Joseph v. Com.

• Decision Date: 13 January 1995
• Docket Number: Nos. 941103,941104,s. 941103
• Citation: 249 Va. 78,452 S.E.2d 862
• Court: Virginia Supreme Court
• Parties: Jason Matthew JOSEPH v. COMMONWEALTH of Virginia. Record

Page 862

452 S.E.2d 862

249 Va. 78

Jason Matthew JOSEPH v. COMMONWEALTH of Virginia.

Record Nos. 941103, 941104.

Supreme Court of Virginia.

Jan. 13, 1995.

William R. Brown (John H. Underwood, III, Dianne G. Ringer, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: All the Justices.

WHITING, Justice.

Jason Matthew Joseph was indicted for (1) the October 26, 1992, capital murder of Jeffrey Anderson in the course of a robbery while armed with a deadly weapon, (2) the use of a firearm while committing Anderson's murder, (3) the robbery of Anderson, and (4) the use of a firearm while committing the robbery. In the first stage of a bifurcated trial conducted under the provisions of Code §§ 19.2-264.3 and -264.4, a jury convicted Joseph of all charges and fixed his punishment at imprisonment for life on the robbery charge and four years imprisonment for each of the firearms charges.

In the second stage of the capital murder trial, the jury fixed Joseph's punishment for Anderson's capital murder at death, based on a finding of "future dangerousness." After its consideration of a probation officer's report, the court imposed the sentences fixed by the jury.

Joseph is before this Court for automatic review of his death sentence, Code § 17-110.1(A), which we have consolidated with his appeal of his capital murder conviction. Code § 17-110.1(F). Also, we have certified Joseph's appeal of his other convictions from the Court of Appeals, transferring jurisdiction to this Court pursuant to Code § 17-110.1(A), thereby consolidating all his appeals.

I. EVIDENCE

A substantial part of the evidence in this case comes from the testimony of Kiasi Powell, an accomplice, and from a video tape of the robbery and murder recorded by two cameras with sound-recording capabilities. The cameras were mounted in a Subway Sandwich Shop on Airline Boulevard in Portsmouth, the situs of the crime. Consistent with established appellate principles, we will view the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth, the prevailing party at trial.

On the evening of October 26, 1992, Joseph, his siblings, Eric Belton and Andrea Belton, and Andrea's fiancee, Powell, were "getting high" on cocaine and marijuana. When they had exhausted their drug supply, they decided to commit a robbery to obtain money to buy more drugs. As they were riding in a car to the Subway Sandwich Shop, Powell gave Joseph his .45 caliber pistol because Joseph said he wanted to commit the robbery.

When Joseph and Powell entered the Subway Sandwich Shop, Joseph ordered a sandwich from Anderson, who was behind a counter. Joseph and Powell sat some distance from the counter as Anderson prepared the sandwich. When the sandwich was prepared, Joseph walked to the counter, removed the pistol from his pocket, cocked it, chambered a bullet, and ordered Anderson to open the cash register and give him the money. After Anderson opened the register, Joseph ordered Anderson to hand him the cash drawer and to get down on the floor behind the counter.

Anderson gave Joseph the cash drawer and disappeared from the view of Powell and the video cameras as he went below the counter top. After Joseph took the money from the drawer, Joseph made a number of statements indicating his intention to shoot Anderson. Since Anderson was below the counter, somewhere close to the floor, and Joseph was unable to get behind the counter, Joseph reached over the counter and shot Anderson in the back. Anderson died shortly after being shot. Joseph told Powell that he shot Anderson, "Because he laughed at me."

II. ISSUES PREVIOUSLY DECIDED

Joseph advances a number of arguments that we have rejected in previous decisions. Finding no reasons sufficient to justify a modification of our previously expressed views, we will reaffirm our earlier decisions and reject the following contentions:

A. The death penalty constitutes cruel and unusual punishment. Rejected in Williams v. Commonwealth, 248 Va. 528, 536, 450 S.E.2d 365, 371 (1994); Mickens v. Commonwealth, 247 Va. 395, 402, 442 S.E.2d 678, 683, rev'd on other grounds, 513 U.S. ----, 115 S.Ct. 307, 130 L.Ed.2d 271 (1994).

B. The death penalty statutes fail to provide for meaningful appellate review. Rejected in Williams, 248 Va. at 536, 450 S.E.2d at 371; Mickens, 247 Va. at 405, 442 S.E.2d at 685.

C. Use of the defendant's prior convictions in the penalty phase of the trial to establish future dangerousness violates the defendant's constitutional protection against double jeopardy. Rejected in Mickens, 247 Va. at 404, 442 S.E.2d at 684-85; Yeatts v. Commonwealth, 242 Va. 121, 126, 410 S.E.2d 254, 258 (1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1500, 117 L.Ed.2d 639 (1992).

D. The statutory provisions relating to the "future dangerousness" aggravating factor fail to guide the jury's discretion. Rejected in Williams, 248 Va. at 536, 450 S.E.2d at 371; Mickens, 247 Va. at 402-403, 442 S.E.2d at 683-84.

E. The statutory provisions, jury instruction forms, and jury verdict forms inhibit the jury from "giving independent weight" to all mitigating factors. Rejected in Yeatts, 242 Va. at 126, 410 S.E.2d at 258.

F. The list of aggravating and mitigating circumstances that may be considered in imposing the death sentence is not limited and, for that reason, creates an impermissibly broad "standard" for the application of the death penalty. Rejected, as to aggravating factors, in Spencer v. Commonwealth, 238 Va. 563, 569, 385 S.E.2d 850, 853-54 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990). ¹

G. The provision for a finding of "future dangerousness" in Code § 19.2-264.4(C) is unconstitutional because it fails to define the term "serious threat" in its requirement that the jury find that the defendant would probably "commit criminal acts of violence that would constitute a continuing serious threat to society." Rejected in Smith v. Commonwealth, 219 Va. 455, 477, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

H. Since this is a death penalty case, the defendant is entitled to additional peremptory challenges to prospective jurors. Rejected in Mickens, 247 Va. at 404, 442 S.E.2d at 685.

III. VOIR DIRE EXAMINATION OF PROSPECTIVE JURORS

Joseph contends that the trial court erred in ruling that the Commonwealth could ask prospective jurors whether there were any circumstances "that exist that would cause you not to consider the death penalty as punishment if you found the defendant guilty of capital murder?" We will not consider this contention because no objection was made to the seating of any juror to whom this question, or one similar thereto, was propounded. Rule 5:25; Mu'Min v. Commonwealth, 239 Va. 433, 445 n. 6, 389 S.E.2d 886, 894 n. 6 (1990), aff'd, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991).

Next, Joseph argues that the court erred in refusing to permit him to ask prospective jurors if they were aware that "if the defendant is sentenced to life for capital murder, then the defendant will not be eligible for parole for at least twenty-five years?" Joseph recognizes that we have consistently rejected efforts to permit jurors to consider a defendant's parole eligibility or ineligibility in fixing an appropriate sentence. King v. Commonwealth, 243 Va. 353, 367-68, 416 S.E.2d 669, 677, cert. denied, 506 U.S. 957, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992); Yeatts, 242 Va. at 127, 410 S.E.2d at 258.

However, Joseph contends that "the prohibition must now fall, in light of the recent holding in Simmons v. South Carolina, 512 U.S. 154, [114 S.Ct. 2187, 129 L.Ed.2d 133] (1994)." Joseph states that "Simmons requires that where a defendant's future dangerousness is at issue and he is parole-ineligible under state law, the Due Process Clause of the Fourteenth Amendment requires that the sentencing jury be informed as to parole ineligibility." (Emphasis added.) According to Joseph, "the underlying rationale of Simmons and its predecessors mandates reversal in this case." We disagree because Joseph is parole eligible.

Justice Blackmun, author of the four-justice plurality opinion in Simmons, pointed out that "[t]he logic and effectiveness of petitioner's argument naturally depended on the fact that he was legally ineligible for parole and thus would remain in prison if afforded a life sentence." 512 U.S. at ----, 114 S.Ct. at 2194-95. In a concurrence, Justice O'Connor, with whom two other justices joined, noted that "[i]n a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact." 512 U.S. at ----, 114 S.Ct. at 2200. Hence, Simmons is inapplicable if, as here, a defendant is eligible for parole. Wright v. Commonwealth, 248 Va. 485, 487, 450 S.E.2d 361, 362-63 (1994); Ramdass v. Commonwealth, 248 Va. 518, 520, 450 S.E.2d 360, 360-61 (1994).

Accordingly, we conclude that the trial court did not err in refusing to permit a voir dire question which would have told prospective jurors that Joseph would not be eligible for parole for 25 years if given a life sentence. For the same reasons, we also hold that the trial court correctly refused to instruct the jury on the issue of parole during the sentencing phase or to answer the jury's question posed during its sentencing deliberations as to the meaning of two life sentences.

IV. GUILT PHASE

A. Introduction of Evidence

Joseph contends that the court erred in admitting allegedly duplicative photographic exhibits and in permitting the repetitive use of the video tape. We have seen the photographs and viewed and heard the video tape and the audio recording made from it. ²

Joseph recognizes the well-settled appellate principle requiring him, as the appellant, to show that the court abused its discretion in such rulings. See Spencer v....