Spencer v. Com.

• Decision Date: 22 September 1989
• Docket Number: Nos. 881268,881288,s. 881268
• Citation: 384 S.E.2d 775,238 Va. 275
• Parties: , 84 A.L.R.4th 293, 58 USLW 2226 Timothy Wilson SPENCER v. COMMONWEALTH of Virginia. (Two Cases) Record
• Court: Virginia Supreme Court

Page 775

384 S.E.2d 775

238 Va. 275, 84 A.L.R.4th 293, 58 USLW 2226

Timothy Wilson SPENCER v. COMMONWEALTH of Virginia. (Two Cases)

Record Nos. 881268, 881288.

Supreme Court of Virginia.

Sept. 22, 1989.

Carl G. Womack, Jr., Thomas J. Kelley, Jr., Arlington, for appellant.

Donald R. Curry, Sr. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richard A. Conway, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

Timothy Wilson Spencer was indicted for the capital murder of Susan Tucker, i.e., the willful, deliberate, and premeditated murder during the commission of, or subsequent to, rape. Former Code § 18.2-31(e) (1987 Cum.Supp.). Spencer also was indicted for the rape of Tucker.

In a bifurcated trial conducted pursuant to Code §§ -264.3 and 19.2-264.4, a jury convicted Spencer of capital murder and fixed his punishment at death. The jury also convicted Spencer of rape and fixed his punishment at life imprisonment. Following a sentencing hearing, the trial court imposed the sentences fixed by the jury and entered judgments on the jury verdicts.

We have consolidated the automatic review of Spencer's death sentence with his appeal of the capital murder conviction, Code §§ 17-110.1(A) and -110.1(F), and have given them priority on our docket, Code § 17-110.2. By order entered November 29, 1988, Spencer's appeal of the rape conviction was certified from the Court of Appeals and consolidated with the capital murder appeal. Code § 17-116.06.

I

Under established principles of appellate review, we will view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commonwealth. On the evening of Tuesday, December 1, 1987, the nude body of Susan Tucker was found lying face down on the bed in the ransacked master bedroom of her Arlington townhouse. A slip-knotted rope was tied around Tucker's neck; the free end of the knotted rope had been used to tie Tucker's hands behind her back. The medical examiner determined the cause of death to be "[s]trangulation by ligature." Tucker had been dead three to five days before her body was found.

When Tucker's body was discovered, a blue sleeping bag was partially draped over her buttocks, a brown blanket was underneath her, and her nightgown was on the bed. There were large semen stains on all three items. "[P]ubic hairs of Negroid origin" were found on the blanket and in the bathroom sink and on the counter around the sink. Negroid pubic hairs also were found on a washcloth that apparently had been taken from Tucker's bathroom and dropped on a bush a short distance from Tucker's home.

Tucker's murderer had entered the townhouse by breaking a sliding basement window located under the balcony at the rear of the house. Glass samples of the broken window were taken.

On January 20, 1988, Arlington County Police arrested Spencer, a black male, in the City of Richmond on a warrant charging burglary. At the time of his arrest, police seized a camouflage jacket from Spencer. After advising him of his rights, a police officer asked Spencer to voluntarily give blood, hair, and saliva samples. Although the officer told Spencer he was charged with burglary, Spencer asked "if this had anything to do with the rape." When the officer informed him that the crime had occurred in Arlington, Spencer inquired, "Does this have anything to do with the murder then?" Spencer had visited his mother's Arlington home over the Thanksgiving holiday, arriving Thanksgiving morning, November 26, and departing the following Sunday, November 29. Spencer's mother lived approximately seven blocks from Tucker's townhouse.

The medical examiner who performed the autopsy obtained oral, rectal, and vaginal swabs and a blood sample from Tucker's body. The vaginal swab was taken by inserting the swab "as high in the vaginal cavity as it will go;" the swab did not contact the external genitalia. The medical examiner's microscopic examination revealed "four to eight" intact, non-motile sperm in smears made from the vaginal swab. No sperm was observed in the smears made from the anal and oral swabs.

A forensic serologist who subsequently made smears from the swabs taken by the medical examiner found two sperm on the rectal smears but found no sperm on either the vaginal or oral smears. The serologist explained that she had had to rehydrate the dry swabs before testing them. Consequently, the water diluted any seminal fluid present on the swabs, making the sperm more difficult to detect.

Forensic analysis established that the Negroid pubic hairs found on the washcloth, on the blanket from Tucker's bed, and on the bathroom sink were microscopically consistent "in all identifiable characteristics" with known samples of Spencer's pubic hair. Forensic scientists also determined that glass fragments found in Spencer's camouflage jacket matched the optical properties of Tucker's broken basement window. Only two percent of glass examined at the state laboratory has had the same optical properties.

Analysis of the semen stains found on Tucker's nightgown, the blanket, and the sleeping bag established that the stains were left by a "secretor," i.e., a person whose blood characteristics are expressed in other bodily fluids. Analysis further determined that the individual had blood type O and enzyme groupings of PGM type 1, PGM subtype 1+, and peptidase A type 1. Analysis of Spencer's blood and saliva samples showed that they matched in all respects the secretions found at the crime scene. This particular combination of blood type and enzyme groupings is shared by approximately 13% of the population.

Spencer's blood sample and the semen collected from the nightgown and the sleeping bag also were subjected to "DNA printing." ¹ "DNA" is the abbreviation for deoxyribonucleic acid, which is the chemical that carries an individual's genetic information. The DNA printing technique was used to compare DNA molecules extracted from Spencer's blood with DNA molecules extracted from the semen found at the crime scene. The DNA printing test established that the genetic material in Spencer's blood sample had the same characteristics as the genetic material in the semen stains on the nightgown and the sleeping bag. Such characteristics would be present in one of every 135 million black individuals. There are approximately ten million adult black males in the United States.

II

Prior to trial, Spencer moved to dismiss the capital murder indictment on the ground that "imposition of the death penalty constitutes cruel and unusual punishment" in violation of Article I, § 9 of the Constitution of Virginia and the Eighth Amendment of the Constitution of the United States. The trial court denied the motion, and Spencer has assigned error to the ruling.

In numerous cases, we have held that the death penalty does not constitute cruel and unusual punishment. See, e.g., Pope v. Commonwealth, 234 Va. 114, 121-22, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 716 (1988); Gray v. Commonwealth, 233 Va. 313, 320, 356 S.E.2d 157, 160, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); Beaver v. Commonwealth, 232 Va. 521, 527, 352 S.E.2d 342, 345-46, cert. denied- , 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987); Stockton v. Commonwealth, 227 Va. 124, 134-35, 314 S.E.2d 371, 378, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Whitley v. Commonwealth, 223 Va. 66, 77-78, 286 S.E.2d 162, 168-69, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982); Bassett v. Commonwealth, 222 Va. 844, 851, 284 S.E.2d 844, 849 (1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982); Martin v. Commonwealth, 221 Va. 436, 439-40, 271 S.E.2d 123, 125-26 (1980); Clark v. Commonwealth, 220 Va. 201, 212, 257 S.E.2d 784, 791 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980); and M. Smith v. Commonwealth, 219 Va. 455, 476, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). We adhere to our previous holdings and reject Spencer's contention.

On appeal, Spencer also contends that the death penalty is unconstitutional because a sentencing jury is given excessive discretion and the statutory aggravating factors are "unconstitutionally vague." These constitutional challenges were not raised at trial and, therefore, are barred from appellate review. Rule 5:25; see Fisher v. Commonwealth, 236 Va. 403, 410, 374 S.E.2d 46, 50 (1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201 (1989). ²

III

The trial court excluded four prospective jurors for cause because they were unwilling to consider imposing the death penalty. Spencer concedes that three of these veniremen stated unequivocally on voir dire that they would not impose the death penalty under any circumstances. Spencer also acknowledges that the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), ruled that such an exclusion is proper. He contends, nonetheless, that we have "never addressed whether the exclusion ... violates a defendant's right to [an impartial jury of his peers]" as guaranteed by Article 1, § 8 of the Constitution of Virginia.

In Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988), however, Townes claimed that such an exclusion violated both his Federal and Virginia constitutional guarantees of trial by an impartial jury of one's peers. ³ We rejected Townes' arguments, id. at 327, 362 S.E.2d at 661, and, adhering to our previous rulings, e.g., Pruett v. Commonwealth, 232 Va. 266, 277-78, 351 S.E.2d 1, 7-8 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987), we now reaffirm that the exclusion of such jurors does not violate either the Federal or Virginia Constitutions. See also Lockhart v. McCree, 476...