Opinion
Record No. 1741-91-2
March 23, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES B. WILKINSON, JUDGE
Jody Ann Jacobson, Assistant Public Defender (David J. Johnson, Richmond Public Defender; Russell C. Williams, Assistant Public Defender; Bryan William Horn, Third Year Law Student, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Barrow, Elder and Moon
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Antonio Maurice Finney appeals from his convictions for rape, robbery, abduction with intent to defile, capital murder during or subsequent to a rape and in the commission of a robbery with a deadly weapon, and the use of a firearm in a capital murder. He presents six assignments of error. For the reasons discussed herein, we affirm appellant's convictions.
The parties are familiar with the record; consequently, this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
I.
Appellant argues four grounds to support his contention that the evidence was insufficient to support his convictions. "When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). In addition, any conflicts in the Commonwealth's evidence must be resolved in the Commonwealth's favor. See Eaton v. Commonwealth, 240 Va. 236, 249-50, 397 S.E.2d 385, 393 (1990), cert. denied, 112 S. Ct. 88 (1991).
A.
Appellant asserts that the evidence was insufficient to show that he committed robbery, a necessary element to support his convictions for both robbery and capital murder in the course of a robbery. Robbery is "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation."George v. Commonwealth, 242 Va. 264, 277, 411 S.E.2d 12, 20 (1991) (quoting Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28, 31 (1964)), cert. denied, 112 S. Ct. 1591 (1992). Although not ordinarily thought of as robbery, "the [forcible] taking of the victim's [clothing], by violence and against [her] will, is in itself sufficient to constitute a robbery." Simpson v. Commonwealth, 227 Va. 557, 567, 318 S.E.2d 386, 392 (1984). The evidence in this case shows that appellant participated in the forcible removal of Davis' clothing and that he alone dragged her nude body into the woods and shot her to death, thereby showing his intent to deprive her permanently of her clothing.
In addition, the jury could also reasonably have concluded from the evidence that appellant was a principal in the second degree to Gee's taking of Davis' watch. The evidence showed that, when appellant first spotted Davis by the side of the road, he asked his companions whether they thought she had any money. He then stopped to pick her up; participated in the forcible removal of her pants; assaulted and raped her; remained present while Gee took her watch; and later received the watch from Gee. This level of involvement provided sufficient evidence to support a finding that appellant participated in the robbery as a principal in the second degree. See, e.g., Jones v. Commonwealth, 208 Va. 370, 372-73, 157 S.E.2d 907, 909 (1967). That participation is also sufficient to support a conviction for capital murder, provided that the participant was a principal in the first degree to the murder, which appellant was here. Briley v. Commonwealth, 221 Va. 563, 573, 273 S.E.2d 57, 63 (1980), cert. denied, 461 U.S. 918 (1983); see Watkins v. Commonwealth, 229 Va. 469, 485-86, 331 S.E.2d 422, 434-35 (1985), cert. denied, 475 U.S. 1099 (1986).
For these reasons, we affirm appellant's convictions for robbery and capital murder in the commission of a robbery.
B.
Appellant asserts next that the evidence was insufficient to show that he was armed with a deadly weapon in the course of a robbery. The Commonwealth argues that Rule 5A:18 bars our consideration of this assignment of error. Counsel may meet the mandates of Rule 5A:18 in several different ways. Lee v. Lee, 12 Va. App. 512, 515-16, 404 S.E.2d 736, 738 (1991) (en banc). Counsel for appellant did not present this argument in conjunction with his motion to strike either at the close of the Commonwealth's evidence or at the close of all the evidence. Counsel also did not raise this issue in closing arguments. He did, however, raise it in his motion to set aside the verdict. This action is adequate to preserve the sufficiency issue for appeal. See McGee v. Commonwealth, 4 Va. App. 317, 321-22, 357 S.E.2d 738, 740 (1987).
Although not procedurally barred, appellant's claim fails on the merits, as the Supreme Court's holding in Correll v. Commonwealth, 232 Va. 454, 352 S.E.2d 352, cert. denied, 482 U.S. 931 (1987), makes clear. In that case, Correll and his two co-defendants abducted the driver of a passing car by choking him and then driving away in his car after locking him in the trunk. At some point during the drive, one of Correll's co-defendants found a knife in the victim's car, which Correll used to stab the victim after dragging him from the trunk into the woods. Correll and his co-defendants then discarded the knife and drove away in the victim's car. Id. at 458-59, 352 S.E.2d at 354. On appeal, Correll argued that the evidence was insufficient to convict him of armed robbery because he was not armed with a deadly weapon during the commission of the robbery. The Court acknowledged that Correll had been unarmed when the robbery began, but held that the robbery covered the entire course of conduct, including Correll's stabbing of the victim in the woods and driving off in the victim's car. "Only at this point was the taking of the car consummated and the robbery completed, and Correll was clearly armed with the knife during the commission of a portion of the robbery." Correll, 232 Va. at 465, 352 S.E.2d at 358 (citing Briley v. Commonwealth, 221 Va. 532, 543-44, 273 S.E.2d 48, 55 (1980), cert. denied, 451 U.S. 1031 (1981)).
The facts of this case are even more clear-cut than those inCorrell. In Correll, the defendant found the deadly weapon in his victim's car after he had subdued the victim. Here, appellant began the course of conduct with three guns in his own vehicle. Appellant did not actually use the deadly weapon until after the course of conduct had begun and the victim had been subdued; however, he did use it before the course of conduct had been completed, just as in Correll. We hold, therefore, that the evidence was sufficient to show that appellant was armed with a deadly weapon in the commission of the rape and robbery.
C.
Appellant also argues that the evidence was insufficient to support his conviction for abduction with intent to defile under Code § 18.2-48. Conviction under this section requires proof that appellant (1) physically detained Davis, with the intent to deprive her of her personal liberty by force, deception or intimidation, and (2) did so with the intent to engage in nonconsensual sexual contact. Simms v. Commonwealth, 2 Va. App. 614, 617-18, 346 S.E.2d 734, 735 (1986). Although the evidence, even viewed in the light most favorable to the Commonwealth, shows that Davis got into appellant's van willingly, the evidence also shows that her willingness ended when appellant and his cohorts began to make sexual advances. When Davis swung at Gee in response to his offensive touching, appellant, Gee and Jones all hit her in the head and face and forcibly removed her clothes. The jury could reasonably have concluded that Davis' lack of resistance during appellant's penetration was a result of the beating she had received rather than her consent to have sex. Clearly, the record contains sufficient evidence from which the jury could have concluded that appellant was guilty of abduction with intent to defile.
D.
Appellant also argues that the evidence was insufficient to show that his sexual penetration of the victim was by force or intimidation or otherwise against her will. As discussed above, however, the evidence, when viewed in the light most favorable to the Commonwealth, shows that appellant, Gee, and Jones all hit Davis before any of them engaged in sexual intercourse and that the most savage beating, which was intended to keep her from crying out to a passerby and left her unable to sit up, was delivered immediately before appellant had sex with her. In addition, Gee acknowledged that Davis did not consent to having sex, and he characterized his actions as rape. Clearly, the evidence was sufficient to support a finding that appellant personally raped Davis and that he was a principal in the second degree to his companions' rape of Davis.
II.
Next, appellant argues that the trial court erred in refusing to instruct the jury on the lesser included offense of second degree murder. He argues that such an instruction was necessary because, had the jury concluded he did not premeditate the murder, it could have found him guilty of no more than second degree murder. Under Code § 18.2-32, however, absence of premeditation does not automatically reduce a killing to second degree murder. In addition to premeditated murder, murder "in the commission of . . . arson, rape, forcible sodomy, inanimate object sexual penetration, robbery, burglary, or abduction" is also murder of the first degree. Where the killing and rape or robbery "are so closely related in time, place, and causal connection as to make them parts of the same criminal enterprise," the predicates for first degree murder under Code § 18.2-32 are established. Pope v. Commonwealth, 234 Va. 114, 125, 360 S.E.2d 352, 359 (1987) (applying this concept to capital murder under Code § 18.2-31(d)), cert. denied, 485 U.S. 1015 (1988). Further, these relationships need not be jury questions; rather, in the proper case, they may be determined as a matter of law. Id. Here, as in Pope, the trial court's ruling implicitly adopted the view that the murder and predicate offenses — the rape and robbery — were so closely related in time, place, and causal connection as to constitute a criminal enterprise as a matter of law. See id. For this reason, we hold that the trial court did not err in refusing to instruct the jury on the elements of second degree murder.
III.
Last, appellant argues that the trial court erred in refusing to grant a mistrial in the penalty phase after the prosecutor commented in his closing argument on the absence of evidence showing appellant's remorse. We reject this assignment of error for two reasons. First, we conclude that the prosecutor's remark was not improper. However, even if it did constitute error, that error was harmless.
Appellant is correct in his assertion that a comment is constitutionally and statutorily forbidden if "'the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263 (1977) (quotingKnowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955)). However, the facts of this case are almost identical to those presented in Johnson v. Commonwealth, 236 Va. 48, 372 S.E.2d 134 (1988), in which the Supreme Court concluded that "the prosecutor's remarks were not proscribed under the test approved inHines." Id. at 50-51, 372 S.E.2d at 136 (emphasis added).
Speaking rhetorically, the prosecutor [in Johnson] asked the jurors if they had "heard from that witness stand any evidence" that the defendant had denied his guilt. Any witness who had spoken with the defendant could have supplied such evidence if, in fact, the defendant had uttered such a denial. Hence, the prosecutor's reference to the lack of such evidence — like a comment that incriminating evidence had not been contradicted — cannot be characterized fairly as a remark that the jury naturally and necessarily would interpret as a comment on the fact that Johnson had exercised his right not to testify.
Id. at 51, 372 S.E.2d at 136 (citations omitted). We view the prosecutor's statements in this case — "I listened for something else, somewhere, maybe we got lucky and we hear something, some evidence of remorse, some evidence, something that he was sorry . . . ." — in precisely the same light.
However, even if we were to conclude that the prosecutor's comments during the penalty phase of the trial were improper, the error was harmless. Appellant had already been found guilty of a Class 1 felony, under Code § 18.2-31, in the guilt phase of his trial. Accordingly, the only possible punishments he could have received were death or imprisonment for life. Code § 18.2-10(a). Because appellant received the lesser of these two penalties, the error was clearly harmless beyond a reasonable doubt. Further supporting this conclusion is the fact that the remedy for constitutional error in the penalty phase of a trial is a new trial on the penalty alone. See, e.g., Turner v. Murray, 476 U.S. 28, 37 (1986). Because a retrial of the penalty phase could not result in a more lenient punishment, the error, if any, was harmless.
For the foregoing reasons, we affirm appellant's convictions.
Affirmed.