Peterson v. Com.

• Decision Date: 29 April 1983
• Docket Number: No. 822136,822136
• Citation: 302 S.E.2d 520,225 Va. 289
• Parties: Derick Lynn PETERSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 520

302 S.E.2d 520

225 Va. 289

Derick Lynn PETERSON v. COMMONWEALTH of Virginia.

Record No. 822136.

Supreme Court of Virginia.

April 29, 1983.

Charles A. Huffman, III, Hampton, for appellant.

Richard B. Smith, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

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

COCHRAN, Justice.

On August 30, 1982, a jury found Derick Lynn Peterson guilty of capital murder in the commission of robbery while armed with a deadly weapon. In the second phase of the bifurcated trial, the jury fixed his punishment at death. The trial court confirmed the conviction and sentenced Peterson in accordance with the verdict. We have consolidated the mandatory review of the death sentence with Peterson's appeal of his conviction and have given the case priority on our docket. Peterson seeks reversal of his conviction and remand for a new trial, or in the alternative, commutation of his sentence to imprisonment for life.

About 6:00 p.m. on February 7, 1982, Howard Kauffman, an accountant, was counting receipts in the office of a Pantry Pride store. The top portion of the office enclosure was glass and Kauffman could be seen by customers and other employees in the store. Dwight Wilson, a cashier working 22 to 25 feet from the office, testified that he saw Kauffman kick the office door to prevent a man from entering, but the intruder opened the door, went to the upper level of the office, "grabbed a sack of money" from the desk, and came back down. As Kauffman stood facing him, the man, who was undisguised, took out a gun, shot the accountant, and fled from the premises. Once the robber had entered the office, Kauffman offered no resistance. From photographs and lineups, Wilson subsequently identified Peterson as the assailant.

Wanda Scott, another cashier, saw the intruder force his way into the office. Kauffman stepped back, but the man shot him, reached for something, and ran from the store. She could not say what the man carried away with him. She identified Peterson as the killer after seeing him in a lineup.

Donald Thomas, another employee, had been talking to Kauffman through the office window before the shooting. He saw a man who had been standing nearby run into the office, seize a money bag lying on the desk, pull a gun, shoot Kauffman, and run from the store. Thomas was about five feet from Kauffman when the shooting occurred. Although Thomas conceded that he had picked two different suspects, one of whom was Peterson, from the first photographs shown to him, he identified Peterson from a photograph of a lineup.

Another witness identified Peterson as the driver of a car running at high speed that forced her automobile to the side of the road as she approached the store immediately after the shooting. Two other customers were in the store when they heard a gunshot. They identified Peterson as the man whom they then saw running away with a gun in his hand. They remembered having seen the same man standing outside before they entered the store.

The medical examiner testified that the cause of Kauffman's death was a bullet wound to the abdomen; the bullet severed the iliac artery. There was evidence that extensive life-saving measures were used without success in an effort to revive him.

After the robbery, it was discovered that a bank money bag and more than $6,000 in cash and checks were missing from the store.

1. The Guilt Trial.

A. Admissibility of Photographs.

During the guilt trial, the Commonwealth offered in evidence as exhibits two color photographs of Kauffman taken after his death, one showing only his face and the other showing the entry wound in his abdomen made by the fatal bullet. The trial court admitted the photographs in evidence over Peterson's objection that, since Kauffman's identity and the cause of his death were not challenged, the photographs were unnecessary and could only be used to inflame the jury.

The admission in evidence of photographs of a murder victim's body is within the discretion of the trial court. Whitley v. Commonwealth, 223 Va. 66, 74-75, 286 S.E.2d 162, 167, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982); Waye v. Commonwealth, 219 Va. 683, 692, 251 S.E.2d 202, 207-08, cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979); Evans v. Commonwealth, 215 Va. 609, 614, 212 S.E.2d 268, 272 (1975); Brown v. Commonwealth, 212 Va. 515, 518-19, 184 S.E.2d 786, 788-89 (1971), vacated in part on other grounds and remanded, 408 U.S. 940, 92 S.Ct. 2877, 33 L.Ed.2d 763 (1972).

We held in Clanton v. Commonwealth, 223 Va. 41, 51, 286 S.E.2d 172, 177 (1982), that a "defendant ... may not preclude the Commonwealth from introducing photographs by offering to stipulate facts shown in the photographs." In the present case, there is not even evidence of an offer to stipulate facts shown in the photographs.

The Commonwealth had the burden of proving, inter alia, that the killing was willful, deliberate, and premeditated. The location of the entry wound might tend to support an inference that the killer did not shoot wildly in panic but drew his weapon and took aim before firing. There were only two photographs, neither of them gruesome nor more inflammatory than the testimony of the eyewitnesses who observed the killing. We find no abuse of discretion by the trial court in admitting the photographs.

B. Sufficiency of the Evidence.

Peterson, who offered no evidence, attacks the sufficiency of the Commonwealth's evidence in two respects. First, he says the testimony of witnesses identifying him as the killer was too inconsistent to support his conviction. Second, he argues there was no evidence that the shooting was a willful, deliberate, and premeditated act. Considering the evidence in the light most favorable to the Commonwealth, we reject both contentions.

On brief, Peterson asserted that Wilson, Scott, and Thomas failed to identify him initially, that Wilson's identification was based upon Peterson's "hairline," and Scott's upon his "eyebrows and the fact that he was clean-shaven." But each of these witnesses positively identified Peterson. The uncontradicted evidence showed that the store was brightly lighted, that Peterson wore no mask, and that his face was plainly visible to the witnesses. Wilson identified Peterson from a photographic array four days after the crime, identified him again in two different lineups, and identified him at the preliminary hearing and at trial. Scott could not remember whether she made an identification from a photographic array, but a detective testified that she had identified Peterson in that manner. She also identified him in a lineup, at the preliminary hearing, and at trial. Thomas identified Peterson's picture from a photograph of a lineup, and identified him at the preliminary hearing and at trial. It was for the jury to determine the credibility of the witnesses and the weight of the evidence. There was ample evidence identifying Peterson as the criminal agent.

It was also a jury question whether the killing of Kauffman was willful, deliberate, and premeditated. The testimony of the three eyewitnesses was that Kauffman made no aggressive move towards Peterson but merely stood facing him in the office. Two of the witnesses said that Peterson had the money bag in his possession before he took out his gun and shot the victim. There was only one shot; the bullet was fired in a declining trajectory directly into Kauffman's midsection. To establish premeditation, the intention to kill need only exist for a moment. See Akers v. Commonwealth, 216 Va. 40, 216 S.E.2d 28 (1975); Bradshaw v. Commonwealth, 174 Va. 391, 4 S.E.2d 752 (1939). There was evidence that Peterson had time after seizing the money bag to pull out his weapon and fire at Kauffman. There was evidence that Kauffman had tried to prevent Peterson from entering the office. The jury could reasonably infer that Peterson planned to commit armed robbery and to kill anyone who attempted to frustrate his purpose. The jury could reasonably conclude, therefore, that Peterson shot Kauffman to make certain that he would not attempt to impede the defendant's escape from the scene of the robbery. We hold the evidence was sufficient to support the jury's finding that the shooting was willful, deliberate, and premeditated. ^*II. The Penalty Trial.

A. Procedural Questions Barred by Contemporaneous Objection Rule.

1. Time for conducting the penalty trial.

On appeal, Peterson for the first time complains that the trial court erred in proceeding almost immediately from the guilt trial to the penalty trial. No contemporaneous objection was made. Indeed, the trial judge informed the jury, without objection, at the conclusion of the guilt phase of the trial, that opposing counsel and the defendant were ready to proceed in approximately ten minutes if this was satisfactory with the jury. We will not now notice Peterson's objection. Rule 5:21.

2. Instruction No. 1A.

On appeal, Peterson for the first time objects to the granting of Instruction No. 1A, which informed the jury in the language of Code § 19.2-264.4(C) that the death sentence could be based on the vileness of the crime or the dangerousness of the defendant as those terms are explicated in the statute. Peterson states correctly that there was no evidence of vileness in the crime. A death sentence based upon vileness is not supported by the evidence where the victim died almost instantaneously from a single gunshot wound. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). But Peterson's counsel responded to the trial judge's inquiry at trial by stating affirmatively that he had no objection to the instruction. The Commonwealth did not argue vileness, and the jury based its verdict fixing punishment at death solely upon the finding that Peterson posed "a continuing serious...