George v. Com.

• Citation: 242 Va. 264,411 S.E.2d 12
• Decision Date: 08 November 1991
• Docket Number: 910580,Nos. 910478,s. 910478
• Court: Supreme Court of Virginia
• Parties: Michael Carl GEORGE v. COMMONWEALTH of Virginia. Record

Page 12

411 S.E.2d 12

242 Va. 264

Michael Carl GEORGE v. COMMONWEALTH of Virginia.

Record Nos. 910478, 910580.

Supreme Court of Virginia.

Nov. 8, 1991.

Donald E. Coulter, Manassas, Ronald Fahy (Coulter, Foldenauer & Faust, on brief), for appellant.

John H. McLees, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

In a bifurcated trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, a jury convicted Michael Carl George of capital murder in the commission of robbery while armed with a deadly weapon, Code § 18.2-31(4), and fixed his punishment at death, predicated upon both "vileness" and "future dangerousness." The jury also convicted George of robbery, abduction with intent to defile, and use of a firearm in the commission of capital murder, with punishment fixed at imprisonment for fifteen years, life, and two years, respectively. ¹

After considering a post-sentence report prepared by a probation officer, Code § 19.2-264.5, the trial court imposed the sentences fixed by the jury. George is here for automatic review of his death sentence, and we have consolidated that review with his appeal of his capital murder conviction. Code § 17-110.1. We have also certified from the Court of Appeals George's convictions for the non-capital offenses with which he was charged, Code § 17-116.06, and we have given the entire matter priority on our docket, Code § 17-110.2.

The victim, fifteen-year-old Alexander Eugene Sztanko, lived with his parents in the City of Manassas. The family recently had moved from a home on Cardinal Drive in Woodbridge, and on Saturday, June 16, 1990, Alex and his parents went to the Woodbridge house to move "out all of the things [they had left] there."

After arriving at the Cardinal Drive address, Alex decided to ride his motorcycle along a power-line easement that crossed his parents' property and extended into a nearby wooded area traversed by a number of trails. Mr. and Mrs. Sztanko last saw Alex alive about 2:00 p.m., when he rode into the woods. "[M]aybe half an hour [or] an hour" later, Alex's father heard "two shots coming from the [wooded] area."

About 10:45 a.m. the next day, Corporal Joseph Dillon of the Prince William County Police Department, who was aware that Alex Sztanko was missing, observed a silver and blue Ford Bronco parked off the side of Cardinal Drive near the woods into which Alex had ridden. Dillon had seen the vehicle parked in the same location about 3:30 p.m. the day before. Dillon pulled in behind the vehicle, "ran the tag" through the Department of Motor Vehicles, and learned that the Bronco was registered in the name of Michael George.

Dillon then observed a "camouflage-clad subject" walking toward him from the south side of Cardinal Drive. The person started toward Dillon, turned and ran eastwardly along the shoulder of Cardinal Drive, and entered the woods. When about ten feet into the woods, the person "knelt down for ... a few seconds, then came up and walked quickly deeper into the woods ... and ... turned and started walking in [Dillon's] direction." The person was "crouched as he was moving through the woods," making it appear to Dillon that he did not want to be seen.

"[S]haking very badly" and "sweating profusely," the person identified himself as Michael George, said he was looking for a place to go turkey hunting, and asked Dillon, "I'm not trespassing, am I?" Because the two "were standing right under [a] no trespassing sign," Dillon said, "[w]ell, according to this, obviously you are."

When Dillon asked George whether he had been in the area the day before, George replied forcefully in the negative. But when Dillon said he had seen George's vehicle there the day before and had observed the "tag on it," George said, "[o]h, yeah, I was here yesterday." ²

Dillon called for assistance, and, when another unit responded, he placed George under arrest for trespassing. After another officer had transported George from the scene, Dillon walked to the spot in the woods where George had "knelt down." There, Dillon found a pair of black tennis shoes, later identified as belonging to Alex Sztanko.

Dillon left the tennis shoes undisturbed. A bloodhound was brought to the scene and taken to the shoes. From that point, the dog led the police back to George's Bronco and then "right up through the woods" to where Alex Sztanko's body was located. The body was shoeless but otherwise clothed.

An autopsy revealed that Alex had suffered a single gunshot wound to the head, causing immediate loss of consciousness and rapid death. The autopsy also revealed abrasions of the penis which, in the opinion of the medical examiner, were consistent with an "electrical burning." Other expert testimony showed that Alex was still alive when the injuries to his penis were inflicted and that the "injuries would have been terribly painful."

Laboratory examination of substances taken from Alex's clothing and body showed the presence of seminal fluid on his T-shirt and thigh, although the origin of this fluid could not be determined. A similar examination of "pubic area swabs and ... stains from [George's] underpants" showed the presence of seminal fluid "consistent with ... Mr. George and different from Mr. Sztanko." George's camouflage pants were stained with blood inconsistent with his blood type but consistent with Alex's. Fibers found on Alex's T-shirt were consistent with the material from which George's camouflage jacket was made.

At the time of his arrest, George was carrying a sheath knife, various keys, including a handcuff key, and a topographical map bearing a hand-drawn "x" corresponding to the spot where Alex's body was discovered and a hand-drawn "o" corresponding to the location where his motorcycle was found. A search of George's Bronco revealed a machete, a tear gas canister, and an electrical stun gun capable of producing the "electrical burning" of Alex's penis.

A search of George's room in his parents' home produced a pair of handcuffs. The key taken from George at the time of his arrest fit the handcuffs. Also found in George's room was a fully loaded nine millimeter pistol. Expert testimony established that this pistol fired the shot which caused Alex Sztanko's death.

While incarcerated awaiting trial, George told Roger Settle, a cellmate, that he had "stopped [Alex Sztanko] and got his attention," then "grabbed [him] and dragged him off of his bike back into the woods ... to have sex with [him]." George also told Settle that he sodomized Alex, "stunned the boy in his private parts several times," and "shot [him] in his head."

I.

ISSUES PREVIOUSLY RESOLVED.

George makes several arguments on appeal that have been answered by previous decisions of this Court. However, he has not advanced sufficient reason to justify a departure from the views previously expressed, and we can perceive of none. Accordingly, we will reaffirm our earlier decisions and reject George's arguments. The arguments George makes and decisions answering them are as follows:

The death penalty constitutes cruel and unusual punishment. Answered by Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

Virginia's "vileness" and "dangerousness" predicates for imposition of the death penalty fail to guide the jury's discretion. Answered by Smith, 219 Va. at 476-78, 248 S.E.2d at 148-49.

The use of prior convictions to establish future dangerousness constitutes double jeopardy. Answered by Watkins v. Commonwealth, 238 Va. 341, 352, 385 S.E.2d 50, 56 (1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1797, 108 L.Ed.2d 798 (1990).

Virginia has no meaningful appellate review of death sentence cases. Answered by Stockton v. Commonwealth, 241 Va. 192, 216, 402 S.E.2d 196, 210 (1991).

The Virginia statutory scheme does not require the trial judge and jury to specify the findings justifying imposition of the death sentence. Answered by Watkins v. Commonwealth, 229 Va. 469, 490-91, 331 S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986).

Additional peremptory challenges are necessary in a capital case to insure a defendant the effective assistance of counsel, the right to a fair and impartial jury, and the reliability of the verdict. Answered by Buchanan v. Commonwealth, 238 Va. 389, 405, 384 S.E.2d 757, 767 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990).

Trial court's refusal to appoint an expert investigator violated due process and equal protection. Answered by Gray v. Commonwealth, 233 Va. 313, 330, 356 S.E.2d 157, 166, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987).

Refusal of trial court to provide funds to employ expert witnesses to assist defense in sentencing phase constituted a denial of due process and equal protection. Answered by O'Dell v. Commonwealth, 234 Va. 672, 686-87, 364 S.E.2d 491, 499, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988).

II.

PRETRIAL MATTERS.

A. Motions to Suppress.

1. Statement Made to Officer Dillon.

George contends that the statement he made to Officer Dillon on June 17, 1990, wherein he admitted he had been in the woods near Cardinal Drive the previous day, should have been suppressed because it was obtained without benefit of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). George argues that the statement was made during custodial interrogation. To support this argument, George maintains that Officer Dillon admitted during the hearing on the motion to dismiss that he had decided to make an arrest when "the officer first approached George to question him."

The record does not support George's argument. Officer Dillon stated clearly that he did not decide to make an arrest until after completion of the conversation in which George...