Overton v. Commonwealth

Present: All the Justices

DAVID LESTON OVERTON, JR.

v. Record No. 000552 OPINION BY JUSTICE CYNTHIA D. KINSER
November 3, 2000
COMMONWEALTH OF VIRGINIA

From the Circuit Court of Chesterfield County
John F. Daffron, Jr., Judge

In this capital murder case, the defendant asks this

Court to commute his sentence of death to life

imprisonment. He contends that the circuit court imposed

the death penalty under the influence of passion or

prejudice, and that his sentence of death is

disproportionate to sentences imposed in factually

comparable cases. Finding no merit in the defendant's

arguments and after reviewing his sentence of death

pursuant to Code § 17.1-313(C), we will affirm the judgment

of the circuit court.

MATERIAL PROCEEDINGS

David Leston Overton, Jr., pled guilty to the capital

murder of Edgar Allen Williams, a 63-year-old quadriplegic.

After accepting Overton’s guilty plea and finding him

guilty of capital murder, the circuit court heard evidence

in aggravation and mitigation of the offense. 1 At the

1
Overton also pled guilty to robbery and statutory
burglary while armed with a deadly weapon. After finding
conclusion of the penalty-phase hearing, the court

sentenced Overton to death on the capital murder

conviction, finding that Overton’s conduct in committing

the murder was outrageously or wantonly vile in that it

involved an aggravated battery to the victim. 2

Pursuant to Code § 17.1-313(C), we now undertake the

mandatory review of Overton’s sentence of death to

determine whether it was imposed “under the influence of

passion, prejudice or any other arbitrary factor,” and

whether his sentence is excessive or disproportionate to

penalties imposed in this Commonwealth in similar cases,

“considering both the crime and the defendant.”

FACTS

On the morning of February 26, 1999, a detective with

the Chesterfield County Police Department responded to a

call concerning a dead individual at Williams' residence.

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Overton guilty of these charges, the circuit court
sentenced Overton to life imprisonment on the robbery
conviction, and to 20 years on the statutory burglary
conviction. Overton did not appeal those convictions.
2
The circuit court did not include its finding of the
“vileness” predicate in its sentencing order dated December
14, 1999. Consequently, this Court remanded the case to
the circuit court for clarification of its sentencing
order. In a subsequent order, the court found “beyond a
reasonable doubt that the defendant’s conduct in committing
the offense . . . was outrageously or wantonly vile,
horrible or inhuman in that it involved torture, depravity

2
Upon arriving at the scene and entering the house, the

detective found Williams lying on his back in his bed.

Williams appeared to be deceased. The shirt that Williams

was wearing was marked with numerous holes and red stains.

The telephone in the bedroom had been pulled from the wall.

During a search of Williams’ house, the police discovered

over $40,000 in cash and 11.88 grams of cocaine.

A subsequent autopsy of Williams’ body revealed that

he had sustained 21 stab wounds and one incised wound.

Three of the numerous stab wounds to Williams’ chest were

each lethal wounds. Although approximately 90 percent of

the wounds were located in the chest region, four stab

wounds were inflicted in the neck area. However, there

were no defensive injuries on Williams’ body nor any other

bruising that would indicate his assailant had hit or

punched Williams. On the autopsy report, the cause of

death was listed as “[e]xsanguination due to stab wounds of

[the] chest.”

Overton confessed to the murder of Williams. That

confession, along with testimony from Overton’s girlfriend,

Tina Marie Middlebrook, establishes the following pertinent

facts. On the evening of Williams’ murder, Overton,

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of mind or an aggravated battery to the victim.” The case
was then returned to this Court.

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Middlebrook, and Eric Brown, a friend of Overton, were

“doing drugs” in a motel room. Overton and Brown left the

motel and traveled by car to Williams’ house. On the way

to Williams’ home, they stopped at a convenience store and

purchased a flashlight so Overton could see what he was

doing without having to turn on the lights in Williams’

house. After they arrived at Williams’ home, Brown stayed

in the car, and Overton entered the house, apparently the

door was not locked, and walked into Williams’ bedroom.

Williams then turned on the light beside his bed and

started demanding to know why Overton was there so late at

night. At that point, Overton, in his words, “blacked out

and did it[,] . . . stabbed [Williams] with a knife

somewhere in his upper chest.” Overton described the knife

he used as a “skinning knife.” Overton then grabbed what

money he could see and a gun lying in a drawer of a

nightstand, and left Williams’ house. 3

3
Overton had been to Williams’ house with Middlebrook
on many occasions to buy drugs from Williams. In fact,
Overton admitted that he had gone to Williams’ house a
couple of days before the murder “to do it” but got scared
because he was not “high.”

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 On their way back to the motel, Overton threw the

knife out the car window. 4 After he and Brown returned to

the motel, Middlebrook observed a gun and rolls of money in

Overton’s coat pocket, and blood on his sleeve. She asked

Overton what he had done, and Overton admitted that he had

killed Williams. The three individuals then went to

Richmond to buy more drugs. Overton was arrested

approximately two weeks later.

At Overton’s sentencing hearing, the Commonwealth

introduced evidence with regard to the “vileness”

predicate. The court heard victim impact testimony from

Williams’ two daughters, his ex-wife, a friend, and

caretakers. The forensic pathologist who performed the

autopsy on Williams’ body described the numerous stab

wounds as the Commonwealth introduced into evidence

pictures of the victim and the wounds. The pathologist

opined that Williams may have been aware of what was

happening but that he would have become unconscious within

minutes.

Finally, the Commonwealth presented testimony from a

doctor who had treated Williams. Although Williams was a

quadriplegic, the doctor testified that Williams was able

4
After Overton was arrested, he took two police
officers to the location where he had thrown the knife.

5
to move his shoulders and arms, though the muscle function

in his hands was severely limited. Williams had normal

sensation throughout both arms and down to a “dermatoma

level in the skin” halfway between his collar bone and

nipple. Thus, the doctor opined that the majority of the

stab wounds inflicted on Williams were at or above the

point where Williams’ sensation was intact.

Overton then presented evidence in mitigation of the

offense. Members of his family testified that Overton was

“remorseful” and accepted responsibility for his crimes. A

licensed clinical psychologist stated that, when he treated

Overton on eight occasions approximately four years before

Overton committed the present crimes, Overton was “upset”

and “sad” about the “fights” and “conflict” in his home.

Finally, Overton submitted a letter to the circuit court in

which he stated, “I do not wish to fight this. I humbly

request that you respect the family’s [Williams’ family]

wishes in sentencing me to death.”

ANALYSIS

Overton does not assign any errors on appeal except

with respect to the two questions that this Court must

address in our statutorily mandated review. See Code

§ 17.1-313(C). In his first assignment of error, Overton

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The officers recovered the knife at that spot.

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asserts that his sentence of death was imposed under the

influence of passion, prejudice, or other arbitrary factors

for three reasons: (1) that the circuit court was

improperly swayed by the emotional testimony of Williams’

family and friends; (2) that the “graphic pictures” of the

victim improperly influenced the court; and (3) that

Overton’s letter to the circuit court requesting that the

death sentence be imposed impacted the court’s sentencing

decision. In his second assignment of error, Overton

contends that his sentence of death is disproportionate

because defendants in factually comparable cases have

received only life sentences. We do not agree with

Overton’s arguments.

With regard to Overton’s assertion that the circuit

court was improperly influenced by the victim impact

testimony from Williams’ family and friends, and by the

photographs of the victim and the stab wounds, we find that

Overton failed to object at the sentencing hearing either

to the victim impact testimony or to the introduction of

the photographs. His failure to make contemporaneous

objections at trial precludes consideration of those issues

on appeal. Rule 5:25; see also Cherrix v. Commonwealth,

257 Va. 292, 310, 513 S.E.2d 642, 654, cert. denied, ___

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U.S. ___, 120 S.Ct. 177 (1999) (defendant waived argument

for failure to object in trial court).

Turning to Overton’s letter addressed to the circuit

court, we note that the court stated at the sentencing

hearing that it had “not considered the defendant’s request

to die as an aspect or component of the sentencing

decision.” Nevertheless, Overton insists that his request

to die had to influence the court’s sentencing

determination. However, we are unwilling to disregard the

court’s unequivocal statement that it did not consider

Overton’s request. “ ‘A judge, unlike a juror, is uniquely

suited by training, experience and judicial discipline to

disregard potentially prejudicial comments . . . .’ ”

Smith v. Commonwealth, 239 Va. 243, 268, 389 S.E.2d 871,

885, cert. denied, 498 U.S. 881 (1990) (quoting Eckhart v.

Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157

(1981)). Thus, we conclude that Overton’s sentence of

death was not imposed under the influence of passion,

prejudice, or any other arbitrary factor.

The second part of our review, as well as Overton’s

second assignment of error, addresses the question whether

his “sentence of death is excessive or disproportionate to

the penalty imposed in similar cases, considering both the

crime and the defendant.” Code § 17.1-313(C)(2). Relying

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on several cases in which defendants convicted of capital

murder received life sentences rather than the death

penalty, such as Robinson v. Commonwealth, 231 Va. 142,

143, 341 S.E.2d 159, 160 (1986), and Simpson v.

Commonwealth, 227 Va. 557, 560, 318 S.E.2d 386, 388 (1984),

Overton argues that the facts of the present case

demonstrate that his sentence of death is disproportionate

to sentences generally imposed in this Commonwealth for

similar crimes. Those facts, according to Overton, include

his age of 19 at the time of the offenses; his

dysfunctional family; his drug use, especially on the day

of the offenses as opposed to a few days earlier when he

was not “high” enough to commit the crimes; Williams’ sale

of drugs to Overton and his girlfriend; the absence of

defensive wounds on Williams’ body, which, according to

Overton, indicates that he did not beat Williams; his

confession and cooperation in helping the police recover

the murder weapon; and his criminal record that consists of

only three prior convictions: possession of a concealed

weapon, petty larceny, and possession of stolen property.

Pursuant to Code § 17.1-313(E), we have accumulated

the records of all capital murder cases reviewed by this

Court. Those records include not only those cases in which

the death penalty was imposed, but also those cases in

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which either the trial court or jury imposed a life

sentence instead of the death penalty and the defendant

filed a petition for appeal with this Court. Orbe v.

Commonwealth, 258 Va. 390, 404, 519 S.E. 2d 808, 816

(1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1970 (2000);

Whitley v. Commonwealth, 223 Va. 66, 81, 286 S.E.2d 162,

171, cert. denied, 459 U.S. 882 (1982). In complying with

the directive in Code § 17.1-313(C)(2) to compare “similar”

cases, we have given particular attention, in conducting

the review of Overton’s sentence of death, to those cases

in which the underlying felony predicate, and the facts and

circumstances surrounding the commission of the crimes were

similar to those in this case. We have also focused on

cases in which the death penalty was imposed solely on the

basis of the “vileness” factor.

If we conduct, as Overton did, a selective review of

those records, it is possible to find comparable cases in

which defendants received death sentences as well as

comparable cases in which defendants received life

sentences. For example in Robinson, discussed by Overton

on brief, the defendant used a pair of scissors to inflict

lethal stab wounds to two individuals during the course of

a robbery in one of the victim’s townhouse. 231 Va. at

146, 341 S.E.2d at 161. The defendant had gone to the

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townhouse twice on the day of the murder, first because his

car had been towed and second ostensibly to pay his rent.

Id. at 145, 341 S.E.2d at 161. However, the defendant

received a life sentence instead of the death penalty on

each of two convictions of capital murder. Id. at 143, 341

S.E.2d at 160.

In contrast, the 21-year-old defendant in Boggs v.

Commonwealth, 229 Va. 501, 505-06, 331 S.E.2d 407, 411

(1985), cert. denied, 475 U.S. 1031 (1986), received the

death penalty for the capital murder of his neighbor, who

was an 87-year-old widow. The defendant planned the murder

and went to the victim’s home for a friendly visit. Id. at

507, 331 S.E.2d at 413. He then inflicted multiple blunt-

force blows with a metal rod to the victim's head and neck,

and stabbed her in the shoulder and chest. Id. at 507, 331

S.E.2d at 413.

However, our proportionality analysis encompasses all

capital murder cases presented to this Court for review and

is not limited to cases selectively chosen. Id. at 522,

331 S.E.2d at 422. 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,

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556, 364 S.E.2d 483, 490, cert. denied, 486 U.S. 1017

(1988).

Thus, upon reviewing the records of all capital murder

cases presented to this Court, including those cases cited

by Overton, and giving particular attention to cases

involving the predicate offense of robbery and the

“vileness” factor, we conclude that Overton’s sentence of

death is not excessive or disproportionate to sentences

generally imposed in this Commonwealth for capital murders

comparable to Overton’s murder of Edgar Allen Williams.

See, e.g., Fry v. Commonwealth, 250 Va. 413, 416-17, 463

S.E.2d 433, 435 (1995), cert. denied, 517 U.S. 1110 (1996)

(11 gunshot wounds to victim’s head, chest, and abdomen;

victim dragged down dirt road while alive); Barnes v.

Commonwealth, 234 Va. 130, 133, 360 S.E.2d 196, 199 (1987),

cert. denied, 484 U.S. 1036 (1988) (victim sustained

multiple gunshot wounds); LeVasseur v. Commonwealth, 225

Va. 564, 571, 304 S.E.2d 644, 647 (1983), cert. denied, 464

U.S. 1063 (1984)(three stab wounds, 40 other wounds

inflicted on victim; carving fork and ice pick left in

victim); Quintana v. Commonwealth, 224 Va. 127, 134, 295

S.E.2d 643, 645 (1982), cert. denied, 460 U.S. 1029 (1983)

(victim died from multiple hammer blows to head, neck, and

back); Bennett v. Commonwealth, 236 Va. 448, 452, 374

12
S.E.2d 303, 306 (1988), cert. denied, 490 U.S. 1028 (1989)

(victim died from multiple blunt impact injuries to head,

face, and right hand; stabbed three times in neck, once in

abdomen; and strangled). 5 Overton did, after all, inflict

21 stab wounds on a 63-year-old quadriplegic.

“The purpose of our comparative review is to reach a

reasoned judgment regarding what cases justify the

imposition of the death penalty.” Orbe, 258 Va. at 390,

519 S.E.2d at 817. 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 Tennessee v. Bland, 958 S.W.2d

651, 665 (Tenn. 1997), cert. denied, 523 U.S. 1083 (1998)

(court’s “function in performing comparative review is not

to search for proof that a defendant’s death sentence is

5
We cite these cases to show that the death penalty is
generally imposed in this Commonwealth for capital murders
similar to the one in this case. See Payne v.
Commonwealth, 257 Va. 216, 223, 509 S.E.2d 293, 298 (1999)
(from our accumulated records, we determine whether juries
in this Commonwealth generally approve the death penalty
for comparable crimes). “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

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perfectly symmetrical, but to identify and invalidate the

aberrant death sentence”).

For these reasons, we find no error in the imposition

of the death penalty in this case, nor do we perceive any

reason to commute Overton’s sentence of death to life

imprisonment. Accordingly, we will affirm the judgment of

the circuit court.

Affirmed.

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Va. 260, 283-84, 257 S.E.2d 808, 824 (1979), cert. denied,
445 U.S. 972 (1980).

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