Spencer v. Com.

• Decision Date: 08 June 1990
• Docket Number: 900002,Nos. 900001,s. 900001
• Citation: 393 S.E.2d 609,240 Va. 78
• Parties: Timothy Wilson SPENCER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 609

393 S.E.2d 609

240 Va. 78

Timothy Wilson SPENCER v. COMMONWEALTH of Virginia.

Record Nos. 900001, 900002.

Supreme Court of Virginia.

June 8, 1990.

Christopher J. Collins (Jeffrey L. Everhart, Richmond, 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.

RUSSELL, Justice.

In this appeal, we review a capital murder conviction and a death penalty imposed upon Timothy Wilson Spencer. Recently, we have affirmed three other such convictions and sentences imposed upon Spencer which involve unrelated but strikingly similar crimes, reported as Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 1171 and 110 S.Ct. 759, 107 L.Ed.2d 775 (1990) (Spencer I ); Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990) (Spencer II ); and Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990) (Spencer III ).

I. PROCEEDINGS

In the present case, Spencer was indicted for rape, breaking and entering with intent to commit rape, and capital murder, i.e., willful, deliberate, and premeditated murder during the commission of, or subsequent to, rape, former Code § 18.2-31(e), now Code § 18.2-31(5). At the first stage of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, Spencer was convicted of all three offenses, and his punishment was fixed at life imprisonment for rape and 20 years imprisonment for burglary. At the penalty phase of the trial, after hearing evidence in aggravation and mitigation, the jury found both the "future dangerousness" and "vileness" predicates to be present and unanimously fixed Spencer's punishment at death for capital murder. After considering a probation officer's report and conducting a sentencing hearing, the court, by final orders dated October 17, 1989, entered judgments confirming the jury's verdicts.

We have consolidated Spencer's appeal of the capital murder conviction in Record No. 900001 with the automatic review of his death sentence to which he is entitled, Code §§ 17-110.1A and -110.1F, and have given them priority on our docket. Code § 17-110.2. We have also certified Spencer's appeals of his rape and burglary convictions, Record No. 900002, from the Court of Appeals, and have consolidated the two records for our consideration.

II. THE EVIDENCE

We will review the evidence in the light most favorable to the Commonwealth. Diane Cho was a fifteen-year-old girl of Korean descent who lived with her parents and brother in a Chesterfield County apartment complex. On the night of Saturday, November 21, 1987, Diane retired to her bedroom about 10:00 p.m. Her parents heard her typing in her room about 11:30 p.m., but heard no sounds from her room thereafter. Early the next morning, her parents left the apartment to go to work and assumed that Diane was still asleep.

Mr. and Mrs. Cho returned home about 2:00 p.m. that afternoon. They found Diane's body face down on the bed, partially covered by a sheet. Her hands had been bound securely behind her back with a length of rope. Another rope was tied tightly around her neck with a slip knot. The end of that rope came over her back and was tied to her hands. Her body was nude, and her mouth was covered with duct tape. A "figure 8" or "infinity sign" had been painted on her left hip with fingernail polish. She was dead as the result of "ligature strangulation."

The medical examiner examined Diane's body at the crime scene and estimated the time of death at six to twelve hours earlier. There were no signs of struggle in the room and nothing was disturbed in the apartment except the screen covering the window in Diane's room. The window was unlocked and the screen was found on the ground outside. The screen frame had been broken and removed from the window.

The victim's body showed acute vaginal and anal injuries and two bruises on top of the head. There were smears of blood on the buttocks and genital area. Seminal fluid was found in the victim's vagina, and an unusually large amount of seminal fluid was found in three separate stains on a sheet taken from the victim's bed. Bloodstains were also found on the sheet, as well as a single Negroid hair. Mr. and Mrs. Cho stated that no black persons had ever visited them in the apartment.

As a result of a prior penitentiary sentence, Spencer was residing in a "halfway house" on Porter Street, in Richmond, at the time of Diane's murder. The "halfway house" was about six miles from the Cho's apartment. On the night of November 21, 1987, he had "signed out" and left at 7:15 p.m. He did not return until 8:25 p.m. on November 22. He was arrested on January 20, 1988, at the "halfway house." At the time of the arrest, the police discovered, on the fabric covering the box spring under Spencer's mattress, a "figure 8" or "infinity sign." The words "I hope" were printed above this mark.

A serologist examined a known sample of Diane's blood, a known sample of Spencer's blood, secretions found on vaginal swabs taken from the victim, and the material taken from the stains on the bedsheet. A microscopic examination of the hair taken from the bedsheet revealed that it was "microscopically similar" to a known sample of Spencer's underarm hair.

The serologist made a comparative blood type and enzyme analysis of the blood samples, secretions, and stains. The victim was identified as a Type A secretor, PGM type 2-1, PGM subtype 2+1+ and peptidase A type 1. Spencer was identified as a Type O secretor, PGM type 1, PGM subtype 1+, and peptidase A type 1. The expert testified that a bedsheet stain "would probably be pure seminal fluid." This sample corresponded to Spencer's bloodtype and enzyme grouping in all respects. Spencer belongs to a group comprising approximately 13% of the population which could have been the source of this stain. The vaginal specimen and the other bedsheet stains were mixed with blood. They were consistent with a mixture of Spencer's bloodtype and enzyme grouping with that of the victim.

DNA printing analysis of the bloodstained material from the bedsheet was unsuccessfully attempted, using the techniques described in Spencer I, II, and III. Only an insufficient quantity of DNA could be isolated from the stains, probably due to dilution by the victim's vaginal bleeding. Nevertheless, a DNA analysis was made by a process known as PCR DNA amplification. This process, discussed below, replicates isolated DNA to permit a comparative analysis. The analysis thus made identified Spencer's "DQ-Alpha genotype" as 1.2 and 2, which occurs in about 5% of the population. The victim's "DQ-Alpha genotype" was 3 and 4. The "DQ-Alpha genotype" found in the DNA isolated from the victim's vaginal smear, as well as that found on the three bedsheet stains, was identical to Spencer's and unlike the victim's. This particular "DQ-Alpha genotype," combined with Spencer's bloodtype and enzyme grouping, results in a combination that occurs in slightly less than 1% of the population.

III. ISSUES PREVIOUSLY DECIDED

Spencer's appeal raises a number of legal issues which are resolved by our previous decisions. Accordingly, we will not discuss them beyond giving citations to representative cases in which those issues were decided adversely to Spencer's claims. The issues raised here which have been expressly rejected previously are:

A. The death penalty constitutes cruel and unusual punishment. See Spencer III, 238 Va. at 568-69, 385 S.E.2d at 853.

B. The categories of aggravating circumstances in the capital murder statutes are unreasonable and arbitrary, facially and as applied. See id. at 568-69, 385 S.E.2d at 853-54.

C. The aggravating circumstances set forth in the capital murder statutes are unconstitutionally vague. See id. at 569, 385 S.E.2d at 853-54.

D. Jurors have excessive authority in determining punishment. See id. at 569, 385 S.E.2d at 853.

E. The defendant should have been allowed additional peremptory strikes. See Buchanan v. Commonwealth, 238 Va. 389, 405, 384 S.E.2d 757, 767 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990).

F. The guilt phase and the penalty phase of the trial should have been tried by different juries. See 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).

G. The defendant should have been able to argue to the jury, at the penalty phase, that if he received life imprisonment he would be ineligible for parole because of prior convictions. See Watkins v. Commonwealth, 238 Va. 341, 351, 385 S.E.2d 50, 56 (1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1797, 108 L.Ed.2d 798 (1990).

IV. ISSUES PROCEDURALLY DEFAULTED

Spencer assigns error to a series of rulings by the trial court to which no contemporaneous objection was stated with reasonable certainty. Those assignments are:

A. The defendant was denied a right to a speedy trial pursuant to Code § 19.2-243.

B. The court should have granted a change of venue. ¹

C. The court should have excused a group of veniremen which had been instructed that the defendant had a right not to testify.

D. The court erred in permitting the introduction of videotape evidence from Spencer's former trials.

E. The court erred in allowing the Commonwealth to prove that from January 1, 1987 until the date of trial, there had been no similar crimes in the areas of Arlington, Richmond, or Chesterfield, except for the four murders in which Spencer was implicated.

F. The court should not have permitted the Commonwealth to argue that certain differences between the four crime scenes could be explained by the murderer's skill increasing with experience. ²

G. The court should have...