Royal v. Com., 942223

• Decision Date: 09 June 1995
• Docket Number: No. 942223,942223
• Citation: 250 Va. 110,458 S.E.2d 575
• Parties: Thomas Lee ROYAL, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 575

458 S.E.2d 575

250 Va. 110

Thomas Lee ROYAL, Jr. v. COMMONWEALTH of Virginia.

Record No. 942223.

Supreme Court of Virginia.

June 9, 1995.

Samuel W. Meekins, Jr., Virginia Beach (Elwood H. Richardson, Jr., Wolcott, Rivers, Wheary, Basnight & Kelly, on brief), for appellant.

John H. McLees, Jr., Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: All the Justices.

LACY, Justice.

Thomas Lee Royal, Jr., was indicted for the capital murder of City of Hampton police officer Kenneth Earl Wallace and use of a firearm in the commission of the murder in violation of Code §§ 18.2-31 and -53.1, respectively. Royal entered pleas of guilty on both charges and received sentences of death for the capital murder charge and three years' imprisonment for the firearm charge. The trial court denied Royal's motion for reconsideration of the death sentence.

We consider Royal's appeal of the imposition of the death penalty with the automatic review of the death sentence to which he is entitled under Code § 17-110.1.

I. The Guilt Phase

At a hearing held by the trial court on September 19, 1994, the Commonwealth presented the following facts as stipulated by the parties:

On Monday, February 21st, 1994, Thomas Royal, Yancy M. Mitchener, Eldred Acklin, and Willie Sanders met in the vicinity of Chesapeake Court Apartments near Wythe Shopping Center. Thomas Royal handed each of the other three a gun with the intention to kill Hampton police officer Curtis Cooper. These four persons started to cross Wythe Shopping Center and they did not see Office[r] Cooper but did see Officer Kenneth E. Wallace of the Hampton Police Department.

Thomas Royal pursued Officer Wallace, followed by Yancy M. Mitchener and Eldred Acklin. Willie Cardell Sanders hung back. Thomas Royal encountered Officer Wallace and fired two shots from a .380 caliber handgun at Officer Wallace while Officer Wallace was seated in his police cruiser on Pocahontas Place in Hampton, Virginia. Thomas Royal fled. Officer Wallace died as a result of a wound inflicted by Thomas Royal.

Yancy M. Mitchener and Eldred Acklin both fired at the marked police car hitting the car but not Officer Wallace. Both Mitchener and Acklin then fled following Thomas Royal. Royal, Mitchener, and Acklin rejoined Sanders back at the Chesapeake Court Apartments. All four eventually fled Hampton that night and spent it in a motel in Norfolk.

Royal also introduced a letter he had written to Officer Wallace's father expressing his sorrow for the murder and asking for the family's forgiveness. The trial court accepted Royal's guilty pleas after finding that the pleas were made freely and voluntarily following full consultation with counsel.

II. The Penalty Phase

On October 19, 1994, the trial court conducted a hearing encompassing the proceedings required by Code §§ 19.2-264.4 and -264.5. In addition to the testimony of the probation officer who prepared the pre-sentence report, the Commonwealth's evidence consisted of the testimony of Dr. Miller M. Ryans, a forensic psychiatrist who evaluated Royal; Detective Corporal Edgar A. Browning of the Hampton Police Department who, while investigating the murder of Officer Wallace, took a statement from Royal regarding the murder; Officer Curtis C. Cooper of the Hampton Police Department, Royal's intended victim; and Dr. Greg Wolber, a psychologist and rebuttal witness. Royal introduced the testimony of his wife, Pamela, and Dr. Andrew J. Billups, III, a psychologist.

The Commonwealth's evidence showed that Royal's prior criminal record began in 1983 as a juvenile and included involvement with numerous offenses against property. As an adult, he was convicted of destroying property, petit larceny, assault and battery, interfering with a police officer, trespass, and possession of cocaine. In August 1994, shortly before his conviction for the murder of Officer Wallace, Royal was convicted of second degree murder and use of a firearm in the commission of the 1991 murder of James Smith.

Dr. Ryans testified that Royal displayed six of the seven diagnostic criteria connected with an antisocial personality disorder. For example, Royal did not "conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest," exhibited "reckless disregard for safety of self or others," and displayed "lack of remorse as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another." Dr. Ryans testified that there is no treatment for this condition and that, in Royal's case, this pattern of behavior was "gradually escalating." As to his future dangerousness, Dr. Ryans stated that "I cannot say with reasonable medical certainty that under certain circumstances there would not be a repetition of violent behavior by this individual that would put others at risk."

Royal's expert, Dr. Billups, testified that school personnel had concluded that Royal was mentally retarded based on intelligence evaluations administered in 1982 and 1986. Dr. Billups concluded, based on his own testing, that Royal functioned "in the borderline range of intelligence." Dr. Billups agreed that Royal had an antisocial personality disorder and surmised that the conditions of his childhood, including encouragement from family members to engage in criminal acts, would have contributed to such a disorder. This disorder, Dr. Billups testified, "has a chronic course that may become less evident or remit as the individual grows older, particularly by the fourth decade of life." Finally, Dr. Billups testified that Royal had expressed genuine remorse and had the potential to be rehabilitated.

At the close of the evidence, the trial court granted Royal's motion to strike the Commonwealth's evidence relating to the statutory predicate of vileness but not as to the future dangerousness predicate. The trial court, after "taking into consideration all the evidence in the case, the report of the Probation Officer, the matters brought out on cross examination of the Probation Officer, and such additional facts as were presented by the accused," held that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The trial court fixed Royal's sentence at death. After offering Royal the opportunity to present any evidence or reason why the death penalty should not be imposed, the trial court entered judgment imposing the death penalty.

Royal assigns error to a number of the trial court's actions during the sentencing phase of the proceedings. These involve the type of evidence which the trial court could consider in determining the statutory predicate of future dangerousness, the sufficiency of the evidence to establish future dangerousness, the failure of the trial court to impose life imprisonment as an alternative to the death penalty, and the trial court's denial of Royal's motion for reconsideration of the imposition of the death penalty. We consider Royal's assignments of error in order.

a. Admissibility of Evidence

At the beginning of the sentencing hearing, the Commonwealth stated that it was not proceeding on the statutory predicate of vileness, only on future dangerousness. Royal asserts that, when future dangerousness is the sole statutory predicate relied on by the Commonwealth, Code § 19.2-264.2 limits the relevant evidence solely to consideration of the defendant's record of past criminal convictions. Therefore, Royal contends, the trial court erred in considering circumstances surrounding the murder of Officer Wallace in making a determination as to Royal's future dangerousness. In addition, Royal asserts that by allowing circumstances of the crime to be considered in determining future dangerousness, the offense becomes the sole basis for determining the sentence and thus, in this case, the death penalty is the "ipso facto result of the murder of a police officer." This result, Royal argues, violates the principle of individualized sentencing required in death penalty cases. Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d 944 (1976). We disagree.

The statutory provisions governing the imposition of the death penalty do not limit consideration of whether a defendant will be a future danger to the defendant's prior criminal record. Both subsections B and C of Code § 19.2-264.4 specifically provide that evidence of the circumstances of the offense may be considered. ¹ Neither restricts this evidence to proceedings based on the vileness predicate. We have previously rejected the restrictive construction of the relevant statutes advanced by Royal and find no reason to depart from that position here. Frye v. Commonwealth, 231 Va. 370, 392, 345 S.E.2d 267, 283 (1986).

Furthermore, the statutory scheme comports with the constitutional requirement of individualized sentencing. Where the sentencing body is required to find a statutorily prescribed aggravating factor to qualify a defendant for consideration of the death penalty, "[t]he aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both)." Tuilaepa v. California, --- U.S. ----, ----, 114 S.Ct. 2630, 2635, 129 L.Ed.2d 750 (1994). Therefore, the circumstances of the crime appropriately may be considered when determining whether the statutory predicate of future dangerousness exists. The individualized sentencing required by the Constitution is further satisfied when, having established the statutory predicate, the sentencing body then proceeds to consider whether the death penalty should be imposed in each specific case. See Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983).

Royal also contends that the trial court erred in not limiting the evidence relating to the murder of Officer Wallace to that...