Gray v. Com.

Citation233 Va. 313,356 S.E.2d 157
Decision Date24 April 1987
Docket NumberNos. 860373,860374,s. 860373
PartiesColeman Wayne GRAY v. COMMONWEALTH of Virginia. (Two Cases) Record
CourtSupreme Court of Virginia

James A. Moore (Carl E. Eason, Jr., Moore & Saunders, Pretlow, Eason & Pretlow, Suffolk, on brief), for appellant.

Frank S. Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.



Coleman Wayne Gray was indicted for the capital murder of Richard M. McClelland in the commission of robbery, Code § 18.2-31(d), the robbery of McClelland, the abduction of McClelland, the use of a firearm in the commission of each of those felonies, and the arson of McClelland's automobile. The robbery occurred on May 2, 1985, at Murphy's Mart store in the City of Portsmouth where McClelland was the manager. A jury convicted Gray of all counts, fixing his punishment at life imprisonment on the robbery charge, life imprisonment on the abduction charge, 10 years in the penitentiary on the arson charge, and four years in the penitentiary on each of the firearm charges.

Pursuant to the bifurcated-trial procedure for capital murder cases, a separate penalty trial was conducted on the capital murder conviction. Code § 19.2-264.4. In the penalty trial, the Commonwealth presented evidence of aggravating factors and Gray introduced evidence in mitigation.

The jury fixed Gray's sentence at death. Following a sentencing hearing conducted pursuant to Code § 19.2-264.5, the trial court imposed the death sentence. Thereafter, the trial court entered judgments on all the verdicts.

We have consolidated the automatic review of Gray's death sentence with his appeal from his conviction of capital murder, Code §§ 17-110.1(A) and -110.1(F), and have given them priority on our docket, Code § 17-110.2. By order entered May 8, 1986, the appeals of the other convictions were certified from the Court of Appeals and consolidated with the capital murder appeal. Code § 17-116.06.




Constitutionality of the Death Penalty Statute.

Gray makes various challenges to Virginia's death penalty statute, each of which we have previously rejected. He first contends that the death penalty violates the proscription against cruel and unusual punishment contained in the Federal and Virginia Constitutions. In accord with our previous decisions, we again reject this contention. See, e.g., Boggs v. Commonwealth, 229 Va. 501, 505, 331 S.E.2d 407, 411 (1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 347 (1986); Stockton v. Commonwealth, 227 Va. 124, 134, 314 S.E.2d 371, 378, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Whitley v. Commonwealth, 223 Va. 66, 77-78, 286 S.E.2d 162, 168-69, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982); Gray next contends that the aggravating factors which a jury must find in order to impose the death penalty, see Code § 19.2-264.2, 1 are unconstitutionally vague and overbroad and "an open invitation to allow an arbitrary and irrational decision." We reaffirm our previous rejection of this contention. See, e.g., Watkins v. Commonwealth, 229 Va. 469, 490, 331 S.E.2d 422, 437-38 (1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986); Stockton, 227 Va. at 134-35, 314 S.E.2d at 378; Bunch v. Commonwealth, 225 Va. 423, 441, 304 S.E.2d 271, 281, cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983); Smith, 219 Va. at 476-78, 248 S.E.2d at 148-49.

Bassett v. Commonwealth, 222 Va. 844, 851, 284 S.E.2d 844, 849 (1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982); 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); Mason v. Commonwealth, 219 Va. 1091, 1095, 254 S.E.2d 116, 118-19, cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Waye v. Commonwealth, 219 Va. 683, 698-99, 251 S.E.2d 202, 211-12, cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979); 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).

Finally, Gray argues that Virginia's sentencing scheme is "overbroad, vague and facially unconstitutional" because Code § 19.2-264.2 allows a jury to examine an accused's "past criminal record" while Code § 19.2-264.4(C) 2 provides for examination of his "prior history." For reasons expressed in previous decisions, we again reject this argument. See Watkins, 229 Va. at 487, 331 S.E.2d at 435-36; LeVasseur v. Commonwealth, 225 Va. 564, 593-94, 304 S.E.2d 644, 660 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984).


Admissibility of Statements Made by Gray to the Police.

Gray contends that his statements to the police were "involuntary." He argues that his statements were not voluntary under either the requirement set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or the "totality of circumstances" standard.

Gray gave statements to the police on two occasions. The first statement was given to Officer Freeman on the morning of May 22, 1985. The second statement was given to Sergeant Lilley and Detective Bunker on the evening of May 23, 1985.

Freeman testified at the suppression hearing that at 8:30 a.m. on May 22, 1985, Gray, who was in a holding cell at the Suffolk jail, "shouted out that he wanted to talk to me." Freeman walked to the cell, and Gray said he "wanted to get something off his mind that had been bothering him."

Approximately 9:30 a.m., after Gray had eaten breakfast, he was brought to Freeman's office. Freeman told Gray that he

                would not talk to him unless Gray executed a "Legal Rights Advice[233 Va. 322]  Form."   Freeman then presented Gray with a form and read each question on the form to him.  Gray executed the form, which reads as follows


Legal Rights Advice Form

Date May 22, 1985

1. Do you understand what you may be charged with?

Armed Robbery


2. Do you understand that you have the right to remain


3. Do you understand that any statement you make may be

used as evidence against you in a court of law?

4. Do you understand that you have a right to talk to a

lawyer and to have the lawyer present during all

questioning, if you so desire?

5. Do you understand that if you cannot afford to hire a

lawyer, a lawyer will be appointed to represent you and

be present during all questioning, if you so desire?

6. The above rights have been fully explained to me, and I

sign this paper with complete understanding of them. I

further state that I waive these rights and desire to make

a statement. I understand that I have the right to stop

answering questions at any time.

7. This statement is completely free and voluntary on my

part without any threats or promises from anyone.


Witness /s/ Lt. W. A. Freeman /s/ Coleman W. Gray

----------------- ---------------

Signature of Person

Witness _______________________ Being Advised of His


Date 5/22/85 Time 9:33 A.M. Date 5/22/85

Time 9:35 A.M.

Suffolk Det. Bur

---------------- ______________________________

Exact Location Exact Location

Freeman testified that after executing the form, Gray, without any questioning by Freeman, became "emotional," and began walking around the room, hitting the wall and exclaiming, "the man wasn't supposed to die." Freeman suggested that Gray "[c]alm ... down, just sit down [and] [t]ell me what happened."

Without any questioning or interruption by Freeman, Gray proceeded to give him a detailed account of how the offenses had occurred. Gray admitted he had participated in the commission of the crimes with Melvin Tucker, but stated that Tucker actually shot McClelland. Gray told Freeman: "I'm not going to let you write anything. When we get into court it will just be your word against mine." After the interview, Freeman immediately returned to his office and reduced his recollection of Gray's statements to typewritten form.

On the evening of May 22, Gray told Detective Lilley that he wanted to talk with him, saying he would tell "everything." Lilley told Gray that he would talk with him after the arraignment the following day. On the morning of the 23rd, Gray again told Lilley that he wanted to talk with him. Lilley first contacted Gray's court-appointed counsel and arranged for him to interview Gray. When he arrived at the police station, Gray's counsel conducted a lengthy interview with him.

After his attorney left, Gray again "demanded" in the presence of the Suffolk Chief of Police and Detective Bunker that he be allowed to speak with Lilley. Bunker testified at the suppression hearing that Gray asked him what he should do. Bunker asked Gray, "[W]hat did your attorney tell you to do?" Gray said, "My attorney told me to not say anything," to which Bunker responded, "Well, then you should do what your attorney said." Gray, however, said, "No, I want to talk to Sergeant Lilley."

Thereafter, Lilley was contacted and he, Bunker, and Gray went to Lilley's office. Gray executed another rights form containing essentially the same questions and answers as the one he had executed for Freeman the preceding day. Gray then gave Lilley a lengthy and detailed statement in question and answer form. The statement was tape-recorded on a machine that was in full view of Gray at all times, and he saw tapes being changed. When transcribed, the statement consisted of 78 typewritten pages. In his statement to Lilley, Gray again admitted his participation in each of the crimes for which he was charged, but continued to assert that Melvin Tucker was the person who shot McClelland.

Gray contends on appeal, as he did at the suppression hearing, that he would not have made any statements had he known that an...

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