Green v. Com.
| Decision Date | 06 June 2003 |
| Docket Number | Record No. 020757. |
| Citation | 580 S.E.2d 834,266 Va. 81 |
| Parties | Kevin GREEN v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Peter D. Eliades, Hopewell (Jerry E. Waldrop, Emporia; Eliades & Eliades, Hopewell, on brief), for appellant.
Paul C. Galanides, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.
PRESENT: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and CARRICO, Senior Judge.1
OPINION BY JUSTICE CYNTHIA D. KINSER.
This capital murder case is before the Court for the second time. We previously reversed Kevin Green's conviction for the 1998 capital murder of Patricia L. Vaughan and remanded the case to the circuit court for a new trial. Green v. Commonwealth, 262 Va. 105, 118, 546 S.E.2d 446, 452 (2001).2 Upon retrial, a jury again convicted Green of capital murder during the commission of robbery in violation of Code § 18.2-31(4). At the conclusion of the penalty phase of the bifurcated trial, the jury fixed Green's punishment at death, finding "that there is a probability that [Green] would commit criminal acts of violence that would constitute a continuing serious threat to society" (the "future dangerousness" predicate), and "that his conduct in committing the offense [was] outrageously or wantonly vile, horrible or inhuman in that it involved . . . both aggravated battery to the victim and depravity of mind" (the "vileness" predicate). See Code §§ 19.2-264.2 and -264.4(D). The circuit court subsequently sentenced Green in accordance with the jury verdict.
We consolidated the automatic review of Green's death sentence with the appeal of his capital murder conviction. See Code § 17.1-313(F). Upon considering the issues raised by Green and conducting our mandated review of the imposition of the death penalty, we find no error in the judgment of the circuit court. Thus, we will affirm that judgment and the sentence of death in this case.
The victim, Patricia L. Vaughan, and her husband, Lawrence T. Vaughan, owned and operated a small grocery store in Brunswick County. As part of their grocery store operation, the Vaughans regularly cashed checks for employees of several nearby businesses, including a lumber company that paid its employees on Friday of each week. Consequently, Mr. Vaughan routinely went to a bank on Fridays to obtain sufficient currency to cash payroll checks for the lumber company employees. And, he did so on Friday, August 21, 1998. Upon returning from the bank on that Friday, he placed $10,000 in a bank bag that he kept in a cabinet underneath the cash register, another $10,000 elsewhere in the store, and the remaining cash in a safe.
On the day in question, as Mr. Vaughan was starting to eat lunch and to file an invoice, two men entered the store. Mr. Vaughan saw them and recognized the taller of the two men as Kevin Green, the defendant. Green had worked for the lumber company for approximately eight to ten weeks during the preceding spring, and had frequented the Vaughans' grocery store at lunchtime, after work, and on Fridays to cash his payroll checks.
When the two men entered the store, Mrs. Vaughan had her back to the door and was standing five or six feet from Mr. Vaughan. Thinking that the shorter man was going over to the "drink box," Mr. Vaughan turned around to finish his filing. As he did so, he heard his wife scream, "Oh, God." At trial, Mr. Vaughan described what he then heard:
It was four bangs. Bang, bang and I was hit. I didn't know where I was hit, but I was hurt. I turned a complete turn and fell on the floor, sit [sic] down on my right foot and broke my right ankle. And about [the] time I went down, I looked up and I realized it was a gun being fired. I could see him, he shot toward my wife with the fourth shot. I saw his hand with a pistol in it. He was holding [it] like he was target practicing.
Mr. Vaughan testified that Green, after firing the four shots, walked back to the door and stood there "as a lookout" while the other man came around behind the counter and tried to open the cash register. When the drawer on the cash register jammed, Green directed the shorter man to look under the counter. Upon doing so, he found the bank bag containing approximately $9,000 in cash and Mr. Vaughan's pistol, which he then used to shoot through the key hole in the cash register drawer. Taking the bank bag and the pistol, the shorter man exited the store, but Green walked a few steps over to where Mrs. Vaughan was lying on the floor and pointed the gun at her again. According to Mr. Vaughan, the gun misfired, and Green ejected a live cartridge onto the floor. Green then fired two more shots in the direction of Mrs. Vaughan. Lowering his head, Mr. Vaughan heard the gun "snap" one more time, but he did not know whether Green was pointing the gun at him or his wife. Only then, when the gun was empty, did Green leave the store.
After Green left, Mr. Vaughan dragged himself approximately five feet across the floor of the store to a telephone and dialed the "911" emergency number, but he was too weak to reach his wife who was still lying on the floor. One of the first police officers to arrive at the scene testified that he observed "puddles of blood just pouring out of [Mrs. Vaughan's] nose, her mouth, [and] her head." A local volunteer medical examiner determined that Mrs. Vaughan had died at the scene of the shooting.
A subsequent autopsy of Mrs. Vaughan's body revealed that she sustained four gunshot wounds. One bullet penetrated the left side of her head, passed through the temporal and frontal lobes of her brain, and lodged in the inner frontal sinus of her face. Another bullet entered the right side of her chest and went into the upper lobe of her right lung. A third bullet penetrated the left side of her back. This was the only non-lethal wound. The fourth bullet entered the right side of Mrs. Vaughan's back and penetrated two lobes of her right lung. According to the forensic pathologist who performed the autopsy, Dr. Jose Abrenio, this wound caused hemorrhaging in her thoracic cavity, which led to difficulty in breathing and had the effect of suffocating her. Dr. Abrenio also opined that Mrs. Vaughan survived "seconds to minutes" after she was first shot. Four days after the murder, a warrant was issued to search Green, his residence, and automobile. During the search of his home, six bullets were retrieved from the trunk of a tree in his yard. The bullets were found behind a "makeshift target" hanging on the tree. Forensic testing on those six bullets and the four bullets recovered from Mrs. Vaughan's body during the autopsy revealed that all ten "caliber 25 Auto full metal jacketed bullets" had been fired from one weapon. About 35 to 50 feet from the tree, 16 25-caliber empty cartridge casings were also recovered.
After Green was arrested, he executed a form waiving his Miranda rights and agreed to be questioned by law enforcement officers. During that interrogation, Green admitted that he and his cousin, David Green, robbed the Vaughans' grocery store and that he selected their store because he knew the Vaughans kept a lot of money there. Green and his cousin had originally planned to wear masks to conceal their faces. However, they discarded the masks after they had to wait behind the store in their automobile for about an hour because other people were in the grocery store. Green also admitted that he shot both of the Vaughans, hitting Mrs. Vaughan four times.
During the penalty phase of the trial, the Commonwealth presented testimony from several correctional officers who had supervised Green's incarceration at different times and facilities. Much of their testimony described incidents during which Green exhibited disruptive behavior, refused to obey instructions, and made threats to the officers. For example, one officer testified that Green "clinched" the bars of his cell and said, "I'll get you, I will get you." Another officer stated that, when Green had to be placed in isolation because of his disruptive conduct, Green started throwing anything he could find, flushing the toilet, and throwing water into the hallway. Green then told the officer that he was going to make the officer's life "a living hell." Other personnel described incidents in which Green threw food, trash, and feces on the floor and refused to take his medication.
In addition to this testimony, the Commonwealth called Clement Leon Cleaton, an acquaintance of Green. Cleaton testified that Green had threatened to rob and kill him and that he had heard Green threaten to rob a man selling ice cream from a truck. Cleaton also related an incident in which Green had shot several times toward Cleaton's "hog pen" while Cleaton was feeding his hogs. Cleaton had asked Green not to shoot in that direction.
As evidence of mitigating circumstances, Green introduced testimony from Dr. Jack Daniel, an expert in the field of forensic pathology. Dr. Daniel had reviewed Mrs. Vaughan's death certificate, the medical examiner's report, and Dr. Abrenio's autopsy report. He testified that he found no evidence in those documents that Mrs. Vaughan had endured prolonged suffering before she died from the gunshot wounds. However, Dr. Daniel agreed that it was not possible to determine whether the blood found in Mrs. Vaughan's chest cavity during the autopsy was the result of an immediate bleeding at the time of the injury or accumulated during the hours following her death.
The jury also heard evidence from Dr. Scott W. Sautter, an expert in neuropsychology who had tested Green's I.Q. on two separate occasions using two different tests, the "Wechsler abbreviated intelligence scale" and the "Wechsler [A]dult [I]ntelligence [S]cale [R]evised." Dr. Sautter testified that, while the formats of the two tests are similar, the "two tests are not exactly the same." Dr. Sautter reported that Green had a full-scale I.Q....
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