Delong v. Com., s. 870182

• Citation: 362 S.E.2d 669,234 Va. 357
• Decision Date: 25 November 1987
• Docket Number: 870203,Nos. 870182,s. 870182
• Parties: Wayne Kenneth DELONG v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 669

362 S.E.2d 669

234 Va. 357

Wayne Kenneth DELONG v. COMMONWEALTH of Virginia.

Record Nos. 870182, 870203.

Supreme Court of Virginia.

Nov. 25, 1987.

[234 Va. 359] Cary B. Bowen (Robert P. Geary, Richmond, on brief), for appellant.

Donald R. Curry, Sr. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Leah A. Darron, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

POFF, Justice.

A jury convicted Wayne Kenneth Delong of capital murder for "[t]he willful, deliberate and premeditated killing of a law-enforcement officer ... when such killing is for the purpose of interfering with the performance of his official duties", Code § 18.2-31(f), and of the use of a firearm in the commission of murder, Code § 18.2-53.1. On the firearm conviction, the jury fixed the penalty at imprisonment for four years. In a separate proceeding, see Code § 19.2-264.3(C) and -264.4(A), the jury fixed the penalty on the homicide conviction at death. The trial court considered the probation report as required by Code § 19.2-264.5 and entered final judgments confirming the two convictions and imposing the penalties fixed by the jury.

By order entered March 4, 1987, we certified an appeal of the firearm conviction to this Court, see Code § 17-116.06(B)(1), and consolidated that appeal with Delong's appeal of the capital murder conviction. We have consolidated the appeals of these convictions with the automatic review of the death penalty mandated by Code § 17-110.1(A) and (F) and accorded the consolidated proceedings priority on our docket as required by Code § 17-110.2.

While we will notice all the issues discussed on brief and in oral argument, we will adjudicate only those raised at trial in compliance with Rule 5:25, our contemporaneous objection rule, Payne v. Commonwealth, 233 Va. 460, 464, 357 S.E.2d 500, 503 (1987); Townes v. Commonwealth, 234 Va. 307, ---, 362 S.E.2d 650, 656 (this day decided), and those raised on appeal by assignment of error, Rule 5:17(c). The constitutional challenges the defendant makes to the capital murder statutes have been considered and rejected in the several decisions assembled in Pope v. Commonwealth, 234 Va. 114, 122, 360 S.E.2d 352, 357 (1987), and we will reaffirm those decisions.

JURY SELECTION

Addressing both the guilt and penalty phases of his trial, Delong argues that he was denied an impartial jury because the trial court dismissed eight prospective jurors who stated that they were unalterably opposed to imposition of the death penalty. This argument was first rejected in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and more recently in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). We have applied Witherspoon and Lockhart in Gray v. Commonwealth, 233 Va. 313, 334-35, 356 S.E.2d 157, 168-69 (1987);

Pruett v. Commonwealth, 232 Va. 266, 277-78, 351 [234 Va. 361] S.E.2d 1, 8 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987); and Frye v. Commonwealth, 231 Va. 370, 385, 345 S.E.2d 267, 278 (1986). See Townes, 234 Va. at ---, 362 S.E.2d at 661; Boggs v. Commonwealth, 229 Va. 501, 514-15, 331 S.E.2d 407, 417-18 (1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 347 (1986); Poyner v. Commonwealth, 229 Va. 401, 413-14, 329 S.E.2d 815, 825, cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 158 (1985); Waye v. Commonwealth, 219 Va. 683, 690-91, 251 S.E.2d 202, 207, cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979). We find no error in the selection of the jury.

THE FACTS

Delong assigns error to certain evidentiary rulings and to the sufficiency of the evidence. The transcript reveals no material conflict in the facts. Delong and Gerald William Bradley, Jr., a convicted felon, visited a number of bars in the Richmond area on June 14, 1986. Delong was driving a car owned by his girlfriend which Bradley described as "a Pontiac ... a Grand Prix or Monte Carlo". Bradley observed a handgun lying on the floor under the driver's seat near the console. The next day, Delong and Bradley joined Charles Lee Bowers, another felon, at the Ritz, a "beer joint" in Richmond. The three men spent the afternoon drinking beer and left together in the car Delong was driving.

George Ronald Taylor, a veteran Richmond detective assigned to the burglary detail and traffic control, had reported for work earlier that afternoon. About 5:30 p.m., Taylor, driving an unmarked police car with red and blue flashers mounted inside the grille, was following the car Delong was driving along Kensington Avenue. Bowers, sitting in the front passenger seat, heard Delong say, "A mother-fucking cop is pulling me over." Delong drove another city block, turned onto Davis Avenue, and stopped. Bradley, sitting on the back seat, heard Delong say, "I am going to have to shoot this nigger." Bowers heard the same comment and assumed that "maybe the man was going to give [Delong] a ticket for speeding."

At 5:30 p.m. on June 15, 1986, Dorothy Smith parked her car at her home located near the intersection of Kensington and Davis Avenues. Her attention was attracted to an unmarked police car following what she later described to an officer as "a beige colored Pontiac ... [with] a brown painted color top." The Pontiac turned onto Davis Avenue and stopped, and the police car stopped behind it. Smith testified that detective Taylor got out of his car carrying a small radio. As she was leaving her own car, she heard Taylor say, "I really hate to do this to you, man." Smith saw Delong "watching every move that the officer made in his rearview mirror". Taylor was not displaying a weapon, and he did not use the radio. Approaching the rear of the Pontiac, Taylor "was just casually walking in that direction". At that point, Smith saw that Delong "had a gun in his hand ... near his shoulder." When Taylor reached the driver's window, Delong fired the gun into the officer's chest. Another witness on the scene used the radio in Taylor's car to call for help, and an ambulance responded and carried Taylor to a hospital. The bullet, described as a .45 caliber, hollow point, designed to "mushroom" upon impact, had perforated the esophagus and the right atrium of the heart, and doctors' efforts to save their patient were unsuccessful.

Bradley did not see Delong fire the fatal shot, but he became alarmed when Delong fired a second shot into the floorboard of the car. Bradley testified that he "jumped up in the two bucket seats and ... grabbed [the gun]" and that Delong said, "I just shot that mother-fucker, and ... shut up, or I will shoot your ass". As Bowers remembers the comment, Delong had said "I just killed a goddamn cop. Shut up or the same thing will happen to you."

At a hearing on Delong's pre-trial motions to suppress, the trial court heard evidence concerning the identification and apprehension of the accused and the seizure of the murder weapon. Michael Batten, a Henrico County police officer, testified Delong, the only occupant of the Grand Prix, matched the description of the bearded man given the officers, and Batten said that Delong "was in a very heavy sweat." Delong told Batten that his driver's license "was with a person in Virginia Beach", but he gave Batten his name, age, and social security number. The Division of Motor Vehicles reported by radio that Delong's license had been suspended or revoked, and Batten required Delong to get out of the car and stand with him and Wilson on the passenger side of the police car.

that, at 5:43 p.m. on June 15, he and his supervisor, Sergeant William Wilson, heard "an all cars communication" reporting the shooting of Detective Taylor. The report described the car as "a yellow Grand Prix with a rust-colored top" occupied by three white males, one of whom wore a beard. Five or ten minutes later, Batten saw such a car east of Richmond, travelling east on Interstate Route 64. At the officer's signal, the car stopped on the shoulder, and Batten parked behind it. As Batten approached the passenger side of the vehicle, Wilson walked to the rear of the police car and aimed a shotgun at the suspect.

Responding to Batten's radio report, several Richmond police officers arrived on the scene. Richmond Detective R. T. Fleming testified that he recognized the Grand Prix and the driver from the descriptions given by witnesses at the scene of the killing. He had also learned that the murder weapon "was a handgun and also a large caliber." When Fleming approached the Grand Prix, all its windows were rolled down and the doors were unlocked. Standing outside the car, Fleming "looked to see what I could see inside the vehicle" and "under the driver's seat ... I could see a handgun."

Fleming reported what he had seen to Henrico officer Batten. Batten, standing "[r]ight outside the driver's door", looked through the window, saw below the driver's seat the handle of a handgun protruding from a holster, opened the driver's door, and seized a weapon later identified as a .45 caliber handgun. Asked what prompted him to seize the gun, Batten said that he believed it was the tool of a crime, that it was in the possession of a dangerous suspect, and that he was concerned for his safety and the safety of others. A firearms expert testified that the bullets retrieved from Taylor's body and the floor of the automobile "had been fired through this revolver".

MOTION TO SUPPRESS FIREARM

Defense counsel moved to suppress the warrantless seizure on the ground that "in this case the plain view exception doesn't apply."

The Attorney General asks us to hold that Delong had no standing to question the seizure. To establish standing, the burden was on the defendant to show that he had a legitimate expectation of privacy in the automobile. See Rakas v. Illinois, 439 U.S. 128, 130-31, 99 S.Ct. 421, 423-24, 58 L.Ed.2d 387 (1978); Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987); ...