Quesinberry v. Com.

• Citation: 241 Va. 364,402 S.E.2d 218
• Decision Date: 01 March 1991
• Docket Number: Nos. 901257,901258,s. 901257
• Court: Supreme Court of Virginia
• Parties: George A. QUESINBERRY, Jr. v. COMMONWEALTH of Virginia. Record

Page 218

402 S.E.2d 218

241 Va. 364

George A. QUESINBERRY, Jr. v. COMMONWEALTH of Virginia.

Record Nos. 901257, 901258.

Supreme Court of Virginia.

March 1, 1991.

Matthew N. Ott (F.G. Rockwell, III, Hairfield, Morton, Allen & Rockwell, on brief), Richmond, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., John H. McLees, Jr., Asst. 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 George Adrian Quesinberry, Jr. for the murder of Thomas L. Haynes.

I. PROCEEDINGS

On January 22, 1990, Quesinberry was indicted by a Chesterfield County grand jury for capital murder under former Code § 18.2-31(d), now Code § 18.2-31(4) ¹, breaking and entering with the intent to commit larceny, robbery, and use of a firearm in the commissions of burglary, robbery, and murder. At the conclusion of the first stage of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, the jury convicted Quesinberry of all offenses. The jury fixed his punishment as follows: life imprisonment for robbery; 20 years imprisonment for breaking and entering; and two years imprisonment on each of the firearms convictions for a total of six years.

At the penalty phase of the capital murder trial, after hearing evidence in aggravation and mitigation, the jury fixed Quesinberry's punishment at death for capital murder. After reviewing a probation officer's report, the trial court, on September 11, 1990, entered final judgments confirming the convictions and imposing the penalties fixed by the jury.

We have consolidated the automatic review of Quesinberry's death penalty with his appeal of the capital murder conviction in Record No. 901257, Code § 17-110.1(A) and (F), and have given them priority on the docket, Code § 17-110.2. We have also certified from the Court of Appeals of Virginia Quesinberry's appeal of his robbery, breaking and entering, and firearm convictions, Record No. 901258, and have consolidated the two records for our consideration.

II. THE EVIDENCE

Pursuant to established principles of appellate review, we will review the evidence in the light most favorable to the Commonwealth. On the evening of September 24, 1989, Quesinberry visited a friend who lived at Benny's Trailer Court in Prince George County. Eric Hinkle was also present. The three men drank rum and "got drunk." Quesinberry suggested to Hinkle that they "break into somewhere." Quesinberry and Hinkle decided to "break into" an office and warehouse owned by Tri-City Electric Company (Tri-City Electric) in Chesterfield County. Quesinberry had purchased electrical supplies from Tri-City Electric and was familiar with its premises.

Quesinberry and Hinkle left the trailer park and went to Quesinberry's stepmother's home in Dinwiddie County, where he lived. Quesinberry obtained his .45-caliber semi-automatic pistol with a clip containing six rounds from his stepmother's house. Quesinberry took his pistol "more or less for ... security.... just to maybe scare somebody or whatever."

Quesinberry and Hinkle then went to Tri-City Electric. They arrived at approximately 6:00 a.m. on September 25, 1989. Quesinberry pried a rear door open with a screwdriver, and the men went inside. They rummaged through offices, opening doors and drawers, looking for "a cash box or somethin[g]." Quesinberry entered an office and found two "walkie talkies." He took them because he thought that they might be valuable. Quesinberry and Hinkle then entered a second office where they found a desk with a locked drawer. Using his pistol, Quesinberry fired a shot which broke the lock on the drawer. He then gave his pistol to Hinkle while he (Quesinberry) searched a file cabinet. Quesinberry found a box of money in the cabinet.

Haynes, the owner of Tri-City Electric, arrived on the premises while Quesinberry and Hinkle were in the second office. Haynes turned on the lights, saw them and asked, "[H]ey, what are ya'll doin[g]?" Quesinberry immediately told Hinkle: "[S]hoot him or somethin[g]." Hinkle did not do so. Quesinberry took the pistol from Hinkle and began shooting at Haynes. Haynes ran. Quesinberry chased him through the warehouse, shooting as Haynes tried to flee. Haynes had no weapon and made no aggressive movement towards Quesinberry.

Quesinberry shot Haynes twice in the back. One gunshot wound severed his spinal cord, paralyzing his legs. The other gunshot wound was administered with the muzzle of the pistol pressed against Haynes' back.

Quesinberry returned to the office where he and Hinkle had found the box of money. Quesinberry picked up the box and a roll of stamps which they had found in a desk. As they were leaving the premises, Haynes, who was lying on the floor, tried to push himself up. Quesinberry hit Haynes in the head at least twice with the pistol. The impact of these blows caused a curved impression in Haynes' skull.

Quesinberry and Hinkle left the warehouse and got in a car which they had parked across the street. They returned to Quesinberry's stepmother's home. They parked the car in a wooded area near the house and waited for her to leave. Quesinberry then fell asleep in the car. They went in the house after Quesinberry's stepmother had left and divided approximately $200 in coins they had taken from Tri-City Electric.

At 6:30 a.m. on September 25, an employee of Tri-City Electric entered the office and warehouse and discovered Haynes lying on the floor in the dark. Haynes, who was still alive, told the employee that he had been shot and that he recognized one of the perpetrators but did not know his name. Haynes died later that morning from injuries caused by the bullet wounds.

About 7:00 p.m. on September 25, Hinkle turned himself in to the police and gave a statement which implicated Quesinberry. A search warrant was issued for a search of Quesinberry's home and a warrant was obtained for his arrest. The police arrived at Quesinberry's home about 2:30 a.m. on September 26, 1989. Quesinberry was shown the warrants. He informed the police that he knew what they wanted and he "would tell [them] where it was if [they] just wouldn't tell his mother." Quesinberry told the police officers that he had placed the pistol and money in his brother's car. He identified the pistol, which the police found in his brother's car, as the weapon he used to kill Haynes. He also identified money and stamps, which were found in the car, as property stolen from Tri-City Electric. After being advised of his constitutional rights, he signed a written waiver and gave a detailed statement to the police which described his involvement in the crimes.

III. ASSIGNMENTS OF ERROR WAIVED

Quesinberry is deemed to have waived Assignments of Error 9, 13, 20, and 24. ² Despite assigning error to these issues, Quesinberry failed to argue them on brief. Therefore, pursuant to Rule 5:27(e), we will not consider them on appeal. Eaton v. Commonwealth, 240 Va. 236, 245, 397 S.E.2d 385, 390 (1990); Cheng v. Commonwealth, 240 Va. 26, 41, 393 S.E.2d 599, 607 (1990).

IV. ISSUES PREVIOUSLY DECIDED

Quesinberry raised certain issues on appeal which have been decided adversely to his claims by our previous decisions. We adhere to those rulings and we will not discuss them further here. The issues previously resolved are:

(1) Whether the death penalty, per se, constitutes cruel and unusual punishment in contravention of the Eighth Amendment. See Spencer v. Commonwealth, 240 Va. 78, 84, 393 S.E.2d 609, 613 (Spencer IV ), cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990); Spencer v. Commonwealth, 238 Va. 563, 568-69, 385 S.E.2d 850, 853 (1989) (Spencer III ), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990); Spencer v. Commonwealth, 238 Va. 275, 280-81, 384 S.E.2d 775, 777-78 (1989) (Spencer I ), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990) (compiling authority); Whitley v. Commonwealth, 223 Va. 66, 77-78, 286 S.E.2d 162, 168-69, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

(2) Whether §§ 19.2-264.2 through 19.2-264.5 of the Code of Virginia, as amended, 1950, violate the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guarantee of due process. Spencer III, 238 Va. at 568-69, 385 S.E.2d at 853; Spencer v. Commonwealth, 238 Va. 295, 302, 384 S.E.2d 785, 790 (1989) (Spencer II ), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990); Pope v. Commonwealth, 234 Va. 114, 121-22, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 716 (1988); Briley v. Commonwealth, 221 Va. 563, 577-80, 273 S.E.2d 57, 65-67 (1980); M. Smith v. Commonwealth, 219 Va. 455, 476-78, 248 S.E.2d 135, 148-49 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). See generally Giarratano v. Procunier, 891 F.2d 483, 489 (4th Cir.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 222, 112 L.Ed.2d 178 (1990); Turner v. Bass, 753 F.2d 342, 350-51 (4th Cir.1985), sentence vacated on other grounds, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

(3) Whether the defendant should have been granted additional peremptory challenges. See Spencer IV, 240 Va. at 84-85, 393 S.E.2d at 613; Buchanan v. Commonwealth, 238 Va. 389, 405, 384 S.E.2d 757, 767 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990).

(4) Whether the trial court erred in not allowing Quesinberry to inform the jury and in failing to instruct the jury that imposition of a life sentence meant that Quesinberry would not be eligible for parole consideration for 30 years. See Buchanan, 238 Va. at 417, 384 S.E.2d at 773-74; Poyner v. Commonwealth, 229 Va. 401, 418-19, 329 S.E.2d 815, 828, cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88...