Williams v. Com.

• Decision Date: 22 April 1968
• Citation: 160 S.E.2d 781,208 Va. 724
• Court: Virginia Supreme Court
• Parties: Harry Junior WILLIAMS, alias, etc. v. COMMONWEALTH of Virginia.

Page 781

160 S.E.2d 781

208 Va. 724

Harry Junior WILLIAMS, alias, etc. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

April 22, 1968.

Rehearing Denied June 11, 1968.

Charlie T. Turner, James David Jones, Chatham, for plaintiff in error.

Reno S. Harp, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON, and HARRISON, JJ.

GORDON, Justice.

Harry Junior Williams appeals from a conviction order sentencing him to death for first degree murder.

Williams was arrested November 10, 1966 on a warrant charging him with the murder of James Melvin Sarver and, shortly thereafter, was brought before the judge of the county court for a preliminary hearing. At the hearing the attorney for the Commonwealth introduced the testimony of three witnesses, and then moved the judge to certify the case to the grand jury. Defense counsel objected that the motion was premature because they wished to call witnesses for the accused. Counsel contended that Code § 19.1--101 afforded them that right. ¹

In their argument to the judge, however, counsel said that they intended to call witnesses who would testify about an incriminating oral statement and a written confession allegedly made by Williams. One of the defense counsel said: '(W)e understand that the defendant made a statement. We feel that this is the best opportunity to bring it out. The circumstances growing out of that alleged statement.' The other defense counsel said: 'I * * * concur * * * We should have an opportunity to submit evidence also on the confession.'

The county judge overruled defense counsel's objection and, without hearing further evidence, certified the case to the grand jury. The grand jury subsequently indicted Williams for murder.

Before the trial in the circuit court, defense counsel moved to quash the indictment because Williams had been denied a preliminary hearing 'as required and provided by law'. The circuit court overruled the motion, to which action counsel objected and excepted and now assign error.

Williams pleaded not guilty and was tried before a jury on February 20 and 21, 1967. We will outline the evidence produced at the trial.

Between 10:30 and 11:00 on the night of November 9, 1966, Williams went to James M. Sarver's home. When Williams got there, Mr. and Mrs. Sarver, their fourteen-year-old son, James, their thirteen-year-old daughter, Linda, and their two younger daughters, Dianne and Nancy Marie, had gone to bed. Hearing a noise, Mr. Sarver went to the front door and opened it. Sarver talked briefly with Williams, after which Williams shot and killed him. Williams then entered the house, went into two of the bedrooms, and shot and wounded Mrs. Sarver, James Jr. and Nancy Marie. He also grabbed Dianne around the neck '(t) rying to choke her'.

Linda, who followed Williams when he carried Dianne out of their bedroom, saw her mother lying in the hall 'like he (Williams) had been beating her'. To protect her mother Linda struck Williams with a mop or broom handle, whereupon he grabbed Linda's hands and dragged her out of the house. While he was dragging Linda across the front yard, the lights from a passing automobile lit up the yard. Mrs. Sarver, who was following Williams and Linda, shouted that the police were coming, and Williams ran.

Counsel for Williams called a high school principal and two psychiatrists as witnesses for the defense. The principal testified that Williams did not complete the ninth grade, and that his general achievement in school and intelligence were below average. The psychiatrists, both of whom were employed by the State, said that Williams had an I.Q. of 83, which one described as '(d) ull normal' and the other as 'normal'. On cross-examination, both psychiatrists expressed the opinions that Williams was mentally competent and sane, knew right from wrong and the consequences of his acts, and was mentally competent to assist in his own defense.

Williams, testifying on his behalf, said that he did not remember going to Sarver's home or anything about the happenings there on the night of November 9, 1966. He did remember that he had seen Sarver at a store during the afternoon or early evening, at which time (Williams said) Sarver invited him to go hunting and suggested he come to Sarver's home at about 10:00 that night. Williams remembered his activities after he had seen Sarver at the store, including drinking an unspecified amount of whiskey, up to the time he left his companions and 'went on home'. Williams said he remembered nothing after that until the police came to his home and woke him at 3:30 a.m.

On cross-examination, the attorney for the Commonwealth asked Williams whether he remembered making an oral statement to a police officer. The court then heard, out of the presence of the jury, Williams's testimony and the testimony of two police officers respecting the oral statement and a written statement made by Williams, as well as the circumstances surrounding each statement. After the court had announced that it would admit the oral statement as evidence, the attorney for the Commonwealth withdrew his request for the admission of the written statement. The jury was then recalled, and defense counsel introduced into evidence both the oral statement and the written statement, which we will describe in the next two paragraphs.

A police officer testified that Williams told him that he had gone to Sarver's home on the night of November 9 to borrow jumper cables because his car had 'cut off' and that, while he was talking to Sarver at the front door, Mrs. Sarver came up and 'just kept cursing and rattling off'. Williams told the officer that Mrs. Sarver 'made him mad and * * * that is when he pulled the pistol out of his back pocket and started shooting'. Williams said that he then went into the house and 'all of them in the house were after him'; that 'he just started shooting them as they came to him'.

According to the handwritten statement, Williams shot Sarver because someone (whom Williams did not identify) threatened to kill Williams if he did not kill Sarver. Then, Williams wrote, '(h)is family began yelling and I got nervous and had been drinking, that must have been when I went in and shot them'.

In his closing argument to the jury, the attorney for the Commonwealth said:

'He (Williams) went in that house and shot Mrs. Sarver, shot little Jim, shot the little girl in the back bedroom and tried to shoot Mrs. Sarver again and ran out of bullets, five shots, and he threw his gun away, grabbed little Dianne by the throat, shook her like a chicken, was going to choke her, dragged her up to the front hallway and dropped her, then he grabbed Linda and dragged her out of the house. Let's brush it all aside and get down to the facts. What did he go down there for? He went down there to get him a woman. He knew where they were. He knew Linda. He had seen her in the car with her mother and father. (Williams had ridden in Mr. Sarver's car to and from work in Danville on several occasions.) That is why he went there. He went down there to get a woman and that is why he dragged her out of the house. Why else did he do it? Where was he taking her? He didn't tell us (when he testified) yesterday.' (Emphasis supplied.)

The court overruled defense counsel's objection to those remarks, and counsel assign error to the court's ruling.

The jury found Williams guilty of murder in the first degree and fixed death as the punishment. After hearing argument on a motion to set aside the verdict and considering a pre-sentence report, the court entered its conviction order on February 23, 1967, overruling the motion and sentencing Williams to death.

Defense counsel do not challenge the sufficiency of the evidence to support the jury's finding that Williams committed murder in the first degree. They assign these errors (the first and third having been already mentioned): (1) The circuit court's overruling the motion to quash the indictment because of alleged error by the county judge at the preliminary hearing, (2) the circuit court's...