Townes v. Com., s. 860793

CourtSupreme Court of Virginia
Citation362 S.E.2d 650,234 Va. 307
Docket NumberNos. 860793,860794,s. 860793
PartiesRichard TOWNES, Jr. v. COMMONWEALTH of Virginia. Record
Decision Date25 November 1987

Deborah C. Wyatt (Gordon & Wyatt, Charlottesville, on briefs), for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present All the Justices.

CARRICO, Chief Justice.

Indicted for robbery, capital murder in the commission of robbery, and use of a firearm while committing robbery, Richard Townes, Jr., elected to act as his own counsel. In the guilt phase of a bifurcated proceeding conducted pursuant to Code § 19.2-264.3, a jury convicted Townes of all three offenses and fixed his punishment at twenty years' imprisonment on the robbery charge and two years' imprisonment on the weapons charge.

In the sentencing phase, the jury found there was a probability Townes would commit criminal acts of violence that would constitute a continuing threat to society and fixed his punishment on the murder charge at death. After considering the report of a probation officer, the trial court sentenced Townes to the punishment fixed by the jury in its three verdicts.

Townes appealed his non-capital convictions to the Court of Appeals. Pursuant to Code § 17-116.06, we certified those convictions to this Court (Record No. 860794) and consolidated them with Townes' appeal of his murder conviction and the automatic death sentence review mandated by Code § 17-110.1 (Record No. 860793).

After Townes' capital murder conviction reached this Court, we wrote him indicating our belief that he needed the assistance of counsel in the preparation and filing of his brief and in arguing his case before this Court. He responded with a motion in which he asserted his competence and desire to continue representing himself, but, "with grave reservations," he moved for the assistance of counsel and asked that we appoint Deborah C. Wyatt of Charlottesville. We complied with the request, and Ms. Wyatt has represented Townes ably throughout these appellate proceedings.

FACTS

The victim, Virginia Goebel, was employed as a cashier at the Gulf Majik Market on Indian River Road in the City of Virginia Beach. She worked the night shift, and on April 13, 1985, reported to work at 9:30 p.m. The person she relieved left at 10:00 p.m., and thereafter she was on duty alone. She was observed working behind the cashier's counter about 1:15 a.m. by a Virginia Beach policeman on routine patrol. Another policeman, William C. Meador, drove through the Majik Market parking lot about 2:00 a.m., and Goebel waved to him from the store.

Dorothy Moore, who patronized the Majik Market two or three times a week, arrived at the store about 2:00 a.m. on her way home from work. Goebel was behind the counter, and Moore chatted with her briefly. Moore thought Goebel was "acting really strange, nervous."

Moore walked to the rear of the store to get a soft drink and was startled by a man standing "in the back corner ... just watching," with his arms crossed "[l]ike [he had] something in his hand." He gave Moore "this smile," but did not speak. She obtained a bottle or can of Coca Cola and proceeded to the cashier's counter. After paying Goebel for her soft drink, Moore asked Goebel whether she was "sure everything [was] okay." Although "acting scared," Goebel replied she was "fine" and told Moore to leave because she needed "to lock the doors." 1

Moore left the store and went to her car. As she pulled out of the parking lot, she observed that Goebel was still standing behind the counter but that the man who had startled Moore had moved to the front of the store and was "looking as [she] was leaving."

About 4:45 a.m., Officer Meador returned to the Majik Market. As he entered the parking lot, a motorist pulled up to the gas pumps, tried unsuccessfully "to get gas," and then went into the store. He "came back out" and said to Meador, "[t]here is something inside you ought to see."

Meador went inside and found Goebel's body lying face down behind the counter in a pool of blood. Meador felt for a pulse, but Goebel's body was cold. On the floor next to the body, Meador found an empty .45 caliber shell casing.

An autopsy performed on Goebel's body revealed that her death was caused by a gunshot wound to her head. A .45 caliber bullet had entered the top of her head, travelled through the middle of her brain, and lodged in her spinal canal, "where the neck joins the thorax in that canal." The medical examiner opined that Goebel was on the floor, looking down, with her head "a foot and a half to two feet" from the floor, when she was shot. The medical examiner also said that the murder weapon was resting on the victim's head when the fatal shot was fired. The exact time of death could not be determined.

The last sale recorded on the Majik Market cash register for Goebel's shift occurred at 2:43 a.m. The next previous sale was recorded at 2:16 a.m. for $.52, the price of "canned Cokes," plus tax.

The cash register drawer and the top of a floor safe were open. No paper currency was found in the cash register. An audit of transactions occurring during Goebel's shift established a shortage of $186.13.

On a shelf under the cashier's counter, a detective discovered a number of "drop envelopes" containing paper currency totaling $240. Store policy required that when a number of large bills accumulated in the cash drawer, they should be placed in "drop envelopes" and put in the floor safe. Goebel, however, had difficulty using the safe. She was a heavy woman, weighing 328 pounds, and had to get down on her knees to open the safe. Her body was lying next to the safe, and blood was spattered on the door of an adjoining cabinet.

Dorothy Moore learned of the murder mid-morning of April 14, but she did not contact the police for four weeks. On May Townes was also identified as the person who, on April 10, 1985, a few days before the Goebel murder, called at the home of Herman F. Christenbury in response to an advertisement Christenbury had placed in the Tidewater Trading Post for the sale of a Star brand .45 caliber automatic handgun for $215. Townes paid Christenbury in cash and received the gun plus an extra clip, an unusual cleaning rod with a small screwdriver on one end, and an old brown holster.

                29, a detective showed her photographs of six men.  She picked two of the men, including Townes, as suspects and told the officer she "could better [make an identification] in a lineup."   On June 5, she attended a live lineup which included Townes and four other men.  She made a positive identification of Townes as the man she had seen in the Majik Market on the night of Goebel's murder.  Two other employees of the Majik Market identified Townes as a frequent customer of the store
                

Townes worked as a laborer on a project being developed in Virginia Beach by DeAnne Company. He lived nearby in an apartment located within a few minutes drive of the Majik Market. On April 15, the Monday after the Goebel murder, Townes arrived late for work. Goebel's brother-in-law worked in the same construction crew as Townes, and the murder was discussed among members of the crew. Townes worked for about an hour and then left, claiming that he had "a rough weekend" and was feeling ill.

George Ponton was another member of the construction crew. On the construction site one day in late April, Ponton observed a gun "in [Townes'] back pants pocket." The next day, Ponton asked to see the weapon, and Townes handed it to him. It bore the word "Star" on its side. Townes let Ponton fire the gun and offered to sell it to him. Ponton agreed and paid Townes $250 for the gun, two clips, a cleaning rod, a box of Federal ammunition, a ski mask, and an old brown holster.

Later, Ponton and Gregory Fair, superintendent for the DeAnne Company, fired the gun into a barrel at the jobsite and also at a firing range, using ammunition Ponton had received as part of his purchase from Townes. Ponton saved the empty casings from the firing at the range and took them home.

Officer Russell Mike of the Virginia Beach Police Department owned one of the homes built by DeAnne Company and knew Fair, Ponton, and Townes. In late April 1985, Mike visited the DeAnne Company office. During his visit, Fair showed Mike the gun Ponton had purchased from Townes.

When Townes learned that Ponton had shown the gun to Fair and that Fair had shown it to Mike, Townes became angry. He told Ponton: "You shouldn't show a gun to a white man."

In early May, Fair found in his office at the construction site "a Jehovah's Witness book ... and a legal book." With the books was an essay in Townes' handwriting "pertaining to what Jehovah would do to him for murdering somebody." Fair confronted Townes with the material and told him to "get it off [Fair's] desk and ... off the job."

On May 15, Officer Mike returned to the DeAnne construction site. Since his earlier visit, he had learned that a .45 caliber weapon had been used in the Goebel murder. He contacted Ponton and told him to get in touch with Detective Thomas A. Baum, who was in charge of the Goebel murder investigation, at a telephone number Mike gave Ponton.

Ponton decided to "hand the gun to the police." After work on May 15, he went to a telephone outside a 7-Eleven store and was in the process of placing a call to Detective Baum when Townes drove up and blocked Ponton's car in its parking space. Townes asked Ponton if he still had "the gun" and "demanded [it] back." Ponton attempted to stall, but Townes became "nervous and shaken." When Ponton asked about the money he had paid for the gun, Townes shoved a bag into Ponton's hand and "took the gun away" from Ponton, along with one clip and the holster. Townes then got in his car and sped off, running a red light. The bag Townes gave Ponton contained a .44 caliber revolver.

After Townes left, Ponton called Detective Baum and...

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