Green v. Com.

• Decision Date: 08 June 2001
• Docket Number: Record No. 002976.
• Citation: 546 S.E.2d 446,262 Va. 105
• Court: Virginia Supreme Court
• Parties: Kevin GREEN, v. COMMONWEALTH of Virginia.

546 S.E.2d 446

262 Va. 105

Kevin GREEN, v. COMMONWEALTH of Virginia.

Record No. 002976.

Supreme Court of Virginia.

June 8, 2001.

Peter D. Eliades (Jerry Waldrop; Eliades & Eliades; Waldrop Law Office, on brief), Hopewell, for appellant.

Katherine P. Baldwin, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present All the Justices.

HASSELL, Justice.

I.

Kevin Green appeals his capital murder conviction and sentence of death. The dispositive question in this appeal is whether the circuit court abused its discretion in refusing to remove two members from the venire. Because we conclude that the circuit court abused its discretion, and that such abuse constitutes manifest error, we will reverse the judgment of the circuit court confirming Green's capital murder conviction, and we will only address certain issues in this appeal.

II.

The defendant was tried before a jury and found guilty of the capital murder of Patricia L. Vaughan during the commission of robbery in violation of Code § 18.2-31(4). The jury also found the defendant guilty of robbery, malicious wounding of Lawrence T. Vaughan, and three counts of the illegal use of a firearm.

In the penalty phase of the capital murder trial, the jury fixed the defendant's punishment at death for the capital murder conviction, finding that he represented a continuing serious threat to society and that his conduct in committing the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim. See Code § 19.2-264.2. The jury fixed the defendant's punishment for the non-capital offenses as follows: life imprisonment for the robbery, 20 years imprisonment for the malicious wounding, and three sentences of three years each for the illegal use of a firearm convictions. After considering a report prepared by a probation officer pursuant to Code § 19.2-264.5, the circuit court sentenced the defendant in accord with the jury's verdict. Green did not appeal his non-capital convictions. Therefore, those convictions are not before this Court and are not affected by this opinion. We consolidated the automatic review of the defendant's death sentence with his appeal of the capital murder conviction. Code § 17.1-313(F).

III.

A.

The defendant argues that the circuit court erred by overruling his motion to strike for cause prospective jurors Charles Overby and Edith Pearson. The defendant contends that Overby and Pearson were not impartial and that the circuit court abused its discretion when it refused to remove them from the venire. Responding, the Commonwealth states that the circuit court properly overruled the defendant's motion to strike Overby and Pearson.

B. Charles Overby

The following colloquy occurred during the voir dire of Charles Overby.

"THE COURT: Have you expressed or formed any opinion about the guilt or innocence of the accused?

"MR. OVERBY: No, sir.

"THE COURT: Do you know of any bias or prejudice whatsoever which would keep you from being able to give a fair trial both to the Commonwealth and to the accused?

"MR. OVERBY: I only believe in the Bible, an eye for an eye, tooth for a tooth.

"THE COURT: This case involves the possibility of capital punishment. Do you have any opinion such as would prevent you from convicting anyone of an offense punishable with death?

"MR. OVERBY: No, sir.

"THE COURT: Could you never vote to impose the death penalty?

"MR. OVERBY: I don't know about that.

"THE COURT: Would you find it impossible to do that?

"MR. OVERBY: I don't know. That would be ... hard.

"THE COURT: Would you find it impossible to? Would you not be able to consider it at all? Would you refuse to even consider it?

"MR. OVERBY: No. I would consider it.

"THE COURT: If you were sitting as a juror in this case and the jury were to convict the defendant of capital murder, you are saying you could consider the death penalty?

"MR. OVERBY: Yes, sir.

....

"[COMMONWEALTH'S ATTORNEY]: This is a two part trial. If you find the defendant guilty beyond a reasonable doubt of capital murder, you will then hear more evidence before deciding between the death penalty or life imprisonment without parole. After the guilty finding — Would you be willing to listen to further evidence after the guilty finding from the Commonwealth and the defense before finding the appropriate sentence for the defendant?

"MR. OVERBY: Yes, ma'am.

"[COMMONWEALTH'S ATTORNEY]: Okay. In the second phase the Commonwealth may introduce evidence in aggravation of the offense. The defendant may produce evidence in mitigation of the offense. After this, would you then impose a sentence on the defendant either to death or to life imprisonment without parole?

"MR. OVERBY: Yes, ma'am.

"[COMMONWEALTH'S ATTORNEY]: You understand how the two part procedure would be?

"MR. OVERBY: Yes, ma'am.

"[COMMONWEALTH'S ATTORNEY]: All right. Would you be able to consider both the death penalty as you have answered for the Judge and also life in prison without parole and impose either one based only on the law and the evidence that you receive?

"MR. OVERBY: Yes, ma'am.

....

"[DEFENDANT'S ATTORNEY]: Would you always vote to impose the death penalty in every case where a defendant is found guilty of a capital offense?

"MR. OVERBY: Yes, sir. If it was proven guilty, yes, sir, I would vote for guilty.

"[DEFENDANT'S ATTORNEY]: If the Commonwealth proves it beyond a reasonable doubt that the defendant committed a capital offense, you would vote for the death penalty?

"MR. OVERBY: Yes.

"[DEFENDANT'S ATTORNEY]: You would not give any consideration to a lesser penalty?

"MR. OVERBY: No. He didn't give his victim consideration when he took their life.

"[COMMONWEALTH'S ATTORNEY]: Mr. Overby, when I asked you my series of questions, I asked you whether you would be able to consider the death penalty in a capital murder case and also whether you would be able to consider life without parole in a capital murder case, and your answers were, yes, you would be able to consider both. Would you be able — If a person was convicted of capital murder, would you be able to consider both the death penalty and life without parole?

"MR. OVERBY: Yes.

"[COMMONWEALTH'S ATTORNEY]: Thank you.

"[DEFENDANT'S ATTORNEY]: That prompts a follow-up. I'm still not sure that

"THE COURT: May I interrupt a moment?

"[DEFENDANT'S ATTORNEY]: Yes, sir.

"THE COURT: I think it's important, and maybe we haven't done it since you are asking it that way, that Mr. Overby be told what the two possibilities are because he gave me the same answer he just gave [the Commonwealth's attorney], and I think he needs to know that. And if you wish to do that, that's fine.

"[DEFENDANT'S ATTORNEY]: The two possibilities, Mr. Overby, if [the defendant] is found guilty of a capital offense would be, one, death and, number two, life without parole. And what we would all like to be sure is that if the Commonwealth proves beyond a reasonable doubt he's guilty of a capital offense, are you going to vote automatically for death or can you give it your consideration to vote for life without parole?

"MR. OVERBY: I would give consideration to vote for life, but still there again, as I said, I would vote an eye for an eye as the Bible says.

"[DEFENDANT'S ATTORNEY]: I don't know how to interpret that. What I'm thinking, you correct me if I'm wrong, that what you are saying is if he is proved guilty beyond a reasonable doubt of a capital offense you are going to vote death?

"MR. OVERBY: I think it should be. Right, yes, sir."

After the defendant's counsel made a motion to strike Overby from the venire for cause, the circuit court, denying the motion, responded:

"As I understand Mr. Overby's answers to this particular question is that though he has a personal belief he could consider what the law calls for, and that's the question that has to be answered here. The Court overrules the motion to strike Mr. Overby for cause."

C. Edith Pearson

The following colloquy occurred during the voir dire of Edith Pearson.

"THE COURT: Do you have any interest in the trial or the outcome of this case?

"MS. PEARSON: No, sir.

"THE COURT: Do you know anything about it? Have you ever read about it, heard about it?

"MS. PEARSON: Read a little bit in the paper.

"THE COURT: You read about it in the paper?

"MS. PEARSON: Yes.

"THE COURT: Have you formed any opinion or expressed any opinion as to the guilt or innocence of [the defendant]?

"MS. PEARSON: No. I suppose he is guilty.

"THE COURT: Ma'am?

"MS. PEARSON: I suppose he is guilty.

"THE COURT: Is that because he is charged with the crime?

"MS. PEARSON: No.

"THE COURT: Why do you suppose he is guilty?

"MS. PEARSON: Well, from just what I read. They say he was there.

"THE COURT: So you're going by what you read in the newspaper?

"MS. PEARSON: Yes, sir.

[546 S.E.2d 500]

....

"THE COURT: Do you understand that every defendant is presumed to be innocent throughout the course of the trial?

"MS. PEARSON: Yes, sir.

"THE COURT: And that the burden is on the Commonwealth to prove a defendant guilty beyond a reasonable doubt?

"MS. PEARSON: Yes, sir.

"THE COURT: And do you understand that the defendant doesn't have to produce any evidence? That's all on the Commonwealth.

"MS. PEARSON: Yes, sir.

....

"[DEFENDANT'S ATTORNEY]: Do I understand you to say in answer to the Judge's questions that you suppose the defendant is guilty because of what you read in the papers?

"MS. PEARSON: Yes.

"[DEFENDANT'S ATTORNEY]: Does that mean that — Do you feel like the defense is going to have to prove him innocent to you if you sit as a juror?

"MS. PEARSON: Yes, I suppose I do. "[DEFENDANT'S ATTORNEY]: That we will have to prove him innocent?

"MS. PEARSON: Uh-huh.

[DEFENDANT'S ATTORNEY]: If we presented no evidence at all, the defense, then am I assuming correctly that you have made up your mind that you would find him guilty of the charge?

"MS. PEARSON: Yes.

...