Stockton v. Com.

Citation241 Va. 192,402 S.E.2d 196
Decision Date01 March 1991
Docket NumberNo. 901320,901320
PartiesDennis Waldon STOCKTON v. COMMONWEALTH of Virginia. Record
CourtSupreme Court of Virginia

Karen I. Meyer, Barry L. Johnson (William E. Cook, Jr., Carolyn M. Landever, Kevin L. Anderson, Kathy Gear Owens, Arnold & Porter, on briefs), for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., John H. McLees, Jr., Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

On March 23, 1983, a jury in the Circuit Court of Patrick County convicted Dennis Waldon Stockton of murder for hire and fixed his punishment at death. The trial court imposed the death penalty, and this Court affirmed both the conviction and the sentence. Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371 (1984) (Stockton I ). The Supreme Court of the United States denied certiorari. Stockton v. Virginia, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

On June 18, 1987, the United States District Court for the Western District of Virginia found that Stockton had been denied a fair trial. This finding was based upon a prejudicial remark made by a third party in the presence of jurors during a luncheon recess in the sentencing phase of Stockton's trial. The district judge granted Stockton a writ of habeas corpus and ordered that he either be given a new sentencing hearing or sentenced to life imprisonment. Stockton v. Virginia, Civil Action No. 86-0106-D (W.D.Va.1987). This order was affirmed on appeal, Stockton v. Virginia, 852 F.2d 740 (4th Cir.1988), and the Supreme Court denied certiorari, Virginia v. Stockton, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989).

Upon return of the case to the Circuit Court of Patrick County, the court granted a change of venue and ordered that the new sentencing hearing be conducted in the Circuit Court of the City of Newport News. A jury in that court heard evidence both in aggravation and in mitigation and fixed Stockton's penalty at death. On July 30, 1990, the trial judge imposed the death penalty, and the matter is here for automatic sentence review pursuant to Code § 17-110.1.

At the new sentencing hearing, the trial court informed prospective jurors that Stockton earlier had been found guilty of murder for hire and that the function of the new jury would be to determine an appropriate sentence for the defendant. Over Stockton's objection, a transcript of the testimony given during the guilt phase of Stockton's original trial was read to the jury.

In brief, the testimony showed that in June of 1978, Stockton overheard Tommy McBride offer Randy Bowman $1,500 to kill Kenneth Arnder because of the latter's failure to pay McBride for drugs he had purchased. Stockton said he needed money and would kill Arnder for McBride.

Arnder's mother last saw Kenneth alive on July 20, 1978, when he left her home with Stockton en route to Kibler Valley in Patrick County. On July 25, Kenneth Arnder's body was found in a remote area of Surry County, North Carolina. Arnder had been shot once between the eyes, and both his hands had been severed above the wrists.

Stockton admitted on at least three occasions that he killed Arnder. For example, in an admission to a cellmate during a period of confinement in 1980, Stockton stated that he killed Arnder because the latter "had ripped somebody off for some drugs," that he had been hired to kill Arnder, and that the killing occurred at Kibler Valley in Patrick County, Virginia. Later, Stockton and the same cellmate "got in a fight." Stockton said "he'd cut Arnder's hands off and he'd do [the cellmate] the same way."

I. Shackling of Stockton

Prior to the start of jury selection, Stockton was brought into the courtroom shackled around his ankles. Defense counsel told the trial court that he "thought Mr. Stockton was going to be unshackled." When the sheriff stated he had been told Stockton "was an escape risk and security risk," the trial judge refused to order the shackles removed.

After the luncheon recess, defense counsel informed the court that Stockton wished to remain in jail during the remainder of jury selection. Stockton was brought to the courtroom so he could discuss the issue with the court. He complained, among other things, about having to appear before the jury in shackles. During the discussion, he stated he wanted to discharge his counsel and represent himself. When the trial court indicated disapproval, Stockton called the judge a "crook" and a "vile son-of-a-bitch." The judge then ordered Stockton removed from the courtroom.

Thereafter, Stockton refused to return to the courtroom unless allowed to appear unshackled. The trial judge repeatedly told defense counsel that Stockton would be allowed to return if he agreed to conduct himself properly. On the second day following his removal, he was allowed to return to the courtroom, and he apparently remained unshackled for the remainder of the resentencing hearing.

Citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), Stockton contends his appearance in shackles was inherently prejudicial to his constitutional right to a fair and impartial jury. 1 The shackling was especially prejudicial during his sentencing hearing, Stockton asserts, since the jurors would be required to determine whether he posed a future danger to society, and the trial court's refusal to order the shackles removed "was tantamount to a declaration ... of [the court's] belief that Stockton did pose such a danger." Accordingly, Stockton says, his shackling in front of prospective jurors was prejudicial error requiring a new sentencing proceeding.

We disagree with Stockton. The basic reason for our disagreement is that " 'a trial judge's decision to shackle a defendant is not per se unconstitutional.' " Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.1990) (quoting Spain v. Rushen, 883 F.2d 712, 716 (9th Cir.1989)). "[T]rial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case." Allen, 397 U.S. at 343, 90 S.Ct. at 1061.

Further basis for our disagreement with Stockton is found in Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986). There, on trial for the capital murder of a law enforcement officer, Frye was "restrained by chains or handcuffs ... visible to the jury." Id. at 381, 345 S.E.2d at 276. He argued that being so restrained prejudiced him before the jury.

In rejecting Frye's argument, we said:

While we agree that requiring a defendant to stand trial in physical restraints may create prejudice in the minds of jurors by suggesting that the defendant is dangerous or that his guilt is a foregone conclusion, we also believe that in extraordinary cases such shackling of the defendant is necessary to protect the rights of those present in the courtroom and society at large.


A trial court may consider various factors in determining whether a defendant should be restrained, such as the seriousness of the charge, the defendant's temperament, age, and physical attributes, his criminal record, and any past escapes, escape attempts, or threatened misconduct. This determination need not be made upon a formal hearing, and the information upon which it is based need not be evidence formally offered and admitted at trial.

Id. at 381-82, 345 S.E.2d at 276 (citations omitted).

This rationale applies with equal force here. Indeed, considering that Stockton stood before the court already convicted of a capital offense, he had an enhanced motive to attempt an escape and, in the process, to injure anyone who stood in his way, be they court officials or spectators. Hence, there was more reason to restrain him. His offense was grave, he had a propensity for violent crime, and he had a record of escape. He also had previously cursed and made disparaging remarks about the trial judge. In short, this was one of those "extraordinary cases [where] shackling of the defendant is necessary to protect the rights of those present in the courtroom and society at large." Id. at 381, 345 S.E.2d at 276.

II. Refusal to Exclude Prospective Juror for Cause

Stockton contends that the trial court erred in refusing to exclude for cause prospective juror William H. Savage. On voir dire, Savage stated that, two years earlier, his grandson had been shot and killed and that the killers had not been apprehended. Savage also said that he belonged to a group called "Family and Friends Against Crime Today," which was formed by Savage's wife and daughter to publicize the murders of the grandson and other young victims so the group could "solve some of these murders." When asked if he would like to see his grandson's killers executed, Savage replied in the affirmative.

Stockton says that Savage's voir dire examination showed he was so biased and prejudiced that he was incapable of serving as an impartial juror. Hence, Stockton concludes, the trial court "committed manifest error in not excluding [Savage]."

We do not agree. Whether a prospective juror stands indifferent to the cause is a matter for the exercise of discretion.

Because the trial judge has the opportunity, which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand, the trial court's exercise of judicial discretion in deciding challenges for cause will not be disturbed on appeal, unless manifest error appears in the record.

Pope v. Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352, 358 (1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 716 (1988) (citation omitted).

Membership in a particular organization does not per se disqualify a prospective juror. United States v. Frank, 901 F.2d 846, 849 (10th Cir.1990) (prospective juror in sexual assault case founding member of MADD). Nor is a prospective juror per se disqualified because a family member...

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