Present: All the Justices
ROBIN LOVITT
v. Record No. 001015 OPINION BY JUSTICE BARBARA MILANO KEENAN
Record No. 001420 November 3, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
In these appeals, we review the capital murder conviction
and death sentence imposed on Robin Lovitt, along with his
conviction for robbery.
I. PROCEEDINGS
Lovitt was indicted for capital murder based on the
willful, deliberate, and premeditated killing of Clayton Dicks
during the commission of a robbery, in violation of Code § 18.2-
31(4). Lovitt also was indicted for the robbery of Dicks, in
violation of Code § 18.2-58.
In the first stage of a bifurcated trial conducted under
Code § 19.2-264.3, a jury convicted Lovitt of the offenses
charged. In the penalty phase of the trial, the jury fixed his
punishment for capital murder at death based on a finding of
"future dangerousness," and for robbery at life imprisonment.
The trial court sentenced Lovitt in accordance with the jury
verdict.
We consolidated the automatic review of Lovitt's death
sentence with his appeal of the capital murder conviction. Code
§ 17.1-313(F). We also certified Lovitt's appeal of his robbery
conviction from the Court of Appeals and consolidated that
appeal with his capital murder appeal. Code § 17.1-409.
II. GUILT PHASE EVIDENCE
We will state the evidence presented at trial in the light
most favorable to the Commonwealth, the prevailing party in the
trial court. Walker v. Commonwealth, 258 Va. 54, 60, 515 S.E.2d
565, 568 (1999), cert. denied, ___ U.S. ___, 120 S.Ct. 955,
(2000); Roach v. Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98,
101, cert. denied, 519 U.S. 951 (1996). The evidence showed
that in the early morning hours of November 18, 1998, Clayton
Dicks was stabbed six times in the chest and back while working
during the overnight shift at Champion Billiards Hall (the pool
hall) in Arlington County.
A few months before the killing, Lovitt worked as a cook at
the pool hall on an evening shift that ended when Dicks arrived
to begin the overnight shift. Amy Hudon, the manager at the
pool hall, testified that about two months before Dicks was
killed, she had trouble opening a cash register drawer near a
pool table and asked Lovitt to help her open the drawer. Lovitt
opened it by "wedging" a pair of scissors into the drawer's
2
latch. About two months before the killing, Lovitt quit working
at the pool hall.
On November 17, 1998, the day before the killing, Lovitt
went to the Arlington home of his cousin and tried to sell him a
television set. The same day, Lovitt spoke to an acquaintance
in a failed attempt to find a job.
Later that night, Lovitt went to the pool hall between 8:00
and 10:00 p.m. and spoke with people he knew. When Lovitt asked
some of them for money, each refused his request. Two of these
people recalled that Lovitt wore a flannel shirt that night.
The bartender that night, Thomas Schweiker, did not know Lovitt
but remembered giving matches to a man leaning over the bar.
Later, Schweiker noticed that a pitcher containing cash from
cigarette sales was missing from beneath the bar where the man
had been leaning. Schweiker testified that the man, an African-
American in his middle or late twenties, had a stocky build and
facial hair, and was wearing a plaid flannel shirt.
Dicks arrived at the pool hall between 1:30 and 2:00 a.m.
The other employees present when Dicks arrived had left the pool
hall by 3:00 a.m., leaving Dicks as the sole employee on the
premises. The last four patrons in the pool hall that morning
left between 2:45 and 3:00 a.m. One of these patrons was
Officer Dennis A. Holland of the United States Capitol Police,
who was a long-time patron at the pool hall. Holland testified
3
that he saw a man who looked "familiar" enter the pool hall as
he and his friends were leaving. Holland described the man as
being black, about five feet, ten or eleven inches tall,
weighing between 185 and 190 pounds, and wearing a flannel
shirt.
About 3:25 a.m., José N. Alvarado and Carlos Clavell
entered the pool hall and saw two men arguing behind the bar.
Alvarado testified that one man was shorter than the other, and
that the shorter man repeatedly shoved the taller man, who was
wearing an apron. Alvarado stated that he and Clavell watched
as the shorter man stabbed the taller man six or seven times
with a silver-colored weapon. Alvarado saw blood on the taller
man's apron and watched as the taller man fell to the floor
behind the bar. Clavell testified that he heard the taller man
begging the shorter man to stop attacking him. Both Alvarado
and Clavell saw the assailant repeatedly kick the man who had
fallen to the floor.
Alvarado and Clavell immediately ran from the pool hall to
a service station, where Alvarado telephoned the "911" emergency
response number and reported what they had seen. Although
Alvarado could not identify Lovitt as Dicks's assailant at the
preliminary hearing held in this case, Alvarado testified at
trial that he was about "80% certain" that Lovitt was the
assailant.
4
When police and emergency medical personnel arrived at the
pool hall in response to Alvarado's telephone call, they found
Dicks lying on the floor behind the bar in a pool of blood.
Dicks was alive but was unable to speak and was taken by
helicopter to a nearby hospital. The multiple stab wounds
prevented his heart from functioning, and he died while awaiting
surgery.
Dicks had been stabbed six times, five times in the chest
and once in the back. Four of these wounds were lethal. Dicks
also suffered two areas of internal hemorrhage on both sides of
his head, as well as external abrasions on both shoulders and on
his left knee.
The police recovered from the pool hall a cash register
that was lying on the floor near where Dicks was found. The
register was broken into pieces, the cash drawer had been
removed from the register and was missing, and a torn piece of a
ten-dollar bill was found nearby. A pair of scissors with
orange handles that was usually kept in a container on the bar
was missing. A police canine unit found an orange-handled pair
of scissors bearing blood lying open in the woods about 15 yards
behind the pool hall.
Warren A. Grant, Lovitt's cousin, testified that Lovitt
arrived at Grant's home in the early morning hours of November
18, 1998. Grant lived about a quarter of a mile from the pool
5
hall in a residential area located on the "other side" of the
woods. Grant stated that Lovitt knocked on his door sometime
between 1:30 and 3:00 a.m. Lovitt was wearing a plaid shirt and
entered the house carrying what looked like a large, square,
gray metal box. After Lovitt unsuccessfully tried to open the
locked box, Grant eventually opened it by using a screwdriver to
"pop" some of the screws securing the box. Lovitt removed money
from the opened cash register drawer and divided the cash
between himself and Grant. Lovitt left the cash register drawer
with Grant and instructed him to "[g]et rid of [it]." A few
days later, Grant began cutting the cash drawer into pieces with
tin snips and put them in a bag.
Grant's girlfriend, Delores L. Harris, testified that she
was in Grant's house that morning and watched Grant and Lovitt
open the cash register drawer. She noticed that Lovitt looked
"sweaty" and gave him a towel.
On November 20, 1998, Arlington Detective Noel E. Hanrahan
obtained pieces of the cash register drawer from Grant. Four
days later, Lovitt was arrested and charged with the present
offenses. At that time, he was wearing a plaid shirt and a dark
jacket, and he told the police that he had been wearing the same
clothes for the past few days. When Officer Stephen Ferrone
collected Lovitt's clothing at the jail, Ferrone asked a
detective whether he needed to seize Lovitt's jacket. Ferrone
6
testified that, upon hearing this question, Lovitt stated, "I
wasn't wearing it when it happened."
Julian J. Mason, Jr., a forensic scientist employed by the
Virginia Division of Forensic Science, qualified as an expert
witness on the subject of tool mark identification. He
testified that the cash register drawer Grant surrendered to the
police had been removed from the broken cash register found on
the floor of the pool hall. Mason also stated that the pry
marks on the cash register drawer were made by the scissors that
were found in the woods behind the pool hall.
Lawrence Abrams, an identification technician for the
Arlington County Police Department, testified that he was not
able to obtain fingerprints from the handle of the scissors due
to its irregularly-shaped surface. The only identifiable
fingerprints obtained in relation to the present crimes were
Grant's fingerprints that were obtained from the cash register
drawer.
Carol Palmer, a forensic scientist employed by the Virginia
Department of Forensic Science, qualified as an expert witness
on DNA testing. Palmer extracted human DNA from two places on
the scissors, on a blade near the tip and on a blade near the
finger loops. She also extracted blood from three small
circular areas on the left front side of Lovitt's jacket, but
the DNA tests were inconclusive and Palmer was unable to
7
determine whether the blood on the jacket was human. Palmer
found no blood on the flannel shirt, black jeans, or shoes that
Lovitt was wearing when he was arrested.
Palmer testified that she performed DNA testing using the
"polymerase chain reaction," or PCR, technique on the DNA
extracted from the scissors. The DNA extracted from the tip of
the scissors displayed a DNA profile that matched the DNA
profile of Dicks. The profile derived from this sample did not
match the DNA profiles of either Lovitt or Grant, thus
eliminating both as contributors of this DNA. Palmer stated
that the chance of someone other than Dicks contributing the DNA
sample on the tip of the scissors was 1 in more than 5.5
billion.
The DNA extracted from the mid-section of the scissors also
matched the DNA profile of Dicks. However, Palmer stated that
this DNA evidence, unlike the DNA evidence from the tip of the
scissors, did not exclude either Lovitt or Grant and, thus, was
inconclusive as to them.
After Lovitt's arrest, he was incarcerated in the Arlington
County Jail in the same unit as Casel Lucas. Lovitt and Lucas
developed a friendship during the two months that they lived
together in this unit. Lovitt first told Lucas that after
leaving the bathroom at the pool hall on the night of the
murder, Lovitt saw a Hispanic man stabbing Dicks. Lovitt told
8
Lucas that, at that time, Lovitt saw the cash register drawer,
grabbed it, and ran from the pool hall.
According to Lucas, Lovitt later stated that he knew Dicks
and was aware that no one else would be in the pool hall late at
night. Lovitt further related that he waited in the bathroom
until everyone left the pool hall before coming out of the
bathroom to attempt to open the cash register drawer. Dicks
confronted Lovitt as he unsuccessfully attempted to open the
cash drawer. Lovitt told Lucas that he had to kill Dicks
because Dicks had recognized him. According to Lovitt, Dicks
asked him, "[W]hy [are] you doing this?" Lovitt admitted to
Lucas that he stabbed Dicks several times and took the cash
register drawer to his cousin's house where he and his cousin
split the money before leaving to buy some drugs. Lovitt told
Lucas that he discarded the murder weapon while en route to or
from Grant's house, and that he changed his clothes at Grant's
house because he had blood on his shirt and pants.
Detective Irv Ellman testified that he has been employed by
the City of Alexandria Police Department for about 15 years. He
stated that he has known Lucas since 1994, that he knows other
people in the law enforcement community who know Lucas, and that
Lucas has a reputation among the law enforcement community for
being truthful.
9
On cross-examination, Ellman testified that he was aware of
Lucas's felony convictions. When asked if he knew how many
convictions Lucas had, Ellman stated, "Myself, I'm responsible
for probably 14 counts, some burglaries and a recent armed
burglary. That is how I know that he is truthful." When asked
whether Lucas had testified on a previous occasion in an
unrelated case in order "to cut a deal against someone else,"
Ellman replied that he knew Lucas had testified in an earlier
case, but did not know if he had made a "deal" with the
prosecutor. When asked whether he believed that Lucas would lie
to help or save himself, Ellman replied, "No."
Detective Stuart Chase of the Arlington County Police
Department testified that Carlos Clavell, one of the two
witnesses to the killing, told Chase that he saw "a light-
colored vehicle, probably a Cadillac" parked in the pool hall
parking lot when he and Alvarado arrived at the pool hall that
night. Clavell told Chase that he saw the Cadillac again when
he and Alvarado ran to telephone the police, but that the car
was gone when they returned to the pool hall with the police.
Andre M. Boyd and Tashia A. Davis testified that they were
at the pool hall on the night of the killing, and that Lovitt
asked each of them for money. Boyd and Davis left the pool hall
together between 2:45 and 3:00 a.m. on November 18, 1998.
According to Boyd, he and Davis walked to Boyd's mother's house
10
about seven blocks away. However, Davis testified that she and
Boyd left the pool hall parking lot in a 1987 gray Cadillac and
drove to Boyd's mother's house on Oxford Street.
State Trooper T. L. Robinson testified that on November 18,
1998, between 3:00 and 4:00 a.m., he was notified by a police
dispatcher to "be on the lookout" for an older white Cadillac.
Robinson reported to the dispatcher that 10 to 15 minutes
earlier, he had seen a white, 1973 Cadillac Eldorado pass below
a highway ramp on which he was parked.
III. PENALTY PHASE EVIDENCE
During the penalty phase of the trial, the Commonwealth
presented evidence of Lovitt's criminal record. In October
1975, when Lovitt was 11 years old, he was charged with assault
and placed in protective supervision. Also as a juvenile, in
August 1979, Lovitt was committed to the Beaumont Learning
Center of the State Department of Corrections (Beaumont) based
on adjudication of charges of breaking and entering and larceny.
While at Beaumont, Lovitt was disciplined for fighting, assault,
and possessing contraband items. After his release from
Beaumont in 1980, Lovitt was convicted of grand larceny in 1981
and was sentenced to 12 months in jail.
Between 1983 and 1985, Lovitt was convicted of petit
larceny, grand larceny, breaking and entering, and distribution
of marijuana. In 1986, Lovitt was convicted of attempted
11
robbery and was sentenced to a term of imprisonment of from one
to three years. After being released on parole in August 1987,
Lovitt's parole was revoked in August 1988 based, in part, on
additional arrests and his failure to pass certain drug tests.
Lovitt later was convicted of statutory burglary and grand
larceny. While incarcerated on these convictions and the parole
violation, Lovitt was disciplined for damaging property and for
fighting.
In September 1990, Lovitt again was released on parole. In
early 1991, Lovitt was convicted of possession of cocaine, grand
larceny, and burglary. While incarcerated on these charges,
Lovitt was the subject of ten disciplinary actions for offenses
including possession of contraband, disobeying direct orders,
assault, possession of intoxicants, and manufacturing "shank
handles." After being released on parole in October 1996,
Lovitt was convicted in 1997 of possession of marijuana, petit
larceny, unlawful entry, assault and battery, and destruction of
property. Lovitt was on parole at the time of the present
offenses.
In October 1998, Arlington County Police Officer Jerome A.
Lee detained Lovitt in an apartment parking lot in Arlington.
Lovitt had parked his car behind the apartments, appeared to be
very nervous, and consented to a search of his vehicle. Lee
found a long kitchen knife on the floor of the passenger area
12
and a soda can used to smoke crack cocaine in the rear floor
area of the vehicle.
Lovitt presented testimony from his sister, Amanda Jones,
who testified that Lovitt was the oldest of 12 children and that
he helped take care of his younger siblings, although not
"gladly." Lovitt also presented testimony from four deputies
employed by the Arlington County Sheriff's Office, who stated
that Lovitt had not presented any disciplinary problems while
being held in jail on the present charges.
IV. ISSUES PREVIOUSLY DECIDED
On appeal, Lovitt raises certain arguments that we have
resolved in previous decisions. Since we find no reason to
modify our previously expressed views, we reaffirm our earlier
holdings and reject the following arguments:
A. Imposition of the death penalty constitutes cruel and
unusual punishment in violation of the United States
Constitution and the Constitution of Virginia. Rejected in
Johnson v. Commonwealth, 259 Va. 654, 667, 529 S.E.2d 769, 776
(2000); Yarbrough v. Commonwealth, 258 Va. 347, 360 n.2, 519
S.E.2d 602, 607 n.2 (1999); Goins v. Commonwealth, 251 Va. 442,
453, 470 S.E.2d 114, 122, cert. denied, 519 U.S. 887 (1996).
B. The "future dangerousness" aggravating factor is
unconstitutionally vague because (1) it requires jurors to reach
a finding based on the confusing standard of a "probability"
13
"beyond a reasonable doubt;" and (2) the failure to provide jury
instructions regarding the meaning of the term "future
dangerousness" violates the United States Constitution and the
Constitution of Virginia. Rejected in Johnson, 259 Va. at 667,
529 S.E.2d at 776; Walker, 258 Va. at 61, 515 S.E.2d at 569;
Cherrix v. Commonwealth, 257 Va. 292, 299, 513 S.E.2d 642, 647,
cert. denied, ___ U.S. ___, 120 S.Ct. 177 (1999); Williams v.
Commonwealth, 248 Va. 528, 536, 450 S.E.2d 365, 371 (1994),
cert. denied, 515 U.S. 1161 (1995); Smith v. Commonwealth, 219
Va. 455, 476-78, 248 S.E.2d 135, 148-49 (1978), cert. denied,
441 U.S. 967 (1979).
C. The "future dangerousness" aggravating factor
unconstitutionally permits consideration of unadjudicated
conduct. Rejected in Johnson, 259 Va. at 667, 529 S.E.2d at
776; Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Williams, 248
Va. at 536, 450 S.E.2d at 371.
D. Virginia's penalty phase instructions do not adequately
instruct the jury concerning mitigation. Rejected in Buchanan
v. Angelone, 522 U.S. 269, 275-76, (1998); Yarbrough, 258 Va. at
360 n.2, 519 S.E.2d at 607 n.2; Cherrix, 257 Va. at 299, 513
S.E.2d at 647; Swann v. Commonwealth, 247 Va. 222, 228, 441
S.E.2d 195, 200, cert. denied, 513 U.S. 889 (1994).
E. The post-verdict review of the death sentence by the
trial court does not satisfy constitutional standards because
14
the trial court may consider hearsay evidence contained in a
pre-sentence report and is not required to set aside the death
sentence upon a showing of good cause. Rejected in Johnson, 259
Va. at 667-68, 529 S.E.2d at 776; Walker, 258 Va. at 61, 515
S.E.2d at 569; Cherrix, 257 Va. at 299-300, 513 S.E.2d at 647;
Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675-76,
cert. denied, 513 U.S. 971 (1994).
F. The trial court's refusal to permit the defendant to
question prospective jurors individually during voir dire
violates the defendant's constitutional right to a fair and
impartial jury. Rejected in Cherrix, 257 Va. at 300, 513 S.E.2d
at 647; Goins, 251 Va. at 453, 470 S.E.2d at 122; Swann, 247 Va.
at 228, 441 S.E.2d at 200.
G. The trial court's refusal to permit the defendant to
make additional peremptory strikes as an added procedural
safeguard in death penalty cases fails to ensure the defendant's
constitutional rights. Rejected in Walker, 258 Va. at 64, 515
S.E.2d at 571; Clagett v. Commonwealth, 252 Va. 79, 85, 472
S.E.2d 263, 266-67 (1996), cert. denied, 519 U.S. 1122 (1997);
Swann, 247 Va. at 227, 441 S.E.2d at 199.
H. This Court's proportionality review in death penalty
cases, as presently conducted, unconstitutionally denies
defendants meaningful review because this Court fails to give
appropriate consideration to cases in which sentences of life
15
imprisonment are imposed. Rejected in Bailey v. Commonwealth,
259 Va. 723, 740-41, 529 S.E.2d 570, 580-81 (2000).
V. MOOT ISSUE
Lovitt challenges the constitutionality of the Virginia
death penalty statutes on the basis that the aggravating factor
of vileness, as set forth in Code § 19.2-264.4(C), is
unconstitutional both on its face and as applied to his case.
He bases this argument on his assertion that the statutory terms
are unconstitutionally vague. However, we do not address
Lovitt's arguments regarding this issue, because the jury
elected to base his sentence of death only on the "future
dangerousness" predicate. When a death sentence is based solely
on "future dangerousness," all issues related to the "vileness"
predicate are rendered moot. See Swann, 247 Va. at 228 n.2, 441
S.E.2d at 200 n.2; Fisher v. Commonwealth, 236 Va. 403, 414, 374
S.E.2d 46, 53 (1988), cert. denied, 490 U.S. 1028 (1989).
VI. ADDITIONAL CONSTITUTIONAL CHALLENGE
Lovitt argues that the "future dangerousness" aggravator is
unconstitutionally "vague as applied," because this Court has
allowed the language of this aggravating factor to be applied in
an "unfettered" manner in several other of the capital murder
convictions that the Court has upheld on appeal. We find no
merit in this argument, because our determination of the
sufficiency of the evidence of "future dangerousness" in other
16
cases does not provide a basis for reversing the jury's finding
of "future dangerousness" in Lovitt's case. Lovitt's allegation
that the evidence in his case of "future dangerousness" was
insufficient as a matter of law must be determined based on the
facts of his own case. Thus, the application of the "future
dangerousness" predicate in other cases does not affect the
question whether Lovitt's death sentence should be upheld.
VII. JURY SELECTION
Lovitt argues that the trial court abused its discretion in
refusing to strike one juror for cause after she stated with
visible emotion that about ten years earlier, when she was a
student at the University of Florida, five neighbors whom she
did not know were murdered. We disagree with Lovitt's argument.
On appellate review, we give deference to the trial court's
determination whether to exclude a prospective juror, because
the trial court was able to see and hear each member of the
venire respond to the questions posed. Thus, the trial court is
in a superior position to determine whether a juror's responses
during voir dire indicate that the juror would be prevented or
impaired in performing the duties of a juror as required by the
court's instructions and the juror's oath. Vinson v.
Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999),
cert. denied, ___ U.S. ___, 120 S.Ct. 2226 (2000); Stewart v.
Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402, cert.
17
denied, 510 U.S. 848 (1993). A trial court's decision on this
issue will not be disturbed on appeal absent a showing that the
trial court abused its discretion. Vinson, 258 Va. at 467, 522
S.E.2d at 176; Roach, 251 Va. at 343, 468 S.E.2d at 109.
In conducting our review, we consider the juror's entire
voir dire, not merely isolated statements. Vinson, 258 Va. at
467, 522 S.E.2d at 176; Clagett, 252 Va. at 90, 472 S.E.2d at
269; Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759,
767 (1988), cert. denied, 492 U.S. 925 (1989). In the present
case, the juror was asked whether her experience in Florida
would make it difficult for her to serve as a juror. She
replied, "I think it is something that I would find emotionally
challenging, but at the same time, if I was picked as a juror, I
would be able to do my duty." In response to a question whether
her experience made her predisposed to the death penalty, the
juror stated that the Florida case "has nothing to do with this
case, I'm sure." In addition, the juror responded in the
affirmative when asked whether she could "keep an open mind" in
deciding the case.
The above responses are illustrative of the entire voir
dire of the juror, which contains no indication that the trial
court abused its discretion in accepting her statement that she
could fulfill the duties of a juror in the trial of the case.
Thus, we conclude that the trial court did not abuse its
18
discretion in refusing to strike this juror for cause from the
jury panel.
VII. GUILT PHASE ISSUES
Lovitt argues that the trial court erred when it permitted
Detective Irv Ellman to testify concerning witness Casel Lucas's
reputation for truth and veracity. Lovitt objected to Detective
Ellman's testimony prior to its admission on the grounds of
relevance. When the Commonwealth responded that Detective
Ellman would testify concerning Lucas's reputation for
truthfulness in the police community, and the trial court ruled
that the testimony was admissible, Lovitt made no further
objection. Ellman then testified, as stated above, that he had
known Lucas since 1994, that he knew others in the law
enforcement community who knew Lucas, and that Lucas had a good
reputation in that community for being truthful. 1
After the Commonwealth rested its case and the trial court
denied Lovitt's motion to strike the evidence, Lovitt moved the
court to strike Ellman's testimony on two new grounds. First,
Lovitt argued that the Commonwealth had failed to lay a
foundation for Ellman's testimony and had established only that
Lucas had admitted his involvement in 14 felony offenses.
1
Lovitt does not argue on appeal that the trial court erred
in overruling the objection to Ellman's testimony that he made
on the grounds of relevance. Since Lovitt has abandoned that
19
Second, Lovitt asserted that the "police community" was "too
small a group and not a proper group" upon which to base
testimony about Lucas's reputation for truthfulness. The
prosecutor did not object to the timeliness of these new
objections and, after the trial court considered counsel's
arguments, it upheld its earlier ruling that Ellman's testimony
was admissible and denied Lovitt's motion to strike the
testimony. 2
This sequence of events reveals that after the Commonwealth
rested its case, Lovitt presented to the trial court new
challenges to previously admitted evidence. In essence, Lovitt
was requesting that the evidence be reopened so that Ellman's
testimony could be stricken and the jury instructed to disregard
it. Our holdings in Woodson v. Commonwealth, 211 Va. 285, 288,
175 S.E.2d 818, 821 (1970); Poole v. Commonwealth, 211 Va. 258,
260, 176 S.E.2d 821, 823 (1970), make it abundantly clear that
after the Commonwealth has rested its case, it is not error for
the trial court to refuse a new objection that has been raised
regarding previously admitted evidence. Here, the trial court
argument on appeal, we do not consider the merits of that
objection.
2
On brief, Lovitt raises an additional, new argument that
the trial court erred in refusing to strike Detective Ellman's
testimony because it consisted only of Ellman's opinion, which
was based on specific acts. Since Lovitt did not raise this
argument at trial, we do not consider the argument here. Rule
5:25.
20
considered the arguments of counsel and although the court did
not rely on the timing of Lovitt's objections in making its
ruling, the court rejected the objections, thus declining to
reopen the evidence. Accordingly, the result that the trial
court reached was proper under Woodson and Poole. 3
Lovitt next argues that the trial court erred in permitting
a probation officer to testify that Lovitt failed to appear for
an appointment which was scheduled to take place five hours
after the time of the killing. Lovitt also argues that the
trial court erred in admitting into evidence a capias for
Lovitt's arrest, which showed that Lovitt missed a required
court appearance on the day following Dicks's killing. Lovitt
concedes that this evidence of flight is "marginally probative,"
but contends that its prejudicial effect as evidence of prior
bad acts outweighs its probative value. We disagree with
Lovitt's arguments.
Flight by a defendant after the commission of a crime is
probative evidence of guilt of that crime. Clagett, 252 Va. at
93, 472 S.E.2d at 271; Boykins v. Commonwealth, 210 Va. 309,
313-14, 170 S.E.2d 771, 774 (1969). The admission of such
evidence of a potentially prejudicial nature is a matter
submitted to the trial court's sound discretion for a
3
In light of our holding, we need not address the merits of
the reasons given by the trial court underlying its denial of
21
determination whether the probative value of the evidence
outweighs its prejudicial effect. See Orbe v. Commonwealth, 258
Va. 390, 402, 519 S.E.2d 808, 815 (1999), cert. denied, ___ U.S.
___, 120 S.Ct. 1970 (2000); Coe v. Commonwealth, 231 Va. 83, 87,
340 S.E.2d 820, 823 (1986). Here, Lovitt's conduct tended to
prove that immediately after the killing, he sought to avoid any
contact with law enforcement officials and the courts. This
evidence also directly rebutted the assertion of defense counsel
during opening argument that Lovitt did not avoid contact with
the police in the days following the killing. Thus, the trial
court did not abuse its discretion in balancing the probative
value of this evidence against its potential prejudicial effect
that Lovitt had disregarded his probation officer's instructions
and was being sought by the police for failure to appear at a
court hearing of an unspecified nature.
Lovitt next argues that the trial court erred in denying
his motion to strike the capital murder charge on the ground
that the evidence was insufficient as a matter of law. He notes
that José Alvarado, one of two witnesses to the killing, was
unable to identify Lovitt at the preliminary hearing as Dicks's
assailant and, at trial, was only "80% certain" that Lovitt was
the assailant. Lovitt also contends that the testimony
concerning the Cadillac automobile parked in the pool hall lot,
these two new objections.
22
and the fact that Warren Grant's blood and fingerprints were
found on the cash register drawer while Lovitt's were not,
"favor[] Lovitt's innocence." Lovitt also observes that the DNA
found near the handle of the scissors, which failed to exclude
Lovitt as its donor, also failed to exclude Grant. Thus, Lovitt
argues, the totality of the evidence "does not rise to the
'beyond a reasonable doubt' standard." We disagree with
Lovitt's arguments.
The evidence, viewed in the light most favorable to the
Commonwealth, is sufficient to support the jury verdict. As
stated above, the jury received evidence that Lovitt had an
immediate need for money. He had worked at the pool hall, and
he was familiar with the employee work shifts and the location
of cash kept on the premises. Also, he knew that he could pry
open the cash register drawer with a pair of scissors, as he had
done on an earlier occasion. Lovitt was seen at the pool hall
earlier in the evening when he was unsuccessful in his attempt
to obtain money from some people he knew. Later, the bartender
at the pool hall, who did not know Lovitt, noticed that a
pitcher containing some cash was missing from beneath the bar in
an area where a man matching Lovitt's general description had
been standing.
Officer Holland testified that a person matching Lovitt's
general description was in the pool hall about 3:00 a.m.,
23
shortly before the killing. José Alvarado, who witnessed the
killing, testified that he was "80% certain" that Lovitt was
Dicks's assailant.
A pair of scissors belonging to the pool hall was
identified as the murder weapon and was found in the woods that
led from the pool hall to Grant's house. Lovitt could not be
eliminated as a possible source of the DNA found on the murder
weapon.
Grant and his friend, Delores Harris, testified that Lovitt
appeared at Grant's house, which was a short distance from the
pool hall, in the very early morning hours of the day in
question, carrying a cash register drawer that was later
determined to have been taken from the pool hall. After Grant
pried open the drawer, Lovitt divided the money with Grant.
At the time he was arrested, Lovitt volunteered to the
police officer collecting his clothes that he was not wearing
the jacket "when it happened." Lovitt later admitted his
commission of the crime to Casel Lucas. Several aspects of this
confession were corroborated by other evidence, such as the
evidence that Lovitt was unable to open the cash register drawer
at the time of the offense, and evidence that Lovitt fled to
Grant's house after the killing. In addition, there was
evidence corroborating Lucas's statement that Lovitt told him
that he decided to kill Dicks because he could identify Lovitt.
24
Dicks would have been able to identify Lovitt based on his
earlier employment at the pool hall.
Lovitt's attacks on the credibility of Alvarado, Grant,
Harris, Davis, Boyd, and Lucas were resolved against Lovitt by
the jury's determination of Lovitt's guilt. Thus, based on the
above-stated evidence, and the reasonable inferences that can be
drawn from the evidence, we conclude that the evidence is
sufficient to support the jury's determination of guilt on the
capital murder charge.
Lovitt next argues that the trial court erred in refusing
to permit Lovitt's counsel to testify after Carol Palmer, a
forensic witness, made a statement during cross-examination that
allegedly was inconsistent with a statement she had made to
Lovitt's counsel prior to trial. Lovitt's counsel requested
that he be allowed to testify that in an earlier telephone
conversation with him, Palmer replied in the affirmative when he
asked her, "[W]ould you expect there to be a blood transfer from
the victim to the perpetrator?" Lovitt asserts that the trial
court abused its discretion in denying his counsel's request to
withdraw from the case and allow his co-counsel to complete
Lovitt's defense.
In response, the Commonwealth contends that Lovitt did not
argue in the trial court that he should be allowed to withdraw
and have his co-counsel continue representing Lovitt. The
25
Commonwealth asserts that, instead, Lovitt's counsel argued that
he should be permitted to testify and then continue to represent
Lovitt along with his co-counsel. We agree with the
Commonwealth's argument.
At the time he asked the court to be allowed to testify
concerning his telephone conversation with Palmer, Lovitt's
counsel did not request to withdraw from his representation of
Lovitt and have co-counsel remain as sole counsel in the case.
Lovitt's counsel asserted only that because "something [came] up
in the middle of the trial that was unexpected and
unanticipated[,] . . . I can testify." Since Lovitt's counsel
did not argue to the trial court that he should be allowed to
withdraw from the case and co-counsel continue Lovitt's
representation, we will not consider that argument on appeal.
Rule 5:25.
VIII. SENTENCING PHASE ISSUES
Lovitt contends that the trial court erred in denying his
request to argue to the jury that he would die in prison if
given a sentence of life imprisonment without the possibility of
parole. We disagree.
There is no evidence in the record to support such an
argument, which is speculative in nature. Moreover, the
argument is incorrect as a matter of law, since prisoners who
have received a sentence of life imprisonment without
26
possibility of parole are not precluded from receiving executive
clemency for crimes they have committed. See Va. Const. art. V,
§ 12. In addition, we observe that the jury was instructed that
the words "imprisonment for life" mean "imprisonment for life
without the possibility of parole." Lovitt was permitted to
argue to the jury that he would not be eligible for parole. In
fact, Lovitt argued that "he can die in prison just because of
the nature of prisons. He can die in there. And we certainly
know that he is not eligible for parole."
Lovitt next contends that the evidence is insufficient to
support the jury's finding of "future dangerousness." Lovitt
argues that his prior burglary, larceny, and narcotics
convictions are not evidence of "future dangerousness," and that
his aggressive behavior while incarcerated never resulted in
criminal charges being brought against him. He also argues
that, since he is ineligible for parole after being convicted of
these offenses, the only society that should be considered in
this case for purposes of "future dangerousness" is prison
society. We disagree with Lovitt's arguments.
Under Code § 19.2-264.2, the death penalty may not be
imposed unless the trier of fact finds one or both of the two
aggravating factors that we have referred to as "future
dangerousness" and "vileness." Roach, 251 Va. at 347, 468
S.E.2d at 111-12; Yeatts v. Commonwealth, 242 Va. 121, 139, 410
27
S.E.2d 254, 265 (1991), cert. denied, 503 U.S. 946 (1992). In
the present case, the jury found "future dangerousness," meaning
that "there is a probability that [Lovitt] would commit criminal
acts of violence that would constitute a continuing serious
threat to society." Code § 19.2-264.2.
This Court has recognized that the facts and circumstances
surrounding a capital murder may be sufficient, standing alone,
to support a finding of "future dangerousness." See Roach, 251
Va. at 348, 468 S.E.2d at 112; Murphy v. Commonwealth, 246 Va.
136, 145, 431 S.E.2d 48, 53, cert. denied, 510 U.S. 928 (1993).
Here, Lovitt murdered Dicks, an innocent employee, to facilitate
a robbery and to avoid being identified as its perpetrator. The
jury was entitled to find that this violent, calculated action
was strong evidence that Lovitt is a dangerous person who would
commit future criminal acts of violence.
In addition, the jury was entitled to consider Lovitt's
extensive criminal record, which we have recited in detail.
This record includes an attempted robbery conviction and three
burglary convictions. As we observed in Yeatts:
Burglary laws are based primarily upon a recognition
of the dangers to personal safety created by the usual
burglary situation–the danger that the intruder will
harm the occupants in attempting to perpetrate the
intended crime or to escape and the danger that the
occupants will in anger or panic react violently to
the invasion, thereby inviting more violence.
28
242 Va. at 140, 410 S.E.2d at 266 (citations omitted). Thus,
Lovitt's prior burglary convictions, in addition to his
attempted robbery conviction, were relevant evidence in
determining his "future dangerousness."
The jury also heard evidence that Lovitt committed several
criminal offenses while released in the community on supervised
probation or parole. This evidence demonstrated that Lovitt did
not refrain from further serious criminal activity, even when
the consequences of such criminal behavior would be especially
severe.
We find no merit in Lovitt's argument that the only
relevant "society" for the jury's consideration of his "future
dangerousness" was prison society. Code § 19.2-264.2 requires
that the jury make a factual determination whether the defendant
"would commit criminal acts of violence that would constitute a
continuing serious threat to society." The statute does not
limit this consideration to "prison society" when a defendant is
ineligible for parole, and we decline Lovitt's effective request
that we rewrite the statute to restrict its scope. Thus, we
conclude that the evidence of the present offenses and of
Lovitt's prior criminal behavior, including the evidence of his
behavior while incarcerated for earlier offenses, is sufficient
to support the jury's finding of "future dangerousness."
IX. SENTENCE REVIEW
29
Passion and Prejudice
Under Code § 17.1-313(C), we review the death sentence
imposed on Lovitt to determine whether it (1) was imposed under
the influence of passion, prejudice, or any other arbitrary
factor; or (2) is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant. Lovitt argues that his sentence was based on
passion, prejudice, and arbitrariness because, during the trial,
Dicks's family sat in the three rows of seats closest to the
jury box. Lovitt contends that the jury showed its prejudice by
the contents of two notes that it sent to the judge on the
second day of the guilt phase trial, and by the fact that it
reached its verdict in the guilt phase trial in one and one-half
hours. We find no merit in this argument.
In the first note at issue, the jury asked whether Lovitt
had been identified before the trial in a police "lineup."
While the trial court and counsel were discussing this question,
the jury sent the judge a second note, requesting that all
personal information about the jurors be removed from the public
record in the case. In response to these notes, the trial court
cautioned the jury to restrict its consideration of the case to
the evidence presented. The court also informed the jury that
the court would not tolerate any interference or intimidation
from any outside source, and that any such conduct would be
30
quickly addressed. In response to questioning by the court, the
jurors indicated that no outside source had attempted to
influence them, and that they had not discussed the case with
anyone else.
These notes from the jury do not provide any indication of
passion or prejudice, and the trial court's responses to them
were proper. In addition, the record does not show that the
jurors knew the identity of the spectators who sat in the seats
nearest the jury box. Moreover, the length of time that the
jury deliberated in the guilt phase trial did not indicate
passion or prejudice on its part and, if anything, reflected the
overwhelming nature of the evidence presented against Lovitt.
Excessiveness and Proportionality
Lovitt argues that the trial court erred when it denied his
motion to commute the sentence to life imprisonment "based upon
a proportionality review of similar cases." We find no merit in
this argument.
Initially, we observe that the death penalty statutes do
not require a proportionality review by the trial court.
Instead, Code § 19.2-264.5 directs that "[a]fter consideration
of the [post-sentence] report, and upon good cause shown, the
[trial] court may set aside the sentence of death and impose a
sentence of imprisonment for life." This provision permits the
capital murder defendant the same opportunity as any other
31
criminal defendant, under a precise and unambiguous standard, to
request that the trial court alter the jury's verdict. Bassett
v. Commonwealth, 222 Va. 844, 860, 284 S.E.2d 844, 854 (1981),
cert. denied, 456 U.S. 938 (1982). Here, after hearing argument
from Lovitt's counsel comparing the facts and circumstances of
Lovitt's case and the sentences imposed, with the facts and
circumstances of other capital murder cases and the sentences
imposed in those cases, the trial court declined to exercise its
discretionary authority under the statute to impose a sentence
of life imprisonment. Based on the record before us, we
conclude that the trial court did not abuse its discretion in
declining to alter the sentence fixed by the jury.
In conducting this Court's proportionality review, we must
determine whether "other sentencing bodies in this jurisdiction
generally impose the supreme penalty for comparable or similar
crimes, considering both the crime and the defendant." Johnson,
259 Va. at 683; 529 S.E.2d at 786 (quoting Jenkins v.
Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992),
cert. denied, 507 U.S. 1036 (1993)). We have compared the
record in the present case with the records of other capital
murder cases, including those in which a sentence of life
imprisonment was imposed. We also have examined the records of
all capital cases reviewed by this Court pursuant to
Code § 17.1-313(E). Since the jury imposed the death sentence
32
based on the "future dangerousness" predicate, we give
particular consideration to other capital murder cases in which
the death penalty was obtained under that predicate.
Lovitt has directed our attention to certain capital murder
convictions in which sentences of life imprisonment were
imposed. However, under our proportionality review, we must
consider whether juries generally impose a death sentence for
conduct similar to that of the defendant, not whether certain
juries have declined to impose the death sentence in other
particular cases. Jackson v. Commonwealth, 255 Va. 625, 636,
499 S.E.2d 538, 545 (1998), cert. denied, 525 U.S. 1067 (1999);
King v. Commonwealth, 243 Va. 353, 371, 416 S.E.2d 669, 679,
cert. denied, 506 U.S. 957 (1992); Stamper v. Commonwealth, 220
Va. 260, 283-84, 257 S.E.2d 808, 824 (1979), cert. denied, 445
U.S. 972 (1980).
The record shows that Lovitt planned to commit the offense
of robbery and murdered Dicks for the sole reason of eliminating
any witness to the robbery. The multiple stab wounds inflicted
on Dicks reflect an escalation of the violent and dangerous
criminal activity detailed in Lovitt's prior criminal record.
As stated above, Lovitt's prior record includes numerous felony
convictions, including a conviction for attempted robbery and
multiple convictions on burglary charges. Lovitt committed
several of these prior crimes while on supervised probation or
33
parole, which is further evidence of his continuing failure to
refrain from serious criminal conduct.
We observe that juries in this Commonwealth, with some
exceptions, generally have imposed the death sentence for
convictions of capital murder based on a finding of "future
dangerousness" in which the underlying predicate crime was
robbery. See, e.g., Jackson, 255 Va. 625, 499 S.E.2d 538;
Roach, 251 Va. 324, 468 S.E.2d 98, Chandler v. Commonwealth, 249
Va. 270, 455 S.E.2d 219, cert. denied, 516 U.S. 889 (1995);
Joseph v. Commonwealth, 249 Va. 78, 452 S.E.2d 862, cert.
denied, 516 U.S. 876 (1995); Swann, 247 Va. 222, 441 S.E.2d 195;
Chichester v. Commonwealth, 248 Va. 311, 448 S.E.2d 638 (1994),
cert. denied, 513 U.S. 1166 (1995); Dubois v. Commonwealth, 246
Va. 260, 435 S.E.2d 636 (1993), cert. denied, 511 U.S. 1012
(1994); Yeatts, 242 Va. 121, 410 S.E.2d 254; Savino v.
Commonwealth, 239 Va. 534, 391 S.E.2d 276, cert. denied, 498
U.S. 882 (1990); Mackall, 236 Va. 240, 372 S.E.2d 759; Townes v.
Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied,
485 U.S. 971 (1988). Based on this review, we hold that
Lovitt's death sentence is neither excessive nor
disproportionate to penalties imposed by other sentencing bodies
in the Commonwealth for comparable crimes, considering both the
crime and the defendant.
X. CONCLUSION
34
We find no reversible error in the judgments of the trial
court. Having reviewed Lovitt's death sentence pursuant to Code
§ 17.1-313, we decline to commute the sentence of death.
Accordingly, we will affirm the trial court's judgments.
Record No. 001015 –- Affirmed.
Record No. 001420 –- Affirmed.
35