LeVasseur v. Com.

• Decision Date: 17 June 1983
• Docket Number: No. 822050,822050
• Citation: 304 S.E.2d 644,225 Va. 564
• Parties: John Joseph LeVASSEUR v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 644

304 S.E.2d 644

225 Va. 564

John Joseph LeVASSEUR v. COMMONWEALTH of Virginia.

Record No. 822050.

Supreme Court of Virginia.

June 17, 1983.

Charles J. Zauzig, III, Woodbridge (Coleman & Zauzig, Woodbridge, on brief), for appellant.

Donald R. Curry, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., COCHRAN, POFF, COMPTON, STEPHENSON and RUSSELL, JJ., and HARRISON, Retired Justice.

RUSSELL, Justice.

In a bifurcated jury trial conducted pursuant to Code § 19.2-264.3 et seq., John Joseph LeVasseur was convicted of the wilful, deliberate, and premeditated killing of Pamela Benner, in the commission of robbery while armed with a deadly weapon, Code § 18.2-31(d), and his punishment was fixed at death. ¹ On November 5, 1982 after considering the probation officer's report, the trial court imposed the death sentence. The defendant's appeal has been consolidated with the automatic review of his death sentence and given priority on our docket.

The facts will be stated in the light most favorable to the Commonwealth. Pamela Benner was nineteen years old in February 1982. After leaving high school, she had worked at the Pentagon, but on February 25, 1982, was unemployed and living in her parents' home in Woodbridge. She was acquainted with the defendant, but was not particularly fond of him. It had been more than three months since she had last seen him. She stayed at home most days, but, having an interest in popular music groups, she attended band performances at night. Frequently, she invited band members, their wives, and girlfriends to her parents' home during the day. Mr. and Mrs. Benner were both employed. They became concerned about occasional items missing from the house and habitually locked the door to their bedroom to safeguard their belongings. Pamela's brother, Rick, also worked during the day and kept his bedroom door locked for the same reason.

About 5:40 p.m. on February 25, 1982, Pamela's parents and brother returned home from work together. The front door was open. There was a strong smell of "ammonia, Clorox or something of this nature," and the kitchen exhaust fan was running. The doors to both the parents' and Rick's bedrooms had been kicked in. The locks and many wood splinters were on the floor. There were bloodstains on the broken doors and pieces of hair and blood on the floor. Pamela's purse was in the middle of her bed, and some articles from it had been emptied onto the bed.

In a downstairs family room they found Pamela's body. Her ankles were bound together with masking tape and a cord from a stereo headset. An ice pick and a two-pronged carving fork were protruding from her back. She had three "penetrating wounds" beside the right eye, and over forty other wounds, abrasions, and lacerations covering her body. The back of her head was crushed by blows from a blunt instrument. There were some stab wounds which showed no hemorrhaging. In the medical examiner's opinion, this indicated that they had been inflicted after heartbeat had ceased. Some of the wounds to the hands were described as "defensive," evidently incurred while the victim tried to ward off additional blows. She was clad in a long green bathrobe. It and the body had been soaked in a liquid bleach, which discolored the fabric and burned the skin. A curtain rod lay on her body, and a fireplace poker lay on a blanket near her feet. Charred marks on the carpet indicated that an unsuccessful effort had been made to burn the body. A telephone jack receptacle was found on the floor near the victim's feet. A latent fingerprint was found on it which proved to be the defendant's.

The defendant's blood-spattered shoes and clothing were later found in a plastic bag in a trash "dumpster" some distance from his home. Forensic laboratory tests identified the stains as having been made by the victim's blood. Various items stolen from the victim's family home the day of the murder were found in the bag with the clothing. Some of these items had been kept in the locked bedrooms which had been kicked open.

Gerald Frazier testified that he had known the defendant for two years. At about 4:15 p.m. on February 25, 1982, the defendant came, with his wife, to the apartment where Frazier was visiting, and asked "if I could give him an alibi, that he needed to say that he was with me from two to four o'clock ... that day." The defendant was smiling and seemed normal. He showed no signs of being under the influence of drugs or alcohol. Frazier told him that he would be unable to provide an alibi because he had attended a job interview at 2:30 p.m. When he asked why an alibi was needed, the defendant said "he had killed somebody." He said it had been a girl named "Pam .... some big, fat slob ... I went to rob her." Frazier testified that the defendant told him:

A. He said that he came in through the back of the house. And he said that first he hit her in the back of the head with some object. I can't remember what the object was, but he hit her with it and she fell to the floor.

And he said she pleaded with him to stop, to leave her alone. She even said that she loved him so that, you know, he would leave her.

And he said, you know, the bitch wouldn't die and he kept hitting her. And then he said he got a two-pronged kitchen fork and stabbed her, and an ice pick, and stabbed her repeatedly with that.

And then he said that he looked for money and all he could find was about two sixty-five in change, or something like that. Then he said that he couldn't stand to be in the house any longer.

He tried to destroy the evidence by using a bleach or laundry detergent--that's what he said--to pour over her. To get rid of fingerprints and things like that. Then he said--

Q. Did you ask him anything about the effect of that bleach?

A. No.

Q. Go ahead.

A. Well, he just said, you know, he thought it was like acid. You know, he thought it would remove the fingerprints and destroy the evidence or whatever.

The defendant then told Frazier that he had gone home, changed clothes, showered, and threw his clothing in a "dumpster" at the Bayview Apartments. Frazier told him to "go and turn himself in. And I didn't want to have any part to do with it. I wasn't going to give him an alibi or anything."

Later that evening the defendant called Frazier and held the telephone close to a police radio scanner to which the defendant was listening. Frazier could hear the police radio transmissions discussing a "possible D.O.A." The defendant told Frazier he was thinking of going to Kentucky to stay with a relative.

The next day the defendant went with his attorneys to the Garfield substation and surrendered himself to the police. He stood by a police officer who was seeking the issuance of a robbery warrant from a magistrate. When the officer stated that the Benners had reported a theft of about twenty dollars in cash from their home, the defendant, who had been given Miranda warnings, interrupted and said, "I only got three dollars."

Later, while riding with an officer in a police car, the defendant said, "If I'd burned her, I wouldn't have to go through this ... [expletive deleted]." The defendant later testified that he could not recall making this remark, but that he might have said it and would not deny it.

The defendant made no denial of the atrocious nature of the crime or of his responsibility for the killing. This was made clear to the jury in the opening statement of the defense. Defense counsel told the jury that the evidence would not show the defendant guilty of capital murder, but rather would show guilt of "a lesser degree of murder."

The defendant testified that he was living with his wife and child in his mother's home in February 1982. His father, with whom he was particularly close, had died the previous year. The defendant is Vietnamese, having been adopted by the LeVasseurs when he was two years old. He was unemployed at the time and felt guilty about living in his mother's home because he was not helping her with the family printing business. He said that he looked for jobs sporadically. He was depressed and attempted to relieve his depression by the heavy use of illegal drugs.

On February 25, 1982, he said his wife awoke him around 10:30 a.m., and asked him if he was going out to look for a job. He said he dressed and smoked "from seven to ten bong hits" of marijuana, which was not unusual for him. He then went to two service stations which had advertised for help, but was turned down by both. He then went to a restaurant and consumed "two beers" plus "a hit of acid" (lysergic acid diethylamide, or LSD), on a piece of paper. He said he then felt "limp" and had impaired vision. He went to Pam Benner's house because it was nearby and he wanted to get out of the car and either "crash out or just talk about what's happening."

Pam, he testified, did not immediately answer the door. He looked in a basement window and saw her in the recreation room "sitting and eating eggs, I think, watching T.V." He attracted her attention, and she admitted him to the home. He said he "had a migraine headache, and ... was feeling terrible ... I felt like there was a brick inside my head." He said they discussed his work situation, his living arrangements, and the recent death of his father. Pam had formerly worked in the LeVasseurs' print shop and had a photo album containing a picture of his father. She showed this to him and "was making snide remarks because we had it made or I really had it made as far as living under the same roof with my mother and getting free meals and working in the same place of employment." Then, he testified, "I didn't take too kindly of it and I started getting upset and then the next thing alls I remember was a flash of light went into my head and--all I remember is seeing my father in Walter Reed--I mean Fort Belvoir Hospital."

He said he then heard a woman's screams,...