Murphy v. Com.

• Decision Date: 11 June 1993
• Docket Number: No. 930104,930104
• Parties: Mario MURPHY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 48

431 S.E.2d 48

246 Va. 136

Mario MURPHY v. COMMONWEALTH of Virginia.

Record No. 930104.

Supreme Court of Virginia.

June 11, 1993.

Michael F. Fasanaro, Jr., Norfolk (Abrons, Fasanaro & Sceviour, on brief), for appellant.

Donald R. Curry, Sr. Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: All the Justices.

HASSELL, Justice.

On appeal, we review the capital murder conviction and death sentence imposed upon Mario Benjamin Murphy for the murder of James L. Radcliff.

I. Proceedings

On December 2, 1991, Murphy was indicted by a grand jury for capital murder for hire, in violation of Code §§ 18.2-31(2) and 18.2-10, and for conspiracy to commit capital murder in violation of Code §§ 18.2-22 and 18.2-31. He pled guilty to both offenses.

Before accepting the pleas, the trial court questioned Murphy and made a determination that his guilty pleas were made voluntarily, intelligently, and knowingly. Murphy and the Commonwealth stipulated evidence that would have been adduced in the event the case had been tried.

The trial court scheduled a separate hearing to consider evidence before fixing punishments. The trial court also received the probation officer's report in the manner prescribed by law. After considering the evidence and stipulated facts, the trial court found that Murphy's conduct in murdering James Radcliff constituted an aggravated battery, demonstrated depravity of mind, and revealed that Murphy represented a continuing serious threat to society. The trial court fixed Murphy's punishment at death for capital murder and 20 years imprisonment for conspiracy to commit capital murder.

We have consolidated the automatic review of Murphy's death penalty with his appeal of the capital murder conviction, Code § 17-110.1(A) and (F), and have given them priority on the docket, Code § 17-110.2.

II. Facts

On July 28, 1991, Murphy, who was 19 years old, met his friend, James Hall, at a house in Virginia Beach. Hall's roommate, Gary Hinojosa, approached Murphy "with a proposition to take somebody out." Hinojosa offered Murphy about $5,000 to kill James Radcliff (James). Hinojosa had a sexual relationship with James' wife, Robin Radcliff (Robin), and she was pregnant with Hinojosa's child. Murphy had never met the Radcliffs.

Murphy decided to kill James. Hinojosa, Robin, and Murphy agreed upon a plan of execution. Hinojosa told Murphy that Robin would place a telephone call to her husband later that evening from a shopping center in Virginia Beach and inform him that her car "had broken down." According to the plan, when James arrived to assist his wife, Murphy would shoot him with a shotgun.

In furtherance of this plan, Murphy borrowed a car from Michael Bourne, Robin's son-in-law. Murphy drove the car to a neighborhood near the shopping center where the murder was to occur. He parked the car, alighted, and waited nearby "in the bushes." He was dressed in dark clothing and was armed with a single-barrel shotgun that he had borrowed from a friend. Even though Murphy was prepared to kill James at that time, "nobody ever showed up." Murphy went to a pay telephone, called Hinojosa, and informed him that the plan had not been successful.

Murphy returned to Hinojosa's home. Hinojosa suggested that Murphy stage a burglary at the Radcliffs' apartment later that evening and kill James. Murphy responded, "we can try that." Murphy then made "a couple phone calls to get some other people to help." He recruited two persons, his 17-year-old friend, Aaron Turner, and James Hall. Murphy informed Turner that Hinojosa had agreed to pay for the murder with proceeds from the sale of stock owned by Robin or from insurance proceeds that she would collect following her husband's death. Murphy initially intended to divide the $5,000 with Turner, but when Hall agreed to assist in the murder, Murphy decided to "split it even three ways."

In preparation for the planned killing, Robin drove Murphy to the apartment complex where she and her husband lived. She identified their apartment and showed Murphy her husband's car.

On the night of July 28, Murphy, Turner, and Hall met at Hinojosa's residence. Murphy, Turner, and Hall were dressed in dark clothes and were armed with a metal pipe and two knives. Around midnight, Michael Bourne drove them to the Radcliffs' apartment. When they arrived at the apartment complex, Murphy, Turner, and Hall got out of the car. Before leaving, Bourne told them he would meet them at a designated location after they had left the Radcliffs' apartment. Murphy, Turner, and Hall searched the trunk of Robin's car for a .25-caliber pistol Bourne said would be found there. They were unable to find the pistol.

Murphy, Turner, and Hall entered the Radcliffs' apartment through a back bedroom window that Robin had unlocked and left partially open as planned. Robin and her daughter, Tina Bourne, had told Murphy the specific bedroom in which James would be asleep.

When Murphy, Turner, and Hall entered the hallway leading to the bedroom, Robin left the bedroom, walked past the assailants, and went to the living room. The three men entered the bedroom where James was sleeping and closed the door. Turner struck James "pretty hard" in the head with a metal pipe. James then sat up in bed and Turner handed the pipe to Murphy, who hit James in the head with the pipe at least twice.

James appeared to be "knocked out" as a result of the blows to his head. Murphy and Turner began stabbing him. Murphy "had a big rush of adrenaline" and he stabbed the victim twice, "once in the front of ... his upper body and then once in the back." Turner placed a knife to James' neck and "tried to slit his throat." Hall, "right behind" Murphy and Turner, was hitting James with a pipe.

James "was just laying in the bed bleeding." Murphy grabbed a telephone in the bedroom and handed it to Hall, who "ripped it out of the wall." Murphy, Turner, and Hall ran from the bedroom to the living room, where they removed a videocassette recorder and a video game. Hinojosa, Robin, and Tina and Michael Bourne had instructed them to remove these items "to make it look like a burglary." Murphy Turner, and Hall placed these items in a duffel bag. They left the apartment through the window that they had entered.

They met Michael Bourne at the designated location, placed the duffel bag in the trunk of his car, and returned to Hinojosa's residence. There, they discussed the murder with Tina Bourne and Hinojosa. Murphy, Turner, and Hall then changed their clothes, placed the clothing they had been wearing, the murder weapons, and some bricks in the duffel bag with the items removed from the apartment. Murphy and Hall placed the duffel bag in a car, drove to a causeway on the Hampton Roads Tunnel, and threw the duffel bag into the Chesapeake Bay.

The Virginia Beach Police Department received an emergency telephone call at 2:29 a.m. on July 29, 1991 from the Radcliffs' neighbor. Robin had knocked on her neighbor's door, screaming and requesting help. Robin told her neighbor that intruders "had broken into her apartment," and she asked her neighbor to call for an ambulance. When the police officers arrived, Robin was sitting on the floor in her apartment crying.

Robin told the police officers that her videocassette recorder had been stolen. Then, she stated, "he's in there" and pointed to her bedroom. The police officers went to the bedroom and found James lying in the bed with covers pulled up to his waist. He was unresponsive and bleeding profusely, "covered in blood from his head to his waist" and "gasping and gurgling." He was transported to a hospital, where he was pronounced dead at 4:08 a.m.

Arrested by Virginia Beach police officers on September 4, 1992, Murphy waived his constitutional rights and gave a confession in which he admitted to killing James.

III. Issues Waived

Murphy assigns as error that "imposition of the death penalty violates the 8th Amendment's prohibition against cruel and unusual punishment, the 6th Amendment's guarantee to a fair trial and the 14th Amendment's guarantee that no person shall be deprived of life, liberty or property without due process of law." This assignment of error seeks to raise issues that Murphy waived by the entry of his guilty plea and, thus, these issues are not cognizable in this appeal. Savino v. Commonwealth, 239 Va. 534, 539, 391 S.E.2d 276, 278, cert. denied, 498 U.S. 882, 111 S.Ct. 229, 112 L.Ed.2d 184 (1990); Stout v. Commonwealth, 237 Va. 126, 131-32, 376 S.E.2d 288, 291, cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 609 (1989).

IV. Mitigation Evidence

Murphy argues that the trial court failed to consider fully evidence he offered in mitigation of the imposition of the death penalty. He contends that the trial court made certain remarks which suggested to him that the judge "had made up his mind, as to the sentence he was to adjudge, before ever hearing the mitigating evidence."

Murphy identifies certain mitigating factors that he believes the trial court did not consider. For example, Murphy says that he did not react violently when arrested and he was cooperative with the police; that he confessed and took police to the area where the evidence was disposed; that he spoke to Aaron Turner and recommended that Turner cooperate with police; that he pled guilty to the offenses; that he had been recruited into the conspiracy by Hinojosa; that he had no prior history of violence and no prior felony convictions; that he had no criminal record as a juvenile; that he had grown up in a troubled home; that he had been a model prisoner in the Virginia Beach Correctional Center; that he had not received money for the murder for hire; that he had seen a psychiatrist some years earlier for an attention deficit problem; that he had saved his stepfather's life; that he had expressed sorrow and remorse; and that he had asked for mercy.

We find no...