Tuggle v. Com.

• Citation: 323 S.E.2d 539,228 Va. 493
• Decision Date: 30 November 1984
• Docket Number: No. 840486,840486
• Parties: Lem Davis TUGGLE, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 539

323 S.E.2d 539

228 Va. 493

Lem Davis TUGGLE, Jr. v. COMMONWEALTH of Virginia.

Record No. 840486.

Supreme Court of Virginia.

Nov. 30, 1984.

Joseph S. Tate; John H. Tate, Jr., Marion (Gwyn, Tate & Tate, Marion, on brief), for appellant.

Todd E. LePage, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

In a bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3 and -264.4, Lem Davis Tuggle, Jr., was convicted of capital murder for the willful, deliberate, and premeditated murder of Jessie Geneva Havens during the commission of, or subsequent to, rape, Code § 18.2-31(e), and his punishment was fixed at death. Following a sentencing hearing, the trial court confirmed the jury's verdict and sentenced Tuggle to death. The automatic review of Tuggle's death sentence and his appeal from his conviction have been consolidated, Code § 17-110.1 and given priority on our docket, Code § 17-110.2. ¹

The facts relating to Tuggle's guilt are uncontroverted; the defendant presented no evidence during this phase of the trial. On Saturday night, May 28, 1983, Tuggle attended a dance at the American Legion lodge in Marion, and upon his arrival, he asked if he could "check" a gun. He was advised that he could not. Tuggle was told that he should lock the gun in the trunk of his car. He left the building briefly, and when he returned, said, "That's taken care of."

The victim, Jessie Geneva Havens, and two friends also were at the dance. The defendant introduced himself to them as David Tuggle. He sat at a table with the three women and danced with them throughout the evening.

When the dance ended at 1:00 a.m. Sunday, Havens' two friends left together and she left with Tuggle. The defendant had agreed to drive Havens to her home; she had advised him that she had to go directly home because her granddaughters were staying with her. As her two friends were leaving the parking lot, they observed that Havens was standing next to the passenger side of the defendant's automobile, and Tuggle was opening the trunk. Havens was wearing blue jeans, a blue and white striped blouse, and moccasin-type shoes.

Shortly thereafter, State Trooper G.N. Smith stopped the defendant's automobile because it was weaving on the highway near Seven Mile Ford in Smyth County. Tuggle was driving, and the trooper observed a large, middle-aged, white female sitting in the front seat of the automobile "right next to the driver." The woman was wearing jeans and a blue, green, or aqua blouse. After the trooper determined that the defendant was not intoxicated, Tuggle drove away in the direction of Hubble Hill Road. Havens never returned home, and at six o'clock that evening, the police were notified that she was missing.

In the early morning of June 2, 1983, State Trooper R.M. Freeman was dispatched to an area on Interstate Highway 81 in Pulaski County to look for a black pickup truck equipped with a camper. Shortly after his arrival, Freeman stopped a truck meeting that description and recognized Tuggle as the driver. When the trooper asked the defendant if he had been near the Riverside Exxon Station, Tuggle responded: "Yes, I robbed it, the money's in my pocket, the gun's in the truck."

Thereupon, Freeman took possession of a .25 caliber automatic weapon. (Ballistics tests established that this gun fired the bullet which killed Havens.) While Freeman was taking Tuggle to the Pulaski County Sheriff's Office, Tuggle volunteered that he was connected with a missing person's report relating to Jessie Havens and said that he would have a "long talk" with Smyth County authorities later.

Later that morning, a Smyth County Sheriff's Office investigator interviewed Tuggle concerning Havens' disappearance. The officer advised Tuggle of his Miranda rights. Tuggle waived these rights and told the officer that he could find Jessie Havens over a bank at a certain spot on Hubble Hill Road near Seven Mile Ford. When the officer asked the defendant what had happened to Havens, Tuggle responded: "I don't know but she's there." The defendant then told the officer that he did not want to discuss the matter further until he had spoken to an attorney. He specifically stated: "From past experience, I would like to talk to an attorney. I'll probably tell you the full story later."

Approximately 9:30 a.m. on June 2, the investigator went to the place where Tuggle said Havens would be found. He found Havens' body at the site. Havens was clad in jeans "down around her knees," a blue and white striped blouse "pulled up to about the armpits," and "black silk panties ... rolled down somewhat." A portion of the victim's pantyhose was "sticking out of the top" of her jeans, and one of her legs was out of the pantyhose.

An autopsy revealed that the victim's body had an abrasion and a bruise on the left frontal area of the forehead, a small abrasion on the right frontal area of the forehead, an abrasion on the neck, a bite mark on the lower, inner quadrant of the right breast, a number of small bruises on the upper, inner aspect of the right arm, and a bruise on the right thumb and right wrist. Havens also had sustained a large bruise on the upper, inner thigh, bruises on the vaginal vault at the posterior aspect and near the bottom, and a gunshot wound in the chest.

According to the medical examiner, "the bruises of the vagina indicate penetration of the vaginal vault by something, a penis, a finger, an object, something." The medical examiner testified that both the bite mark on the breast and the bruising around the vagina occurred while Havens was alive. He also testified that no semen or spermatozoa was found in Havens' vagina, but that semen was found in the rectum, indicating "penetration and ejaculation into the rectum."

A forensic odontologist testified that he examined the bite mark on the victim's right breast. He compared the mark with models of Tuggle's teeth and concluded "with all medical certainty these marks on the body of Ms. Havens were made by the teeth of Mr. Tuggle." He further opined that Havens was alive and moving when she was bitten.

I. PRETRIAL PROCEEDINGS.

A. Request for a Second Psychiatric Evaluation.

On Tuggle's motion, the trial court ordered an evaluation of the defendant to determine his sanity at the time of the offense and his competency to stand trial. Code §§ 19.2-169.1 and -169.5. The Commonwealth neither concurred in nor opposed the motion. Pursuant to the order, Tuggle was admitted to Central State Hospital. Following his evaluation, the hospital reported that he was sane at the time of the offense and competent to stand trial.

Fourteen days before his trial was to commence, Tuggle sought another psychiatric evaluation at his expense by a Charlottesville psychiatrist. The court denied the motion, observing that Tuggle previously had been evaluated at his own request, the trial date was close at hand, and if the motion were granted, Tuggle would have to be transported under guard from the Marion jail to Charlottesville in one day, leaving "just a few hours for an evaluation."

Tuggle argues on appeal that the court's denial of his motion precluded him from "bringing to the attention of the jury the mitigating circumstances only ascertainable through a psychiatric examination by a neutral professional." Relying upon Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), he contends that a second evaluation was necessary in an attempt to refute a psychiatric opinion that Tuggle presented future dangerousness.

We note at the outset that this reason (i.e., refuting future dangerousness) was not advanced in either Tuggle's written motion or his oral argument on the motion in the trial court. See Rule 5:21. Aside from that, however, we find no merit to this contention. We believe the issue of whether the defendant should receive a second psychiatric evaluation under the circumstances of the present case was a matter resting within the sound discretion of the trial court, and we cannot say the court abused its discretion.

Moreover, Tuggle's reliance upon Barefoot is misplaced. Unlike the facts in Barefoot, Tuggle, as we previously noted, requested and received the first psychiatric evaluation. Barefoot does not suggest that a defendant who has been examined at his own request has a constitutional right to further evaluations. Further, the suggestion that a second evaluation would have produced a different result is speculative at best.

B. Change of Venue and Sequestration of the Jury.

Tuggle contends the trial court abused its discretion by refusing to change the venue of his trial. He asserts that a change of venue was required due to extensive pretrial publicity concerning his case and because eight veniremen were excused for having formed an opinion concerning his guilt or innocence.

The law presumes that an accused can receive a fair trial from the citizens of the jurisdiction where the offense occurred. A defendant has the burden of overcoming this presumption by clearly showing that widespread prejudice among the citizenry would make a fair and impartial trial impossible. Stockton v. Commonwealth, 227 Va. 124, 137-38, 314 S.E.2d 371, 379-80, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). Extensive publicity alone is insufficient to justify a change of venue. Id. Finally, change of venue is addressed to the sound discretion of the trial court, and refusal does not constitute reversible error unless the record affirmatively shows an abuse of discretion. Id.

Tuggle presented only ten newspaper articles, all factual in nature, and it took only 28 prospective jurors to secure a panel of 20. Nothing in the record suggests that there was widespread prejudice against Tuggle in Smyth County, and we readily conclude that the court did not abuse its discretion in denying a change of venue.

Again relying...