Fisher v. Com.

• Decision Date: 18 November 1988
• Docket Number: No. 880091,880091
• Citation: 374 S.E.2d 46,236 Va. 403
• Parties: David Lee FISHER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 46

374 S.E.2d 46

236 Va. 403

David Lee FISHER v. COMMONWEALTH of Virginia.

Record No. 880091.

Supreme Court of Virginia.

Nov. 18, 1988.

G. Carl Boggess, Harry W. Garrett, Jr. (Garrett & Boggess, Bedford, on brief), for appellant.

Craig S. Cooley, Richmond, for appellant, on ineffective assistance of counsel claim.

Robert B. Condon, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., and POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ., and GORDON, Retired Justice.

RUSSELL, Justice.

David Lee Fisher was convicted by a jury of capital murder (murder for hire, Code § 18.2-31(b)). At the penalty stage of his bifurcated trial, the jury heard evidence of the defendant's history and evidence in mitigation. After further deliberation, the jury returned a verdict fixing Fisher's punishment at death, based upon the "future dangerousness" predicate of Code § 19.2-264.4(C). After reviewing a pre-sentence report and conducting a further hearing, the court entered judgment on the jury verdict by final order entered November 2, 1987. We have consolidated Fisher's appeal with the automatic review of his death sentence required by Code § 17-110.1 and have given both matters priority on our docket.

I. THE EVIDENCE

Pursuant to established principles of appellate review, the evidence will be stated in the light most favorable to the Commonwealth. In 1983, Fisher and his victim, David Wilkey, were both residents of Charlotte, North Carolina. Wilkey's parents had separated in Norfolk, Virginia, when Wilkey was three months old and his mother had moved to Florida with him. When Wilkey was 17 years old, he left his mother's home and went to Norfolk on a fruitless search for his father. He finally went to live in Charlotte with a cousin of his father. Wilkey had a ninth-grade education and was 18 years old at the time of his death.

Fisher met Wilkey at a motel in Charlotte in late 1982 and appeared to befriend him. Wilkey moved into Fisher's apartment and occasionally worked for him. Fisher was in the business of transporting bodies for a funeral home and for the coroner. Fisher devised a plan whereby Wilkey would become close to a young woman named Bonnie Jones, Fisher would obtain an insurance policy on her life, and Wilkey would kill Bonnie for a share of the insurance proceeds. Fisher went so far as to buy Wilkey a car and provide him with money to date Bonnie, but Wilkey fell in love with Bonnie and backed out of Fisher's scheme. Wilkey and Bonnie had plans to return to Florida to be married the first week in December 1983.

In the summer of 1983, Fisher, having learned of Wilkey's defection, told Bobby Mulligan, who was, like himself, a frequenter of coffee houses in Charlotte, that he wanted to get his money back from Wilkey. Fisher proposed that if Mulligan would agree to shoot Wilkey while the three were on a hunting trip, and make the killing appear accidental, Fisher would arrange to insure Wilkey's life and would divide the proceeds with Mulligan.

Fisher also approached Gerald Steadham, yet another frequenter of Charlotte coffee houses, with a proposal to push Wilkey off a ledge while on a fishing trip. Steadham accompanied Fisher to an insurance office where Fisher obtained a policy on Wilkey's life. Fisher had no legitimate insurable interest in Wilkey, but nevertheless obtained a policy on Wilkey's life with Kentucky Central Life Insurance Company for $50,000 with a double indemnity clause in case of death by accident. Fisher paid the $89.50 initial premium.

The original application for insurance, submitted in September 1983, was taken by an insurance agent in Charlotte named Kenneth Daren Tietsort. It showed Fisher as owner and beneficiary of the policy. Fisher identified himself as Wilkey's "guardian." Upon receipt of the application at the company's office in Lexington, Kentucky, the company wrote to Tietsort to ascertain whether Fisher was in fact a court-appointed guardian. Tietsort telephoned the company and suggested that the beneficiary be shown as Wilkey's estate until Fisher's status could be verified. The policy was issued in that form on September 27, 1983.

In October, 1983, the company received three additional documents from Tietsort: an "amendment to application" signed by Tietsort and two "requests for change of primary beneficiary," purportedly signed by David Fisher and David Wilkey, respectively. These papers requested that the beneficiary be changed from Wilkey's estate to "David Fisher, personal friend." On October 11, the company refused to approve the change, questioning the genuineness of Wilkey's change-of-beneficiary form. On October 24, however, the company reversed its position and approved the change of beneficiary. The evidence does not reveal what motivated this change of position.

About this time, Fisher told Mulligan that he had experienced some problem getting an insurance policy on Wilkey's life, but that he had persuaded an insurance man to "take care of it" for a promise of one-third of the proceeds. Fisher promised Mulligan $38,000, more than one-third, because Mulligan was to do the actual killing. Fisher's plan was to go to Bedford County, Virginia, near the residence of his ex-wife, on the opening day of deer season in Virginia. Included in the party were to be Wilkey, Fisher, Mulligan, and Jody Ayers, a 16-year old son of Fisher's ex-wife, who was to be brought along to make their visit to Bedford County "look natural." The plan was for Fisher to provide guns for the party and later dispose of the murder weapon and try to have Wilkey's body cremated.

The hunting trip took place in Bedford County on November 21, 1983, as planned. While walking through the woods, Mulligan became reluctant, but Fisher encouraged him to persevere. About 3:30 p.m., while Jody was resting some distance away, Wilkey ran down a hill after a deer. Mulligan followed him, with Fisher close by. Mulligan shot Wilkey in the back with a 12 gauge slug, mortally wounding him. Fisher yelled to Jody to run for help, then, according to a statement Fisher later made to Steadham, Fisher ran up to Wilkey, who was lying face down on the ground, and told him "if I had my .38 I'd blow your ... head off." According to Mulligan's later testimony, Fisher attempted to insert his hand into the wound in order to stop Wilkey's heart. Steadham also testified that Fisher later admitted this to him.

When Jody returned with Bedford County officers and the rescue squad, Wilkey was dead. Fisher and Mulligan both gave statements to the effect that Mulligan had slipped while running downhill after Wilkey and that his shotgun had discharged accidentally. The Bedford County authorities at the time treated the shooting as a hunting accident. They charged Fisher and Mulligan with misdemeanors, but when these cases were tried in general district court on December 19, both men were fined and permitted to return to North Carolina. The murder weapon was returned to Fisher.

Two days later, Fisher filed a claim for the $100,000 accidental death benefit on the insurance policy he held on Wilkey's life. Reluctant to make payment, the company initiated an investigation of the circumstances surrounding Wilkey's death and referred the matter to John Manning, an attorney in Greensboro, North Carolina. In May 1984, Fisher went to the attorney's office and belligerently demanded payment, threatening to sue the company and claim punitive damages. The attorney, who was himself a hunter, noted from the autopsy report that wadding from the fatal shotgun shell had entered the wound and penetrated the heart cavity. This, he thought, was inconsistent with the statements of Fisher and Mulligan, and also inconsistent with a drawing Fisher made in the attorney's office, purporting to show that the shotgun had discharged 10 or more feet away from Wilkey's back.

Confronted with this inconsistency, Fisher became less demanding and showed himself amenable to settlement. He eagerly accepted a check from the attorney for $25,000 in exchange for a release of his claim against the company. Later, he paid $7,000 of this to Mulligan.

Wilkey's mother called Fisher from Florida when she heard of her son's death. Fisher told her that at some time before his death, Wilkey had expressed a desire to be cremated "if anything happened to him." She promised to have her son's remains cremated. Fisher told her that Wilkey had no money to help with funeral expenses and that there was no insurance on him. Wilkey's mother had the body brought to Florida and cremated there. Fisher did not attend the funeral, but on that day or the next, called Wilkey's mother, expressed sorrow, and inquired whether the body had in fact been cremated.

Mulligan remained in Charlotte for a few months after the killing, and then moved to South Carolina. In early 1985, he suffered a "nervous breakdown" and confessed the murder to his parents. He was arrested by agents of the Federal Bureau of Investigation in November 1986 and made a full confession of all the details of the crime. During the same month, the Bedford County Grand Jury indicted both Mulligan and Fisher for capital murder. Mulligan entered a guilty plea and was awaiting sentencing at the time of Fisher's trial, in which Mulligan testified for the Commonwealth. Both Mulligan and his attorney testified that Mulligan had received no promises in exchange for his testimony.

Gerald Steadham also testified against Fisher. After Fisher described the killing to him, Fisher offered him $5,000 to kill Mulligan. Fisher said that Mulligan was beginning to talk about the killing and was claiming that Fisher owed him more money. After a time, Steadham decided to tell the Charlotte police of Fisher's statements. Fisher apparently had sources of information within the police force and discovered that Steadham had informed against him. He threatened Steadham's life, which...