Spencer v. Com.

• Decision Date: 22 September 1989
• Docket Number: Nos. 890096,890097,s. 890096
• Citation: 238 Va. 295,384 S.E.2d 785
• Parties: Timothy Wilson SPENCER v. COMMONWEALTH of Virginia (Two Cases). Record
• Court: Virginia Supreme Court

Page 785

384 S.E.2d 785

238 Va. 295

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

Record Nos. 890096, 890097.

Supreme Court of Virginia.

Sept. 22, 1989.

Jeffrey L. Everhart, David J. Johnson (Tuck and Everhart, on brief), 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.

In one indictment, Timothy Wilson Spencer was charged with capital murder, i.e., the willful, deliberate, and premeditated killing of Debbie Dudley Davis during the commission of, or subsequent to, rape. Former Code § 18.2-31(e) (1987 Cum.Supp.). In a second indictment, Spencer was charged with the rape of Davis. A third indictment charged Spencer with burglary, i.e., breaking and entering Davis' dwelling house in the nighttime with intent to commit rape. The three indictments were tried together, and a jury found Spencer guilty on each charge. The jury fixed his punishment at life imprisonment for rape and at 20 years' imprisonment for burglary. Following the penalty phase of the capital murder trial, the jury fixed Spencer's punishment at death. After a sentencing hearing, the trial court sentenced Spencer in accordance with each jury verdict.

Spencer's appeal of the capital murder conviction has been consolidated with the automatic review of his death sentence, Code §§ 17-110.1(A) and -110.1(F), and we have given them priority on our docket, Code § 17-110.2. By order entered January 26, 1989, Spencer's appeals of the rape and burglary convictions were certified from the Court of Appeals and consolidated with the capital murder appeal. Code § 17-116.06.

I FACTS

Under settled principles of appellate review, we will recite the evidence and all The police checked Division of Motor Vehicles records, which revealed that the automobile was registered to Debbie Dudley Davis. The address listed for Davis was an apartment four blocks from where the car had been abandoned.

inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial. On Saturday, September 19, 1987, between 1:00 a.m. and 2:00 a.m., a Southside Richmond resident noticed a strange automobile parked outside his home. When he awoke at 6:30 a.m. Saturday morning, the car was still parked in front of his house, the keys were in the ignition, and the engine was running. The resident[238 Va. 300] called the Richmond Bureau of Police to report the abandoned automobile.

When the police arrived at Davis' apartment at 9:35 a.m., they found Davis' body lying face down on her bed. She was clad only in a pair of shorts. Around her neck was a black sock used as a ligature. The ligature was tied around a section of vacuum cleaner pipe, which had been used as a ratchet-device to tighten the sock around Davis' neck. Tied to the neck ligature were shoestrings that bound the victim's left wrist in front of her and her right wrist behind her.

The medical examiner determined that the cause of death was "[l]igature strangulation" caused by "very extreme pressure." The ligature, tightened down and "twisted two or three times" with the vacuum cleaner pipe, had cut "into the larynx, the voice box, [and] the muscles on the side of the neck." The "intense blood pressure congestion" in the victim's head due to the ligature had caused hemorrhage in one of her eyes. The victim also suffered bruising to her nose and mouth.

Three semen stains were found on the comforter from the victim's bed. The fitted bed sheet contained four semen stains. Two "characteristically negroid" hairs were found when Davis' pubic area was combed. The posterior portion of the victim's vagina was bruised. Microscopic examination of smears made from the rectal and vaginal swabs obtained from Davis' body revealed the presence of spermatozoa.

Entry to Davis' apartment had been gained by raising the screen in a kitchen window located approximately eight feet above the ground. Under the window was a rocking chair that had been stolen from the porch of a nearby residence between Friday afternoon and Saturday morning. Inside the kitchen immediately beneath the window was the kitchen sink and counter top. There was no evidence of disarray in Davis' apartment, except that her eyeglasses and toothbrush were found on the floor of the hallway leading to her bedroom.

At the time of Davis' murder, Spencer was living in a Richmond residence approximately 2.7 miles from Davis' apartment. A walk between Davis' apartment and Spencer's residence takes about 37 minutes. Spencer had left his residence at 7:30 p.m. on Friday, September 18, and had not returned until 12:30 a.m. on Saturday, September 19. Davis, who had had a telephone conversation with her parents Friday evening, was last known to have been alive between 8:30 p.m. and 9:00 p.m. Friday.

Forensic analysis established that the two Negroid hairs combed from Davis' pubic area "were consistent with" Spencer's underarm hair. Analysis of the semen stains found on Davis' comforter and bed sheet showed that the stains had been deposited by a "secretor," i.e., one whose blood characteristics are expressed in other bodily fluids. Analysis of Spencer's blood and saliva samples established that Spencer, who is a secretor with blood type O, PGM type 1, PGM subtype 1+, and peptidase A type 1, was "included in a group [comprising approximately 13 percent of the population] that could have contributed the seminal fluid" found on the comforter and bed sheet.

Spencer's blood sample and the semen collected from the comforter and from the bed sheet were subjected to a forensic procedure that detects and labels the unique configurations of an individual's deoxyribonucleic acid (DNA) molecules, the substance that carries a person's genetic information. ¹

¹ This "DNA print identification" technique established that the DNA molecules extracted from Spencer's blood were identical to the DNA molecules extracted from the semen stains. Spencer is a black male. The statistical likelihood of finding duplication of Spencer's particular DNA pattern in the population of North American blacks is one in 705 million. There are approximately 10 million black males in North America.

II

PRETRIAL MATTERS

A Constitutionality of the Death Penalty

By a pretrial motion to dismiss, Spencer challenged the constitutionality of the death penalty. The trial court rejected his several contentions, and Spencer assigns error to the rulings.

Spencer first contends that "[t]he death penalty is, in all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the United States Constitution." He further contends that the "facts and circumstances" in the present case do not justify imposition of the death penalty; thus, he asserts, the death penalty statute is "cruel and unusual punishment" as applied to him. Reaffirming our previous holdings, we reject Spencer's contention that the death penalty constitutes "cruel and unusual punishment." See, e.g., Spencer v. Commonwealth, 238 Va. 275, ----, 384 S.E.2d 775, 777 (1989) (this day decided) (compiling cases) (Spencer I ).

We also reaffirm our previous holdings and reject Spencer's claims that a capital sentencing jury is vested with an unconstitutional degree of discretion, see, e.g., 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), and that Virginia's statutory aggravating factors are unconstitutionally vague, see, e.g., Hoke v. Commonwealth, 237 Va. 303, 305, 377 S.E.2d 595, 597, cert. denied, 491 U.S. ----, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989); Gray v. Commonwealth, 233 Va. 313, 320-21, 356 S.E.2d 157, 161, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987) (compiling cases). ²

B Right of Spencer to Act as Co-counsel

Spencer also filed a pretrial motion requesting that he be permitted "to participate as co-counsel in the presentation of his own defense." He contends that he has the constitutional right to act as co-counsel. We do not agree.

Spencer, of course, has a Sixth Amendment right to counsel. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). He also has the right to conduct his own defense. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). See also Townes v. Commonwealth, 234 Va. 307, 318, 362 S.E.2d 650, 656 (1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988). Spencer, however, did not assert his right to conduct his own defense. Instead, he asserted a "hybrid" right, i.e., both the right to the assistance of counsel and the right to serve as co-counsel.

Under Faretta, a pro se defendant retains actual control over the case he chooses to present. McKaskle v. Wiggins, 465 U.S. 168, 178, 104 S.Ct. 944, 951, 79 L.Ed.2d 122 (1984). Indeed, control "is the core of the Faretta right." Id. Conversely, when a defendant does not assert his Faretta right, counsel has control over the presentation If a defendant were permitted to act as co-counsel, however, such a "hybrid" representation could promote a conflict over who controls tactical trial decisions, thereby frustrating the orderly conduct of the trial. "Faretta does not require a trial judge to permit 'hybrid' representation," McKaskle, 465 U.S. at 183, 104 S.Ct. at 953, and we hold that no such constitutional right exists. ³

of the case. See Townes, 234 Va. at 320, 362 S.E.2d at 657.

C Discovery Claims

Spencer filed a pretrial motion seeking, inter alia, written scientific reports and the "work notes [or] memoranda" that were the basis of the reports. The trial court granted the motion as to the reports, but ruled that the "work notes are not discoverable." We agree.

Spencer's discovery rights are controlled by Rule 3A:11. While that Rule permits a defendant to discover...