparently not comprehending the situation, told Cressell and Ceparano to be careful not to hurt his ankle, which he had injured in a car accident a few weeks earlier. Johnson stated, as he was being carried out of the trailer, "why don't you just shoot me."

Harden, who remained in the trailer with Anderson, testified that she looked out the window and noticed a large fire. Harden stepped onto the front porch and realized that Johnson was being burned alive. She testified that Ceparano was standing near Johnson and Cressell was walking back in the direction of the trailer. Cressell and Ceparano returned to the trailer without Johnson. Both Anderson and Harden stated that they smelled gasoline fumes, and Anderson testified that she smelled the fumes emanating from Cressell when he returned to the trailer. Ceparano went back outside, and when Anderson began to follow Ceparano, Cressell stated sarcastically, "it'd be best if you don't go outside." Later, Ceparano cornered Anderson in the kitchen and told her in a threatening manner that he had walked Johnson home. He threatened to kill her if she told anyone anything different. Ceparano again went outside, and when he returned, he had blood on the front of his pants. Ceparano changed clothes and washed his pants.

Harden testified that Cressell told her that Ceparano poured gasoline on Johnson and set him on fire. She testified that she and Cressell left the trailer, flagged down a passing car, and proceeded to the Sheriff's office where Cressell informed the deputies that Ceparano had murdered Johnson.

In Cressell's initial statements to the authorities, he denied any involvement in Johnson's murder. He later admitted, however, that he helped Ceparano carry Johnson outside and across the driveway. Cressell consistently denied pouring gasoline on Johnson or setting him on fire. Rather, Cressell stated that he saw Ceparano pour gasoline on Johnson and set him on fire. Ceparano denied murdering Johnson.

Johnson's burned, decapitated body was found near Ceparano's trailer. When investigators arrived at the scene, they discovered Johnson's body lying in a prone position still on fire. The investigator observed two burn sites on Ceparano's property. At the second burn site, the investigator found "what appeared to be a piece of a skull," a gas can, beer cans, a blood stain, and debris piled on top of Johnson's body. There appeared to be a trail of blood from the first burn site to the second. At the first burn site, investigators found a belt buckle and loose change. Johnson's wallet was lying on the ground a few feet from the back door of Ceparano's trailer, and Johnson's checkbook and watch were on the loveseat in the trailer. Johnson's body had been decapitated and his head was buried beneath his body in a hole more than a foot deep. Near the trailer, the investigator found a shovel and a splitting maul. Ceparano had blood on his hands and on his clothing.

An autopsy of Johnson's body revealed that the cause of death was "inhalation of flame with edema of the lungs and burning of the respiratory passages." The evidence indicated that the fire had been started using an accelerant. Johnson was decapitated postmortem. Johnson's skull suffered a number of blunt trauma and chop injuries. His skull was fractured, and his brain was out of the cranial cavity due to the nature of the injuries.

II. ANALYSIS

A. Motion for a Change of Venue

Prior to trial, Cressell moved for a change of venue, arguing that widespread media attention created "community prejudice" against him. He argued that the news reports were inflammatory, hostile, and prejudicial. Cressell stated that a newspaper photograph of him in a prison uniform, wearing handcuffs and leg irons, created an aura and impression in the minds of prospective jurors in the community that he was guilty. The media also impermissibly reported his criminal record and prejudicial evidence concerning particulars of the crime that would be inadmissible at trial. Although Cressell conceded at oral argument that the media reports were factually accurate, he argued that the coverage was inflammatory, pointed, and selective, because the photographs in the newspaper articles of the victim showed him as a "young, good-looking black man in a dress marine corps uniform with a background of the American flag," while the newspaper articles pictured him, the defendant, in "slovenly jail garb, a mug shot." In addition, Cressell argues that the media portrayed the murder as a "hate crime" and Grayson County as a "hot bed of racism." He asserts that by doing so, the media put the citizens of Grayson County "on trial" to defend their reputation as jurors and that is the "reason that [he] was convicted of anything at all."

At counsel's request, the court took the motion for change of venue under advisement pending a determination of whether a qualified and unbiased jury panel could be seated. After voir dire of eighty-one potential jurors, a panel of twenty-four jurors was seated. Of the eighty-one prospective jurors, the court excused twenty because each expressed the view that he or she had formed an opinion about the defendant's guilt or innocence from news accounts that he or she would be unable to set aside. The court excused nine prospective jurors because each was opposed to the death penalty. Twenty-eight others were excused for "various sundry reasons." The court denied the motion for a change of venue, noting that, although the case had received widespread publicity, a qualified jury had been selected.

"`It is presumed that a defendant can receive a fair trial in the locality where the offense occurred, and the burden is on the accused to overcome that presumption by clearly demonstrating widespread prejudice against him.'" Brown v. Commonwealth., 28 Va.App. 315, 336, 504 S.E.2d 399, 409 (1998) (quoting LeVasseur v. Commonwealth, 225 Va. 564, 577, 304 S.E.2d 644, 651 (1983)). "`A change of venue based on pre-trial publicity is required when the defendant demonstrates that there is "widespread" prejudice against him and that such prejudice would, with reasonable certainty, prevent a fair trial.'" Brown, 28 Va.App. at 336, 504 S.E.2d at 409 (quoting Chandler v. Commonwealth, 249 Va. 270, 275, 455 S.E.2d 219, 222 (1995)). The trial court's decision whether to grant a motion for change of venue is reviewed for an abuse of discretion. See Kasi v. Commonwealth, 256 Va. 407, 420, 508 S.E.2d 57, 64 (1998), cert. denied, 527 U.S. 1038, 119 S.Ct. 2399, 144 L.Ed.2d 798 (1999).

"[E]xtensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair.'" George v. Commonwealth, 242 Va. 264, 274, 411 S.E.2d 12, 18 (1991) (quoting Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977) (abrogation on other grounds recognized by Grimes v. State, 807 S.W.2d 582 (Tex.Crim.App.1991))). "The fact that there have been media reports about the accused and the crime does not necessarily require a change of venue." Roach v. Commonwealth, 251 Va. 324, 342, 468 S.E.2d 98, 109 (1996) (citation omitted). "A significant factor in determining whether a change of venue is warranted is whether the media reports are factual and accurate." Mueller v. Commonwealth, 244 Va. 386, 398, 422 S.E.2d 380, 388 (1992) (citation omitted). "Another significant factor the trial court must consider is the difficulty encountered in selecting a jury.'" Roach, 251 Va. at 342, 468 S.E.2d at 109 (quoting Mueller, 244 Va. at 398, 422 S.E.2d at 388).

Cressell has not overcome the presumption that he received a fair trial in Grayson County. Here, virtually every prospective juror admitted hearing about the case through the media or by speaking with others. After extensive voir dire twenty-four jurors were...