Justus v. Com.

• Decision Date: 16 October 1981
• Docket Number: No. 810156,810156
• Citation: 283 S.E.2d 905,222 Va. 667
• Parties: Buddy Earl JUSTUS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 905

283 S.E.2d 905

222 Va. 667

Buddy Earl JUSTUS v. COMMONWEALTH of Virginia.

Record No. 810156.

Supreme Court of Virginia.

Oct. 16, 1981.

H. Gregory Campbell, Jr., Blacksburg (Robert W. Spessard, Jr., Roanoke, Edward James Woodhouse, Jr., Radford, Gilmer, Sadler, Ingram, Sutherland & Hutton, Blacksburg, Spessard & Spessard, Roanoke, Goldsmith, Anderson & Woodhouse, Radford, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

THOMPSON, Justice.

In a previous trial, Buddy Earl Justus was convicted of capital murder during the commission of, or subsequent to, rape, and sentenced to death. Code § 18.2-31(e). On appeal, we reversed the conviction and remanded the case for a new trial because of error in the selection of the jury. Justus v. Commonwealth, 220 Va. 971, 266 S.E.2d 87 (1980). On remand, the court granted a change of venue and transferred the case from the Circuit Court of Montgomery County to the Circuit Court of James City County and the City of Williamsburg. A jury again found Justus guilty of capital murder and recommended the death sentence. After considering a presentence report compiled by a probation officer, and hearing testimony and argument, the court confirmed the jury's verdict and ordered that Justus be executed. Code § 17-110.1(A) requires that we review the death sentence, and we have consolidated this review with the appeal of his conviction, Code § 17-110.1(F), and given them priority on our docket as mandated by Code § 17-110.2.

On October 3, 1978, the husband of Ida Mae Moses found her nude, dead body lying on a bed in their home located in the Ironto section of Montgomery County. She had been shot in the head three times. He immediately summoned the rescue squad and the police. In their investigation the police retrieved various samples from the scene, including hair specimens from the victim, carpet fibers, fingerprints and clothing, and made several photographs of the victim. Missing from the residence were a bag of pennies and a .22 caliber "snub-nosed" revolver.

The forensic pathologist who conducted the autopsy testified that Mrs. Moses had been shot twice in the face and once in the back of the head and that any one of the gunshot wounds would have been fatal. A forensic analysis of swabs taken during the autopsy revealed the presence of seminal fluid in the vagina.

On October 10, 1978, a Montgomery County investigator apprehended Justus who, after being informed of his Miranda rights, confessed that he had burglarized the Moses home and murdered Mrs. Moses with a firearm, but specifically denied that he had raped her. The arresting officer took from Justus a .22 caliber "snub-nosed" revolver which was turned over to a firearms identification and ballistics expert for testing. Justus was charged with capital murder during the commission of, or subsequent to, the rape of Mrs. Moses.

At trial, Dale Dean Goins testified that, while he was hitchhiking in Georgia the day after Mrs. Moses' murder, Justus stopped and gave him a ride. Goins stated that on two occasions Justus admitted that he had raped and killed a woman in Virginia. According to Goins, Justus produced a bag of pennies he allegedly had taken from the woman.

Expert testimony regarding the ballistics tests of the gun seized from Justus indicated that test rounds fired from that weapon matched a slug removed from the victim. The expert witness opined that the slug removed from Mrs. Moses had been fired from the gun seized from Justus.

A forensic serologist testified that secretion tests, utilizing samples of hairs and swabs retrieved from the victim and saliva samples taken from Justus, indicated Justus "could not be excluded" as a source of the seminal fluid present in the decedent's vagina because his blood/fluid type was deemed "consistent".

I. Issues Previously Adjudicated.

Three assignments of error stemming from the retrial relate to issues resolved in the former appeal. We reaffirm our prior holdings as follows: (1) The court properly refused a private psychiatric examination at the expense of the Commonwealth, 220 Va. at 978, 266 S.E.2d at 92. Martin v. Commonwealth, 221 Va. 436, 446, 271 S.E.2d 123, 129 (1980). (2) The court did not err in permitting the Commonwealth to prove that Mrs. Moses was pregnant at the time of her murder, 220 Va. at 979, 266 S.E.2d at 93. (3) Two color photographs of the victim were admissible at the sentencing stage of the trial, 220 Va. at 980, 266 S.E.2d at 93.

II. Recusal of Trial Judge.

In his first assignment of error, Justus argues that the trial judge improperly sat in the case on remand, claiming that because he had presided at the first trial, his impartiality and objectivity were impaired, and that he had failed to enforce the safeguards ensuring fair trials in capital murder cases. Justus supports his argument with the following remark made by the court before trial:

And there was a motion for me to disqualify myself from hearing the defendant's retrial, which I ought to grant, but I don't see how I can under the circumstances .... I am sure that I can see that Mr. Justus receives a fair trial in Williamsburg ....

A trial judge must exercise reasonable discretion to determine whether he possesses such bias or prejudice as would deny the defendant a fair trial. Slayton v. Commonwealth, 185 Va. 371, 376, 38 S.E.2d 485, 488 (1946). In Slayton, we said:

Frequently, in the disposition of cases, both civil and criminal, a judge is called upon to form and express an opinion upon a matter or issue which may come before him in a subsequent proceeding arising out of the same state of facts. The courts are practically unanimous in the view that neither the forming nor the expression of such a conclusion, under such circumstances, disqualifies a judge in the subsequent matter, particularly where the issue of fact in the latter proceeding is to be determined by a jury. [Citations omitted.]

Id.

We cannot say that the trial judge abused his discretion. Upon the original argument on the motion to disqualify, the trial judge stated:

I think I can give him a fair and impartial trial based on the law and evidence and what comes before the Court, and that's what the state pays me for is to try these cases and I'll be just as fair as I can and I will deny your motion [to disqualify myself], gentlemen.

We do not feel that a per se rule requiring a judge to recuse himself on retrial of a capital murder case is necessary to assure a fair trial.

A comparable situation arose in Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979), when the defendant sought to disqualify the trial judge in the penalty phase of a capital murder conviction. The same judge had tried and convicted the defendant on 15 non-capital felony charges. Consistent with Slayton, we held that the judge had not erred in declining to recuse himself.

Other states follow the same rule. In Walker v. State, 241 Ark. 300, 309-10, 408 S.W.2d 905, 912 (1966), cert. denied, 386 U.S. 682, 87 S.Ct. 1325, 18 L.Ed.2d 403 (1967), the Arkansas Supreme Court considered similar circumstances and stated:

It is an established rule of law that while a trial judge may have an opinion as to the merits of the case on trial, this does not make him biased or prejudiced as to the conduct of the trial. When challenged for bias and prejudice, it is for the trial court to search his conscience and decide whether to recuse himself from the case. We find ... the trial court conducted the trial in an exemplary manner and without any bias or prejudice toward the accused.

See also Annot. 60 A.L.R.3d 176 (1974).

The record fails to reveal any evidence of judicial prejudice, and we find no merit in this assignment of error.

III. Challenge to Witherspoon.

In Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968), the United States Supreme Court held that "jurors may not constitutionally be excluded for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." We have construed this language "to require, as a prerequisite to exclusion of a juror, an irrevocable commitment to vote against the death penalty, rather than a general objection." Coppola v. Commonwealth, 220 Va. 243, 250, 257 S.E.2d 797, 802 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62 L.Ed.2d 788 (1980). See Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). But Justus contends that a jury seated after a Witherspoon voir dire is conviction-prone and, hence, not constitutionally impartial. ¹

Before retrial, Justus filed a written motion to prohibit voir dire questioning on jurors' attitudes toward the death penalty. He also filed a second motion asking the trial court to take judicial notice of evidence stipulated in Hovey v. Superior Court of Alameda Cty., 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301 (1980). This stipulated evidence came from expert testimony and exhibits used in People v. David Lee Moore and Kenneth Lynne Moore, No. 67113 (Alameda Cty. (Cal.) Super.Ct.1979) to show a correlation between conviction rates and attitudes toward the death penalty. Justus also offered the following documents filed in Hovey : (1) Petition for Writ of Mandate and/or Prohibition and Request for Stay filed in Supreme Court of California November 27, 1979; (2) Petitioner's Opening Brief; and (3) Petitioner's Reply Brief and Answer to Brief of Amicus Curiae.

The evidence proffered is inadmissible because it violates the hearsay rule. But even if Justus had met his evidentiary requirements, we would still reject his argument. All...