Swisher v. Com.
| Decision Date | 06 November 1998 |
| Docket Number | Record No. 980678.,Record No. 980677 |
| Citation | 506 S.E.2d 763,256 Va. 471 |
| Parties | Bobby Wayne SWISHER v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Gordon W. Poindexter, Jr.; James W. Curd (Poindexter & Schorsch, on brief), Waynesboro, for appellant.
Pamela A. Rumpz, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: All the Justices.
In these appeals, we review the capital murder conviction, sentence of death, and related convictions imposed upon Bobby Wayne Swisher.
On April 28, 1997, an Augusta County grand jury indicted Swisher for the following offenses: capital murder of Dawn McNees Snyder in the commission of abduction with the intent to defile the victim of such abduction or in the commission of or subsequent to rape or forcible sodomy in violation of Code § 18.2-31; abduction with intent to defile Snyder in violation of Code § 18.2-48; rape of Snyder in violation of Code § 18.2-61; and forcible sodomy of Snyder in violation of Code § 18.2-67.1.
Swisher was tried before a jury and found guilty of the charged offenses. The jury fixed Swisher's punishment at life imprisonment for the abduction with intent to defile conviction, life imprisonment for the rape conviction, and life imprisonment for the forcible sodomy conviction. In the penalty phase of the capital murder trial, the jury fixed Swisher's punishment at death, finding that he represented a continuing serious threat to society and that his offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim. After considering a report prepared by a probation officer pursuant to Code § 19.2-264.5, the trial court sentenced Swisher in accord with the jury verdicts.
We have consolidated the automatic review of Swisher's death sentence with his appeal of the capital murder conviction. Former Code § 17-110.1(F).1 Swisher's appeal of his non-capital convictions was certified from the Court of Appeals, former Code § 17-116.06, and was consolidated with his capital murder appeal and given priority on our docket.
On February 5, 1997, Dawn McNees Snyder disappeared from a florist shop where she worked in Stuarts Draft in Augusta County. Her body was found on February 21, 1997, near a riverbank about two miles from the florist shop. Animals had eaten extensive portions of her face, neck, and upper chest, and her identity was established by use of her dental records.
On February 22, 1997, the defendant, age 20, was at an apartment with two friends, one of whom was Clarence Henry Ridgeway, Jr. Swisher told Ridgeway that Swisher had abducted, raped, sodomized, and killed Snyder. Swisher stated: "You know the woman, Dawn Snyder ... I killed her." Swisher related the following details to Ridgeway.
On February 5, 1997, about 7:15 p.m., Swisher's uncle drove Swisher by car to a grocery store located near the florist shop where Snyder worked. Swisher left the grocery store and walked to the florist shop. Swisher entered the shop, approached Snyder, and said, "I have a gun in my pocket." Swisher showed Snyder a "butcher knife with ridges" and directed her to go with him.
Swisher forced Snyder to leave the florist shop through a rear door, and they walked for some distance until they reached a field by the South River. Then, Swisher stopped Snyder and told her to "suck his dick." He forced her to perform an act of oral sodomy upon him, and he made her remove her clothes. After he raped her, she put her clothes on, and he forced her to perform another act of oral sodomy upon him.
Swisher decided to kill Snyder because she had "seen his face." He "pulled out the butcher knife" that had "ridges around the edge of the blade," and he "slit her across the left side of the face and was holding her; then slit her throat and then gouged her and then tossed her into a river." He walked along the riverbank, watching her in the river, asking her, "[a]re—are you dead yet?" After Snyder floated in the river for awhile, Swisher saw her "crawl up the bank." Then, "he got scared and took off running straight to his house from that field." Swisher threw his knife in the river. When Swisher finished his confession to Ridgeway, Swisher stated that "[i]t feels like [I] could do it again." The following morning, Ridgeway informed the Augusta County Sheriff's Office of Swisher's crimes.
On February 23, 1997, Sergeant William E. Lemerise, Sergeant K.W. Reed, and two other deputies went to a house where Swisher resided with his uncles, Paul H. Swisher and William E. Swisher. Sergeant Reed advised Bobby Swisher that he was a suspect in the murder of Dawn Snyder and asked if Swisher would accompany the deputies to the Sheriff's Office for questioning. Swisher, who did not object, accompanied the deputies. Sergeant Lemerise informed Swisher that he would be required to wear handcuffs while en route to the Sheriff's Office because of a departmental policy which required that the sheriff's personnel transport suspects in restraints for safety considerations. Lemerise told Swisher that he would have to wear these restraints even though he was not under arrest.
When Swisher arrived at the Sheriff's Office, about 10:15 p.m., the handcuffs were immediately removed from him, and he was taken to a "briefing room." The briefing room is an open room with a coffee machine and a drink machine. There are no bars on the windows or door locks in that room. Swisher was permitted to smoke cigarettes, and he was given coffee.
Sergeant Lemerise explained to Swisher that he was not under arrest, that he was a suspect, that the sheriff's personnel were going to ask him some questions, and that he was free to leave. Lemerise asked Swisher "how did he feel about the fact that he could walk out of there if he chose to, words to that effect ... and [Swisher] appeared at that point in time, although he was nervous ... to be fine with the situation."
Swisher spoke with the deputies, but did not confess to the commission of any crimes until after he was arrested and twice read his Miranda rights after midnight on February 24. Swisher admitted, in an audiotaped confession, that he had sodomized, raped, and murdered Snyder by cutting her throat. He also stated that after he cut her throat, he threw her into the South River.
Dr. David Oxley, a medical examiner who performed an autopsy on Snyder's body, was unable to render an opinion about the specific cause of Snyder's death. He did state, however, that it was an inescapable conclusion that Snyder's death was the result of violent causes "probably related to the neck." Dr. Oxley was not able to determine positively whether the victim's throat had been cut because animals had eaten her larynx, trachea, and the large arteries and veins that were in her neck. The highest concentration of blood on the victim's clothing appeared on a shirt around the neck area extending onto the chest area.
Patricia Taylor, a forensic scientist in the Forensic Biology Unit of the Western Regional Laboratory for the Commonwealth of Virginia, qualified as an expert witness on the subject of forensic DNA (deoxyribonucleic acid). She examined some panties that were found on Snyder's body. Her examination revealed that DNA consistent with Swisher's DNA was found in semen deposited on Snyder's panties. Taylor testified that the odds of the DNA found on Snyder's panties belonging to someone other than Swisher were one in 380,000,000 in the Caucasian population.
Spots of blood were found on Swisher's coat. Taylor testified that the DNA profile obtained from that coat is consistent with the DNA profile of Snyder and different from the DNA profile of Swisher. Taylor testified that the probability of randomly selecting an individual unrelated to Snyder who had a DNA profile consistent with the DNA on Swisher's coat was approximately one in 1.3 billion in the Caucasian population. Dr. Taylor testified that the DNA profile obtained from spermatozoa heads extracted from the victim's stomach and esophagus were consistent with Swisher's DNA profile.
Swisher argues that the trial court erred in denying his motion to "declare the Virginia capital murder and death penalty statutes unconstitutional and to prohibit the imposition of the death penalty." Swisher claims that Virginia's death penalty statutes, In support of his contentions, Swisher merely refers this Court to a memorandum of law that he filed in the trial court.
We hold that Swisher's assertions are insufficient and constitute a procedural default. Spencer v. Commonwealth, 240 Va. 78, 99, 393 S.E.2d 609, 622, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990); Jenkins v. Commonwealth, 244 Va. 445, 460-61, 423 S.E.2d 360, 370 (1992), cert. denied, 507 U.S. 1036, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993).
Swisher raised certain issues on appeal which have been decided adversely to his claims by our previous decisions. We adhere to those rulings, and we will not discuss them further. The issues previously resolved are:
(1) Whether the defendant should have been granted additional preemptory challenges. See Strickler v. Commonwealth, 241 Va. 482, 489, 404...
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