Washington v. Com.

• Decision Date: 05 September 1975
• Docket Number: No. 741208,741208
• Citation: 216 Va. 185,217 S.E.2d 815
• Court: Virginia Supreme Court
• Parties: James E. WASHINGTON v. COMMONWEALTH of Virginia. Record

Page 815

217 S.E.2d 815

216 Va. 185

James E. WASHINGTON v. COMMONWEALTH of Virginia.

Record No. 741208.

Supreme Court of Virginia.

Sept. 5, 1975.

Murray J. Janus, Edward D. Barnes, Richmond (Bremner, Byrne, Baber & Janus, Richmond, on brief), for plaintiff in error.

Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

I'ANSON, Chief Justice.

Defendant, James Edward Washington, was indicted by a grand jury of Powhatan County for the felonious killing of Raul M. Monte in violation of Code § 53--291 and subsection 53--291(1). ¹ After numerous continuances on motions of the defendant and two mistrials, a change of venue was granted, also on defendant's motion. Defendant was then tried in the Circuit Court of the City of Virginia Beach by a jury which found him guilty as charged in the indictment and fixed his punishment at death. Judgment was entered on the jury's verdict on August 14, 1974, and defendant is here on a writ of error.

The defendant contends: (1) that the death penalty is unconstitutional per se; (2) that the death penalty provision of Code § 53--291 is unconstitutional because the opportunities for discretionary determinations of punishment violate the ruling and spirit of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); (3) that § 53--291 is vague and overbroad; (4) that the jury was improperly instructed about a plan to escape, since the Commonwealth elected in its bill of particulars to prosecute under § 53--291(1); (5) that the jury's verdict is void because the statute required the indictment to recite that at the time of the killing Washington was an inmate of a State penal institution and that Monte was employed as a prison guard; (6) that defendant was denied a speedy trial; (7) that the constitutional provision against double jeopardy was violated; (8) that the Commonwealth's Attorney impermissibly commented on the failure of defendant to testify; (9) that the trial court erred in granting and refusing certain instructions; (10) that defendant could not be convicted as a principal in the second degree under Code § 53--291; and (11) that the evidence was insufficient to support the conviction.

The facts presented in the present case are substantially identical to those in the companion case of Jefferson v. Commonwealth, 214 Va. 747, 204 S.E.2d 258 (1974).

The evidence, briefly stated, shows that on November 22, 1971, Washington and Malcolm M. Jefferson, both inmates at the State Farm in Powhatan, Virginia, a part of the Virginia State penal system, were transported to the Powhatan County courthouse by Captain Raul M. Monte and several other prison guards. Before being transported each was searched and then secured with handcuffs, which were in turn secured by a chain around the waist of each inmate.

Upon arriving at the courthouse the two inmates were taken inside the building and seated in the front part of the courtroom, inside the bar. Captain Monte and guard Snyder took positions near the back of the courtroom.

Washington requested that he be permitted to use the bathroom facilities. Captain Monte granted the request, and directed Snyder to accompany Washington. While Washington and Snyder were proceeding toward the bathroom, Washington grabbed the guard and reached for his pistol, which was in a holster. A scuffle ensued and Jefferson, the other inmate, jumped on Snyder's back. During the struggle one of the inmates gained possession of Snyder's pistol and fired it several times. Captain Monte ran to Snyder's assistance, but before he reached the scene of the struggle he tripped and fell to the floor. When Monte got back on his feet, more shots were fired from Snyder's gun by one of the inmates.

John D. Netherland, one of the State Farm guards stationed outside the courthouse, heard the shots and rushed into the courtroom. Netherland saw Jefferson enter a door at the right-front side of the courtroom. The door closed. Moments later it opened and Netherland fired his gun. The bullet struck the door about four feet above the floor.

Netherland also fired two shots at Washington when he saw him emerge from behind the judge's bench and dive into the jury room on the left-front side of the courtroom. One of the bullets hit a chair and penetrated a door facing, and the other hit the jury room door.

When Washington and Jefferson finally surrendered, their handcuffs were loose. Washington's right hand was free but his left hand was still cuffed.

After the incident, Captain Monte was found mortally wounded, lying at the scene of the struggle. An autopsy disclosed that he had been shot twice in the back from close range.

At the outset of defendant's argument before us, he moved that we deny the Commonwealth's petition for a writ of certiorari directing the clerk of the Circuit Court of Powhatan County to send to this court certain omitted parts of the record. The parts of the record sought were the transcript of the hearing held on May 23, 1974, at which defendant's court-appointed attorneys asked leave to withdraw as counsel, and the trial judge's opinion letter to counsel dated July 22, 1974, which stated that all continuances in the case had been granted on defendant's motions.

Defendant argued that certiorari should not lie because the omitted transcript of the hearing had not been made a part of the record, as required by Rule 5:9, and because the judge's opinion letter had not been filed with the clerk.

We agree with the defendant that the transcript of a hearing is not a part of the record on appeal if it has not been made such under the requirements of Ruel 5:9. Old Dominion Iron v. Virginia Electric and Power Co., 215 Va. 658, 659--60, 212 S.E.2d 715, 717--18 (1975). But an opinion letter of the trial judge is a part of the record on appeal without any requirement that it be filed with the clerk. Rule 5:8(e).

Code §§ 8--473 (1957 Repl.Vol.) and 19.1--284 (1960 Repl.Vol.) authorize this court in any case to award certiorari by which the clerk of the court below is directed to send to this court any and all parts of the record which have been omitted from the record transmitted to us. See also Old Dominion Iron, supra, 215 Va. at 660, 212 S.E.2d at 718.

It appeared in oral argument before us that additional parts of the record had been omitted when it was transmitted to us, and that those parts were necessary for the proper determination of some of the issues raised by defendant in his assignments of error. Hence, we denied defendant's motion and ordered the clerk of the Circuit Court of Powhatan County to send to this court any and all parts of the record, as defined by Rule 5:8, which had been omitted.

Defendant urges us to reconsider our decision in Jefferson, supra, where we held that the death penalty mandated by Code § 53--291 is not unconstitutional per se.

The Supreme Court of the United States has not held that the death penalty per se violates the constitutional guarantee against cruel and unusual punishment. Only two of the Justices of the Court held, in Furman, that such penalty is unconstitutional per se, and we are not persuaded that our holding in Jefferson was incorrect. Thus we adhere to our prior ruling.

Defendant also contends that our decision in Jefferson is contrary to the holding and spirit of Furman, where, he says, the court held that the discretionary imposition of the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. He asserts that, despite the mandatory death penalty provision of Code § 53--291, there exists in the imposition of this penalty an unconstitutional discretion in the prosecutor, the jury, the judge and the executive. ²

Having rejected the same argument in Jefferson, supra, 214 Va. at 749, 204 S.E.2d at 260, we see no reason to depart from our prior holding. See also Williams v. State, Okl.Cr.App., 535 P.2d 710 (1975).

Code § 53--291 is challenged for vagueness and overbreadth on the grounds that there is no requirement of criminal intent and no standard to measure the culpability of the homicide for which the death penalty may be imposed.

The statute, or its predecessor, has been on our books since the Acts of Assembly 1843--44, ch. 72, § 1, at 55. It first appeared in the Code in 1849, ch. CCXIV, at 797--98. In Jefferson, supra, the appellant unsuccessfully challenged the constitutionality of the statute because of the classification of persons to whom it was applicable. It has been upheld against constitutional challenges of lack of due process and equal protection of the law guaranteed under the Constitution of the United States. Hart v. Virginia, 298 U.S. 34, 56 S.Ct. 672, 80 L.Ed. 1030 (1936).

In Hart, the convict challenged the predecessor of Code § 53--291 on the grounds that it was vague and so broad that it embraced homicide committed in self-defense, and thereby denied him due process and equal protection of the law. The Supreme Court of the United States found that there was no substantial federal question presented and dismissed the appeal because, upon appropriate evidence of self-defense, the Virginia trial court had submitted that issue to the jury and this court had subsequently refused a petition for a writ of error. 298 U.S. at 35, 56 S.Ct. 672.

Thus, the predecessor of Code § 53--291 imposing the death penalty has been construed to excuse the killing of a prison guard by a prison inmate acting in self-defense. As we further construe the statute, the death penalty is not mandatory when the evidence shows that the killing resulted from negligence or misadventure in the performance of a lawful act.

Defendant also argues that the statute is vague because Code § 53--9, referred to in the statute as defining a penal institution, was...