Thomas v. Commonwealth

• Decision Date: 01 March 2002
• Docket Number: Record No. 012253,Record No. 012254.
• Citation: 559 S.E.2d 652,263 Va. 216
• Parties: Jeffrey Allen THOMAS v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

559 S.E.2d 652

263 Va. 216

Jeffrey Allen THOMAS v. COMMONWEALTH of Virginia.

Record Nos. 012253, 012254.

Supreme Court of Virginia.

March 1, 2002.

Michael J. Barbour, Pulaski; Marie Donnelly, Charlottesville; (Brian T. Scheid, Narrows; Gilmer, Sadler, Ingram, Sutherland & Hutton, Pulaski; Virginia Capital Representation Resource Center; Warren Scheid & Lilly, Narrows, on brief), for appellant.

Paul C. Galanides, Asst. Atty. Gen. (Randolph A. Beales, Atty. Gen., on brief), for appellee.

Present: All Justices.

ELIZABETH B. LACY, Justice.

In this appeal, we review the capital murder conviction and death penalty imposed upon Jeffrey Allen Thomas, along with his convictions for attempted rape and use of a firearm in the commission of a murder.

I. PROCEEDINGS

On June 26, 2000, Jeffery Allen Thomas was indicted by a Pulaski County grand. jury for capital murder in the commission of or subsequent to rape or attempted rape, Code § 18.2-31(5); for rape¹ or attempted rape, Code §§ 18.2-61 and 18.2-67.5; and for the use of a firearm in the commission of a murder, Code § 18.2-53.1.² At the conclusion of the first stage of a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, the jury convicted Thomas of all offenses. At the penalty phase of the trial, the defendant chose not to present mitigation evidence. The jury fixed Thomas' punishment at death for capital murder, based upon a predicate finding of "vileness," at ten years imprisonment for attempted rape, and at three years imprisonment for the use of a firearm in the commission of a felony. Thomas elected to present evidence in mitigation at the sentencing hearing. After reviewing this evidence and the post-sentence report, the trial court entered a final order on July 16, 2001 confirming the convictions and imposing the sentences recommended by the jury.

We have consolidated the automatic review of Thomas' death sentence with his appeal of the capital murder conviction in Record No. 012253, Code §§ 17-110.1(A) and -110.1(F), and have given them priority on the docket, Code § 17-110.2. We have also certified from the Court of Appeals of Virginia Thomas' appeal of his non-capital convictions, Record No. 012254, and have consolidated the two records for consideration.

II. EVIDENCE

Pursuant to established principles of appellate review, we will view the evidence in the light most favorable to the Commonwealth. Chang v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). Tara Rose Munsey was a 16-year-old sophomore at Radford High School. On the morning of January 25, 2000, the defendant Thomas had unsuccessfully tried to reach Tara by telephone. He eventually talked with her and invited her to join him and another friend, James Moede, at Moede's apartment. Tara, some of her friends, Moede, and Thomas were at Moede's apartment smoking marijuana until about 2:30 p.m. when Tara left to go to work. When Tara drove away from the apartment, her friends observed Thomas follow Tara's car.

After Tara left Moede's apartment, she went to the bank and withdrew $5.00 from her savings account before reporting to work at a fast food restaurant. While at work, she received a telephone call from her father who asked her to meet him at a basketball game later that evening. Tara agreed to meet him. Around 8:00 p.m., on the way to the arranged meeting place, Tara's father saw her car in the restaurant's parking lot. He went into the restaurant only to learn that Tara had "clocked out" approximately 30 minutes earlier. Tara never met her father that evening.

Sixteen days later, on February 10, 2000, her snow-covered body was found below a railroad access road in a wooded ravine along the western bank of the New River near Parrott. Tara had been shot three times in the head and once in the chest. She was nude from the waist up. Forensic evidence established that the muzzle of the murder weapon, a .22 caliber Marlin rifle, had been held against her left temple for one shot, in front of her left ear for another, and against the center of her chest for a third, but was unable to specify the muzzle placement of the third shot to her head. In addition to gunshot wounds, Tara had bruises on the left side of her jaw, her left arm, right leg, and upper left thigh.

At an interview on February 10, which had been scheduled before Tara's body was discovered, Thomas told the police that he had spent the night of January 25 at Kevin Williams' house. When asked if he had been to the railroad tracks lately, Thomas replied that he had not "killed nobody."

When Pulaski Police interviewed Kevin Williams on February 12, 2000, Williams said Thomas did not spend the night at Williams' house on January 25. Williams also told the police that he owned a .22 caliber Marlin rifle that he had left in Thomas' car some time between December 6, 1999 and January 30, 2000. Williams said that he did not want to carry the gun up his icy driveway and that Thomas offered to "take care of it." Although Thomas promised to return the rifle, he never did. When asked about Williams' rifle in his February 10, 2000 interview, Thomas stated that he had given the rifle to a mutual friend, Leonard Dalton, to return to Williams.

Using evidence collected from the crime scene in conjunction with the interviews of Williams and Thomas, the police obtained a warrant on February 15, 2000 to search Thomas' car and to recover blood, clothing, saliva, and hair samples from his person. The police executed the search on February 16, 2000 and collected ten loose hairs from Thomas' car, various other physical samples, and Thomas' shoes.

The physical evidence recovered from the crime scene included cigarette butts, Tara's coat and shirt, her car keys, and a .22 caliber shell casing. A firearms expert determined that two of the bullets recovered in the autopsy of Tara had been fired from a .22 caliber rifle manufactured by Marlin. Comparison of the shell casing with shell casings found near Kevin Williams' porch showed that they had been fired from the same rifle. Two partial shoe impressions found on Tara's shirt matched the pattern on the sole of the right shoe recovered from Thomas.

A trace evidence expert testified that three of the hairs recovered from Thomas' car were consistent with Tara's hair. Expert testimony also established that the DNA markers of the hair were consistent with Tara's genetic markers and that the genetic material found on the partially smoked cigarette matched Thomas' DNA. DNA consistent with Thomas' DNA was also found on the bottom sole of Tara's right shoe, in the blood stains on Tara's clothes, in semen found on the front of Tara's underwear, and underneath her fingernails.

On February 15, 16, and 17, 2000, the police interviewed Barbara E. Helton. Thomas had been staying at Helton's house "intermittently" since the morning of January 26, 2000. In an interview on February 17th, Helton told police that Thomas confessed to her that he had killed Munsey. She stated that Thomas came to her house at 6:30 a.m. on January 26, 2000 and woke her up. Thomas's clothes were wrinkled and his shoes muddy. He was nervous and asked Helton not to tell anyone he was there. Helton testified that Thomas told her that he "had just f_____up" and that he "wished he had done it a different way; that he didn't mean to do it." Continuing, Thomas told her that he had met Tara "at her job, and they went down the road to party a little bit, and he assumed she wanted sex." Thomas told Helton that they got into an argument near "a deserted spot ... [t]hat had a ditch." During the argument, Tara "pushed" Thomas and "he pushed her, and she fell down." According to Helton, Thomas said that Tara "was on her hands and knees," when "he grabbed the gun from his side and shot her three times in the head." Thomas told Helton that he threw the gun "in some water."

On February 17, 2000, Thomas was served with two arrest warrants for capital murder and use of a firearm while committing capital murder. During a post-arrest interview with Pulaski County Sheriff A.J. Davis, Thomas stated that, after leaving Moede's home on the afternoon of January 25, he followed Tara because she wanted to buy some marijuana from him, which he sold to her after she got some money from the bank. When Tara went to work, Thomas said he drove around. After making a statement that he had telephoned Williams, but Williams was not home, Thomas invoked his right to counsel and terminated the interview.

III. ISSUES PREVIOUSLY DECIDED

Thomas raises 38 assignments of error. In Assignment of Error 11, Thomas advances a number of arguments regarding the constitutionality of the death penalty statutes and their application. The arguments raised by Thomas have been previously considered and rejected by this Court. Thomas presents no new arguments sufficient to warrant a change in our prior holdings:

(1) The penalty phase instructions adequately instructed the jury on the vileness aggravating factor and on consideration of mitigation evidence.³ Watkins v. Commonwealth, 229 Va. 469, 490-91, 331 S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986).

(2) Consideration of hearsay evidence by the trial court in a post-sentencing report is not unconstitutional. Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675-76, cert. denied, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994).

(3) The discretion granted a trial court to impose a sentence of life is constitutional. Goins v. Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996).

IV. BILL OF PARTICULARS

Thomas filed a motion for a bill of particulars asking that the trial court order the Commonwealth to provide the following information: (1) the exact date, time and location of the alleged murder; (2) the aggravating factors upon which the Commonwealth would rely in seeking the death...