Sheppard v. Com.

• Decision Date: 03 November 1995
• Docket Number: Nos. 950760,950761,s. 950760
• Parties: Mark A. SHEPPARD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 131

464 S.E.2d 131

250 Va. 379

Mark A. SHEPPARD v. COMMONWEALTH of Virginia.

Record Nos. 950760, 950761.

Supreme Court of Virginia.

Nov. 3, 1995.

Eric D. White; Christopher J. Collins (Morchower, Luxton and Whaley, on brief), Richmond, for appellant.

Donald R. Curry, Senior Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), Richmond, for appellee.

Present: All the Justices.

COMPTON, Justice.

On Sunday, November 28, 1993, Richard A. Rosenbluth and Rebecca W. Rosenbluth, his wife, were murdered in their Chesterfield County home. The police discovered their bodies there two days later; multiple gunshot wounds were found in each body. On December 3, 1993, near 5:00 a.m., defendant Mark A. Sheppard was arrested in Henrico County after he was apprehended while preparing to set fire to Mr. Rosenbluth's Nissan Pathfinder motor vehicle.

Subsequently, defendant, age 23, was charged in nine indictments as follows: three indictments for capital murder, two indictments for robbery, and four indictments for using a firearm in the commission of a felony. Two capital murder indictments were based upon allegations of killing the Rosenbluths during the commission of robbery. Code § 18.2-31(4). The third indictment for capital murder was based on the charge of killing Mr. Rosenbluth as part of the same act or transaction as the killing of Mrs. Rosenbluth. Code § 18.2-31(7).

Prior to defendant's September 1994 trial, Andre L. Graham was tried on charges of capital murder for the same offenses and given a life sentence. See Graham v. Commonwealth, 250 Va. 487, 464 S.E.2d 128 (1995), decided today. Both men also were alleged to have committed other violent crimes recently in the Richmond Metropolitan Area. See, e.g., Graham v. Commonwealth, 250 Va. 79, 459 S.E.2d 97 (1995).

Following a six-day trial, a jury found defendant guilty of all charges. The jury fixed his punishment at 20 years' imprisonment on each of the robbery convictions and assessed a total of 18 years' imprisonment for the four firearm convictions.

After a separate sentencing proceeding on the capital murder convictions, the jury imposed two death sentences--one for killing each of the victims--based upon the vileness and future dangerousness predicates of the capital murder sentencing statute. Code § 19.2-264.2. Subsequently, the trial court considered a probation officer's report and, after a December 1994 hearing, sentenced defendant in accordance with the jury's verdicts.

The death sentences are 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 convictions. Code § 17-110.1(F). In addition, by order entered in April 1995, 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. 950761) with the appeal of the capital murders (Record No. 950760).

The defendant does not assign error attacking the noncapital convictions. Additionally, he does not ask us to reverse those convictions. Therefore, we will make no further specific reference to the validity of those convictions, and they will be affirmed.

In accordance with settled principles of appellate review, we shall consider the facts relating to the capital murder convictions in the light most favorable to the Commonwealth, which prevailed below.

When the victims' bodies were discovered in their home on Tuesday, November 30, 1993, the house had been ransacked, but there was no sign of forced entry into the residence. Many items of the couple's jewelry and other personal property, including their two motor vehicles, were missing from the premises. The victims were last seen alive at their home on the previous Sunday morning.

The bodies were found in the den of the residence. Mr. Rosenbluth, age 40, had sustained two gunshot wounds from "close range." One gunshot entered the left eye and went into the cranial cavity causing damage to the spinal cord and the brain. The other gunshot entered the right side of the nose, went into the cranial cavity, and damaged the brain. Both wounds were lethal.

Mrs. Rosenbluth, age 35, had sustained four gunshot wounds to the head and neck region, also from close range. All her wounds were "potentially lethal."

Expert testimony fixed the victims' time of death as between 24 to 48 hours prior to the discovery of their bodies. There was no evidence of any "struggle" by the victims "prior to the shots being fired." Autopsies revealed that the victims had ingested alcohol and cocaine within hours of their deaths.

Both of the husband's gunshot wounds and two of his wife's wounds were inflicted by a handgun that was linked to the defendant, a .38 caliber revolver. The wife's other two wounds were inflicted by a .45 caliber automatic handgun belonging to Andre Graham. That weapon was found in the apartment of Graham's girlfriend on December 3, the day Graham also was arrested after having driven defendant to the site where the Rosenbluths' Pathfinder vehicle was parked when defendant prepared to set fire to it. Defendant's .38 caliber revolver has not been recovered.

In addition to ballistics evidence, other evidence linked both defendant and Graham to the homicides. Defendant's fingerprint was identified on a package of razor blades found on the kitchen table in the victims' home when the bodies were discovered. Many of the surfaces at the crime scene had been "wiped clean" in an obvious effort by the assailants to "cover their tracks" and obliterate fingerprints.

Also, on Monday and Tuesday following the murders, defendant and Graham took the victims' two motor vehicles, the Pathfinder and a Honda sedan, to two body shops for estimates on repainting the vehicles. On Wednesday, December 1, the Honda was found parked near the apartment of Graham's girlfriend. During the time after the murders and before his arrest, defendant had possession of the Pathfinder vehicle at the Henrico County home of his father, where defendant resided.

Additionally, during the period after the murders and before their arrests, defendant and Graham possessed numerous articles of the victims' personal property. Search of defendant's room at his father's house following the arrest produced the victims' stereo equipment, a piece of their luggage, and the license plates from the Pathfinder. When arrested, defendant possessed the wife's wrist watch and one of the husband's credit cards issued to his employer.

The evidence demonstrated that defendant and Graham were close friends involved in selling cocaine. Traces of cocaine, and drug paraphernalia, were found in the den and kitchen when the victims' bodies were discovered. The victims' personal records showed that, during the several months immediately preceding their deaths, the couple made substantial cash withdrawals and credit card charges averaging hundreds of dollars per day, apparently to support their addiction to the drug. Also, the husband used credit cards to provide hotel rooms for Graham in exchange for cocaine during that period.

The Commonwealth's theory of the case was that the defendant and Graham regularly sold cocaine to the victims. During the weeks before the killings, it became increasingly apparent to these drug dealers that the victims' funds were being depleted rendering them unable to finance their habit. Finally, the victims were murdered either because of unpaid drug debts or because the assailants anticipated that, when the victims eventually were arrested for possessing illegal drugs, they would "point the finger" at defendant and Graham as their suppliers. The Commonwealth contended that, after the assailants entered the home to sell drugs to the victims, defendant shot the husband twice while Graham shot the wife twice, and that defendant fired two additional shots into the wife's head.

The defendant testified in his own defense, admitting he was present in the victims' home at the time of the murders, which he claimed occurred on Saturday, not Sunday. Defendant denied being present in the den when the victims were shot, testifying that he was "[i]nside the dining room sitting at the table" when the homicides took place, and that Graham and one Benji Vaughan, a friend of defendant and Graham, were in the den with the victims. Defendant admitted having been armed with a ".380 automatic" at the time of the shootings, and said he did not know the whereabouts on the day of trial of the .38 caliber revolver, which he owned previously.

On appeal, defendant assigns 28 alleged errors committed by the trial court. Defendant has engaged in the improper procedural practice of altering the assignments of error between the time they were originally filed pursuant to Rule 5:22(b) and the time his appellate brief was filed. In this discussion, we shall refer only to the original assignments of error found in the appendix at pages 195-96.

The defendant has not briefed or argued four of those assigned errors (Nos. 1, 20, 21, and 25); thus, we will not consider them. Weeks v. Commonwealth, 248 Va. 460, 465, 450 S.E.2d 379, 383 (1994), cert. denied, --- U.S. ----, 116 S.Ct. 100, 133 L.Ed.2d 55 (1995). The remaining assignments of error emphasized by the defendant present questions dealing with the trial court's removal of certain jurors for cause, the sufficiency of the evidence to show that the defendant was the perpetrator of the crimes, refusal of the trial court to advise the jury of the life sentence imposed upon Graham for these crimes, admission of evidence of unadjudicated crimes involving the defendant, and sufficiency of the evidence to support the vileness and future dangerousness predicates for the death sentences.

First, defendant contends the trial...