Payne v. Com.
| Decision Date | 08 January 1999 |
| Docket Number | Record No. 980879.,Record No. 980559 |
| Court | Virginia Supreme Court |
| Parties | Eric Christopher PAYNE v. COMMONWEALTH of Virginia. (Two Cases) |
Robert N. Johnson (Carolyn V. Grady; Epperly, Fonts & Schork, on brief), Richmond, for appellant (case no. 980559).
L. Willis Robertson, Jr., Mechanicsville (Patrick R. Bynum, Jr.; Donna D. Berkeley, Richmond; Cosby & Robertson, Mechanicsville, on brief), for appellant (case no. 980879).
Katherine P. Baldwin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: CARRICO, C.J., COMPTON, HASSELL, KEENAN, KOONTZ and KINSER, JJ., and STEPHENSON, Senior Justice. STEPHENSON, Senior Justice.
Eric Christopher Payne received two death sentences in each of these appeals. Although Payne has waived his appeals of right, former Code § 17-110.1 (now Code § 17.1-313) mandates that we review the death sentences nonetheless. In this review, we consider and determine whether the sentences were imposed "under the influence of passion, prejudice or any other arbitrary factor" and whether the sentences are "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Former Code § 17-110.1(C).
The Fazio Case
Payne was charged with the capital murder of Sally Marie Fazio in the commission of robbery, in violation of Code and conducting a sentencing hearing, the trial court sentenced Payne in accord with the jury verdicts.
Payne filed a notice of appeal, but subsequently requested permission to waive his appeal of right. We directed the trial court to conduct an evidentiary hearing to determine whether Payne's decision to waive his appeal was made knowingly, voluntarily, and intelligently. The trial court conducted such a hearing and found that Payne's waiver was made knowingly, voluntarily, and intelligently, and we conclude that the record supports that finding.
The evidence in the Fazio case is undisputed. On the evening of June 11, 1997, Payne saw Fazio outside her residence in the City of Richmond, caring for her sick dog. When Fazio entered her house, Payne put a 22ounce hammer in his pants, went to Fazio's front door, and asked to use the telephone. Fazio permitted Payne to use a portable telephone outside her house, and, after feigning a telephone call, Payne returned the telephone. As he handed the telephone to Fazio, Payne forced his way into Fazio's house and struck her in the head with the hammer, knocking her down.
Fazio briefly struggled with Payne and then attempted to flee down a hallway to her bedroom. As she fled, she threw a chair behind her, attempting to block Payne. Fazio tried to close the bedroom door, but Payne forced his way into the room. Fazio pleaded for her life and offered to write a check to Payne.
Payne told Fazio that, if she removed her clothes, he would not hurt her. Fazio removed her clothes, and Payne raped her.1 During the attack, Payne repeatedly struck Fazio with the hammer.
Thereafter, Payne took money from Fazio's pocketbook and ransacked her house looking for more money and guns. He then removed his bloodstained clothing and dressed in sweatpants and a T-shirt belonging to Fazio. He left the bloodstained clothing in Fazio's house.
As Payne was preparing to leave the house, he noticed that Fazio was still breathing, so he hit her with the hammer several times in the head. Fazio continued breathing, so Payne "hit her maybe ten, twelve times in the chest."
Payne wrapped the hammer in a towel and subsequently threw the hammer out of his car window. Later that night, Payne disposed of the clothing he had taken from Fazio's home in a dumpster at a public high school. The police recovered the hammer, and forensic evidence established that the hammer contained traces of blood consistent with Fazio's blood type. Semen stains from a bedspread and clothing found at the crime scene were consistent with Payne's blood type and DNA profile.
The medical examiner's autopsy revealed that Fazio had died from blunt force trauma to the head, the result of multiple blows that had caused fractures, contusions, hemorrhaging, and edema. Fazio also had sustained multiple bone fractures and contusions to her chest and a fractured right middle finger.
In the penalty phase of the trial, the Commonwealth presented evidence of Payne's prior criminal history. This included the attempted rape and murder of Ruth Parham on June 5, 1997. The Commonwealth also presented evidence of an assault by Payne on Ridley Fleck and her eight-year-old son, W. Dean Fleck. This attack also occurred on June 11, 1997, shortly before Payne murdered Fazio. Payne attacked the Flecks with a hammer, and he told the police that he attacked them because he wanted to incapacitate Ms. Fleck and take her elsewhere to rape her. Payne, however, was forced to leave the scene because Dean Fleck was screaming and fighting. The Flecks both suffered skull fractures in the attack.
We first consider whether the death sentences in the Fazio case were imposed "under the influence of passion, prejudice or any other arbitrary factor." Former Code § 17-110.1(C)(1). Payne contends that a videotape of the crime scene and autopsy and crime scene photographs, presented during the guilt phase of the trial, were unduly graphic and were shown to inflame the passions of the jury. He further contends that a crime scene videotape related to his earlier attempted rape and murder of Ruth Parham, presented during the penalty phase of the trial, also was unduly graphic.
We consistently have held that the admission of photographs into evidence rests within the sound discretion of a trial court, and the court's decision will not be disturbed on appeal unless the record discloses a clear abuse of discretion. Walton v. Commonwealth, 256 Va. 85, 91-92, 501 S.E.2d 134, 138 (1998); Goins v. Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996); Washington v. Commonwealth, 228 Va. 535, 551, 323 S.E.2d 577, 588 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). Photographs of a victim are admissible to prove motive, intent, malice, premeditation, method, and the degree of atrociousness of the crime. Walton, 256 Va. at 92, 501 S.E.2d at 138; Goins, 251 Va. at 459, 470 S.E.2d at 126. Photographs that accurately portray the crime scene are not rendered inadmissible simply because they are gruesome or shocking. Walton, 256 Va. at 92, 501 S.E.2d at 138; Gray v. Commonwealth, 233 Va. 313, 343, 356 S.E.2d 157, 173, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); Washington, 228 Va. at 551, 323 S.E.2d at 588. Likewise, videotapes that accurately depict a crime scene are admissible to show motive, intent, method, malice, premeditation, and the atrociousness of the crime, even if photographs of the crime scene also have been admitted into evidence. Stewart v. Commonwealth, 245 Va. 222, 235, 427 S.E.2d 394, 403, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993).
We have examined the videotapes of the Fazio crime scene and the Parham crime scene, the photographs of the Fazio crime scene, and the Fazio autopsy photographs. While the photographs and videotapes are shocking and gruesome, they accurately depict the crime scenes and the conditions of the victims and are relevant to show motive, intent, method, malice, premeditation, and the atrociousness of the crimes. They also are relevant to show the likelihood of Payne's future dangerousness. Therefore, we cannot say that the trial court abused its discretion in admitting this evidence, and we reject Payne's contention that the evidence was so graphic as to unduly influence the emotions of the jury.
Payne also contends that evidence about Dean Fleck's injuries and the Commonwealth's Attorney's references to the child's bravery in identifying Payne and, thereby, assisting in Payne's capture were intended to inflame the passions of the jury. This evidence was presented in the penalty phase of the trial and was relevant to show Payne's future dangerousness. Furthermore, the Commonwealth's Attorney's remarks were accurate and based upon the evidence.
Upon our review of the entire record in the Fazio case, having considered the contentions advanced by Payne, we conclude that the death sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor.
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