Evans v. Com.

• Decision Date: 30 November 1984
• Docket Number: No. 840474,840474
• Citation: 228 Va. 468,323 S.E.2d 114
• Court: Virginia Supreme Court
• Parties: Wilbert Lee EVANS v. COMMONWEALTH of Virginia. Record

Page 114

323 S.E.2d 114

228 Va. 468

Wilbert Lee EVANS v. COMMONWEALTH of Virginia.

Record No. 840474.

Supreme Court of Virginia.

Nov. 30, 1984.

Jonathan Shapiro, Alexandria (Gary Myers, Jonathan Shapiro & Associates, P.C., Howard & Howard, P.C., Alexandria, on brief), for appellant.

Donald R. Curry, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: All the Justices.

COMPTON, Justice.

This is the automatic, priority review of a sentence to death. Previously, upon similar review, we affirmed an earlier death sentence imposed on the defendant for the same crime. Subsequent to the affirmance, the defendant instituted a state habeas corpus proceeding. As the result of information developed in the habeas case, the Commonwealth confessed error and the first death sentence was set aside. Following a resentencing proceeding, the present death sentence was imposed. The principal issue in this appeal is whether defendant's sentence should be vacated because of the alleged violation of the ex post facto clauses of the state and federal constitutions.

The chronology sets the stage. On January 27, 1981, Wilbert Lee Evans, a prisoner, fatally shot a deputy sheriff who was escorting him to jail in Alexandria. About four months later, a jury convicted defendant of capital murder 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. Code § 18.2-31(f). In the sentencing phase of the bifurcated trial, the same jury recommended the death penalty, based solely upon a finding of "future dangerousness." The Commonwealth relied mainly on records of seven purported out-of-state convictions of defendant. The jury determined that after consideration of Evans' prior history, there was a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society. See Code § 19.2-264.4(C). On June 1, 1981, the trial court sentenced defendant to death.

On October 16, 1981, in the case of Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d 212 (1981), we commuted a defendant's death sentence to imprisonment for life. There, we held that the lower court had failed, in the penalty phase of that bifurcated trial, to preserve fully the defendant's right to a fair and impartial jury. There was no error in the guilt phase of the trial but the sentence to death was invalidated. We further decided that the statutory framework existing at the time inhibited a remand of the case for a new trial limited to the penalty issue only. This was because Code § 19.2-264.3(C) provided at the time that if a defendant was found guilty by a jury of a capital offense, the same jury must fix the punishment. We said: "Manifestly, the same jury that convicted Patterson should not now be reconvened upon a remand." 222 Va. at 660, 283 S.E.2d at 216.

On December 4, 1981, we affirmed Evans' conviction and sentence to death. Evans v. Commonwealth, 222 Va. 766, 284 S.E.2d 816 (1981). About four months later, the Supreme Court of the United States denied defendant's petition for a writ of certiorari. 455 U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982).

Within a month, in April of 1982, defendant filed a petition for a writ of habeas corpus in the trial court. In May and December of 1982, defendant filed amendments to the habeas corpus petition to reflect new claims. In the May amendment, the defendant alleged that at least two of the seven purported North Carolina convictions relied on by the prosecutor during the penalty phase of defendant's trial actually were not convictions at all. The defendant alleged that one charge, assault on a police officer with a deadly weapon, had been dismissed after an appeal. He asserted that another charge, engaging in an affray with a knife, also had been appealed. In a trial de novo on that charge, defendant was again convicted, but the record used in his capital murder trial listed both convictions for use of the knife and no attempt was made to explain this duplication to the jury.

Effective March 28, 1983, emergency legislation adopted by the General Assembly was approved amending the relevant death penalty statutes because of the Patterson decision. Code § 19.2-264.3 was amended to provide that "[i]f the sentence of death is subsequently set aside or found invalid, and the defendant or the Commonwealth requests a jury for purposes of resentencing, the court shall impanel a different jury on the issue of penalty." Acts 1983, ch. 519.

About two weeks later, an Assistant Attorney General of Virginia wrote a letter to the trial judge confessing error in the defendant's sentencing proceeding and acknowledging that Evans' death sentence should be vacated. The April 12, 1983 letter indicated that "unbeknownst to the prosecution or defense counsel at the trial" many of the records of convictions were "seriously misleading" or "otherwise defective." It had been discovered that not only were three purported convictions actually one but several of the other convictions were obtained when Evans apparently had appeared without counsel. On May 2, 1983, the trial court entered an order setting aside defendant's death sentence and granting a hearing to determine whether defendant should be resentenced or his sentence reduced to life imprisonment.

On September 21, 1983, an evidentiary hearing was held and, by order entered October 12, 1983, the trial court denied defendant's motion to bar the Commonwealth from again seeking the death penalty. On January 30, 1984, the trial court impanelled a new jury for a resentencing hearing, in accordance with amended Code § 19.2-264.3. At the conclusion of the hearing, the jury fixed punishment at death. On March 7, 1984, the trial court entered the order appealed from imposing the death penalty.

We shall address the issues in the order presented by the defendant. They involve the ex post facto violation, two claims of prosecutorial misconduct, double jeopardy, misdirection of the sentencing jury, and denial of equal protection. The relief sought by the defendant is either a reversal of the trial court's decision which allowed resentencing and replacement of the sentence of death with a sentence of life imprisonment, or, commutation of his sentence to life imprisonment, or, remand of the case to the trial court for a new sentencing hearing.

Defendant contends that application of the revised sentencing law to him violates the prohibition against ex post facto laws. According to Evans, the Patterson decision made clear, until Virginia's death penalty statutes were amended by emergency legislation on March 28, 1983, that this Court had but two options in reviewing a sentence of death. The Court could affirm the sentence to death or commute the sentence to life imprisonment. A remand for resentencing in the case where the original jury was "tainted" was not possible, the defendant argues. Accordingly, Evans says, under the law as it existed at the time he committed his offense, at the time he was tried, at the time his first conviction was affirmed, and at all times before approval of the emergency legislation, he was entitled to a sentence of life imprisonment upon the setting aside of his death sentence. He argues that as the result of Patterson: "Automatic commutation in such situations thus became a part of Virginia's law just as surely as if it had been drafted by the legislature."

Evans contends that had the errors which led to the Commonwealth's confession of error been brought to our attention at the time of his first appeal, we would have done precisely in Evans what we had done seven weeks previously in Patterson, and Evans would have received a life sentence. He contends the considerations which led the Court to commute Patterson's sentence, that is, the impropriety of recalling Patterson's improperly selected jury, applied with full force to Evans' case. His jury had been irreparably "tainted" by exposure to at least five invalid convictions, he says. Defendant concludes that it was error of constitutional dimension to try him under a revised sentencing scheme which was not in effect until more than a year after his conviction was final, "and which replaced his statutory right to a life sentence with the renewed prospect of death." We reject defendant's contentions and conclude that there has been no ex post facto violation.

Whether a defendant has a "right," or is "entitled," to a life sentence if his death sentence is set aside is irrelevant in an ex post facto analysis. "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). Pertinent to the ex post facto inquiry is whether the defendant had "fair warning as to the degree of culpability which the State ascribed to the act of murder." Dobbert v. Florida, 432 U.S. 282, 297, 97 S.Ct. 2290, 2300, 53 L.Ed.2d 344 (1977); Smith v. Commonwealth, 219 Va. 455, 475, 248 S.E.2d 135, 147 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). Manifestly, Evans had "fair notice" and "fair warning" at the time of his 1981 offense that the capital murder of a law-enforcement officer was a crime for which the death penalty could be imposed. Code §§ 18.2-31(f) and 18.2-10(a). Virginia's view of the severity of capital murder and of the degree of punishment which the General Assembly wished to impose upon capital murderers had been clearly announced before Evans' criminal conduct occurred.

Defendant argues in rebuttal, however, a full "fair warning" inquiry must take into account that Evans was also deemed to understand that if he were to receive a death sentence...