Opinion
Record No. 1073-92-2
November 23, 1993
FROM THE CIRCUIT COURT OF HANOVER COUNTY RICHARD H. C. TAYLOR, JUDGE.
C. Willard Norwood (Raymond E. Chalkley, III; Chalkley Witmeyer, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton and Coleman.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The defendant appeals his conviction of first degree murder. On appeal, he raises numerous claims of error, which we address individually.
1. Subpoena Duces Tecum for Deceased's Psychiatric Records
The defendant, who claimed self-defense at trial, argues that the trial court erred in refusing to grant his request for a subpoena duces tecum for the victim's psychiatric records. We agree.
Rule 3A:12(b) of the Rules of the Virginia Supreme Court provides as follows:
Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena.
A subpoena duces tecum, when sought by an accused in a criminal trial "furthers the accused's right 'to call for evidence in his favor.'" Gibbs v. Commonwealth, ___ Va. App. ___, ___, 432 S.E.2d 514, 515 (1993). This right includes the right to obtain demonstrative evidence. Cox v. Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984).
The use of a subpoena duces tecum is not restricted only to those objects or documents that are admissible at trial.Gibbs, ___ Va. App. at ___, 432 S.E.2d at 515. However, in order to obtain a subpoena duces tecum, the moving party must demonstrate at least a substantial basis for claiming that the documents or objects sought are material. Id. This Court has defined materiality as tending "to establish a probability or improbability . . . of a fact in issue" at trial. Id.
The defendant's affidavit established a substantial basis for claiming that the records were material. In addition to alleging that the victim attempted suicide, the affidavit stated: "certain facts have disclosed that the decedent . . . possessed aggressive behavior towards others; that there have been several charges of assault placed against him." This affidavit adequately established that the victim's several charges of assault justified the defendant's belief that the victim possessed a violent nature. The psychiatric records sought may have supported a claim that the victim was the aggressor. Without seeing the records, the defendant could not have alleged a more substantial basis for claiming materiality.
When an accused pleads self-defense, he may introduce evidence of the deceased's dangerous character provided that he has supported his self-defense claim with some evidence.See Barnes v. Commonwealth, 214 Va. 24, 25, 197 S.E.2d 189, 190 (1973). Such evidence may tend to show who the aggressor was and how reasonable the defendant's apprehension was, and may be admitted at the discretion of the trial judge. Randolph v. Commonwealth, 190 Va. 256, 264-65, 56 S.E.2d 226, 230 (1949).
In some cases, such as where the victim or victim's family might be harmed by the revelation of the contents of such records, in camera review may be appropriate to determine whether records contain any material evidence and to exclude anything unnecessary and potentially embarrassing.
We distinguish this defendant's request from a "fishing expedition." Ferrell v. Commonwealth, 11 Va. App. 380, 388, 399 S.E.2d 614, 619 (1990). In Ferrell, no basis was alleged to support the defendant's assertion that the rape victim's psychiatric records might support the defendant's claim of consent.
Refusal to issue a subpoena duces tecum is not reversible error absent a showing of prejudice. Conway v. Commonwealth, 12 Va. App. 711, 716, 407 S.E.2d 310, 312-13 (1991) (en banc). Because we are unable to determine from the record whether the failure to obtain the documents sought prejudiced the defendant, this Court must vacate the judgment and remand to the trial court to determine whether the error prejudiced the defendant.Gibbs, ___ Va. App. at ___, 432 S.E.2d at 516.
2. Refusal to Suppress the Defendant's Statements
The defendant argues that his statements to the investigating officer were not voluntary and, therefore, should not have been admitted. We hold that the trial judge did not err in admitting the statements.
The test of voluntariness of a confession is whether, in light of all the circumstances, "the statement is the product of an essentially free and unconstrained choice by its maker, or whether the maker's will has been overborne and his capacity for self-determination critically impaired." Mundy v. Commonwealth, 11 Va. App. 461, 474, 390 S.E.2d 525, 532,aff'd en banc, ___ Va. App. ___, 399 S.E.2d 29 (1990),cert. denied, 112 S.Ct. 127 (1991). On appeal, whether a confession is voluntary is "a legal question requiring independent review by an appellate court, based upon the entire record." Id. However, subsidiary factual findings are entitled to a presumption of correctness, and appellate review is limited to determining whether the evidence supports the trial court's finding. Shell v. Commonwealth, 11 Va. App. 247, 252, 397 S.E.2d 673, 676 (1990).
We view the evidence presented at the suppression hearing in the light most favorable to the Commonwealth. Baldwin v. Commonwealth, 243 Va. 191, 193, 413 S.E.2d 645, 646 (1992). Viewed in this light, the evidence supports a finding of voluntariness. Having read the defendant his rights, the investigator spoke to him on the morning that the victim's body was discovered; upon the defendant's statement that he wanted a lawyer, the investigator discontinued the questioning. When the defendant subsequently approached the investigator to ask whether he was under arrest, the investigator told the defendant that he was free to go. The defendant, however, remained and began discussing his marital and alcohol problems with the investigator, who responded sympathetically and attempted to identify with the defendant. This action, however, did not render the later confession involuntary. "The mere adoption by police officers of a 'nurturing and supportive posture' does not render their actions coercive." United States v. Gordon, 812 F.2d 965, 967 (5th Cir.), cert. denied, 483 U.S. 1009 (1987).
Viewing the evidence of the discussion of the murder case in the light most favorable to the Commonwealth, we find that the investigator made no promise that the defendant would receive a lighter sentence if he cooperated. In addition, the investigator's taped statement that he "would do, whatever [he] could to help [the defendant] out," does not require a finding that the confession was involuntary. Standing alone, a promise of leniency generally is insufficient to support a finding that the accused's will was overborne. Harrison v. Commonwealth, 3 Va. App. 260, 266, 349 S.E.2d 167, 170 (1986). "Coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary.'" Colorado v. Connelly, 479 U.S. 157, 167 (1986). We find no evidence of such activity. The investigator's purchase of soda, cigarettes and dinner for the defendant following the defendant's first statement and prior to the taped statement was not coercive.
Furthermore, we find that the confession was prompted not by any conduct of the police, but by the urging of the defendant's friend and host, Friedhoff. At least five hours after his conversation with the investigator, the defendant reinitiated contact with the investigator. Having admitted to Friedhoff that he had killed the victim, and at Friedhoff's urging, the defendant invited the investigator to Friedhoff's house and confessed.
Because the evidence in its totality supports a finding of voluntariness, we affirm the trial court's admissions of the defendant's statements.
3. Exclusion of Testimony Regarding Suicide Attempt
The defendant next argues that the trial court erred in excluding evidence of the victim's suicide attempt. We find no error.
At trial, the defendant sought to introduce testimony that the victim had at one time attempted suicide by cutting his wrists. The defendant argues on appeal that this evidence was probative of the victim's aggressive nature. However, the defendant failed at trial to establish the relevance of this evidence. Absent testimony establishing its relevance, neither we, nor the trial judge possess the expertise required to determine whether a suicide attempt is probative of aggressive tendencies toward others. The weighing of the probative value of proffered evidence "rests largely with the trial court and will be reviewed only for an abuse of discretion." Lewis v. Commonwealth, 8 Va. App. 574, 579, 383 S.E.2d 736, 740 (1989) (en banc). The trial judge did not abuse his discretion when he excluded evidence that lacked a basis for determining its relevance.
4. Limitation of Defense Cross-Examination of Investigator.
The defendant argues that his cross-examination was wrongly curtailed by the trial court. We disagree.
"Limitation of cross-examination is a matter within the sound discretion of the trial court and is subject to review only for abuse of discretion." Naulty v. Commonwealth, 2 Va. App. 523, 529, 346 S.E.2d 540, 543 (1986); Stewart v. Commonwealth, 10 Va. App. 563, 567, 394 S.E.2d 509, 512 (1990). The right to cross-examine the adversary's witness is "one of the most zealously guarded rights"; however, once this right has been "substantially and fairly exercised," it is within the court's discretion whether to allow further cross-examination.Fields v. Commonwealth, 2 Va. App. 300, 308, 343 S.E.2d 379, 383 (1986).
The defendant was able to cross-examine the investigator thoroughly regarding any tactics he may have employed. The trial court's limitation of questioning did not prevent the defendant from eliciting the information he sought. The trial court was within its discretion in curbing questioning and did not thereby prejudice the defendant.
5. Sufficiency of the Evidence
Next, the defendant claims the evidence was insufficient to support a conviction for first degree murder. We disagree.
We address only the sufficiency of the evidence presented at this trial and do not intend our decision to apply in any way to the sufficiency of evidence which may be presented at a new trial should one be required upon remand.
In Virginia, every malicious killing is prima facie second degree murder; the Commonwealth bears the burden of elevating the grade of the offense to murder in the first degree.Willis v. Commonwealth, 10 Va. App. 430, 442, 393 S.E.2d 405, 411 (1990). Premeditation is generally "a question for the jury to determine from all the facts and circumstances, [and the] intention to kill need not exist for any specified length of time prior to the actual killing." Mundy, 11 Va. App. at 479, 390 S.E.2d at 535. "A design to kill may be formed only a moment before the fatal act is committed provided the accused had time to think and did intend to kill." Clozza v. Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230 (1985).
"Premeditation and formation of an intent to kill seldom can be proved by direct evidence. A combination of circumstantial factors may be sufficient." Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989). Factors that may be considered include "the nature and extent of the injuries inflicted upon the deceased; the physical disparity between the accused and his victim; the defendant's . . . efforts to avoid detection." Id. at 486, 384 S.E.2d at 98-99.
The evidence was sufficient to support a conviction of first degree murder. That the defendant killed the victim is not in dispute. The condition of the victim's body, which was badly bruised and cut, including a six-inch cut across the throat which severed the jugular and carotid arteries, nicked the vertebrae, and nearly decapitated the victim, gave rise to a reasonable inference that the defendant had acted deliberately. In addition, the defendant testified that earlier in the day he and the victim had argued verbally, that the victim had not been physically aggressive, and that the defendant had smacked the victim a number of times, then grabbed the victim by the head and knocked him into a tree. The defendant also testified that the victim had not responded physically to this attack.
The jury was not required to believe the defendant's later testimony that the victim "came at [him] with a knife." A jury is not required to accept a defendant's version of how a killing occurred, simply because the defendant says that is how it happened and is not contradicted. Crumble v. Commonwealth, 2 Va. App. 231, 236, 343 S.E.2d 359, 362 (1986). If a jury believes that a defendant is not telling the truth, they may reject his testimony, even if the defendant's reputation for truthfulness is not attacked and he is not contradicted by other witnesses. Id.
Furthermore, the jury was not required to believe either that the defendant was drunk or that he was so intoxicated as to be unable to form the requisite intent. Id. While "[a] person who voluntarily has become so intoxicated as to be unable to deliberate and premeditate cannot commit any class of murder that is defined as willful, deliberate and premeditated killing," Giarratano v. Commonwealth, 220 Va. 1064, 1073, 266 S.E.2d 94, 99 (1980), cert. denied, 498 U.S. 881 (1990), [m]ere intoxication from drugs or alcohol is not sufficient to negate premeditation. Fitzgerald v. Commonwealth, 223 Va. 615, 631, 292 S.E.2d 798, 807 (1982), cert. denied, 459 U.S. 1228 (1983).
The defendant's attempt to conceal the body and the evidence, also supports a reasonable inference of premeditation. The defendant buried the victim's body in a shallow grave, burned his clothes, washed the pickup truck in which he had transported the body, buried the knife used in the killing, and discarded his own blood-stained tennis shoes. In addition, when the victim's brother-in-law came looking for him, the defendant told a series of lies about the victim's whereabouts. From all of these circumstances, the jury reasonably could have inferred premeditation beyond a reasonable doubt.
6. Restriction of Voir Dire
The defendant contends that the trial court erred in restricting the defendant's voir dire of the prospective jurors. We find no error.
The defendant was afforded an adequate opportunity to ascertain the jurors' impartiality, despite the trial judge's curtailing of his question regarding "moral certainty" of guilt. "A party has no right, statutory or otherwise, to propound any question he wishes." Barrette v. Commonwealth, 11 Va. App. 357, 361, 398 S.E.2d 695, 697 (1990), cert. denied, 464 U.S. 1063 (1984)). Although the parties must be afforded "a full and fair opportunity to ascertain whether prospective jurors 'stand indifferent in the cause,'" it is in the trial judge's discretion to determine when the parties have had a sufficient opportunity to do so. Id. The trial judge did not err when he determined that the defendant had taken full advantage of that opportunity.
7. Restriction of Defense's Opening Statement
The defendant contends additionally that the trial court improperly restricted his opening statement. We find that the trial court did not err.
First, the defendant was not entitled to discuss the possible verdicts on opening. The purpose of an opening statement "is merely to inform the jury of what counsel expects the evidence to be so that they may better understand the evidence."Fields v. Commonwealth, 2 Va. App. 300, 307, 343 S.E.2d 379, 382-83 (1986). It may not be used to argue what may be the applicable law, and the trial court may instruct counsel not to do so. Lam v. Lam, 212 Va. 758, 759-60, 188 S.E.2d 89, 90 (1972). Thus, the restriction was proper.
Second, the defendant claims that the trial court committed prejudicial error in limiting his opening statement regarding why an anticipated witness may have requested that a charge of assault be nolle prossed against the victim. We cannot address this issue because the defendant's brief provides no support for his claim of error. An argument which is not fully developed in an appellant's brief need not be addressed on appeal.Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Furthermore, although the defendant has a right to make an opening statement, the trial court may exercise broad supervisory discretion. O'Dell v. Commonwealth, 234 Va. 672, 703, 364 S.E.2d 491, 509, cert. denied, 488 U.S. 871 (1988).
8. Misreading Transcript
The defendant claims next that the trial court failed to sustain his objection to the investigator's misreading or mischaracterization of the transcript of the defendant's statement. However, the trial court sustained the defendant's objection, agreed that the transcript did not say that it was "after the first stab" that the defendant "wasn't moving too good," and stated that the transcript "speaks for itself." The trial court did not err.
9. Jury Instructions Regarding Self-Defense Defense Instruction A: The defendant contends that the trial court erred in refusing to give his requested instruction regarding self-defense, which specifically mentioned the victim's reputation for violence. We find that the granted instructions, though less specific, adequately covered the issue of self-defense. "When granted instructions fully and fairly cover a principle of law, a trial court does not abuse its discretion in refusing another instruction relating to the same legal principle." Gray v. Commonwealth, 233 Va. 313, 351, 356 S.E.2d 157, 177-78, cert. denied, 484 U.S. 873 (1987).
Commonwealth Instruction D: The defendant next argues that the trial court erred in granting the instruction regarding "words alone." We find that the trial court did not err.
"A party is entitled to have the jury instructed according to the law favorable to his or her theory of the case if evidence in the record supports it." Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991). In making this determination the court must view the evidence in the light most favorable to the party requesting the instruction.Id. At trial, the Commonwealth presented evidence that the deceased had only verbally abused the defendant, that the deceased did not fight back when the defendant had smacked him, grabbed his head, and knocked him into a tree, that the two were arguing when the defendant pulled into the tire dump, and that the defendant was the first to get out of the truck. Viewed in the light most favorable to the Commonwealth, the evidence supports the Commonwealth's theory that the killing was provoked by words alone; thus, it was proper to grant the instruction.
10. Jury Instructions Regarding Grades of Offense
The defendant argues that it was error to give three separate instructions, rather than one, regarding the grades of the offense with which the defendant was charged. We find no error.
The instructions given in this case fully and fairly covered the grades of offenses and possible verdicts. See Gray, 233 Va. at 350-51, 356 S.E.2d at 177-78.
For these reasons, the judgment of conviction is vacated and the proceeding is remanded for the trial court to determine whether the refusal to issue a subpoena duces tecum prejudiced the defendant. If so, it shall order a new trial; if not, it shall reinstate the judgment.
Vacated and remanded.
I disagree with the majority's holding that the trial court was required to issue a subpoena duces tecum for the deceased victim's psychiatric records. Accordingly, I would affirm the trial court in all respects and would not vacate and remand the case for further proceedings.
Before the trial judge was required to have issued a subpoenaduces tecum for the victim's psychiatric records, which no doubt contained privileged communications, the defendant was required to demonstrate "a substantial basis for claiming" that the psychiatric records, even if not privileged, would be "material." Gibbs v. Commonwealth, ___ Va. App. ___, ___, 432 S.E.2d 514, 516 (1993). The defendant's affidavit simply stated that "certain facts have disclosed that the decedent . . . possessed aggressive behavior towards others; that there have been several charges of assault placed against [him]." The affidavit contained no factual allegations nor any suggestion that psychiatric treatment had been provided to the deceased pertaining to aggressive or assaultive behavior toward others or that he had been treated in relation to criminal assault charges. The majority speculates or surmises that the deceased victim's psychiatric records may have been material. Furthermore, the defendant has not demonstrated a "substantial basis" in this Court justifying our vacating the criminal conviction and remanding this case to the trial judge for anin camera review of the victim's psychiatric records.