Mullis v. Com., 0379-85

• Citation: 351 S.E.2d 919,3 Va.App. 564
• Decision Date: 06 January 1987
• Docket Number: No. 0379-85,0379-85
• Parties: Susan L. MULLIS v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 919

351 S.E.2d 919

3 Va.App. 564

Susan L. MULLIS v. COMMONWEALTH of Virginia.

Record No. 0379-85.

Court of Appeals of Virginia.

Jan. 6, 1987.

Glenn H. Silver (Mackall, Mackall, Walker & Silver; Steven A. Merril, Whitestone, Phillips, Brent, Young & Merril, P.C., Fairfax, on brief), for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Panel: KOONTZ, C.J., and COLEMAN and HODGES, JJ.

COLEMAN, Judge.

Susan L. Mullis was convicted of first degree murder and use of a firearm during the commission of the murder. The court imposed sentences of twenty and two years, respectively, as recommended by the jury. Mullis appeals, contending that: (1) the trial court erred in not striking for cause four prospective jurors who acknowledged that they would accept the testimony of police officers over the testimony of other witnesses; (2) the trial court improperly refused to admit evidence regarding the decedent's lifestyle; (3) the court erred in allowing cross examination of appellant about her status as beneficiary of decedent's life insurance policy; (4) the court erred by rejecting appellant's proffered Instruction D; and (5) the evidence was insufficient to sustain the convictions. Finding no error, we affirm.

Following established principles, we review the evidence in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The trial court's judgment will not be disturbed unless plainly wrong or without evidence to support it. Code § 8.01-680. When the Commonwealth relies upon circumstantial evidence, the evidence must exclude all reasonable hypotheses of innocence. Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984). Nevertheless, circumstantial evidence which is convincing is entitled to the same weight as direct evidence. See Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981).

Viewing the facts from the vantage point most favorable to the Commonwealth, on July 23, 1983, appellant and her husband, Michael Mullis, the decedent in this case, were living in Woodbridge, Virginia. According to appellant they left home together that evening between 8:30 and 9:00 p.m. with appellant driving, headed for Clifton, Virginia. Appellant eventually drove to Kinchloe Road, a somewhat deserted location where the road changed from gravel to dirt, and parked the car on the shoulder. Evidently, while seated in the parked car, Mr. Mullis was shot and killed. There were no known eye-witnesses. Norman Longerbeam, who lived nearby on Kinchloe Road, testified that at approximately 9:30 p.m., he heard knocking on the door at his residence and heard a lady's screams that somebody had just shot her husband. He testified that when he let Mrs. Mullis in, she was hysterical. He called the law enforcement authorities.

When the police officers and emergency vehicles arrived fifteen or twenty minutes later, they found Michael Mullis's body behind the steering wheel on the left side of the automobile with three gunshot wounds to his head and neck. One wound was on the left side of his head, above his ear, the second was in his left external ear, and the third was on the left side of the back of his neck. According to the medical examiner, the wound to the left side of his head was lethal. The other two wounds resulted from gunfire within two inches (the neck wound) and four to six inches (the ear wound) of his head. Appellant told the police that she and Mr. Mullis had gone for a ride, and she had to stop "to go to the bathroom" in the woods. While in the woods, she heard "what sounded like capshots," but when she returned, she found that her husband "had been shot."

At the time of Mullis's death, he and appellant were estranged, planning to divorce and were staying in separate rooms in their Woodbridge home. Two men whom appellant had dated soon before the homicide gave incriminating testimony against her. Michael Young, whom appellant had been seeing for about one year, testified that approximately one week after they began dating, appellant asked him if he knew "anybody that would kill" her husband. Young further stated that she had asked him several times to kill her husband, and suggested that it could be done by "shoot[ing] him." On one occasion she suggested that Young could shoot him while she and her husband were on a camping trip. Approximately one week prior to the homicide, appellant called Young and asked him to meet her, at which time she told Young that her husband "was going to be taken care of." Another boyfriend, John Hughes, testified that two weeks before Mr. Mullis was killed appellant told Hughes that "she was not getting along with her husband" and "he's not going to be around anymore." Hughes testified that appellant asked to borrow his gun.

No murder weapon was found at the scene. A ballistics expert examined portions of a bullet recovered from decedent's brain and the base of his skull, a bullet found on the passenger's floorboard side of the car which had passed through the center of the floor mat, and .22 caliber shell casings found near the driver's door and trunk and in the back seat. The ballistics expert determined that all "were acquired from one gun." An unfired .22 caliber cartridge was found on the ground near the driver's door. A large quantity of blood was on the front seat to the right of the driver's seat. Blood was also on the center of the "head-liner" of the car, on the head rest, and sprayed toward the passenger side of the roof, to the far right corner of the windshield.

The murder weapon was never recovered. Undisputed evidence proved that Michael Mullis owned a .22 caliber Ruger pistol, which he received from his family. After his death, the police searched his home but were unable to locate the pistol. The appellant was familiar with the guns owned by the decedent, having described them to the police officers, including the missing .22 caliber Ruger pistol. She acknowledged having handled the .22 caliber pistol as recently as the morning of the homicide when she removed Mullis's guns from the kitchen table where the decedent had been cleaning them and put them in his room.

An autopsy report revealed that the decedent had eaten "a pickle, ham, french fries, and some other meat fragments--possibly hamburger," less than a half hour before his death. The appellant testified that she had not seen him eat anything prior to leaving home between 8:30 and 9:00 p.m. and they only had orange juice and a Pepsi after they left. The appellant testified that the decedent was shot at approximately 9:46 p.m. This portion of the autopsy report casts doubt upon the appellant's account of when and where she and the decedent were and whether they were together until less than a half hour before his death.

Appellant was the beneficiary of Mr. Mullis's life insurance policy. She testified that they had agreed to cancel the policy, and that she thought her name had been removed as the beneficiary in February 1983. She stated that she first learned from the police after the murder that she remained the beneficiary.

I. Voir Dire

We consider whether certain jurors should have been excluded from the panel for cause due to personal bias or prejudice. During voir dire examination of the jury, defense counsel asked: "[I]f a police officer gives some testimony and a private citizen gives testimony that differs from what the police officer said--are there any of you who would believe or have a tendency to believe the police officer as opposed to the private citizen? ... This is if all things are equal." Four of the veniremen answered "yes" or "probably." Other than the one general abstract question, defense counsel did not pursue the inquiry. At the conclusion of voir dire, defense counsel moved to strike the four prospective jurors for cause, contending that they were biased for the prosecution. The trial judge denied the challenge for cause. Defense counsel used peremptory strikes to exclude three of the four jurors. ¹ The fourth juror sat on the case. Appellant contends that the trial court abused its discretion in denying the defense's motion to remove the four prospective jurors for cause.

An accused in a criminal case "is entitled to an impartial jury as a matter of constitutional guarantee, reenforced by legislative mandate and by the Rules of ... court." Martin v. Commonwealth, 221 Va. 436, 444, 271 S.E.2d 123, 128 (1980) (footnote omitted); Scott v. Commonwealth, 1 Va.App. 447, 451, 339 S.E.2d 889, 901 (1986). "The trial judge's fulfillment of this duty involves the exercise of sound judicial discretion, which ordinarily is binding on appeal absent manifest error." Wilson v. Commonwealth, 2 Va.App. 134, 137, 342 S.E.2d 65, 67 (1986) (citing Calhoun v. Commonwealth, 226 Va. 256, 258-59, 307 S.E.2d 896, 898 (1983)). On review, the decision of the trial judge who had the opportunity to "weigh the meaning of the answers given in light of the phrasing of the questions posed, the inflections, tone, and tenor of the dialogue, and the general demeanor of the prospective juror" is entitled to much deference. Smith v. Commonwealth, 219 Va. 455, 464-65, 248 S.E.2d 135, 141 (1978).

However, any reasonable doubt whether a juror stands impartial is sufficient to ensure his exclusion because "it is not only important that justice should be impartially administered, but it should also flow through channels as free from suspicion as possible." Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879); see also Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d 729, 731 (1985). Voir dire examination is the principle method of ensuring that jurors "stand indifferent in the cause" and are free of "bias or prejudice" for or...