Thomas v. Com.
| Decision Date | 05 June 1992 |
| Docket Number | No. 911850,911850 |
| Citation | 244 Va. 1,419 S.E.2d 606 |
| Court | Virginia Supreme Court |
| Parties | Douglas Christopher THOMAS v. COMMONWEALTH of Virginia. Record |
Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: All the Justices.
On January 23, 1991, Douglas Christopher Thomas, then seventeen years of age, appeared in juvenile court charged with first degree murder in the killing of James Baxter Wiseman, II, Code § 18.2-32, and with capital murder in the killing of Kathy J. Wiseman as a part of the same act or transaction of killing James Baxter Wiseman II, Code § 18.2-31(7). 1 Thomas was also charged with two offenses of using a firearm in the killing of the victims. Code § 18.2-53.1.
In a written instrument signed by Thomas and his counsel, Thomas waived both a preliminary hearing and a transfer hearing. As a result, the matter was transferred to circuit court, where, on January 28, 1991, Thomas was indicted for the four offenses with which he had been charged in juvenile court.
Trial on all four charges was set for May 29, 1991, and then continued to August 21 of the same year. Upon arraignment on August 21, Thomas entered pleas of guilty to the charges of first degree murder and use of a firearm in the killing of Mr. Wiseman and pleas of not guilty to the charges of capital murder and use of a firearm in the killing of Mrs. Wiseman.
The trial court announced that it would accept Thomas's pleas of guilty to the charges involving the death of Mr. Wiseman and that it would order a pre-sentence report with respect to those charges. The trial court also accepted Thomas's pleas of not guilty to the charges involving Mrs. Wiseman's death, and trial proceeded before a jury on those charges.
In the first phase of the trial, the jury convicted Thomas of capital murder and use of a firearm in the commission of the killing of Kathy Wiseman and fixed punishment on the weapons charge at four years in the penitentiary. In the second phase, the jury fixed Thomas's punishment for capital murder at death, based upon a finding of "vileness."
Following receipt of the report of a probation officer, the trial court held a sentencing hearing and imposed the sentences fixed by the jury in the death of Mrs. Wiseman. At the same hearing, the court sentenced Thomas to sixty-five years' imprisonment for the first degree murder of Mr. Wiseman and two years' imprisonment for the use of a firearm in that killing.
Thomas is before this Court for automatic review of his death sentence, and we have consolidated that review with the appeal of his capital murder conviction. 2 Code § 17-110.1. In accordance with Code § 17-110.2, we have given the matter priority on our docket.
The record shows that Thomas lived with his aunt and uncle, Brenda and Herbert Marshall, at Piankatank Shores in Middlesex County. Lanie Creech, Mrs. Marshall's twelve-year-old niece, also lived in the home.
Thomas had been involved for some time in a "[v]ery intimate" relationship with fourteen-year-old Jessica Wiseman, who lived with her parents, "J.B." and Kathy Wiseman, several blocks from the Marshall residence. Jessica's parents were threatening to break up the relationship. Jessica had been wearing Thomas's class ring "for a long time," but Mrs. Wiseman made Jessica "give it back." Some three months before the murders occurred, Jessica was heard to say that she "wished to get rid of [her parents]."
Mr. and Mrs. Wiseman were murdered in the early morning hours of November 10, 1990, a Saturday. On the preceding Tuesday, Lanie Creech overheard a conversation between Thomas and Jessica in which the two discussed "[g]etting rid of her parents." Jessica asked Thomas "if he had enough bullets," and he replied in the affirmative. He asked Jessica "what time he should come over." She replied, "[m]idnight," and said that "if the window is down to go away ... it's off" but "if the window is up to come on in."
On Thursday evening, Lanie had a conversation with Thomas. She asked him why "he was so nervous." He replied that he had "to kill two people, and that he was real nervous." On Friday evening, just before midnight, Lanie observed Thomas putting on camouflage clothing and saw that he had a shotgun. He told Lanie the plan was that "after the shootings were over," he was to return home, "go in through his window and act like he was sleeping." Jessica would then come and "bang on the door."
Thomas and Lanie left the house together and walked to a nearby recreation area, where he smoked some "pot" and told Lanie he was "going over to Jessica's ... [t]o kill two people." With Lanie carrying the shotgun, the two walked to a point "a few hundred feet away from [Jessica's] house." Lanie then returned home.
Later, Mrs. Marshall was awakened by someone "banging on the door." Lanie opened the door, and Jessica ran straight to Mrs. Marshall's bedroom, screaming that "someone had shot her father and that her mother was dead." Thomas was in his bedroom, and Mrs. Marshall asked him to "get dressed" and comfort Jessica while she called "the authorities."
Don F. Rhea, deputy sheriff of Middlesex County, was dispatched to the Wiseman home, and he arrived on the scene at 4:27 a.m. He entered through the unlocked front door and discovered the bodies of Mr. and Mrs. Wiseman.
Later in the day, Special Agent Larry A. Johnson of the Virginia State Police conducted two interviews with Thomas at the Marshall house. In the second interview, Thomas confessed to killing Mr. and Mrs. Wiseman.
Following Thomas's waiver of the transfer hearing and his indictment in circuit court, Benton H. Pollok, his court-appointed attorney, was relieved as counsel in the case. The trial court appointed new counsel, who moved to remand the proceeding to juvenile court "for a full and impartial transfer hearing." The trial court denied the motion.
Thomas recognizes that in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Supreme Court held that the imposition of capital punishment upon a person who commits murder at the age of 16 or 17 does not constitute cruel and unusual punishment under the Eighth Amendment. Yet, Thomas argues that a transfer hearing is necessary to "provide the individualized consideration that the Constitution requires before a state may impose the death penalty" upon a juvenile and, therefore, that a transfer hearing cannot be waived.
As the Attorney General points out, however, the Constitution "does not require juvenile transfer hearings nor does it require additional procedural safeguards for juveniles tried [for] capital crimes." Besides, Virginia's death penalty statutes provide for individualized consideration of all those tried on capital charges, with "the age of the defendant at the time of ... the capital offense" a statutorily prescribed mitigating factor the jury may consider in determining whether to fix punishment at death or life imprisonment. Code § 19.2-264.4(B)(v).
Thomas argues further that the juvenile transfer statute, Code § 16.1-270, does not permit a juvenile charged with capital murder to waive the jurisdiction of the juvenile court and have his case transferred to circuit court. The Code section provides in pertinent part:
At any time prior to commencement of the adjudicatory hearing, a child fifteen years of age or older charged with an offense which if committed by an adult could be punishable by confinement in a state correctional facility, with the written consent of his counsel, may elect in writing to waive the jurisdiction of the juvenile court and have his case transferred to the appropriate circuit court....
Thomas says the waiver provision, by its "plain language," applies only to offenses that are punishable by confinement in a state correctional facility and not to those punishable by death. We disagree with Thomas. While capital murder may be punishable by death, it "could be" punishable by imprisonment for life in a state correctional facility. Code § 19.2-264.4. Hence, the waiver provision is clearly applicable where a juvenile is charged with a capital offense.
Immediately after Thomas entered his plea of guilty to first degree murder in the death of Mr. Wiseman, he moved to dismiss the capital murder charge on the ground that its prosecution would constitute double jeopardy. The trial court denied the motion.
Thomas contends the trial court erred in denying his motion to dismiss. He cites Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In that case, following a fatal collision, Corbin was given traffic tickets charging him with driving while intoxicated and failing to keep to the right of the median. He plead guilty to these charges in town court. Subsequently, based upon the same conduct, a county court grand jury indicted Corbin for reckless manslaughter. His motion to dismiss the indictment on double jeopardy grounds was denied, and he sought a writ of prohibition. The lower court denied the writ, but the New York Court of Appeals reversed, holding that prosecution of the manslaughter indictment would constitute double jeopardy. 495 U.S. at 513, 110 S.Ct. at 2089.
Affirming, the Supreme Court of the United States held that, even though a second prosecution may not be barred by the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), 3 a second prosecution is barred "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Corbin, 495 U.S. at 508, 110 S.Ct. at 2087.
Thomas argues that an essential element of his prosecution for capital murder was the...
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