Vinson v. Commonwealth

Present: All the Justices

DEXTER LEE VINSON
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record Nos. 990612 November 5, 1999
990613

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge

On May 19, 1996, Angela Felton was brutally murdered in the

City of Portsmouth. Subsequently, during a 1998 eight-day

trial, a jury convicted defendant Dexter Lee Vinson, upon not

guilty pleas, of the following offenses in connection with the

homicide: Capital murder in the commission of abduction with

intent to defile, in violation of Code § 18.2-31(1); object

sexual penetration, in violation of Code § 18.2-67.2(A);

abduction with intent to defile, in violation of Code § 18.2-48;

and carjacking, in violation of Code § 18.2-58.1.

The jury fixed defendant's punishment at death for the

capital offense based upon the vileness and future dangerousness

predicates of the capital murder sentencing statute. Code

§ 19.2-264.4. Also, the jury fixed defendant's punishment at

life imprisonment for each of the noncapital convictions.

Following a February 1999 post-trial hearing, at which the trial

court considered a probation officer's report, the court

sentenced defendant in accord with the jury's verdicts.
 The death sentence is before us for automatic review under

Code § 17.1-313(A), see Rule 5:22, and we have consolidated this

review with defendant's appeal of the capital murder conviction.

In addition, by order entered March 22, 1999, we certified from

the Court of Appeals of Virginia to this Court the record of

defendant's appeals of the noncapital convictions (Record No.

990613). The effect of this certification is to transfer

jurisdiction over the noncapital appeals to this Court for all

purposes. Code § 17.1-409(A). Those appeals have been

consolidated with the capital murder appeal (Record No. 990612).

As required by statute, we shall consider not only the

trial errors enumerated by defendant but also whether the

sentence of death was imposed under the influence of passion,

prejudice, or any other arbitrary factor, and whether the

sentence is excessive or disproportionate to the penalty imposed

in similar cases. Code § 17.1-313(C).

The facts are virtually undisputed. The defendant, who did

not testify at trial, now argues through his attorneys that,

although he was present at the scene of the homicide, there are

certain "inconsistencies" in the prosecution's evidence on the

question whether he was the actual perpetrator of the offenses.

However, when there are inconsistencies in this evidence, we

shall construe the facts in the light most favorable to the

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Commonwealth, as required by settled rules of appellate

procedure.

On May 19, the victim, age 25, and her three children

resided with Nethie Pierce and her children in Portsmouth. The

victim and her children previously had lived with defendant, age

33, in Portsmouth for "about a year and a half." At the time of

the homicide, the unmarried couple had been living apart about

three weeks.

About 9:00 a.m. on the day in question, the victim borrowed

Pierce's "1988 red Beretta" automobile to take the victim's

children to school. "[I]n a hurry to get the kids to school,"

the victim wore only a "shift-type" robe and underwear.

Pierce's 14-year-old daughter, Willisa Joyner, rode with the

victim.

About 6:30 a.m. on the same day, Faye Wilson was completing

a weekend stay with defendant in a Suffolk motel. Wilson owned

a 1988 blue Mercury Tracer automobile, which she allowed

defendant to use that morning.

After the victim delivered her children to school, she

drove with Willisa to the home she had shared with defendant in

order to "get the mail." Upon arrival, Willisa "got out of the

car," at which time the victim saw the defendant driving a blue

automobile. Willisa reentered the red vehicle when the victim

said, "'get back in the car.'" As the victim "started driving,"

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the defendant twice rammed the rear of the red car with the

front of the blue car.

The victim stopped the red car and the defendant walked to

the driver's side window where the victim was sitting. He then

"punched" out the window. Next, defendant "grabbed" the victim,

hit her in the face and chest with his hand, and "took her out

of the car." The defendant held the victim by the arm and, in

the presence of bystanders, "snatched" off her robe leaving her

standing in her "underclothes," screaming and bleeding from her

nose and mouth.

Next, defendant "took" the victim to the blue car and "made

her get in." When the blue car "wouldn't start up," defendant

"put her" in the red car "and they drove away." Police officers

arrived on the scene after defendant had abducted the victim;

they obtained a description of defendant and of the red car.

Shortly thereafter, Vertley Hunter noticed from her home a

red car, "wrecked in the back," that was "pulled off the street

and parked behind" a vacant house in her neighborhood; boards

were nailed over the windows of the house. She observed a young

"white female" and a young "black man" sitting in the vehicle,

with the female sitting in the driver's seat with "her hand

outside the window to duck off a cigarette that she was

smoking."

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 According to Hunter, the man "got out on the passenger side

of the car and went to the back . . . and got a piece of rope

out." The man "leaned back into the car" holding the rope.

Hunter heard the woman tell the man "to leave her alone so she

could go on with her life," and heard her "ask the Lord to spare

her life because he was going to kill her." At that time, the

man was "[c]hoking her with the rope."

Then, the man "grabbed her by the hair from the back seat

of the car and pulled her over the seat . . . and he pulled the

rope from around her neck at the same time." He then "pulled

her down in the floor" and "told her that he was going to kill

her." While the woman was still inside the car, the man

"slammed the door on her head twice," according to Hunter.

Next, Hunter saw the man kick dirt beside the car to cover

blood that was on the ground. He then pulled off "a board"

covering a window of the house, raised the window, and climbed

inside through the window. Hunter saw the man enter the house

twice and wipe blood from his person with a towel.

Hunter watched the events for a period of several hours

until the man drove the red car into the woods behind the house

and left the area around 11:00 a.m. During her testimony,

Hunter identified defendant in open court as the man she

observed committing the acts she described.

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 Janice Green, who also lived near the vacant house,

testified that during the morning of May 19, she observed a man

"messing around" with a red car in the yard behind the house.

She saw the man pull "boards off the house" and enter the home

twice. The second time, the man "was dragging" into the house

from the car "something heavy"; she "thought it was a rug he was

pulling." Green also identified defendant in open court as the

man she observed at the vacant house.

On May 20, 1997, Portsmouth detective Jan Westerbeck went

to the vacant house and discovered the victim's body inside a

recently "busted wall" in one of the bedrooms. The body was

nude and partially covered with a brown blanket; feces were

found on and under her neck.

Forensic evidence connected defendant with the crimes. His

fingerprints were found on the abandoned red car, on the kitchen

sink of the vacant house, and on a pane of glass from the

house's kitchen window. Also, the victim's DNA was matched to a

blood stain found on a pair of blue shorts belonging to

defendant. According to the witness Hunter, defendant was

wearing a "sky blue short set" when she observed him. An expert

placed the odds of the DNA on defendant's shorts being that of

someone other than the victim at one in 5.5 billion.

An autopsy performed on the victim's body showed that she

bled to death from deep cuts to both forearms, either of which

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would have been sufficient to cause death. The cut to the right

forearm was two inches deep and severed two main arteries; the

left forearm bore a similar wound that cut one artery. The

victim did not die instantaneously; it "probably would have

taken her a few minutes, several minutes to die," according to

the medical examiner.

The victim sustained numerous other injuries. For example,

there were additional knife wounds on her shoulders, neck, and

cheek. There were scratches on her buttocks and cuts on her

torso and on one of her legs. She suffered "blunt force trauma"

to her head.

Additionally, she sustained significant vaginal injuries

inflicted while she was alive. She sustained a laceration of

her inner vaginal lip, massive bruising over her vulva area, and

a "massive laceration," which tore the tissue separating the

vagina from the anus and which tore around her anal opening. In

the medical examiner's opinion, the vaginal injuries were not

caused by an erect penis; the inner damage that was done in the

vaginal area "would have been done by an object being penetrated

in Miss Felton."

During the penalty phase of the trial, to prove defendant's

future dangerousness, the prosecution presented evidence that

defendant had assaulted a police officer in 1987 who was

attempting to arrest him; had assaulted a correctional officer

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in 1988 who was attempting to move him to a cell; and had

resisted arrest in 1997 near a Suffolk convenience store so

violently that it took eight police officers to subdue him.

Additionally, the Commonwealth presented evidence that defendant

previously had been convicted of receiving stolen goods,

attempted statutory burglary, and two offenses of hit and run

with personal injury.

In mitigation, defendant presented testimony from his 1982

high school band teacher, his mother, his step-father, his

supervisor in the construction work that he performed, and a

minister. Defendant was described as a "mentor" to a blind

student in the band, as one who was "loved" by the victim's

"kids," and as a person who would "do anything for anybody at

work."

Defendant also presented the testimony of two mental health

experts, both of whom concluded that defendant suffers from

"intermittent explosive disorder" and that he was unable to

conform his conduct to the requirements of law at the time of

the crimes because of this disorder.

In rebuttal, the Commonwealth presented testimony of

another mental health expert who, while agreeing that defendant

had "the characteristics" of intermittent explosive disorder,

said that "almost all violent criminals" fit that category of

illness. This expert, Dr. Paul Mansheim, expressed the opinion

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"that there is at least a fifty percent chance" that defendant

would commit "another violent offense in the next five years."

On appeal, defendant contends that Virginia's capital

murder statutes are unconstitutional. Every ground of alleged

unconstitutionality relied upon by defendant has been previously

resolved by this Court adversely to his present contentions, and

he has advanced no persuasive reason warranting a departure from

our prior decisions. Thus, his contentions are rejected.

Some of defendant's assignments of error are procedurally

defaulted for lack of proper objection in the trial court. We

will not consider for the first time on appeal nonjurisdictional

issues not raised below. Rule 5:25.

Issues falling in this category are: The trial court erred

in allowing opinion evidence upon the question whether the

victim was the subject of object penetration; the trial court

erred in allowing Dr. Mansheim's opinion that there was a fifty

percent chance defendant would commit another violent offense

within five years; and, the trial court erred by allowing use of

a penalty verdict form that allegedly violated the state and

federal constitutions.

The remaining issues raised by defendant generally relate

to a pretrial matter, jury selection, several evidentiary

questions, and sufficiency of the evidence of guilt.

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 First, defendant contends the trial court erred in not

"granting Vinson a DNA expert." There is no merit to this

contention.

Prior to trial, defendant requested appointment by the

court of an independent DNA expert. At a hearing on the motion,

defendant acknowledged he could locate no such expert, and the

court continued the matter until the next day to allow defendant

additional time to search for such an expert, after noting

defendant's "request is somewhat vague." The next day,

defendant reported to the court that he had been unsuccessful in

his search, and the trial court denied the motion.

The trial court was correct. Implicit in the court's

ruling was the finding that defendant failed to demonstrate the

required showing of need for appointment of such an expert. See

Husske v. Commonwealth, 252 Va. 203, 211-12, 476 S.E.2d 920, 925

(1996), cert. denied, 519 U.S. 1154 (1997) (indigent defendant

seeking appointment of expert witness must demonstrate that

subject necessitating expert assistance likely will be

significant factor in defense and that defendant will be

prejudiced by lack of expert assistance). Moreover, defendant

had ample opportunity to locate an expert and, under these

circumstances, there was no duty on the trial court to search

independently for an expert witness for the defendant.

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 Next, defendant contends the trial court abused its

discretion during voir dire in seating certain prospective

jurors and dismissing others. We disagree.

Upon appellate review, this Court gives deference to the

trial court's decision whether to retain or exclude prospective

jurors. This is because the trial judge has observed and heard

each member of the venire and is in a superior position to

evaluate whether the juror's responses during voir dire develop

anything that would prevent or substantially impair the juror's

performance of duty as a juror in accord with the court's

instructions and the juror's oath. Stewart v. Commonwealth, 245

Va. 222, 234, 427 S.E.2d 394, 402, cert. denied, 510 U.S. 848

(1993); Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385,

391 (1990), cert. denied, 502 U.S. 824 (1991). A trial court's

decision on this issue will be affirmed absent a showing of

manifest error. Id. And, a juror's entire voir dire, not

isolated portions, must be considered to determine a juror's

impartiality. Mackall v. Commonwealth, 236 Va. 240, 252, 372

S.E.2d 759, 767 (1988), cert. denied, 492 U.S. 925 (1989).

Juror Clanton was properly stricken for cause. She stated

unequivocally that if faced with the alternative of sentencing

defendant to life imprisonment without parole, she would not

even consider imposing the death penalty. The trial court's

decision to exclude Clanton is supported by the record. Her

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views on imposition of the death penalty would substantially

impair her ability to follow the court's instructions.

Likewise, and for the foregoing reason, we hold that the

trial court did not err in striking Jurors Dickens, Nicholson,

Scott, Warren, and Terrell. All of those jurors indicated they

could not impose the death penalty.

Furthermore, we conclude the trial court did not abuse its

discretion by refusing to exclude jurors Richardson and

Metcalfe. Although Richardson initially said during voir dire

that he "probably would" automatically impose the death penalty

upon a finding of guilt of capital murder, he later stated that

he would follow the court's instructions and consider the

sentencing options of both life or death. Examining

Richardson's entire voir dire, we cannot say the trial court

erred in seating him as a juror.

Metcalfe stated she could fairly and impartially decide the

case. Near the end of her individual voir dire, however, she

expressed some "hesitation" about serving on a capital murder

jury, noting a concern for her "personal safety." In deciding

to seat Metcalfe, the trial judge said "there's nothing in her

statements that would indicate she could not . . . be fair. Her

demeanor was that of a pretty self-assured person." The trial

court ruled properly in seating her.

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 Next, defendant contends the trial court erred in admitting

in evidence a statement he made in Suffolk to a Portsmouth

detective when he was arrested by Suffolk police, accompanied by

the Portsmouth detective, on May 20, the day after commission of

the crimes. During the first day of trial, defendant moved to

suppress the statement, and presented evidence on the motion.

He argued "he was arrested for no reason" because "there was no

warrant on file" in Suffolk for his arrest.

The evidence showed there were outstanding misdemeanor

warrants for defendant's arrest on file in Portsmouth, and that

the Portsmouth detective knew about the warrants, although they

were not in the officer's hands at the time of arrest. The

evidence also showed defendant, at that time, was under

suspicion for abduction of the victim. Upon arrest, defendant

"signed a legal rights advice form" and elected to make a

statement.

The trial court denied the motion to suppress and later

admitted the statement in evidence through the Portsmouth

detective's testimony. In the statement, defendant denied

seeing the victim in the past 48 hours and denied having

recently been in Portsmouth.

The trial court did not err in admitting the statement,

which actually set forth an alibi and was not a confession. The

arrest was proper because the arresting officers had knowledge

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of the outstanding misdemeanor warrants, and the police had

every right to question him. See Code § 19.2-81 (arrest for

misdemeanor not committed in officer's presence valid under

certain specified circumstances). However, even if there was a

violation of § 19.2-81 and even if the statement somehow can be

considered a confession, suppression of the statement was not

required. Thompson v. Commonwealth, 10 Va. App. 117, 121, 390

S.E.2d 198, 200-01 (1990) (confession obtained during period of

statutorily invalid arrest not subject to exclusion when accused

constitutionally in custody and confessed voluntarily).

Next, defendant contends the trial court erred in admitting

a blood sample when the custodian made a mistake in noting the

date placed on the evidence envelope. There is no merit to this

contention.

Detective Westerbeck testified she was present when blood

samples were taken from defendant on June 4, 1997. After the

blood was taken by a physician, the vials were dated June 4,

1997 and turned over to Westerbeck. She initialed the vials,

placed them in an envelope, and kept them in her exclusive care

and custody until she gave them to an evidence technician.

However, Westerbeck inadvertently dated the envelope into which

she placed the vials "June 3, 1997."

Defendant objected to introduction of the blood samples,

stating that a "simple error like that in a case like this could

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be highly prejudicial." The trial court overruled the

objection, after determining that the evidence the prosecutor

was offering was, in fact, the blood taken from defendant on

June 4.

On appeal, defendant contends the blood samples were

inadmissible because they were not properly authenticated and

there was a defect in the chain of custody. We disagree.

The mistake in the date is inconsequential. And, a chain

of custody is properly established when the Commonwealth's

evidence affords reasonable assurance that the exhibits at trial

are the same and in the same condition as they were when first

obtained. Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d

352, 357 (1987), cert. denied, 485 U.S. 1015 (1988). These

samples met that criteria.

Next, defendant argues the trial court erred "in not

granting the motion to strike as to the capital murder charge,

the abduction charge, the abduction with the intent to defile

charge, the object penetration charge and the carjacking

charge." Now conceding he was the person who abducted the

victim, and not relying on any purported alibi, defendant

contends the "circumstances suggest that Vinson drove away with

Felton out of some misguided desire for reconciliation or a

desire to punish her for leaving him, but not out of a specific

intent to sexually molest her." He argues the eyewitness

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testimony that he was the perpetrator of the crimes is

"inconsistent" and "unworthy of belief." We reject this

argument.

A further recitation of the facts is unnecessary. It is

sufficient to point out that the jury determines the credibility

of the witnesses and that there is overwhelming credible

evidence to establish defendant was the perpetrator of each of

these crimes.

The only offense which requires further elaboration is the

carjacking charge. To prove carjacking, the Commonwealth was

required to establish that defendant seized control of the red

automobile with an intent to permanently or temporarily deprive

the victim of the possession or control of the vehicle by means

of violence directed to her. Code § 18.2-58.1(B). The

testimony of Willisa Joyner amply supports the finding that both

the victim and the red car were seized by defendant through the

continuing use of violence directed to the victim.

Next, in an obtuse argument, defendant complains about the

manner in which the Department of Corrections responded to a

subpoena duces tecum for records about his unadjudicated

criminal acts. He also complains about the receipt in evidence

of "certain unadjudicated criminal acts allegedly committed by"

him. We reject both contentions. The first complaint merits no

response. As to the second complaint, we merely note the law is

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settled in this jurisdiction that prior unadjudicated criminal

conduct is admissible at the penalty stage of a capital murder

trial to establish future dangerousness. Poyner v.

Commonwealth, 229 Va. 401, 418, 329 S.E.2d 815, 827-28, cert.

denied, 474 U.S. 865, 888 (1985).

Next, defendant argues the trial court erred in permitting

Dr. Mansheim to testify in rebuttal about defendant's future

dangerousness "when the defense's medical testimony did not

directly state future dangerousness." We disagree.

Even though defendant's medical experts did not use the

term "future dangerousness" as applied to defendant, they opined

about defendant's mental condition and offered excuses for

defendant's behavior. Thus, the trial court properly allowed

the prosecutor to present evidence in rebuttal regarding the

probability of defendant's future behavior.

Next, we reject defendant's conclusory argument that the

trial court erred by permitting television cameras in the

courtroom because his "right to a fair and impartial jury" was

"prejudiced" by their presence. By statute, the trial court

"may solely in its discretion" allow cameras in the courtroom.

Code § 19.2-266. There was no abuse of that discretion in this

case.

Next, as we have said, we must determine whether the

sentence of death in this case "was imposed under the influence

17
of passion, prejudice or any other arbitrary factor." Code

§ 17.1-313(C)(1). Defendant candidly admits, "The record in

this case does not clearly show passion or prejudice." Indeed,

there is not a hint in the record that the determinations of

vileness and future dangerousness were made arbitrarily. On the

contrary, the record supports the conclusion that the sentence

was appropriate under the circumstances.

Finally, upon the question of disproportionality and

excessiveness, we determine whether other sentencing bodies in

this jurisdiction generally impose the supreme penalty for

comparable or similar crimes, considering both the crimes and

the defendant. Bramblett v. Commonwealth, 257 Va. 263, 278,

513 S.E.2d 400, 410 (1999). See Code § 17.1-313(C)(2). In

determining whether a death sentence is excessive or

disproportionate, we consider records of all capital murder

cases previously reviewed by this Court in which the death

sentence was based upon both the vileness and future

dangerousness predicates, including capital murder cases in

which a life sentence was imposed. Jenkins v. Commonwealth, 244

Va. 445, 462, 423 S.E.2d 360, 371 (1992), cert. denied, 507 U.S.

1036 (1993).

The defendant does not contend that the sentence is

excessive or disproportionate. He merely reasserts an earlier

contention, which was procedurally defaulted, that "the penalty

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verdict form in this case was so defective that the jury's

intent cannot be deduced from it." We will not entertain such

an argument because of the procedural default.

Manifestly, however, this sentence is not excessive or

disproportionate. Defendant brutally beat and abducted the

victim. Following the abduction, he beat and choked her,

sexually assaulted her in a savage manner, and murdered her by

inflicting deep cuts to both forearms. Furthermore, in addition

to the vile nature of the offenses, the evidence established

that defendant is a violent person who, in the Attorney

General's words, "has no respect for authority and who cannot be

rendered non-violent even in a prison setting." Juries in the

Commonwealth generally impose the death sentence for crimes like

those committed by this defendant. See, e.g., Cherrix v.

Commonwealth, 257 Va. 292, 313-14, 513 S.E.2d 642, 655-56

(1999); Hedrick v. Commonwealth, 257 Va. 328, 342-43, 513 S.E.2d

634, 642 (1999); Barnabei v. Commonwealth, 252 Va. 161, 179, 477

S.E.2d 270, 281 (1996), cert. denied, 520 U.S. 1224 (1997); and

Clozza v. Commonwealth, 228 Va. 124, 138, 321 S.E.2d 273, 282

(1984), cert. denied, 469 U.S. 1230 (1985).

Consequently, we hold the trial court committed no error,

and we have independently determined from a review of the entire

record that the sentence of death was properly assessed. Thus,

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we will affirm the trial court's judgment in the capital murder

case and in the noncapital cases.

Record No. 990612 — Affirmed.
Record No. 990613 — Affirmed.

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