Rogers v. Com.

• Citation: 242 Va. 307,410 S.E.2d 621
• Decision Date: 08 November 1991
• Docket Number: Nos. 910479,910480,s. 910479
• Court: Supreme Court of Virginia
• Parties: Rocky Dale ROGERS v. COMMONWEALTH of Virginia. Record

Page 621

410 S.E.2d 621

242 Va. 307

Rocky Dale ROGERS v. COMMONWEALTH of Virginia.

Record Nos. 910479, 910480.

Supreme Court of Virginia.

Nov. 8, 1991.

Ronald W. Vaught, Hot Springs, Anthony F. Anderson, Roanoke (Melissa W. Friedman, Roanoke, Parks & Vaught, Hot Springs on brief), for appellant.

Oliver L. Norrell, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

COMPTON, Justice.

On January 9, 1990, Dorothy H. Balsey, a 74-year-old widow, was brutally attacked in her home in the City of Covington. The victim died the next day from stab wounds to her chest and back combined with "blunt force" injuries to her head sustained during the attack.

Within a month, appellant Rocky Dale Rogers, age 24, was arrested. Subsequently, he was indicted for the following crimes arising from the attack: statutory burglary, Code § 18.2-90; robbery, Code § 18.2-58; and rape, Code § 18.2-61. In addition, the defendant was indicted for capital murder. The grand jury charged defendant with the willful, deliberate, and premeditated killing of the victim while in the commission of robbery when armed with a deadly weapon, or while in the commission of, or subsequent to, rape. Code § 18.2-31(4)(5).

Following several pretrial hearings, including a hearing on defendant's motion to suppress certain statements made to the police, he was tried on all the charges by a single jury in November 1990. The jury fixed the following punishments for the noncapital offenses: life imprisonment for rape; 50 years imprisonment for robbery; and 20 years imprisonment for statutory burglary. The jury also found defendant guilty of capital murder as charged in the indictment. During the second phase of the bifurcated capital proceeding, the jury fixed defendant's punishment at death based upon the vileness and future dangerousness predicates of the capital murder sentencing statute. Code § 19.2-264.4. Subsequently, the trial court considered a probation officer's report and, after a hearing in December 1990, sentenced defendant to death for the capital murder.

The death sentence is before us for automatic review under Code § 17-110.1(A), see Rule 5:22, and we have consolidated this review with defendant's appeal of the capital murder conviction. Code § 17-110.1(F). In addition, by order entered in March 1991, we have certified the appeals of the noncapital convictions from the Court of Appeals; the effect of the certification is to transfer jurisdiction over the noncapital appeals to this Court for all purposes. Code § 17-116.06(A). We have consolidated those appeals (Record No. 910480) with the capital murder appeal (Record No. 910479).

The defendant did not brief or argue orally the assignments of error attacking the noncapital convictions. Additionally, the defendant on brief does not request us to reverse those convictions. Therefore, we will make no further specific reference to the validity of those convictions, and they will be affirmed.

The dispositive question in the capital murder appeal is whether the evidence is legally sufficient to establish that the defendant was the actual perpetrator of the crime. In summarizing the evidence, we will follow established principles and view the evidence and all reasonable inferences fairly deducible from the evidence in the light most favorable to the Commonwealth. Cheng v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990).

On the day of the attack, about 2:00 p.m., Lucille Byrd visited the victim at the victim's home, 314 East Prospect Street, to deliver a belated Christmas present. Byrd stayed with the victim until about 4:00 p.m. and left the present, a card with a $20 bill enclosed.

About 5:15 p.m. on that day, Robbie Balsey Entsminger, the victim's daughter, visited her mother, who lived alone, to "check up" on her because the victim had suffered a "stroke" about 18 months earlier. She was "on her way to recovery" from the stroke and could speak but not write. The daughter left the home about 6:15 p.m.

Between 6:30 p.m. and 6:45 p.m. on that day, Robert Edward Bolden observed the defendant in the 300 block of East Prospect Street when the witness was about "a house away" from the victim's residence. Bolden left a house in that block and, when he entered his automobile parked at the curb, found his left turn signal was inoperable. As Bolden "got out of the car and started messing with a bulb in the front, [he] looked down the street and [defendant] was in front of [the victim's] house and was walking towards" the witness, with a "medium stride" not walking "real fast." Defendant was coming "up" the sidewalk toward the witness and, when the two were six feet apart, Bolden recognized the defendant because the witness' nephew previously "had some trouble" with defendant. Bolden noticed that Rogers was not clean shaven and was missing front teeth. Bolden returned momentarily to the home he had just left. When he returned to his car, defendant had "disappeared." Bolden "pulled out" of the parking space at 6:50 p.m.

About 6:40 p.m. on the day in question, Mrs. Garnet Bryan was watching a news program on television in her residence at 316 East Prospect Street. She and the victim lived in the same two-story duplex house. The respective residences were separated by a party wall. At that time, the witness heard the victim "hit the floor." The sound came from the victim's dining room, according to the witness. Assuming the victim had fallen, as was often the case immediately after the victim experienced the stroke, Bryan went to the front door of the victim's residence to render assistance. She had a key to the door but was unable to enter because an outside storm door was locked. The witness said, "I pounded on the door to let her know I knew she had fallen."

Bryan returned to her home and called the victim on the telephone, allowing it to ring three times. Receiving no answer, Bryan called the Selman residence at 312 East Prospect Street, "on the other side" of the victim's home. Mr. Selman was not at home but Mrs. Selman offered to go with Bryan to assist the victim.

Bryan and Selman met on the sidewalk and proceeded beside the victim's house to her back porch, which was on the Selman side of the home, to gain entry. As they entered the screened porch, the exterior door was standing open. They "went on up on the porch and the kitchen door was open, and went on in, the light was on in the kitchen and [they] knew there was something wrong then," because the night "was awful cold."

As Bryan entered the kitchen, followed closely by Selman, Bryan was struck on the shoulder by an individual that both women later identified as the defendant. Defendant was coming from the victim's dining room "fastening up his jacket as he was coming out." According to Bryan, defendant said, "you just step right on out of here. She's been taken care of, and she's going to be all right, and she don't need you." According to Bryan, she replied, "Well, I'll just see for myself" and she "pushed past" the defendant. Then, she said, "he took out and ran off the back porch and was gone."

The women found the victim lying face down in the dining room "perfectly nude" with her clothing beside her "full of blood." Her shirt had been "pushed up on her body" and there was a "knife sticking out of her back." The knife was one of a set of steak knives with white plastic handles from the victim's kitchen drawer.

After observing the victim, Selman "turned back around and went back to the back door." She said, "that's when I heard running, and I assumed that he had just, you know, run on away." When asked the direction the defendant was running, she said, "It sounded like going out back [toward the alley] because it was cold outside and I could hear crunching of the ground."

Returning to the dining room, Selman assisted Bryan in trying to care for the victim. She "started to groan" and the women covered her with a quilt because "cold air was coming in that back door." Using the telephone in the dining room, they called the local rescue squad first and then the local police. The first policeman to arrive at the scene received the call at 6:45 p.m.

After the police were called, Mr. Selman came to the front door of the victim's residence. In order to allow him to enter, Mrs. Selman not only had to unlock both front doors but had to pull a front-hall "runner" rug back from against the inside door because it had been "pushed clean against" the door, blocking it.

The floor plan of the first floor of the home shows a hallway extending from the front door to the rear to the kitchen door. Steps to the second floor run from the front door parallel to the hallway. Adjacent to the hallway on the front is a living room. The dining room joins the living room to the rear and extends from the party wall across the whole width of the home past the kitchen door. A small pantry is off the kitchen at the very rear of the home adjacent to the back porch. The pantry has one door which leads to the kitchen.

Bryan testified that she saw no one but the defendant in the house or outside the house and that defendant "was by himself." Mrs. Selman stated that from the time they confronted defendant in the kitchen when he "ran out," they detected no one else in the house. She said she did not "see anyone else stirring, hear any other noises, anything like that."

The police and rescue squad personnel arrived at the scene at the same time, before 7:02 p.m. The victim was alive, lying against a buffet in the dining room near the door to the kitchen. The knife "was bent up so it was imbedded in her back ... above her bra strap." One of the paramedics cut bandages "and secured the knife in place where it was at." The victim was semi-conscious and was able to talk but she "wasn't saying anything relevant." She was lying on her stomach in a pool of blood which apparently was coming from head...