Evans v. Com., 811056

• Decision Date: 04 December 1981
• Docket Number: No. 811056,811056
• Citation: 284 S.E.2d 816,222 Va. 766
• Court: Virginia Supreme Court
• Parties: Wilbert Lee EVANS v. COMMONWEALTH of Virginia. Record

Page 816

284 S.E.2d 816

222 Va. 766

Wilbert Lee EVANS v. COMMONWEALTH of Virginia.

Record No. 811056.

Supreme Court of Virginia.

Dec. 4, 1981.

Stefan C. Long, E. Blair Brown, Alexandria, for appellant.

Jerry P. Slonaker, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

COCHRAN, Justice.

A jury found Wilbert Lee Evans guilty of capital murder as defined by Code § 18.2-31(f), in the willful, deliberate, and premeditated killing of a law-enforcement officer for the purpose of interfering with the performance of the officer's official duties. ¹ In the second stage of the bifurcated proceeding conducted pursuant to the provisions of Code §§ 19.2-264.3 and -264.4, the same jury fixed Evans's punishment at death. After considering the probation officer's report required by Code § 19.2-264.5, the trial court imposed the death sentence recommended by the jury. We have consolidated our automatic review of this sentence with Evans's appeal from his conviction, as authorized by Code §§ 17-110.1(A) and -110.1(F), and we have given them priority on our docket in compliance with Code § 17-110.2. Evans asks us to reverse his conviction and remand the case for a new trial, or in the alternative to commute his death sentence to imprisonment for life.

I. Constitutionality of the Capital Murder Statutes.

Evans contends that Code § 19.2-264.4C ² is unconstitutionally vague and overbroad in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. He relies entirely, however, upon arguments that, as he concedes, we have recently rejected in James Dyral Briley v. Commonwealth, 221 Va. 563, 577-80, 273 S.E.2d 57, 65-67 (1980). We reaffirm our views expressed in that case. See also Martin v. Commonwealth, 221 Va. 436, 439-40, 271 S.E.2d 123, 125-26 (1980).

Evans also argues that Code § 19.2-264.2 ³ is facially unconstitutional. He adopts the arguments that, as he further concedes, we rejected in Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979), and Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202 (1978), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979). See Stamper v. Commonwealth, 220 Va. 260, 267, 257 S.E.2d 808, 814 (1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). We reaffirm our views expressed in those cases.

II. The Guilt Trial.

The Commonwealth presented evidence that Evans, a prisoner, fatally shot Deputy Sheriff William Truesdale on January 27, 1981, while the officer was conducting him to jail in Alexandria. Evans admitted that he caused Truesdale's death with a firearm while the officer was engaged in the performance of his official duties. Evans consistently maintained, however, and so testified in his own defense, that he did not intend to kill Truesdale, and that the fatal shooting occurred accidentally while Evans was attempting to escape from police custody. Thus, the crucial question throughout the guilt trial was Evans's intent.

The uncontradicted evidence shows that Evans was in custody in North Carolina, that he volunteered to testify for the Commonwealth in a habeas corpus proceeding to be held in Alexandria, and that he was transported from North Carolina to Alexandria for that purpose. Noel I. Butler, Assistant Commonwealth's Attorney, who interviewed Evans in the Alexandria jail on January 26, 1981, found him cooperative, willing to testify, and able to provide testimony of value on behalf of the Commonwealth. On the following day, however, when Evans was brought into the courtroom to testify, he refused to do so, denied any knowledge of the case, and by his behavior caused the court to recess the proceeding.

Deputy Truesdale removed Evans and two other prisoners, Yvette Boone and Anthony Jasper, from the courthouse to jail in a van. Upon arriving outside the jail, the prisoners proceeded in single file up the steps leading to the jail door, Boone in front, followed by Jasper and then Evans. Jasper's right hand was handcuffed to Evans's left. As Jasper entered the door, Evans began to grapple with Truesdale on the steps. Evans, gaining possession of Truesdale's revolver, shot the officer in the chest from a distance of not more than one-half inch, pointed the weapon at Jasper but did not fire, freed himself by shooting open the handcuffs, and fled on foot. Running through a nearby law office, Evans threatened a secretary with the revolver before continuing his flight. Surrounded by pursuing officers in a nearby parking lot, Evans shot himself, inflicting a superficial wound, and was retaken into custody.

Several inmates of the Alexandria jail were called as witnesses for the Commonwealth to testify to certain inculpatory statements made by Evans. Before these witnesses testified, Evans objected to any reference they might make to charges pending against him in North Carolina on which he had not been convicted. The court overruled the objection on the ground that such evidence would be admissible to show Evans's intent or state of mind.

Ralph Washington, an inmate, testified that Evans told him the night before the shooting that he was in Alexandria to testify in a case but that he was not going to say anything, that what he wanted was to "get the hell out." Evans asked Washington about jail security, what court was like, whether the guards carried guns, and whether he could wear civilian clothes to court. He asked another inmate about a good place to run if he escaped. Washington testified that Evans stayed up all night and "was like he was getting ready to go to war." Washington's testimony continued as follows:

"A. He said he'd already come down; he was already facing life and he ain't got nothing to lose. He said he was going to try any means possible to escape.

"Q. To what steps would he go?

"A. Anybody that gets in his way to stop him, he would take him out.

"Q. Take him out? What does that mean?

"A. I guess kill them."

At this time the court cautioned the jury as follows:

"Members of the jury, the statements of the defendant are being admitted into evidence not to show his legal situation in the State of North Carolina, but rather to show his state of mind or intention at the time he made the statements. You should consider those statements only in that respect."

Yvette Boone testified that she was brought from jail in North Carolina to the Alexandria jail to testify as a witness in the same case in which Evans was expected to testify. While they were still in jail in North Carolina, Evans attempted to coach her in preparation for her appearance in court. He also informed Boone that when he went to court he was going "to run." In Alexandria, before Boone testified at the hearing, Evans told her that he had come not to testify but to escape. She, Jasper, and Evans were the prisoners being taken back to jail when Deputy Truesdale was shot. She saw Truesdale and Evans "tussling on the steps," but she was inside the jail door when she heard the shots fired.

Anthony Jasper testified that he occupied the same cell with Evans the night before the shooting, and Evans said that he had come to Alexandria "to try to escape." He asked Jasper the way to run to get to Washington, D. C. "He said he ain't got nothing to lose, you know .... He had two life sentences, something like that." The trial court promptly cautioned the jury that these statements were admitted only to show Evans's state of mind when he made the statements and not to prove whether he was facing punishment in North Carolina.

Jasper also testified that he and Evans were handcuffed together on the trip back to jail from the courthouse. Evans asked him whether Truesdale carried a weapon. Jasper had climbed the steps and was entering the jail door when Evans "yanked" him back. He saw Evans and Truesdale struggling over the handgun in Evans's hand. Evans had the gun in the air when Truesdale put his hand on it. Evans said, "Let me go or I'll kill your ass." Then the revolver "came down toward his side and he pulled the trigger." Evans then put the gun to Jasper's head, Jasper protested, and Evans shot the handcuffs off and fled.

Evans, testifying in his own defense, insisted that he had no intent to escape until he saw that Deputy Truesdale was off balance on the jail steps and decided to "run past him." He seized Truesdale's gun to "shoot the handcuffs off." He denied any intention of shooting the officer but asserted that he shot him accidentally while firing at the handcuffs.

Evans concedes that evidence was admissible to show that he planned in North Carolina to escape in Virginia and that, if necessary, he would kill anyone who stood in his way. He argues, however, that the trial court erred in admitting evidence that he was awaiting trial in North Carolina on charges for which he faced one or more life sentences. He relies upon the general rule recently restated in Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981), that evidence of other offenses is inadmissible to prove guilt of the crime for which the accused is on trial. But this general rule, as we have frequently stated, is subject to numerous exceptions. Thus, evidence of other offenses is admissible to show motive or intent or to negate the possibility of accident. Id. at 76, 278 S.E.2d at 824-25. See Brooks v. Commonwealth, 220 Va. 405, 407, 258 S.E.2d 504, 506 (1979); Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970); Williams v. Commonwealth, 128 Va. 698, 711-12, 104 S.E. 853, 860-61 (1920).

Here, the trial court exercised commendable caution in twice instructing the jury during the guilt trial that the statements made by Evans in reference to charges pending against him in North Carolina were admitted into evidence solely for the purpose...