Emmett v. Com.

Present: All the Justices

CHRISTOPHER SCOTT EMMETT
OPINION BY
v. Record No. 020314 JUSTICE LAWRENCE L. KOONTZ, JR.
September 13, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge

In a bifurcated trial conducted pursuant to Code § 19.2-

264.3, a jury convicted Christopher Scott Emmett of the capital

murder of John Fenton Langley in the commission of robbery, Code

§ 18.2-31(4), and fixed Emmett’s punishment at death. The trial

court imposed the death sentence in accordance with the jury’s

verdict. Code § 17.1-313(A) mandates that we review the

imposition of a death sentence. 1

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Emmett was also convicted of robbery and sentenced to life
imprisonment for that crime. Emmett noted an appeal of his
convictions, but on February 8, 2002 he filed a motion to
withdraw that appeal. Pursuant to the February 22, 2002 order
of this Court, the case was returned to the trial court with
instructions to determine whether Emmett’s decision to waive his
appeal was voluntarily and intelligently made. At a hearing on
March 4, 2002, the trial court accepted Emmett’s voluntary
waiver of his right to appeal, finding that he fully understood
the consequences of doing so. On March 8, 2002, the trial court
entered an order to that effect and returned the record to this
Court in order that we might conduct the mandated review of
Emmett’s death sentence.
 BACKGROUND

Weldon Roofing Company employed Emmett and Langley as

laborers for its roofing crews. During late April 2001, both

men were assigned to a project in the City of Danville and

shared a room at a local motel where the roofing crew was

staying. On the evening of April 26, 2001, Emmett, Langley,

Michael Darryl Pittman, and other members of the roofing crew

cooked dinner on a grill at the motel, played cards, and drank

beer. During the course of the evening, Langley loaned money to

Emmett and Pittman, who used the money to buy crack cocaine.

At approximately 11:00 p.m. that evening, Rainey Bell,

another member of the roofing crew, heard a noise he described

as “bang, bang” coming from the room Emmett and Langley shared.

Shortly after midnight, Emmett went to the motel office and

asked the clerk to call the police, saying that he had returned

to his room, “seen blood and stuff . . . and didn’t know what

had took place.”

The police arrived at the motel at 12:46 a.m. on April 27,

2001 and accompanied Emmett back to his room. There they

discovered Langley’s dead body lying face down on Langley’s bed

beneath a comforter. Blood spatters were found on the sheets

and headboard of Langley’s bed, on the wall behind it, and on

the wall between the bathroom and Emmett’s bed. A damaged brass

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lamp stained with Langley’s blood was discovered beneath

Langley’s bed.

In his initial statement to police, Emmett denied killing

Langley. He stated that he had returned to the room and gone to

bed. Emmett claimed to have discovered the blood and Langley’s

body later that night when he got up to use the bathroom.

Observing what appeared to be bloodstains on Emmett’s personal

effects, the police took possession of Emmett’s boots and

clothing with his permission. Emmett suggested that the blood

might be his own because he had injured himself earlier in the

week. Subsequent testing, however, revealed that Emmett’s boots

and clothing were stained with Langley’s blood.

Later in the morning of April 27, Emmett voluntarily

accompanied the police to the Danville police station. There he

agreed to be fingerprinted and gave a sample of his blood.

Emmett admitted to the police that he had been drinking and

using cocaine on the previous evening. Over the course of the

next several hours, Emmett related different versions of the

events of the previous evening to the police. He first

implicated Pittman as Langley’s murderer, but ultimately Emmett

told the police that he alone had beaten Langley to death with

the brass lamp.

Emmett was given Miranda warnings and he gave a full, taped

confession. Emmett stated that he and Pittman decided to rob

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Langley after Langley refused to loan them more money to buy

additional cocaine. Emmett stated that he struck Langley five

or six times with the brass lamp, took Langley’s wallet, and

left the motel to buy cocaine.

PROCEEDINGS

Emmett was indicted for capital murder and robbery. In the

guilt-determination phase of a bifurcated jury trial beginning

on October 9, 2001, the Commonwealth presented evidence in

accord with the above-recited facts. In addition, the

Commonwealth presented evidence from the medical examiner that

based upon the amount of blood and bruising of the victim’s

brain tissue at the point of impact, Langley was not killed

immediately by the first blow from the lamp. The medical

examiner conceded, however, that Langley might have been

unconscious after the first blow was struck and may have

suffered “brain death” prior to actual death.

After the jury convicted Emmett of capital murder and

robbery, during the penalty-determination phase of the trial,

the Commonwealth presented evidence of Emmett’s prior criminal

history. This evidence included an account of an instance in

which, while incarcerated in a maximum-security juvenile

detention facility, Emmett participated in an escape that

involved a guard being “rushed” and locked in a closet. In

addition, the criminal history evidence showed that while

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driving a vehicle under the influence of alcohol, Emmett was

involved in an accident in which the driver of a motorcycle was

killed in 1996. After the accident Emmett said “that there was

no need to worry about the man on the motorcycle. He was

already dead, and that [Emmett] could do nothing to help him.”

Emmett was convicted of involuntary manslaughter.

The Commonwealth also presented extensive victim-impact

testimony from members of Langley’s family. Emmett objected to

various statements made by the victim-impact witnesses who

appeared to urge the imposition of the death penalty. The trial

court sustained these objections and directed the jury to

disregard the statements.

Emmett presented evidence in mitigation from his mother,

sister, and a family friend. Emmett’s mother testified that

Emmett’s father had been abusive, and “he just never took care

of his family.” Both Emmett’s mother and sister testified that

Emmett had become withdrawn in the months prior to Langley’s

murder. The friend described Emmett as “a caring person” who

had helped her disabled husband with yard work and had assisted

her in caring for her son when he was injured and unable to

walk.

The jury returned its verdict imposing the death sentence

based upon both the statutory aggravating factors of future

dangerousness and vileness. Following consideration of a

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presentence report, the trial court imposed the jury’s sentence

of death.

DISCUSSION

As we have previously noted, Emmett has voluntarily waived

his right to appeal his convictions and, thus, to have the

proceedings of his trial reviewed for reversible error. The

Commonwealth contends that this waiver bars Emmett from

asserting that the death sentence was imposed as a result of

passion, prejudice, or other arbitrary factors because certain

evidence was erroneously admitted or that certain remarks by the

Commonwealth’s Attorney during the penalty-phase closing

argument were improper and should have been stricken from the

record.

We agree with the Commonwealth that, having waived his

right of appeal, Emmett may not assert that his sentence of

death is improper merely on the ground that there may have been

reversible errors committed in his trial. We consistently

adhere to the contemporaneous objection requirement of our Rule

5:25 and the further requirement of Rule 5:27 that trial error

must be the subject of an assignment of error. See, e.g.,

Overton v. Commonwealth, 260 Va. 599, 604, 539 S.E.2d 421, 423

(2000) (applying Rule 5:25 to failure to object to victim impact

testimony or introduction of photographs in Code § 17.1-313(C)

review of death sentence); George v. Commonwealth, 242 Va. 264,

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284, 411 S.E.2d 12, 23-24 (1991), cert. denied, 503 U.S. 973

(1992) (consolidation of charges not the subject of assignment

of error not considered in passion and prejudice review); see

also Rule 5:17(c). Emmett’s waiver of appeal implicates both of

these procedural requirements for our review of potential trial

errors, and we decline to create an exception to these

requirements.

However, “[t]he review process mandated by Code § 17.1-

313(C) cannot be waived. Rather, the purpose of the review

process is to assure the fair and proper application of the

death penalty statutes in this Commonwealth and to instill

public confidence in the administration of justice.” Akers v.

Commonwealth, 260 Va. 358, 364, 535 S.E.2d 674, 677 (2000).

The review process mandated by Code § 17.1-313(C)(1) is

meaningless without the recognition that the erroneous admission

of some evidence or some other error in an incident of trial

might result in a prejudicial verdict. Indeed, the import of

the review mandated by Code § 17.1-313(C)(1) is that a sentence

of death may be imposed erroneously as the result of passion,

prejudice, or other arbitrary factors even where there is, or

could be, no finding of reversible error in the trial

proceedings. Accordingly, in this case, while we will not

consider the merits of any assertion that evidence was

improperly admitted or that the Commonwealth’s Attorney made

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improper statements, we will nonetheless consider the potential

impact such evidence and statements may have had on the jury’s

decision to impose the death sentence.

Emmett makes several arguments in support of the contention

that the sentence of death was imposed upon him as the result of

passion, prejudice, or other arbitrary factors. Chiefly, he

points to the emotionally charged testimony of the victim’s

family members and their statements that appeared to urge the

imposition of the death penalty. However, each time a victim-

impact witness’s testimony broached this subject, Emmett

objected, and the trial court instructed the jury to disregard

the witness’s statement. A jury is presumed to follow the

instructions of the trial court. Weeks v. Angelone, 528 U.S.

225, 234 (2000); LeVasseur v. Commonwealth, 225 Va. 564, 589,

304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063 (1984).

Accordingly, we do not believe that this testimony unduly

influenced or prejudiced the jury in its determination whether

to impose the death sentence.

In further support of his assertion that his death sentence

was imposed as a result of passion or prejudice, Emmett points

to misstatements by the Commonwealth’s Attorney during his

closing argument in the penalty-determination phase of the trial

to the effect that any one of the blows to the victim could have

proven fatal, and a reference to Emmett’s prior conduct as

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having occurred in a prison rather than as in a maximum-security

juvenile detention facility. He further contends that the

Commonwealth’s Attorney intended to inflame the jurors’ passions

by telling them that “nobody is safe from this guy” and that

Emmett is dangerous because “[h]e has nothing to lose.”

We agree that the Commonwealth’s Attorney mischaracterized

the medical examiner’s testimony and that he inaccurately

referred to the juvenile detention facility as a prison.

However, these misstatements were minor and not unduly

prejudicial in light of the trial court’s instruction to the

jury that the argument of counsel was not evidence. Reviewing

the Commonwealth’s Attorney’s argument as a whole, we do not

believe that any of the instances cited by Emmett, individually

or cumulatively, created an atmosphere of passion or prejudice

that influenced the jury’s sentencing decision. See Burns v.

Commonwealth, 261 Va. 307, 344, 541 S.E.2d 872, 896, cert.

denied, ___ U.S. ___, 122 S.Ct. 621 (2001).

Emmett further contends that crime scene and autopsy

photographs admitted into evidence were unduly gruesome and

would have inflamed the jury’s passion in favor of imposing the

death sentence. While undoubtedly shocking and gruesome,

photographs that accurately depict the crime scene and the

condition of the victim are relevant to show motive, intent,

method, malice, premeditation, and the atrociousness of the

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crimes. Payne v. Commonwealth, 257 Va. 216, 223, 509 S.E.2d

293, 297 (1999). They also are relevant to show the likelihood

of Emmett’s future dangerousness. Id. Having reviewed these

exhibits, we cannot say that they would have unduly prejudiced

the jury or improperly inflamed the jurors’ passions so as to

taint their decision in favor of imposing the death sentence.

Emmett also contends that the admission of his prior

inconsistent statements to the police denying responsibility for

the murder and attempting to shift the blame to Pittman was

unduly prejudicial. These statements were clearly relevant to

show Emmett’s consciousness of guilt. See Rollston v.

Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991)

(“A defendant's false statements are probative to show he is

trying to conceal his guilt, and thus is evidence of his

guilt”); see also Carter v. Commonwealth, 223 Va. 528, 532, 290

S.E.2d 865, 867 (1982) (holding that trier-of-fact need not

believe a defendant’s explanation of events and may infer

consciousness of guilt from his false testimony). There is no

indication in the record that the Commonwealth introduced these

statements for any improper purpose, and we perceive nothing in

the record to support the suggestion that the jury was unduly

influenced by this evidence in considering whether to impose the

death sentence.

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 Finally, Emmett asserts that the evidence was insufficient

for the jury to have found that either aggravating factor

necessary under Code § 19.2-264.2 to the imposition of a death

sentence was present in this case and, thus, that the sentence

of death must have resulted from passion, prejudice, or other

arbitrary factors. There is no merit to this assertion.

With regard to the future dangerousness predicate, the

Commonwealth introduced evidence of Emmett’s prior participation

in an escape from a maximum-security juvenile detention

facility, which included an assault on a guard, and his

subsequent conviction as an adult for involuntary manslaughter.

The evidence also showed that Emmett lacked remorse for this

earlier violent crime and for the instant killing of a co-

worker. Indeed, Emmett himself confessed that he killed Langley

simply because it “just seemed right at the time.” Such lack of

regard for a human life speaks volumes on the issue of future

dangerousness and leaves little doubt of its probability.

With regard to the statutory vileness predicate, the

Commonwealth’s evidence supports two of the alternative

circumstances that can support a finding of vileness, i.e.,

aggravated battery and depravity of mind. See Goins v.

Commonwealth, 251 Va. 442, 468, 470 S.E.2d 114, 131, cert.

denied, 519 U.S. 887 (1996) (proof of any one of these statutory

components will support a finding of vileness). Aggravated

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battery is “a battery which, qualitatively and quantitatively,

is more culpable than the minimum necessary to accomplish an act

of murder.” Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d

135, 149 (1978), cert. denied, 441 U.S. 967 (1979). The use of

a blunt object to batter the skull of the victim repeatedly and

with such force that blood spatters several feet from the victim

is clearly both qualitatively and quantitatively more force than

the minimum necessary to kill the victim.

Emmett’s actions also established depravity of mind, that

is, a “degree of moral turpitude and psychical debasement

surpassing that inherent in the definition of ordinary legal

malice and premeditation.” Id. The evidence established that

Emmett violently attacked a co-worker with whom he had

apparently enjoyed an amicable relationship. The brutality of

the crime amply demonstrates the depravity of mind involved in

the murder of Langley. Cf. Akers, 260 Va. at 364, 535 S.E.2d at

677.

Pursuant to Code § 17.1-313(C)(2) we must also determine

whether Emmett’s death sentence is “excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.” Emmett first

notes that Code § 17.1-313(E) directs this Court to consider

“such records as are available as a guide in determining whether

the sentence imposed in the case under review is excessive.” He

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asserts that because records of unappealed capital murder

convictions in which a sentence of life imprisonment was imposed

are not collected for consideration during our proportionality

review, the review is inadequate because the comparison base is

skewed in favor of the death penalty. We have previously

rejected this argument and determined that the statute does not

require us to collect data from unappealed cases. Bailey v.

Commonwealth, 259 Va. 723, 741-42, 529 S.E.2d 570, 580-81, cert.

denied, 531 U.S. 995 (2000). In Bailey, we held that Code

§ 17.1-313(E) grants this Court the discretion to determine what

records to accumulate for our review process and that, “so long

as the methods employed assure that the death sentence is not

disproportionate to the penalty generally imposed for comparable

crimes, due process will be satisfied and the defendant's

constitutional rights protected.” Id.

Emmett further contends that sentencing bodies in the

Commonwealth generally have not imposed the death penalty in

capital murder cases where the predicate crime was robbery. In

support of this contention, Emmett asserts that a review of the

50 most recent capital murder appeals in this Court would reveal

that 17 of the 26 convictions where robbery was the gradation

offense resulted in life sentences. Moreover, he contends that

the facts of the cases in which life sentences were imposed are

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comparable or similar to the facts involved in his own crime or

more egregious.

Our proportionality analysis encompasses all capital murder

cases presented to this Court for review and is not limited to

cases selectively chosen by a defendant. “The test is not

whether a jury may have declined to recommend the death penalty

in a particular case but whether generally juries in this

jurisdiction impose the death sentence for conduct similar to

that of the defendant.” Stamper v. Commonwealth, 220 Va. 260,

283-84, 257 S.E.2d 808, 824 (1979), cert. denied, 445 U.S. 972

(1980). Additionally, the question of proportionality does not

turn on whether a given capital murder case “equal[s] in horror

the worst possible scenario yet encountered.” Turner v.

Commonwealth, 234 Va. 543, 556, 364 S.E.2d 483, 490, cert.

denied, 486 U.S. 1017 (1988).

“The purpose of our comparative review is to reach a

reasoned judgment regarding what cases justify the imposition of

the death penalty.” Orbe v. Commonwealth, 258 Va. 390, 405, 519

S.E.2d 808, 817 (1999), cert. denied, 529 U.S. 1113 (2000).

Although we cannot insure that “complete symmetry” exists among

all death penalty cases, “our review does enable us to identify

and invalidate a death sentence that is ‘excessive or

disproportionate to the penalty imposed in similar cases.’ ”

Id. (quoting Code § 17.1-313(C)(2)); see also Akers, 260 Va. at

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365, 535 S.E.2d at 677. The purpose of performing a comparative

review is not to search for proof that a defendant’s death

sentence is perfectly symmetrical with others, but to identify

and invalidate a death sentence that is aberrant. Orbe, 258 Va.

at 405, 519 S.E.2d at 817.

Emmett’s assertion that a raw statistical analysis of the

most recent capital murder cases reviewed by this Court

involving the gradation offense of robbery compels the

conclusion that a sentence of death would be inappropriate in

his case represents an overly simplistic and unwarranted

application of the proportionality review process. We do

include consideration of the predicate gradation offense or

status of the defendant or victim that elevates a murder to a

capital crime in narrowing our focus to determine

proportionality. However, we also take into account other

factors including, but not limited to, the method of killing,

the motive for the crime, the relationship between the defendant

and the victim, whether there was premeditation, and the

aggravating factors found by the sentencing body. In doing so,

we fulfill the statutory mandate to consider “both the crime and

the defendant.” By merely considering the most recent capital

murder cases appealed to this Court where the gradation offense

was robbery, Emmett has not based his argument on a probative

15
selection of prior cases, but on an incidental ratio that has

little or no bearing on the crime or the defendant in this case.

Having conducted the appropriate proportionality review, we

find that other sentencing bodies generally impose the death

penalty for comparable or similar crimes. See, e.g., Akers, 260

Va. 358, 535 S.E.2d 674; Graham v. Commonwealth, 250 Va. 79, 459

S.E.2d 97 (1995), cert. denied, 516 U.S. 997 (1996); Watkins v.

Commonwealth, 238 Va. 341, 385 S.E.2d 50 (1989), cert. denied,

494 U.S. 1074 (1990); Stout v. Commonwealth, 237 Va. 126, 376

S.E.2d 288, cert. denied, 492 U.S. 925 (1989); Watkins v.

Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), cert. denied,

475 U.S. 1099 (1986); Poyner v. Commonwealth, 229 Va. 401, 329

S.E.2d 815, cert. denied, 474 U.S. 865 (1985). Accordingly, we

hold that the sentence of death imposed in this case was not

disproportionate.

CONCLUSION

Having reviewed the sentence of death pursuant to Code

§ 17.1-313, we decline to commute that sentence. Accordingly,

we will affirm the judgment of the trial court. 2

2
The United States Supreme Court in Atkins v. Virginia, ___
U.S. ___, ___ 122 S.Ct. 2242, 2252 (2002), recently held that
the execution of mentally retarded persons violates the Eighth
Amendment’s prohibition against cruel and unusual punishments.
The Court did not establish an express standard for determining
when an individual would be considered mentally retarded and
left to the States the task of developing appropriate ways to
16
 Affirmed.

enforce this constitutional restriction upon executions.
Atkins, ___ U.S. at ___, 122 S.Ct. at 2250. The General
Assembly has not had the opportunity to address this matter
following the decision in Atkins.

At trial, Emmett did not assert that he is mentally
retarded. Moreover, our review of the record reveals nothing
that even suggests that he is mentally retarded. Emmett
received a high school equivalency diploma, attended a community
college, and was regularly employed during his adult life prior
to committing the murder in question. Accordingly, we conclude
that Emmett does not suffer from any mental retardation that
would constitutionally restrict the imposition of the death
sentence in this case.
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