Smith v. Com.

Decision Date02 March 1990
Docket NumberNo. 890885,890885
Citation239 Va. 243,389 S.E.2d 871
CourtVirginia Supreme Court
PartiesRoy Bruce SMITH v. COMMONWEALTH of Virginia. Record

Paul A. Maslakowski; Edward A. Mann, Manassas, (Byrne and Mann, on brief), for appellant.

Richard A. Conway, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., H. Elizabeth Shaffer, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

In the first phase of a bifurcated proceeding conducted pursuant to Code §§ 19.2-264.3 and -264.4, a jury convicted Roy Bruce Smith of capital murder in the willful, deliberate, and premeditated killing of a law enforcement officer for the purpose of interfering with the performance of the officer's official duties. Code § 18.2-31(f). Then, in the second phase, the jury fixed Smith's sentence at death.

In a subsequent sentencing hearing, the trial court received the report of a probation officer and imposed the sentence of death. Code § 19.2-264.5. Smith is here for automatic review of his death sentence, which we have consolidated with the appeal of his conviction for capital murder. Code § 17-110.1(A) and (F). 1

According to familiar principles, we will state the evidence in the light most favorable to the Commonwealth. The record reveals that Smith, a 41-year old computer technician, resided with his spouse in a townhouse development in the City of Manassas, Prince William County.

On July 24, 1988, a Sunday, Mrs. Smith announced that she was "going to her company picnic." She departed about noon without inviting Smith to accompany her, which caused him to feel "pretty letdown." He began drinking, consuming "eleven beers" between 2:30 p.m. and 6:30 p.m.

That evening, Smith decided to go to Noble's Restaurant in Manassas to "get something to eat." As he was leaving home, Mrs. Smith "was just driving in." They did not communicate with one another "at that time."

According to Pat Davis, manager of Noble's Restaurant, Smith, who frequented the place "one or two times a week," arrived at the restaurant "around 8:00 o'clock." He had three beers and a hamburger dinner. He became "obnoxious" when he "started talking about his ... girlfriend." He stated that "[h]e wanted [the girl friend] to move ... to Manassas, except his wife wouldn't allow it." He also said that "[i]f he couldn't have his ... girlfriend, he wanted to commit suicide."

When customers began complaining about Smith's behavior, Davis "asked him to vacate" the premises even though he had not finished "the beer that he had in front" of him. As he was leaving, the manager observed what "look[ed] like a gun in the left side of his pocket."

Smith left Noble's "right at eight-thirty" and returned home. When he arrived, Mrs. Smith "was not there" and "some of her personal belongings" were missing. Smith "became very upset" and took a ".357 Magnum out of the gun case." He then took an "AR15" rifle out of its gun case and "put the bayonet on it." Finally, he took a ".44 Magnum out," attached it to a "web belt," and put clips "for the AR15" in the "web belt pouches." He also loaded the AR-15 rifle.

Linda and Emmett Cottrell were Smith's next-door neighbors. On the evening in question, Ms. Cottrell came out of her house and saw Smith sitting on his front porch. Referring to his wife, Smith asked: "Where's the bitch?" Ms. Cottrell replied that she did not know and left to visit a neighbor.

About 8:45 p.m., Emmett Cottrell observed Smith sitting on the front steps of his home. Smith was holding a rifle with a bayonet "on the end of it," pointing "straight in the air." 2 The defendant told Cottrell that "[t]he bitch ha[d] left [him]" and that he was "not going to make it through the night."

Previously, Smith had discussed his personal affairs with the Cottrells' seventeen-year-old daughter, Chrissy. Smith told Chrissy that he was in love with his girl friend and that, if he could not have the girl, "then he didn't want to live." On the evening in question, Chrissy saw Smith sitting While Smith and Emmett Cottrell sat talking, Smith "fired one round into the air." A few minutes later, "kids across the street" set off some fireworks, and Smith fired two rounds "in that general direction." When Cottrell said he had "had enough," Smith stated: "I hope somebody calls the police because I'll shoot the first one that arrives and I hope they shoot me in return."

                on his front porch, holding "a big gun" between his legs.  She heard him say that "he hoped ... somebody would call the cops because one way or another someone was going to die tonight."   Chrissy then left to visit a neighbor

Daniel Wood, another of Smith's neighbors, remonstrated with Smith about firing the weapon. Wood told Smith: "You know, sir, [you] shouldn't really do that" and "[y]ou're going to get yourself in some serious trouble." Smith replied: "Well, hey, m______ f______, you ain't seen nothing yet. You wait till I start shooting people." Wood walked away, and Smith hollered: "Yes, that's all I'm waiting [for] is [for] somebody [to] call the police ... then you [will] really start seeing some shooting. I'll probably shoot the first one I see."

Wood went into a neighbor's house and called the police. He urged the dispatcher "to tell them to be on extreme caution because the man seems to mean business."

Just before 9:00 p.m., a number of police officers arrived on the scene and parked where their vehicles would not arouse Smith's suspicions. Officer Anderson, in one of the units, observed Smith "sitting on his front porch." Anderson directed the dispatcher to "[h]ave a unit cruise around ... to the rear of the townhouses." The dispatcher relayed the order to Sgt. John Conner, a uniformed officer, who indicated that "he was en route."

At this point, Smith "was still on [his] front steps," but when "some person ... started across the street," Smith "immediately got up" and went inside. In a few moments, Sgt. Conner reported on his portable radio: "I've got him in sight he's coming out the back door." Other officers proceeded toward the rear of the house, and one of them, James K. Ryan, heard Sgt. Conner say: "Drop the rifle, drop the rifle now." Ryan then heard "gunfire going off," consisting of "eight to 12 ... real sharp ... cracks," followed by "a short pop and after that ... there was a succession of real sharp cracks again." 3

Ryan heard a man "groaning or ... moaning" and, when he ran around the end of a fence separating Smith's back yard from his neighbor's, he saw Sgt. Conner lying on the ground in a "bare spot in the alleyway." Ryan observed "a lot of blood around [Conner's] head and two wounds in his back." Ryan left Conner in the care of another officer and went to help subdue Smith, who was struggling with several officers some twenty to twenty-five feet from Conner's location.

Officer Steven Bamford "started up the alleyway" after he heard the shots fired. When he arrived at the rear of Smith's house, he saw Smith "crouching down [or sitting] next to the deck" with "a long barreled weapon laid across his lap." A light above the door to Smith's house "shown back out onto the alleyway and that yard, [and] illuminated that area."

As Bamford "took a step," Smith saw him and tried to "put a magazine in the bottom of the weapon." Bamford attempted to "get back out of the way," but slipped and fell. When he regained his feet, Smith started to get up, and Bamford pointed his shotgun at him and yelled, "[d]rop it" several times. Smith said, "I give up, I give up" and dropped his rifle, which was still equipped with a bayonet.

Bamford told Smith to get down on his knees. Smith complied, but when Bamford ordered him to "put his hands on the ground and walk out, to lay flat," Smith refused. A struggle ensued involving several officers, who were unable to "get the During the struggle, Smith told the officers to "[g]o ahead and kill [him]." After he was subdued, Smith said that Conner was the "first priority, take care of him, take care of him. He's one of us, he's one of ours."

rifle from under [Smith]." When one of the officers said, "he's got another gun," Bamford kicked Smith in the face, but he continued to struggle. The struggle ended only after Smith had been placed in leg restraints and handcuffed behind his back.

Mortally wounded, Sgt. Conner died several hours later. In the gun battle with Smith, Conner suffered wounds to his right leg, right forearm, back, and head. The wound to the head, which caused "a peach size section of skull [to be] missing," proved fatal. Gunpowder debris was found in the head wound, indicating the wound was caused by a gunshot fired within three feet if inflicted by a handgun or six feet if inflicted by a rifle.

Conner also suffered a wound to his left thigh, apparently self-inflicted. After the officers had handcuffed Smith, they heard a gunshot and saw "smoke coming out from around [Conner's] belly." Conner's nine-millimeter revolver was found in his right hand, underneath his body, pointing toward his left thigh.

In addition to the AR-15 rifle the police officers seized during the struggle, Smith had on his person a Ruger .44 magnum revolver with a ten-inch barrel and a Ruger .357 magnum revolver. The twenty-cartridge magazine for the AR-15 rifle contained three live cartridges, and another live cartridge was jammed in the firing chamber. The .44 magnum revolver was fully loaded with six live cartridges. The cylinder of the .357 magnum revolver contained three live cartridges and three spent casings. An ammunition belt taken from Smith's person contained seven clips of live ammunition for the AR-15 rifle.

The officers found behind Smith's house ten empty .223 caliber cartridge casings, which had been discharged by the AR-15 rifle. One casing was discovered midway along the fence line between Smith and his neighbor, and nine were discovered in the alleyway, "directly outside [Smith's] backyard." In the area where...

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