Ramdass v. Com.

• Decision Date: 05 November 1993
• Docket Number: No. 930693,930693
• Citation: 246 Va. 413,437 S.E.2d 566
• Parties: Bobby Lee RAMDASS, v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 566

437 S.E.2d 566

246 Va. 413

Bobby Lee RAMDASS, v. COMMONWEALTH of Virginia.

Record No. 930693.

Supreme Court of Virginia.

Nov. 5, 1993.

[246 Va. 415] Michael S. Arif, Burke (Sharon B. Soloway, Martin, Arif, DeWilde & Soloway, on brief), for appellant.

Katherine P. Baldwin, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: All the Judges.

WHITING, Justice.

In September 1992, Bobby Lee Ramdass was indicted for the murder of Mohammad Z. Kayani in the commission of a robbery while armed with a deadly weapon, the robbery of Kayani, and the use of a firearm during Kayani's murder. Prior to a jury trial, Ramdass pled guilty to the robbery of Kayani and, over Ramdass's objection, the court deferred action on his guilty plea.

Thereafter, in a bifurcated trial conducted under the provisions of Code §§ 19.2-264.3 and -264.4, a jury convicted Ramdass of the capital murder of Kayani and fixed his punishment at death predicated upon a finding of "future dangerousness." The jury also convicted Ramdass of the use of a firearm in the commission of Kayani's murder and fixed his punishment at imprisonment for four years. ¹

After the jury returned its guilty verdicts, the court found Ramdass guilty of Kayani's robbery and referred the robbery and weapon convictions to the district probation officer for a presentence investigation and report. Following the jury's verdict of death in the sentencing phase of the capital murder charge, the court referred the case to the district probation officer for "investigation and report before sentencing." Code § 19.2-264.5. Upon consideration of the probation officer's report covering all three charges, the court sentenced Ramdass to life imprisonment upon the robbery charge and imposed the sentences fixed by the jury on the remaining charges.

Ramdass is before the Court for automatic review of his death sentence, and we have consolidated that review with the appeal from his capital murder conviction. Code § 17-110.1.

FACTS

Because the Commonwealth prevailed in the trial court, we will view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth. Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980).

During the night of September 1 and early morning of September 2, 1992, Ramdass and Darrell Wilson, both armed with pistols, were returning home in a car with three other men, Shane Singh, Edward O'Connor, and Candelerio Ramirez, after abandoning a plan to rob persons at a Roy Rogers restaurant in Fairfax County. On the way, Ramdass suggested that they rob persons at a 7-Eleven store on Buelah Street in Fairfax County.

Accordingly, near one o'clock on the morning of September 2, the five men entered the 7-Eleven store. Ramdass entered first and "drew" his pistol on Kayani, a 7-Eleven clerk who was behind the cash register. Wilson, who also displayed his pistol, ordered all the customers to lie on the floor and not look at him. The other three men, who were unarmed, took the customers' wallets, money from the cash register, and cigarettes and lottery tickets from the store's stock.

After Ramdass ordered Kayani to open the safe, Kayani knelt down next to the safe and unsuccessfully tried to open it. Ramdass squatted next to Kayani and yelled at him to open the safe "or I'll blow your f------ head off." ² Wilson fired his pistol at one of the customers on the floor. Immediately thereafter, Singh, standing behind Ramdass, saw Ramdass shoot Kayani in the head on his second attempt to get the weapon to fire.

Just after Ramdass shot Kayani, Ramirez returned from a back room in the store. Ramirez saw Ramdass laughing as he stood over Kayani's body. Later, Ramirez heard Ramdass say that he shot Kayani because he "took too long." Shortly thereafter, Ramirez opened the front door, and Wilson, Singh, and O'Connor ran out. As Ramirez held the door open, he urged Ramdass to "[c]ome on." However, Ramdass was "clicking the gun at the people on the floor" and told Ramirez to "[s]hut up or I'll put one in you." One of the customers also heard the clicking of the gun as Ramdass left.

When they got in the car, Ramirez heard Ramdass ask Wilson, "Why didn't you get rid of the people on the floor?" After the men divided the robbery proceeds at Singh's home, Ramdass told Ramirez, "Don't tell anybody about this [or] I'll kill you and I'll kill your whole family."

Singh, a co-owner of the gun with Ramdass, testified that the gun would not fire unless held at a certain angle because the "bullets" in the chamber were not the right size for the gun. Julian Jay Mason, Jr., a forensic scientist specializing in firearms identification, later examined and test fired the gun. Mason testified that the 9 millimeter cartridges Ramdass used in the gun were smaller than the 38 caliber cartridges specified for the gun. Therefore, when the gun's muzzle was pointed down, the 9 millimeter cartridges slid too far forward to be struck by the firing pin. Mason further testified that when the muzzle was pointed up, the cartridge slid back closer to the firing pin, and the gun could be fired.

ISSUES PREVIOUSLY RESOLVED

Ramdass assigns a number of errors and makes arguments that have been answered in previous decisions of this Court. Ramdass does not offer sufficient reasons to justify a modification of our previously expressed views. Therefore, we will reaffirm our earlier decisions and reject Ramdass's contentions as follows:

A. The court's denial of Ramdass's request for appointment of a medical doctor and an investigator at state expense violated his Fourteenth Amendment Due Process and Equal Protection rights. Answered by O'Dell v. Commonwealth, 234 Va. 672, 686, 364 S.E.2d 491, 499, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988); Townes v. Commonwealth, 234 Va. 307, 332, 362 S.E.2d 650, 664 (1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988); Gray v. Commonwealth, 233 Va. 313, 329-30, 356 S.E.2d 157, 166, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987).

B. The court's application of Code § 19.2-264.4(C) in the admission of evidence of unadjudicated criminal conduct in the sentencing phase violates the Eighth and Fourteenth Amendments of the United States Constitution. Answered by Watkins v. Commonwealth, 238 Va. 341, 351-52, 385 S.E.2d 50, 56-57 (1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1797, 108 L.Ed.2d 798 (1990).

C. The court's admission of evidence of unadjudicated criminal conduct is unconstitutional under any circumstances because of the requirement of a "greater degree of reliability where the death sentence is imposed." Answered by Satcher v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826 (1992), cert. denied, 507 U.S. 933, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993), and Stockton v. Commonwealth, 241 Va. 192, 210, 402 S.E.2d 196, 206, cert. denied 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991).

D. The court's refusal of Ramdass's proffered jury instruction that required proof of unadjudicated criminal conduct beyond a reasonable doubt violated his due process rights. Answered by Stockton, 241 Va. at 210, 402 S.E.2d at 206.

E. The court's denial of Ramdass's motion to declare unconstitutional the provision of Code § 53.1-233 providing for execution of prisoners by electrocution violates the prohibitions against cruel and unusual punishment contained in the United States and Virginia Constitutions. Answered by Poyner v. Commonwealth, Order entered in Record Number 930301 on March 10, 1993, and Boggs v. Commonwealth, Order entered in Record Number 900967 on July 18, 1990 (both orders rejected same arguments of unconstitutionality that used essentially same background materials relied upon by Ramdass as to execution by electrocution generally and "as carried out in Virginia's electric chair"); Stockton v. Commonwealth, 241 Va. at 215, 402 S.E.2d at 209-10; Martin v. Commonwealth, 221 Va. 436, 439, 271 S.E.2d 123, 125 (1980); Hart v. Commonwealth, 131 Va. 726, 743, 109 S.E. 582, 587 (1921).

ASSIGNMENTS OF ERROR WAIVED

Ramdass did not brief, and has therefore waived, Assignments of Error Numbers Seven, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-four. Rule 5:27(e).

PRETRIAL MOTIONS

Motion for Bill of Particulars

Ramdass filed a motion for a bill of particulars seeking specific details of the evidence in support of the Commonwealth's case. However, the indictment described the offenses charged in conformity with the requirements of Code § 19.2-220 and, therefore, was sufficient to give Ramdass "notice of the nature and character of the offense[s] charged so he [could] make his defense." Satcher, 244 Va. at 231, 421 S.E.2d at 828 (quoting Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411, 413 (1976)). Under these circumstances, the trial court did not err in denying Ramdass's motion for a bill of particulars.

Motion for Discovery of Accomplices's Polygraph Tests

Ramdass contends that the trial court erred in denying both his motion for discovery of the questions, answers, and results of his accomplices's polygraph examinations and his subsequent oral motion for the court's in camera inspection of those tests. According to Ramdass, the Commonwealth was constitutionally required to produce these tests because they may have contained "potentially exculpatory evidence." ³ We do not agree.

Fairness to the defendant requires the Commonwealth's pretrial production of exculpatory evidence under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963). And evidence that impeaches the credibility of a Commonwealth witness is exculpatory evidence. Robinson v. Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986) (citing United States v. Bagley, 473 U.S. 667, 676-77, 105 S.Ct. 3375, 3380-81, 87 L.Ed.2d 481 (1985))...