Turner v. Com.

• Decision Date: 15 January 1988
• Docket Number: No. 870554,870554
• Citation: 364 S.E.2d 483,234 Va. 543
• Parties: Willie Lloyd TURNER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 483

364 S.E.2d 483

234 Va. 543

Willie Lloyd TURNER v.COMMONWEALTH of Virginia.

Record No. 870554.

Supreme Court of Virginia.

Jan. 15, 1988.

[234 Va. 545] J. Lloyd Snook, III, Charlottesville, for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

On November 26, 1980, this Court approved the conviction and death sentence of Willie Lloyd Turner for the murder during armed robbery of the proprietor of a jewelry store.Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36(1980)(Turner I ).The Supreme Court of the United States denied certiorari.Turner v. Virginia, 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863(1981).

Subsequent habeas corpus proceedings brought by Turner proved unsuccessful until his habeas appeal reached the Supreme Court.On April 30, 1986, that Court overturned Turner's death sentence, but not his conviction, for the trial court's failure to question prospective jurors about possible bias resulting from the fact that Turner was black and his victim white.Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27(1986).The Court remanded the case for further proceedings, and the matter was ultimately returned to the trial court in Southampton County for a new sentencing hearing.

Upon return of the case, the trial court ordered a change of venue to Prince Edward County.In January 1987, a jury drawn from that county heard evidence on the issue of punishment and returned a verdict fixing Turner's sentence at death, based upon the "vileness" predicate established by Code§ 19.2-264.2.¹Following receipt of the report of a probation officer, the trial court imposed the death sentence upon Turner.He is here for automatic review of his sentence, as required by Code§ 17-110.1.

Because the jury based its sentence solely upon the "vileness" predicate, we will recite only the evidence relating to that predicate.The murder in question occurred about 11:30 a.m. on July 12, 1978, at the store of Smith Jewelers in the City of Franklin.Turner entered the store carrying a sawed-off shotgun concealed under a green towel.Brandishing the gun, he forced several customers to line up against a counter and "motioned" the proprietor, W. Jack Smith, Jr., to place money and jewelry in bags.Smith complied, but surreptitiously activated a silent alarm to police headquarters.

Answering the call, Officer Alan D. Bain, Jr., entered the store and announced to Smith that his "alarm was on."In response, Turner pointed his shotgun "right at [Bain's] face" and directed the officer to remove his revolver from its holster and place it on the floor.When Bain complied, Turner picked up the weapon and put it in his pocket.Again brandishing the shotgun, Turner ordered Smith to turn off the alarm and to fill more bags with jewelry.

When the telephone rang, Turner directed a customer to answer it and held his shotgun "six to eight inches from [her] ear."Then, removing Bain's revolver from his pocket, Turner fired a shot toward the rear of the store and announced that "if he saw or heard any more police officers he was going to start killing."At that time, Bain heard "a siren go off."Turner then walked over to the counter where Smith was standing and "just pointed [Bain's revolver] and fired."Smith fell to the floor, bleeding from a wound to his head.

Bain remonstrated with Turner not to shoot anyone else and "offered to take him out of the store [and] to carry the stuff and take him anywhere he wanted to go."Turner said that he"wasn't going to hurt [Bain]" but that he was "going to kill [Smith] for snitching on [him]."As Smith lay "gurgling" on the floor behind the counter, Turner "reached over the counter," pointed Bain's revolver at Smith, and fired twice into his chest.Smith "jumped" as he was shot and did not move "any more after that."Bain then disarmed Turner and held him at bay until help arrived.

Medical testimony showed that Smith died from the bullet wounds to his chest, either one of which would have been fatal independently.While the wound to the head was not sufficient by itself to cause death, it did produce "bleeding on the coverings of the brain" and bruising of "the brain surface."

JURY SELECTION

Before the sentencing hearing began, the prosecution and the defense agreed that prospective jurors should be advised that Turner had been sentenced to death previously for Smith's murder.The court so advised the prospective jurors and cautioned them that Turner's prior sentence should not "affect [the] verdict in this case."

When prospective juror Samuel Lambert was examined individually on voir dire, Turner moved to strike him for cause on the ground his responses indicated that knowledge of the prior death sentence would "affect his deliberations" in the present case.The trial court denied the motion.

Turner cites the following exchange between Lambert and defense counsel:

MR. SNOOK [defense counsel]: Now the Judge ... told you that Mr. Turner had been sentenced to death one time in an earlier trial....How are you going to feel about knowing that he'd been sentenced to death once before?

JUROR LAMBERT: Well, it wouldn't make me feel good about it.

....

MR. SNOOK: Could you really put it out of your mind?

JUROR LAMBERT: Well, I don't know about that.That's a hard thing.

MR. SNOOK: Do you think it might continue to affect you?

JUROR LAMBERT: Probably will.

....

MR. SNOOK: You say you think you can [put everything else aside and base your sentence on what you hear in this courtroom?]You have some doubt about that?

JUROR LAMBERT: Well....[a]fter ... you hear the lawyers and I guess that's what I think about.

MR. SNOOK: [I]f you're going to continue to think about what happened in that other trial and if that might still affect your decision, then ... we need to have you be honest with us and tell us that.

JUROR LAMBERT: Well, it might affect me....You know, I'll be thinking about it, I guess.

MR. SNOOK: And so the Judge would tell you that you're not supposed to do that but you think you might anyway[?]

JUROR LAMBERT: Well, I might.

MR. SNOOK: Do you think you probably would [let it affect you?]

JUROR LAMBERT: Well, I would think so.

MR. SNOOK: You probably would be thinking about it?

JUROR LAMBERT: Probably would be thinking about it.

Turner argues that the foregoing exchange shows Lambert "could not unequivocally state that he could put aside ... knowledge" of Turner's prior death sentence.Hence, Turner concludes, he was deprived of a jury "able to 'stand indifferent in the cause.' "

We disagree with Turner.While the foregoing excerpt from Lambert's voir dire examination might tend to indicate some doubt concerning this prospective juror's objectivity, we must view the voir dire as a whole, rather than in isolated parts.SeePruett v. Commonwealth, 232 Va. 266, 281, 351 S.E.2d 1, 10(1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706(1987).When the examination of Lambert is so viewed, any doubt about his impartiality is removed.

Other parts of Lambert's voir dire show that he felt the death penalty was appropriate in some cases, but not in all, and that "[n]ot every case" of murder in an armed robbery warranted imposition of the extreme penalty.Whether death should be imposed, Lambert opined, "depend[s] on how [the murder] happened."Lambert also said that he would not give Turner the death sentence "merely because [he was] charged with ... and convicted of murder."

Lambert's voir dire responses demonstrated further that he would "be able to consider voting for a sentence less than death such as the alternative sentence of life imprisonment."He responded affirmatively when asked whether he would feel "free to make [his] own mind up based on what [he heard in the courtroom] ... and not [on] what ... happened before."And, importantly, he gave an affirmative response to the specific question whether he could refrain from considering "the fact that [Turner had] been sentenced [to death] in a prior hearing."

All in all, we think that Lambert's voir dire examination produced nothing that "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581(1980);Boggs v. Commonwealth, 229 Va. 501, 515, 331 S.E.2d 407, 417(1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 347(1986).The question whether a prospective juror stands indifferent in the cause is basically factual, and its resolution requires the exercise of judicial discretion.Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431(1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903(1986).We find no abuse of discretion in the trial court's refusal to strike prospective juror Lambert for cause.

RESENTENCING AUTHORITY

Turner argues that the trial court had no authority to resentence him.He states that under Wm. Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d 212(1981), he had the right to be sentenced by the same jury that convicted him and that since this was no longer possible, the only recourse was for the trial court to sentence him to life imprisonment.

In Patterson, we overturned the defendant's death sentence because the trial court had failed to question prospective jurors about their predisposition to impose the death penalty.222 Va. at 659, 283 S.E.2d at 216.We held further that because Code§ 19.2-264.3(C) did not permit resentencing by a new jury, we were compelled to commute the defendant's sentence to life imprisonment.Id. at 660, 283 S.E.2d at 216.

Turner acknowledges that following the Patterson decision, the General Assembly in 1983 amended Code§ 19.2-264.3(C) to permit resentencing of a capital defendant by a different jury where a prior sentence of death...