Jenkins v. Com.

• Decision Date: 06 November 1992
• Docket Number: 920567,Nos. 920566,s. 920566
• Citation: 423 S.E.2d 360,244 Va. 445
• Court: Virginia Supreme Court
• Parties: Arthur Ray JENKINS, III v. COMMONWEALTH of Virginia. Record

Page 360

423 S.E.2d 360

244 Va. 445

Arthur Ray JENKINS, III v. COMMONWEALTH of Virginia.

Record Nos. 920566, 920567.

Supreme Court of Virginia.

Nov. 6, 1992.

J. Lloyd Snook, III, Charlottesville (William B. Allen, III, Woodstock, Snook & Haughey, Charlottesville, Allen & Allen, Woodstock, on briefs), for appellant.

Janet F. Rosser, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Margaret Ann B. Walker, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

COMPTON, Justice.

On October 12, 1990, Lee H. Brinklow and Floyd L. Jenkins were murdered in their residence in rural Warren County. The next day, defendant Arthur Ray Jenkins, III, also known as Arthur Ray Frame, was apprehended in Washington County.

Subsequently, the defendant, a nephew of Floyd Jenkins, was charged in an eight-count indictment with the following crimes arising out of the October 12 incident: (1) capital murder for the willful, deliberate, and premeditated killing of more than one person as a part of the same transaction, Code § 18.2-31(7); (2) murder of Brinklow, Code § 18.2-32; (3) capital murder for the willful, deliberate, and premeditated killing of Jenkins in the commission of robbery, Code § 18.2-31(4); (4) capital murder for the willful, deliberate, and premeditated killing of Brinklow in the commission of robbery, id. (5) robbery of Jenkins, Code § 18.2-58; (6) robbery of Brinklow, id.; (7) use of a firearm while committing the murder of Jenkins, Code § 18.2-53.1; and (8) use of a firearm while committing the murder of Brinklow, id.

Following several pretrial hearings, including hearings on defendant's motion to suppress certain statements he made to the police, defendant was tried by a single jury in June 1991. As the trial began, the court granted the prosecutor's motion to nolle prosequi count 2; the defendant pled guilty to count 8, and the court subsequently sentenced defendant to two years' imprisonment for that offense.

After four days of trial, the jury found defendant guilty on the remaining charges and fixed the following punishments for the noncapital offenses: life imprisonment for each robbery conviction and two years' imprisonment for felonious use of a firearm. The jury also found defendant guilty of three charges of capital murder.

During the second phase of the bifurcated capital proceeding, the jury fixed defendant's punishment at death for each capital offense based upon the vileness and future dangerousness predicates of the capital murder sentencing statute. Code § 19.2-264.4. Upon the Commonwealth's motion, the court then dismissed count 3. Subsequently, the trial court considered a probation officer's report and heard additional evidence relevant to punishment. The court then sentenced the defendant to death for each of the two capital murders.

The death sentences are before us for automatic review under Code § 17-110.1(A), see Rule 5:22, and we have consolidated this review with defendant's appeal of the capital murder convictions. Code § 17-110.1(F). In addition, by order entered in April 1992, we have certified the appeals of the noncapital convictions from the Court of Appeals; the effect of the certification is to transfer jurisdiction over the noncapital appeals to this Court for all purposes. Code § 17-116.06(A). We have consolidated those appeals (Record No. 920567) with the capital murder appeals (Record No. 920566). As required by statute, we will consider not only the trial errors enumerated by the defendant but also whether the sentences of death were imposed under the influence of passion, prejudice, or any other arbitrary factor, and whether the sentences are excessive or disproportionate to the penalty imposed for similar cases. Code § 17-110.1(C).

There is virtually no conflict in the facts relating to the commission of these crimes. The defendant has not denied committing the homicides. Indeed, he admitted the killings to almost everyone with whom he talked subsequent to the day in question. Where there is any conflict, however, we shall construe the facts in the light most favorable to the Commonwealth, as required by settled rules of appellate procedure.

During October 12, the day the crimes were committed, the defendant, age 21, had been drinking whiskey and beer with his younger brother, Kevin Frame. In the early evening, defendant engaged in a fight with another man outside a local restaurant. The defendant's mother and grandmother drove the defendant and Frame away from the restaurant and to the vicinity of the home where defendant was residing on Route 617 in Warren County. The defendant had lived there for about one month following his release from prison on September 6, 1990. The home was owned by Elizabeth Morris, defendant's aunt. Brinklow, age 69, and the uncle, Floyd Jenkins, age 72, also lived in the house.

Near 10:00 p.m., defendant and Frame entered the home through the front door. Brinklow was sitting on a couch in the living room. Brinklow told Frame to leave the house because the aunt, who was not present, did not allow Frame inside. An argument ensued between Brinklow and the defendant. The defendant went to Brinklow's bedroom, obtained a .22 rifle capable of firing only one shot at a time, and returned to the living room. The defendant loaded the rifle and shot Brinklow once in the face; the shot did not kill him.

The defendant walked to the "back bedroom" where the uncle was lying in bed listening to a radio. After the defendant reloaded the rifle, he "stuck it" to the uncle's head. The uncle "grabbed it" and defendant said, "Let go before I kill you." The uncle "let go" and the defendant "stuck the gun to his head" and shot him. The uncle began "gagging," and defendant returned to the living room.

The defendant asked Brinklow the location of Brinklow's hand gun, and Brinklow responded that the weapon was in Brinklow's pick-up truck parked outside the house. Ordering Frame to "watch" the uncle, defendant "took" Brinklow to the truck, where the hand gun could not be located.

Defendant escorted Brinklow back into the house where defendant went to the kitchen and procured two "butcher knives." Defendant gave one to Frame and retained the other.

Defendant returned to the uncle's bedroom where he was still "gagging." By this time, Brinklow had been brought into the same bedroom where he laid on the floor. Defendant shot the uncle again in the head and "went berserk." He began stabbing the uncle with the knife until his "guts came out."

As defendant was picking up the "guts" and throwing them onto the uncle's body, Frame said, "Shoot him," referring to Brinklow. Brinklow pleaded with defendant not to kill him, stating that he "loved" defendant. Defendant "stuck" the rifle to Brinklow's head and "pulled the trigger."

The defendant and Frame carried the victims' bodies out the front door of the house and laid them in the bed of Brinklow's truck. The defendant and Frame returned to the house where they broke into the aunt's locked bedroom. The aunt had stored sums of money in various items in her bedroom; these items, with the money, were loaded into the truck. The evidence also showed that, at some point, defendant and Frame took the victims' wallets as well as other personal items.

Defendant drove the truck away from the house, intending to drive "to the police station." Frame persuaded defendant to turn in a different direction as they left the premises. A short distance from the residence, defendant lost control of the truck, which left the road and came to rest in a creek.

Defendant and Frame walked back to the home and attempted to clean the rooms, which were spattered with blood and contained body parts. The pair then left the premises, and defendant fled to the southwestern part of the State.

The aunt returned to her home about 1:50 a.m. on October 13 to find it in disarray and her funds missing. A short time later, the truck containing the victims' bodies was found by the police. Defendant was arrested about 11:30 p.m. on that day near Abingdon.

Autopsies of the victims' bodies showed that Brinklow sustained four gunshot wounds to the head, two of which were fatal. The uncle sustained three gunshot wounds to the head, two being fatal. He also sustained seven stab wounds to the abdomen, which injured vital organs and which penetrated the body up to a depth of eight inches.

On appeal, defendant assigns 26 alleged errors committed by the trial court. The defendant has not briefed or argued eight (Nos. 6, 7, 13, 14, 15, 17, 19, and 21) of those assigned errors; hence, we will not consider them. Quesinberry v. Commonwealth, 241 Va. 364, 370, 402 S.E.2d 218, 222, cert. denied, 502 U.S. 834, 112 S.Ct. 113, 116 L.Ed.2d 82 (1991).

The remaining assignments of error present questions generally dealing with the validity of Virginia's capital sentencing statute, the admissibility of certain statements defendant made to the police, the limitation of certain testimony offered on behalf of defendant, refusal of certain jury instructions, alleged prosecutorial misconduct, and alleged juror misconduct.

First, defendant contends that Virginia's "capital sentencing statute is unconstitutional as being overbroad and vague, and because of its racially discriminatory application." This contention has been answered repeatedly by our previous decisions. See Satcher v. Commonwealth, 244 Va. 220, 227-28, 421 S.E.2d 821, 826 (1992). Thus, we reaffirm these decisions and reject defendant's contention.

Next, defendant argues that "various statements" made by defendant to investigating officers were obtained in violation of his constitutional rights. This argument refers to statements made to a Washington County jailor on October 14, to Warren County investigators as defendant was being transported to Warren County on October 14, and to videotaped confessions made on October 15 and 16.

On October 14, while held in the Washington County jail, defe...