Wise v. Com.

• Decision Date: 27 November 1985
• Docket Number: 850232,Nos. 841900,s. 841900
• Citation: 230 Va. 322,337 S.E.2d 715
• Parties: Joe Louis WISE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 715

337 S.E.2d 715

230 Va. 322

Joe Louis WISE v. COMMONWEALTH of Virginia.

Record Nos. 841900, 850232.

Supreme Court of Virginia.

Nov. 27, 1985.

[230 Va. 324] William B. Claiborne, South Boston, for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: All the Justices.

POFF, Justice.

In a consolidated trial, a jury convicted Joe Louis Wise of capital murder in the commission of armed robbery, armed robbery, use of a firearm in the commission of a felony, and grand larceny. The trial court confirmed the four verdicts and imposed penitentiary sentences of life for robbery, two years for the use of a firearm, and 20 years for grand larceny. In a separate proceeding, see Code §§ 19.2-264.3 and -264.4, the jury fixed the penalty for the capital conviction at death, and the court entered final judgment imposing the sentence. We have certified Wise's appeals in the non-capital cases to this Court, see Code § 17-116.06(B)(1), combined those appeals with his capital appeal and the penalty review mandated by Code § 17-110.1, and accorded the several proceedings priority on our docket, see Code § 17-110.2.

We will consider the questions presented as stated on brief by the defendant. All but two are addressed to the conduct of the guilt phase of the consolidated trial. Wise challenges the selection of the jury, several evidentiary rulings, certain conduct of the attorney for the Commonwealth, and the sufficiency of the evidence. Concerning the penalty phase of the capital trial, Wise contends that the death penalty was the product of passion or prejudice and was disproportionate to the penalty imposed in similar cases.

SELECTION OF THE JURY

Prospective jurors were questioned individually and privately. The trial court seated three veniremen over Wise's challenge for cause. The court should have stricken John L. Tucker, Wise argues, because "he had a long standing friendship with the Commonwealth's Attorney and [they] had been golfing buddies on many occasions."

We have held that a prospective juror is not disqualified to sit on a criminal case solely because he has a familial or an attorney-client relationship with the Commonwealth's Attorney. Calhoun v. Commonwealth, 226 Va. 256, 263, 307 S.E.2d 896, 900 (1983); accord Elam v. Commonwealth, 229 Va. 113, 116, 326 S.E.2d 685, 687 (1985). It follows that a social relationship, standing alone, is no cause for disqualification. See Lane v. United States, 321 F.2d 573 (5th Cir.1963), cert. denied, 377 U.S. 936, 84 S.Ct. 1340, 12 L.Ed.2d 299 (1964). Tucker's responses to questions from the bench clearly negate any danger of bias.

Prospective juror Gladys McKinney should not have been seated, Wise says, because she "gave vague answers", "stated she was confused", and raised "grave questions about her ability to sit impartially as a juror." McKinney had read newspaper articles about the crimes and Wise's arrest. She thought "it was a terrible thing that happened" and "justice ought to be done". Asked by defense counsel if Wise "should have been arrested", she replied, "Yes."

Wise argues that McKinney's answer reflects an opinion that he was guilty because he was arrested. But the standard for arrest of a suspect is probable cause; the standard for conviction of an accused is proof beyond a reasonable doubt. The fact that McKinney thought Wise should have been arrested as a suspect does not show that she thought he deserved to be convicted. In unequivocal answers to searching inquiries by the court, McKinney declared that what she had learned from the newspapers would not affect her impartiality or ability to give Wise a fair trial, that she was not sensible of any bias or prejudice against the defendant, and that she could enter the jury box with an open mind and wait until the entire case was concluded before reaching a fixed opinion about the guilt or innocence of the accused.

Looking to the "entire voir dire rather than the single answer andquestion", Fitzgerald Prospective juror Rebecca Hood stated that she believed in capital punishment. "How strong do you believe in it?" defense counsel inquired. "If the evidence calls for it," she replied. Pressed further, Hood explained that she meant "[t]he evidence presented in this courtroom." We find nothing in this dialogue or elsewhere in the voir dire to support the defendant's argument on appeal that Hood's "state of mind is such that she could not give the defendant a fair trial."

v. Commonwealth, 223 Va. 615, 628, 292 S.E.2d 798, 805 (1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1235, 75 L.Ed.2d 469 [230 Va. 326] (1983), we uphold the trial court's finding that McKinney was qualified to sit on this jury.

THE EVIDENCE OF RECORD

We review the facts in the light most favorable to the Commonwealth. The victim of these crimes was William Ricketson, a superintendent at the Mecklenburg Correctional Center. About 4:00 p.m. on December 1, 1983, Ricketson prepared to leave his home in Boydton to get a haircut and go deer hunting on property near Chase City. He laid $12.00 on a table for household expenses, but his wife told him he would need the money to pay for his haircut. Ricketson left in a white Ford pickup truck carrying a rifle and a shotgun. At Chase City, he got a haircut and bought a soft drink and a candy bar. He paid the bills with money taken from a wallet kept in his pants pocket.

At 1:00 p.m. the next day, Ricky Symmonds, a North Carolina deputy sheriff, stopped to investigate a white pickup parked on the shoulder of the southbound lane of Interstate Route 95. The defendant was adding oil to the engine. A service station attendant had informed the police that the driver of the pickup was armed. The officer recovered a .25 caliber pistol from Wise's pocket, arrested him for carrying a concealed weapon, and locked him in the county jail. The pickup was registered in Ricketson's name. During an inventory search of the vehicle, the police seized two shotguns. One was later identified as a gun Wise had taken to a gun shop for repairs and the other as a gun Ricketson used for hunting. On Wise's person, the police discovered two wallets. One contained Wise's driver's license; the other was empty.

On the same afternoon, Ernest Mitchell, a resident of Middlesex, North Carolina, reported to the Mecklenburg sheriff's department that Wise had told him and other friends that he had killed a man and "put him in a hole" behind the old excelsior plant in Chase City. The plant had been converted for use as a flea market, and the office was used as a residence. Investigating officers found blood at a point on the shoulder of the road near the building. A trail of blood led from the road to the driveway, across a sidewalk, and then to the edge of a hole in the ground behind the building. The hole, which had been dug for use as an outdoor toilet, was filled with water, mud, and human feces. From this hole, the officers recovered Ricketson's body which had been completely submerged under the weight of a number of cinder blocks. Ricketson's trousers had been pulled down, inside out, to the top of his boots, and his wallet was missing.

An autopsy revealed multiple injuries resulting from blunt-force blows to the head, including scalp wounds and a skull fracture. Three fingers were broken, and flesh had been torn from the nose, chin, and forehead. A bullet fired at close range had perforated the right eyeball and lodged near the surface behind the left ear. A ballistics test showed that this bullet had been fired from the .25 caliber pistol taken from Wise when he was arrested.

Ricketson had also suffered a chest wound from a shotgun blast. The pellets were recovered from a point just beneath the skin. According to a forensic scientist, the shallow penetration supports the conclusion that the victim was under water when the gun was fired. The medical examiner found "water and clay and gritty sand" in the nose, mouth, lungs, and stomach of the body which, he said, showed that Called as a witness for the Commonwealth, Shirley Whittaker testified that Wise came to her trailer home in Middlesex between 1:00 a.m. and 2:00 a.m. on December 2, 1983. Wise told her that "he had just killed a man", that "he shot the man in the eye", that "he took the man outside the house, around the house, he beat the man with the gun and broke the gun handle over the man's head", that he threw the man in a "hole that they had dug around the back of the house for a toilet", and that he "threw some dirt over him and bricks." Wise declared that "the man had only six dollars." Responding to a question posed by defense counsel, Whittaker added, "He said he got it out of the man's pocket." Wise was wearing a green coat stained with blood. "He pulled that off," Whittaker said, "and carried it out and burned it up."

                the victim had "breathed and swallowed the muddy water with the sand and the grit when he was alive."   The gunshot wounds and the skull fracture were lethal injuries, but drowning was the ultimate cause of death
                

Before Wise left, Whittaker called her next-door neighbor, Mary Booth, to come to her trailer. Booth testified that Wise, her stepson, told her that he had shot an intruder when he reached for his pocket and that he took him outside and "beat him and then he put him in a hole." Booth saw a .25 caliber pistol, a shotgun with a broken stock, and a driver's license bearing Ricketson's name, all lying on the floor of the trailer. Ricketson's wife identified the shotgun as the one her husband carried the day of the crimes.

In response to a telephone call from Mary Booth, Clarice Bowser drove to the trailer. Bowser testified that Wise told her that he had surprised a stranger at the excelsior plant, that "the man went for his pocket and he said he shot the man ... [and] he drug him behind the house and put him in a hole".

Wise made eight statements...