Mackall v. Com.

• Decision Date: 23 September 1988
• Docket Number: Nos. 880068,880069,s. 880068
• Parties: Tony Albert MACKALL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 759

372 S.E.2d 759

236 Va. 240

Tony Albert MACKALL v. COMMONWEALTH of Virginia.

Record Nos. 880068, 880069.

Supreme Court of Virginia.

Sept. 23, 1988.

Ronald Wayne Fahy, Richmond, Frederick A. Edwards, Manassas, for appellant.

Richard A. Conway, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

WHITING, Justice.

Tony Albert Mackall was indicted and tried for capital murder in the commission of robbery while armed with a deadly weapon, Code § 18.2-31(d), and for robbery and the display of a firearm in a threatening manner. A jury convicted Mackall of all three crimes and fixed his punishment at life imprisonment on the robbery charge and two years' confinement on the firearm charge. In the second phase of the bifurcated trial on the capital murder charge, the jury heard evidence of aggravating and mitigating circumstances and fixed Mackall's sentence at death, based on his future dangerousness. See Code § 19.2-264.4. After a sentencing hearing required by Code § 19.2-264.5, the trial court confirmed the death sentence fixed by the jury on the capital murder charge and, on December 18, 1987, entered judgment on all three convictions.

Mackall appealed his convictions for robbery and the use of a firearm in the commission of a felony to the Court of Appeals. We certified those cases to this Court pursuant to Code § 17-116.06 and consolidated them with the automatic review of Mackall's death sentence and his appeal from the conviction of capital murder. Code §§ 17-110.1(A) and -110.1(F).

FACTS

Under familiar principles, we consider the facts in the light most favorable to the Commonwealth.

On December 9, 1986, the victim, Mary E. Dahn, was working as a cashier at the Riverview Shell Service Station on Jefferson Davis Highway in Prince William County. Her husband, Stephen Dahn, the manager of the station, was on a ladder hanging Christmas lights at the front of the station. Their daughters April and Julie, ages five and six, were also present, "in and out" of the station.

About 6:00 p.m., Mrs. Dahn was in the cashier's booth when her husband heard a muffled shot. He immediately looked down and saw someone's hands in the cash drawer. Dahn jumped off the ladder and ran toward the cashier's booth. A young black man Dahn later identified as Mackall emerged from the booth carrying a gun in his hand. When Dahn saw the gun, he ran behind the booth, fell to the ground and heard another shot. Dahn got up and entered the cashier's booth where he found his wife lying unconscious on the floor, and he noticed that the cash drawer was open and all the paper money had been removed. A later count revealed that $515 was missing. Mrs. Dahn was taken to the hospital where she died the next day, apparently without regaining consciousness.

April Dahn testified that she saw a masked black man shoot her mother in the head, then run away. Afterward, April picked up some one and five dollar bills from the ground.

Ernestine Huntley, who lived near the gas station, heard a shot between 6:30 and 7:00 p.m. and saw a young black male running to the back of the filling station. She saw him trying to start a sedan and when he finally got it started, Huntley noticed that its lights kept flashing off and on.

Jacqueline S. Leonard, a Prince William County policewoman, later discovered the sedan Mackall had driven from the scene abandoned in woods near an interstate highway interchange about one-half mile from the filling station. Mackall's fingerprints were later found on a visor mirror in the sedan.

At 7:00 p.m. that evening, approximately 250 yards from where Leonard found the car, Mackall accosted Michael P. Keating at an apartment and took his car keys and his wallet at pistol point. After starting Keating's car, Mackall returned to the apartment where he had left Keating. Despite Keating's plea not to shoot him, Mackall placed the barrel of his gun against Keating's head and shot him once. When Keating fell to the floor, Mackall ordered Keating to get up and shot him again in the head at a range of three feet. Keating fell again but did not get up until he thought Mackall had left the apartment because, he testified, "I was afraid he would shoot me again. After the first shot I knew the only reason he fired the second shot was because I was still alive."

Mackall admitted to Michael Lee Randolph, a fellow inmate in jail, that he had robbed and shot Mrs. Dahn and Keating. Mackall told Randolph that the lady deserved to be shot in the head because she was fighting for the money after he got it in his hands.

I. PRE-TRIAL MATTERS

A. Suppression Motions

(1) Seizure of Gun. Mackall contends that the gun, identified by ballistics experts as of the same caliber as the bullet removed from Mrs. Dahn's body, was seized in his mother's home in violation of his Fourth Amendment rights and, therefore, it should not have been introduced in evidence. He claims that his mother did not execute the written consent to search her home until the police had completed the search. There was evidence, however, that she not only agreed to the search but signed the consent form before the police found the gun. Therefore, Mackall is bound by the trial court's factual finding that her consent to search was given before the police found the gun.

We need not decide whether Mackall had a legitimate expectation of privacy in the closet in his mother's house. The consent of his mother, who had at least a joint right of possession with Mackall, overrode Mackall's rights of privacy, if any, in the closet. O'Dell v. Commonwealth, 234 Va. 672, 682, 364 S.E.2d 491, 496 (1988).

(2) Presence of Counsel at Post-Line-up Police Interviews of Identifying Witnesses. Mackall claims that although his counsel were present during a line-up, they were unconstitutionally excluded from the post-line-up police interviews of identifying witnesses. ¹

Mackall had no constitutional right, however, to require his counsel's presence at the post-line-up police interviews of the identifying witnesses. We expressly rejected a claim that the Sixth Amendment required the presence of counsel during photographic line-ups in Drewry v. Commonwealth, 213 Va. 186, 189, 191 S.E.2d. 178, 180 (1972). Quoting Judge Friendly's opinion in United States v. Bennett, 409 F.2d 888 (2d Cir.), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S.Ct. 117, 24 L.Ed.2d 101 (1969), we reiterated that nothing in the earlier Supreme Court cases "suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence." Drewry, 213 Va. at 189, 191 S.E.2d at 180-81.

Mackall also argues that his appearance at the preliminary hearing constituted another "line-up" and, therefore, required the exhibition of other men with similar physical characteristics. Mackall cites no supporting authority for this proposition, and we find none. By the time of the preliminary hearing, Mackall already had been identified in a properly conducted line-up. He had no right to demand another line-up.

We will uphold the trial court's rulings on the motions to suppress.

B. Denial of Motion for Continuance and Further Psychiatric Examination

Mackall, an indigent, claims his due process rights were violated when the trial court refused to grant him a third continuance to permit another evaluation by a second psychiatrist at state expense. We find no merit in this claim for three reasons.

First, Mackall was not entitled to select his examining psychiatrist if the state was paying for the examination. Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985); Gray v. Commonwealth, 233 Va. 313, 329, 356 S.E.2d 157, 166, cert. denied, 484 U.S. ----, 108 S.Ct. 2097, 98 L.Ed.2d 158 (1987). Second, Mackall was not entitled to a second psychiatric examination at state expense where the Commonwealth already had paid for his first examination. Pruett v. Commonwealth, 232 Va. 266, 275-76, 351 S.E.2d 1, 7 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987); see Code § 19.2-264.3:1(A).

Third, whether a further continuance should have been granted was a matter within the sound discretion of the trial court, and we find no abuse of discretion. On April 10, 1987, upon Mackall's motion filed four days earlier, the trial court appointed Dr. R. Jackson Dykes, a psychiatrist, to evaluate Mackall and assist him in his defense in conformity with the requirements of Code § 19.2-264.3:1 and Ake. Mackall's motion sought psychiatric assistance to evaluate his sanity and, if appropriate, to assist in developing an insanity defense. At that time, the case was set for trial on July 14. On June 5, on Mackall's subsequent motion, the trial court expanded the scope of Dr. Dyke's examination to include assistance to the defense in preparing and presenting information of Mackall's history, character, and mental condition, pursuant to Code § 19.2-264.3:1. At Mackall's request, the trial court also postponed the trial date. On July 7, the court reset the case for trial beginning on October 13.

Because Mackall claimed to have no memory of the events on the day of Mrs. Dahn's murder, Dr. Dykes submitted only a partial report of his July 29 examination of Mackall to Mackall's counsel. On September 24, Mackall filed motions for a second continuance and for an additional evaluation at state expense by the forensic clinic at the University of Virginia because the clinic "has specialized techniques to overcome ... memory problems." On September 25, the court denied both of Mackall's motions.

On October 2, Mackall told his counsel that he then remembered the events of the day of Mrs. Dahn's murder and discussed those events with his counsel. On October 7, counsel advised the court of this and moved for a supplemental examination in view of that information and for a further postponement of the trial. The court authorized...