Smith v. Com.

• Decision Date: 06 October 1978
• Docket Number: No. 780293,780293
• Citation: 219 Va. 455,248 S.E.2d 135
• Parties: Michael Marnell SMITH v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 135

248 S.E.2d 135

219 Va. 455

Michael Marnell SMITH v. COMMONWEALTH of Virginia.

Record No. 780293.

Supreme Court of Virginia.

Oct. 6, 1978.

David F. Pugh, Williamsburg (James Updike, Law Student; Stone, Bland & Wood, Williamsburg, on brief), for appellant.

James E. Kulp, Deputy Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Post-Conviction Asst. Project of the University of Virginia School of Law (Richard J. Bonnie; John Petrila, on brief), for appellant amicus curiae.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

On November 2, 1977, Michael Marnell Smith was convicted by a jury of capital murder following rape. Code §§ 18.2-10(a) and 31(e) (Cum.Supp.1977). The next day, pursuant to the bifurcated trial proceedings prescribed by Code §§ 19.2-264.2, -264.3, -264.4, -264.5 (Cum.Supp.1977), the jury heard evidence on the question of penalty and recommended a sentence of death. A post-sentence report was filed and, following another hearing, the trial court affirmed the jury's recommendation and entered final judgment November 30, 1977. Defendant's appeal and automatic review of sentence were consolidated and accorded priority on the docket. Code §§ 17-110.1, -110.2 (Cum.Supp.1977). By leave of court, the Post-Conviction Assistance Project of the University of Virginia filed a brief Amicus curiae in support of defendant's position. ¹ This is the first capital case appealed under the current statutes.

The medical evidence showed that Mrs. Audrey Jean Weiler, whose body was found floating in the James River at a point near the Colonial Parkway within James City County, died on May 23, 1977 as the result of asphyxia, drowning, and multiple stab wounds.

Defendant signed a written statement admitting that he encountered decedent walking alone on the beach, displayed a knife, ordered her to disrobe, and engaged in sexual intercourse with her; that, fearing she "could send (him) back (to the penitentiary)", he "started choking her with both hands . . . until she went limp"; and that he then "dragged her out into the water a couple of feet", "held her head under the water . . . (until) she stopped moving", and "stabbed her in the back several times."

On brief, defendant poses multiple questions which we will address in five categories. The first category relates to pre-trial proceedings; the second to the guilt trial; the third to constitutional challenges to the statutory complex under which defendant was convicted and sentenced; the fourth to the penalty trial; and the fifth to the propriety of the penalty imposed.

I. PRE-TRIAL PROCEEDINGS

A. Jurisdiction

Defendant assigns error to the trial court's denial of his pre-trial motion to dismiss for lack of jurisdiction. Tacitly acknowledging that the crime was committed within the geographical boundaries of James City County, defendant argues that, since the land in question is owned by the United States, it was incumbent upon the Commonwealth to show that the United States did not have exclusive jurisdiction over crimes committed thereon. It is well settled, however, that the mere ownership of land by the United States does not divest a state of its jurisdiction over that land, and that the nature and extent of the federal jurisdiction is dependent upon the consent of the state. James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937); Accord, Waltrip v. Commonwealth, 189 Va. 365, 53 S.E.2d 14 (1949). The United States was ceded Concurrent jurisdiction by statute over crimes committed on land to which it holds title within the Commonwealth. Code § 7.1-21(1) (Repl.Vol.1973). ² Any additional jurisdiction over this land can be relinquished only if the Commonwealth executes a deed of cession, and the deed must be formally accepted by the United States. Code § 7.1-21 (Cum.Supp.1978); 40 U.S.C.A. § 255 (1970). In light of the cession by statute, it is presumed that the Commonwealth retains concurrent jurisdiction over the area embracing the locus of the crime. To hold otherwise, would be to require the Commonwealth to prove the negative, I. e., that the United States was not deeded and did not accept exclusive jurisdiction. Since defendant adduced no evidence to show the affirmative, the presumption prevails and the trial court's ruling on the motion to dismiss was proper.

B. Change of Venue

In support of his motion for a change of venue, defendant introduced numerous newspaper clippings, transcripts of radio broadcasts, and affidavits to show that the news media had given extensive publicity to the details of the crime with which he was charged, to his earlier conviction of rape, and to the "outbreak of rapes in the Williamsburg-college community." Conceding that a change of venue is within the sound discretion of the trial court, Lewis v. Commonwealth, 218 Va. 31, 34, 235 S.E.2d 320, 322 (1977), defendant contends that the publicity prejudiced his right to a fair trial and that the trial court abused its discretion.

Defendant does not dispute the factual accuracy of the publicity. Nor does he point to anything of record to indicate that a single juror seated at trial was unable to disregard the publicity and accord him a fair trial. The burden of defendant's complaint is that the sheer volume of publicity concerning so heinous a crime, committed by a prior offender against a member of a family prominent in the community, compels a finding of unfairness. We disagree.

Petitioner's argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the Voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But . . . extensive knowledge in the community of neither the crimes nor the putative criminal is sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do . . . .

Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977); See also Greenfield v. Commonwealth, 214 Va. 710, 716-17, 204 S.E.2d 414, 419-20 (1974).

We hold that defendant has failed to show that he could not or did not receive a fair trial in the jurisdiction in which he was convicted, and we find no abuse of judicial discretion in the trial court's ruling.

C. Exclusion of Juror

The trial court excluded Mrs. Piggott as a juror for cause related to her predisposition against capital punishment. Relevant portions of the Voir dire are assembled at the foot of this opinion as Appendix B.

Veniremen may not constitutionally be excluded for cause "simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction", Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968), and exclusion of a single venireman for such cause renders the death penalty constitutionally infirm, Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).

In support of his assignment of error to the trial court's ruling, defendant relies principally upon portions of two footnotes in Witherspoon :

Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.

391 U.S. at 516, n.9, 88 S.Ct. at 1774.

The most that can be demanded of a venireman . . . is that he be willing to Consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. . . .

(N)othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear . . . that they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial . . .

391 U.S. at 522, n.21, 88 S.Ct. at 1777.

The courts which have addressed the question do not agree what effect these two footnotes have upon the textual holding that "general objections" to capital punishment are not sufficient grounds to exclude a venireman for cause. See 39 A.L.R.3d 550 (1971). In our view, footnote 9 means that, absent an unambiguous statement of Absolute objection, the trial judge cannot Assume absolute objection. It does not mean that, simply because there may be some confusion and inconsistency in the statements that were made, the trial judge is foreclosed from determining from the Voir dire at large whether a juror would "Automatically vote against the imposition of capital punishment".

(E)ven though a prospective juror's Voir dire answers to questions concerning his beliefs as to capital punishment may be equivocal and not models of clarity, it is proper for the trial judge to excuse the juror for cause when a contextual consideration of the entire Voir dire examination indicates that the juror could not vote for a verdict which would result in the imposition of the death penalty.

State v. Simmons, 286 N.C. 681, 688-89, 213 S.E.2d 280, 286 (1975), Vacated on other grounds, 428 U.S. 903, 96 S.Ct. 3207, 49 L.Ed.2d 1208 (1976).

While footnote 9 is merely a comment parenthetical to the Witherspoon Court's recitation of the proceedings in the trial court, footnote 21 is keyed to and is a corollary of the textual...