PRESENT: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice
ERIC CHRISTOPHER PAYNE
v. Record No. 980559
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
OPINION BY
SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
January 8, 1999
ERIC CHRISTOPHER PAYNE
v. Record No. 980879
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H.C. Taylor, Judge
Eric Christopher Payne received two death sentences in each
of these appeals. Although Payne has waived his appeals of
right, former Code § 17-110.1 (now Code § 17.1-313) mandates
that we review the death sentences nonetheless. In this review,
we consider and determine whether the sentences were imposed
"under the influence of passion, prejudice or any other
arbitrary factor" and whether the sentences are "excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." Former Code
§ 17-110.1(C).
I
The Fazio Case
A
Payne was charged with the capital murder of Sally Marie
Fazio in the commission of robbery, in violation of Code § 18.2-
31(4), and with the capital murder of Fazio in the commission of
rape, in violation of Code § 18.2-31(5) (the Fazio case). In
the first phase of a bifurcated trial, the jury found Payne
guilty of both capital murders. At the penalty phase of the
trial, after hearing evidence of Payne's prior criminal history,
the jury found the "future dangerousness" predicate and the
"vileness" predicate to be present and unanimously fixed Payne's
punishment at death for each of the two capital murder
convictions. Code § 19.2-264.2. After considering a probation
officer's report and conducting a sentencing hearing, the trial
court sentenced Payne in accord with the jury verdicts.
Payne filed a notice of appeal, but subsequently requested
permission to waive his appeal of right. We directed the trial
court to conduct an evidentiary hearing to determine whether
Payne's decision to waive his appeal was made knowingly,
voluntarily, and intelligently. The trial court conducted such
a hearing and found that Payne's waiver was made knowingly,
voluntarily, and intelligently, and we conclude that the record
supports that finding.
B
2
The evidence in the Fazio case is undisputed. On the
evening of June 11, 1997, Payne saw Fazio outside her residence
in the City of Richmond, caring for her sick dog. When Fazio
entered her house, Payne put a 22-ounce hammer in his pants,
went to Fazio's front door, and asked to use the telephone.
Fazio permitted Payne to use a portable telephone outside her
house, and, after feigning a telephone call, Payne returned the
telephone. As he handed the telephone to Fazio, Payne forced
his way into Fazio's house and struck her in the head with the
hammer, knocking her down.
Fazio briefly struggled with Payne and then attempted to
flee down a hallway to her bedroom. As she fled, she threw a
chair behind her, attempting to block Payne. Fazio tried to
close the bedroom door, but Payne forced his way into the room.
Fazio pleaded for her life and offered to write a check to
Payne.
Payne told Fazio that, if she removed her clothes, he would
not hurt her. Fazio removed her clothes, and Payne raped her. 1
During the attack, Payne repeatedly struck Fazio with the
hammer.
Thereafter, Payne took money from Fazio's pocketbook and
ransacked her house looking for more money and guns. He then
1
Payne admitted penetrating Fazio's vagina and ejaculating on
her.
3
removed his bloodstained clothing and dressed in sweatpants and
a T-shirt belonging to Fazio. He left the bloodstained clothing
in Fazio's house.
As Payne was preparing to leave the house, he noticed that
Fazio was still breathing, so he hit her with the hammer several
times in the head. Fazio continued breathing, so Payne "hit her
maybe ten, twelve times in the chest."
Payne wrapped the hammer in a towel and subsequently threw
the hammer out of his car window. Later that night, Payne
disposed of the clothing he had taken from Fazio's home in a
dumpster at a public high school.
The police recovered the hammer, and forensic evidence
established that the hammer contained traces of blood consistent
with Fazio's blood type. Semen stains from a bedspread and
clothing found at the crime scene were consistent with Payne's
blood type and DNA profile.
The medical examiner's autopsy revealed that Fazio had died
from blunt force trauma to the head, the result of multiple
blows that had caused fractures, contusions, hemorrhaging, and
edema. Fazio also had sustained multiple bone fractures and
contusions to her chest and a fractured right middle finger.
In the penalty phase of the trial, the Commonwealth
presented evidence of Payne's prior criminal history. This
4
included the attempted rape and murder of Ruth Parham on June 5,
1997. The Commonwealth also presented evidence of an assault by
Payne on Ridley Fleck and her eight-year-old son, W. Dean Fleck.
This attack also occurred on June 11, 1997, shortly before Payne
murdered Fazio. Payne attacked the Flecks with a hammer, and he
told the police that he attacked them because he wanted to
incapacitate Ms. Fleck and take her elsewhere to rape her.
Payne, however, was forced to leave the scene because Dean Fleck
was screaming and fighting. The Flecks both suffered skull
fractures in the attack.
C
1
We first consider whether the death sentences in the Fazio
case were imposed "under the influence of passion, prejudice or
any other arbitrary factor." Former Code § 17-110.1(C)(1).
Payne contends that a videotape of the crime scene and autopsy
and crime scene photographs, presented during the guilt phase of
the trial, were unduly graphic and were shown to inflame the
passions of the jury. He further contends that a crime scene
videotape related to his earlier attempted rape and murder of
Ruth Parham, presented during the penalty phase of the trial,
also was unduly graphic.
We consistently have held that the admission of photographs
into evidence rests within the sound discretion of a trial
5
court, and the court's decision will not be disturbed on appeal
unless the record discloses a clear abuse of discretion. Walton
v. Commonwealth, 256 Va. 85, 91-92, 501 S.E.2d 134, 138 (1998);
Goins v. Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126,
cert. denied, 519 U.S. 887 (1996); Washington v. Commonwealth,
228 Va. 535, 551, 323 S.E.2d 577, 588 (1984), cert. denied, 471
U.S. 1111 (1985). Photographs of a victim are admissible to
prove motive, intent, malice, premeditation, method, and the
degree of atrociousness of the crime. Walton, 256 Va. at 92,
501 S.E.2d at 138; Goins, 251 Va. at 459, 470 S.E.2d at 126.
Photographs that accurately portray the crime scene are not
rendered inadmissible simply because they are gruesome or
shocking. Walton, 256 Va. at 92, 501 S.E.2d at 138; Gray v.
Commonwealth, 233 Va. 313, 343, 356 S.E.2d 157, 173, cert.
denied, 484 U.S. 873 (1987); Washington, 228 Va. at 551, 323
S.E.2d at 588. Likewise, videotapes that accurately depict a
crime scene are admissible to show motive, intent, method,
malice, premeditation, and the atrociousness of the crime, even
if photographs of the crime scene also have been admitted into
evidence. Stewart v. Commonwealth, 245 Va. 222, 235, 427 S.E.2d
394, 403, cert. denied, 510 U.S. 848 (1993).
We have examined the videotapes of the Fazio crime scene
and the Parham crime scene, the photographs of the Fazio crime
scene, and the Fazio autopsy photographs. While the photographs
6
and videotapes are shocking and gruesome, they accurately depict
the crime scenes and the conditions of the victims and are
relevant to show motive, intent, method, malice, premeditation,
and the atrociousness of the crimes. They also are relevant to
show the likelihood of Payne's future dangerousness. Therefore,
we cannot say that the trial court abused its discretion in
admitting this evidence, and we reject Payne's contention that
the evidence was so graphic as to unduly influence the emotions
of the jury.
Payne also contends that evidence about Dean Fleck's
injuries and the Commonwealth's Attorney's references to the
child's bravery in identifying Payne and, thereby, assisting in
Payne's capture were intended to inflame the passions of the
jury. This evidence was presented in the penalty phase of the
trial and was relevant to show Payne's future dangerousness.
Furthermore, the Commonwealth's Attorney's remarks were accurate
and based upon the evidence.
Upon our review of the entire record in the Fazio case,
having considered the contentions advanced by Payne, we conclude
that the death sentences were not imposed under the influence of
passion, prejudice, or any other arbitrary factor.
2
We next consider whether the death sentences in the Fazio
case are "excessive or disproportionate to the penalty imposed
7
in similar cases, considering both the crime and the defendant."
Former Code § 17-110.1(C)(2). Pursuant to former Code § 17-
110.1(E), we have accumulated and reviewed the records in all
capital murder cases decided by this Court, including both cases
in which the death sentence was imposed and cases in which life
imprisonment was imposed. From these cases, we determine
whether "juries in this jurisdiction generally approve the
supreme penalty for comparable or similar crimes." Stamper v.
Commonwealth, 220 Va. 260, 284, 257 S.E.2d 808, 824 (1979),
cert. denied, 445 U.S. 972 (1980). In making this review, we
have given particular attention to those cases in which the
death sentence was based upon both the "vileness" and the
"future dangerousness" predicates. From this review, we
conclude that Payne's sentences were neither excessive nor
disproportionate to penalties generally imposed by other
sentencing bodies in the Commonwealth for similar or comparable
crimes. See, e.g., Barnabei v. Commonwealth, 252 Va. 161, 179-
80, 477 S.E.2d 270, 281 (1996), cert. denied, 520 U.S. 1224
(1997); Breard v. Commonwealth, 248 Va. 68, 89, 445 S.E.2d 670,
682, cert. denied, 513 U.S. 971 (1994); Satcher v. Commonwealth,
244 Va. 220, 261, 421 S.E.2d 821, 845-46 (1992), cert. denied,
507 U.S. 933 (1993); Spencer v. Commonwealth, 238 Va. 295, 318-
20, 384 S.E.2d 785, 799-800 (1989), cert. denied, 493 U.S. 1093
(1990).
8
II
The Parham Case
A
Payne pleaded guilty to the capital murder of Ruth Parham
while in the commission of or subsequent to object sexual
penetration and to the capital murder of Parham while in the
commission of or subsequent to attempted rape, both in violation
of Code § 18.2-31(5) (the Parham case). The trial court
accepted Payne's voluntary pleas and found him guilty of both
capital murders.
In a separate sentencing proceeding, the court found that
the evidence established beyond a reasonable doubt both
aggravating factors; i.e., "vileness" and "future
dangerousness." The court imposed the death penalty for each
offense.
Payne filed a motion to waive his appeal of right, and we
remanded the case to the trial court for a determination whether
the waiver was made knowingly, voluntarily, and intelligently.
Payne was examined, at his request, by a psychologist and was
found to be competent to waive his appeal. Thereafter, the
trial court conducted a hearing and determined that Payne's
waiver was made knowingly, voluntarily, and intelligently, and
we conclude that the record supports that determination.
9
Although Payne waived his appeal of right, we must review
the death sentences nonetheless. Former Code § 17-110.1 (now
Code § 17.1-313). As previously noted, this mandatory review
directs this Court to consider and determine whether the
sentences were "imposed under the influence of passion,
prejudice or any other arbitrary factor" and whether the
sentences are "excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant." Former Code § 17-110.1(C).
B
The evidence in the Parham case is undisputed. On June 5,
1997, Payne saw Parham enter an office building in Hanover
County. Payne concealed a large hammer inside his pants and
entered the building. He found Parham, a 61-year-old woman who
cleaned the offices, in a lunchroom. Payne asked Parham if he
could use the telephone, and she consented.
Parham had turned her back on Payne and had taken about
three steps when Payne hit her in the back of her head with the
hammer. Parham fell facedown, and Payne began to rip off her
clothes. Payne fondled Parham's breast and inserted his finger
into her vagina. During the attack, Payne repeatedly struck
Parham's head with the hammer.
Parham sustained four depressed skull fractures, each of
which was potentially fatal, and she also sustained a fractured
10
nose and numerous facial and skull bruises and lacerations.
Parham's left hand had on it traces of her blood and strands of
her hair, indicating that she was alive during the bludgeoning,
and her brain was extruding through one of her skull fractures.
After the murder, Payne removed his shirt and used it to
wipe doorknobs and other items he may have touched in the room.
He then went throughout the building looking for another female
victim before leaving. Payne had decided not to rape Parham
because "she did not appeal to him."
In the sentencing proceeding, the trial court received
evidence about Payne's prior criminal history. Less than five
months before Payne murdered Parham, he had been released on
parole after serving approximately five years in prison for drug
possession. Payne told the police that, during the entire time
he had been in prison, he had thought about raping and killing a
woman. The trial court heard about Payne's attack upon Fleck
and her young son and Payne's murder of Fazio, details of which
are more fully set forth in Part I, B hereof.
C
We first consider and determine whether the death sentences
in the Parham case were imposed "under the influence of passion,
prejudice or any other arbitrary factor." Former Code § 17-
110.1(C)(1). Payne contends that the Commonwealth's Attorney
made improper remarks in the sentencing proceeding. Payne
11
complains that the prosecutor used the evidence of the Fazio and
Fleck crimes to justify the death penalty. He specifically
complains about the prosecutor's referring to Payne as a
"predator" and a "monster" and showing photographs of the
victims to the court during the argument. Payne asserts that
the prosecutor's argument "had the desired effect on the court"
because the court "described [him] as a mad dog who should be
put in a gunny sack with some bricks and dropped off a bridge."
Payne opines that this language by the court "is ample evidence
that the sentence of death was imposed under the influence of
passion and prejudice." We do not agree. When all of the trial
court's remarks are read, it is apparent that, before imposing
the death sentences, the court considered not only Payne's
criminal history, but also his evidence in mitigation.
With respect to the prosecutor's argument, we conclude that
it constituted fair comment upon properly admitted evidence.
The Commonwealth had the burden of proving beyond a reasonable
doubt that "there is a probability based upon evidence of the
prior history of the defendant . . . that he would commit
criminal acts of violence that would constitute a continuing
serious threat to society." Code § 19.2-264.4(C) (emphasis
added). Therefore, evidence of Payne's other crimes was
admissible. See Gray v. Commonwealth, 233 Va. 313, 346-47, 356
S.E.2d 157, 175-76, cert. denied, 484 U.S. 873 (1987); Pruett v.
12
Commonwealth, 232 Va. 266, 283-85, 351 S.E.2d 1, 11-12 (1986),
cert. denied, 482 U.S. 931 (1987).
Having considered the entire record, we determine that the
death sentences imposed upon Payne were not the product of
passion, prejudice, or any other arbitrary factor.
D
Payne makes no argument that his death sentences are
excessive or disproportionate. He assumes that we will consider
all capital murder cases reviewed by this Court, and we have
done so. Suffice it to say, the evidence, including that of the
crimes themselves and Payne's criminal history, is gruesome and
shocking, and, when this case is compared to other attempted
rape and/or robbery capital murder cases, we conclude that the
sentences were neither excessive nor disproportionate. See,
e.g., Walton v. Commonwealth, 256 Va. 85, 96, 501 S.E.2d 134,
140-41 (1998); Jackson v. Commonwealth, 255 Va. 625, 499 S.E.2d
538 (1998); Breard v. Commonwealth, 248 Va. 68, 89, 445 S.E.2d
670, 682, cert. denied, 513 U.S. 971 (1994); Satcher v.
Commonwealth, 244 Va. 220, 261, 421 S.E.2d 821, 845-46 (1992),
cert. denied, 507 U.S. 933 (1993).
III
The final issue we consider is common to both the Fazio and
the Parham cases; that is, whether there can be more than one
13
death sentence imposed when there is only one victim. 2 Stated
another way, we must determine whether the imposition of
multiple death sentences violates the provision of the Fifth
Amendment of the Federal Constitution which states that no
person "shall . . . for the same offense . . . be twice put in
jeopardy of life or limb." This constitutional provision
guarantees protection against (1) a second prosecution for the
same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple punishments for
the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980);
North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Blythe v.
Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981).
When multiple convictions occur in a single trial, only the
third guarantee; i.e., against multiple punishments for the same
offense, is pertinent to a double jeopardy inquiry. Blythe, 222
Va. at 725, 284 S.E.2d at 797-98; Turner v. Commonwealth, 221
Va. 513, 529, 273 S.E.2d 36, 46-47 (1980), cert. denied, 451
U.S. 1011 (1981). In the single-trial setting, "the role of the
constitutional guarantee is limited to assuring that the court
does not exceed its legislative authorization by imposing
multiple punishments for the same offense." Brown v. Ohio, 432
2
Although Payne did not pursue this issue at trial and has
waived his appeal of right in these cases, we directed counsel
to address the issue.
14
U.S. 161, 165 (1977). Thus, resolution of the question whether
punishments imposed by a court are unconstitutionally multiple
requires a determination of what punishments the legislature has
authorized. Whalen v. United States, 445 U.S. 684, 688 (1980).
In determining what punishments the General Assembly has
authorized, we first look to the capital murder statute, Code
§ 18.2-31. That statute provides, in pertinent part, as
follows:
The following offenses shall constitute capital
murder, punishable as a Class 1 felony:
. . . .
4. The willful, deliberate, and premeditated
killing of any person in the commission of robbery or
attempted robbery;
5. The willful, deliberate, and premeditated
killing of any person in the commission of, or
subsequent to, rape or attempted rape, . . . or object
sexual penetration.
(Emphasis added.) Clearly, the language in Code § 18.2-31
expresses the legislative intent that there are multiple capital
offenses.
Next, we look to the rule laid down in Blockburger v.
United States, 284 U.S. 299 (1932). In Blockburger, the Supreme
Court stated that, "where the same act or transaction
constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two
15
offenses or only one, is whether each provision requires proof
of a fact which the other does not." Id. at 304.
In the Fazio case, Payne, "in the same act or transaction,"
violated "two distinct statutory provisions;" i.e., the killing
of Fazio in the commission of robbery, in violation of Code
§ 18.2-31(4), and the killing of Fazio in the commission of
rape, in violation of Code § 18.2-31(5). Each statutory
provision required proof of a fact that the other did not.
Therefore, the killing of Fazio constituted two capital
offenses.
Likewise, in the Parham case, Payne, "in the same act or
transaction," violated "two distinct statutory provisions" of
subsection 5 of Code § 18.2-31; i.e., the killing of Parham in
the commission of attempted rape and the killing of Parham in
the commission of object sexual penetration. Again, each
statutory provision required proof of a fact that the other did
not. Therefore, the killing of Parham constituted two capital
offenses.
Payne does not challenge the validity of his multiple
convictions. However, he suggests that one of his sentences in
each case should be vacated. We do not agree.
We think it is clear, as well as logical, that the General
Assembly intended for each statutory offense to be punished
16
separately "as a Class 1 felony." 3 It would be inappropriate for
this Court, or the trial court upon remand, to arbitrarily
choose which one of the two sentences should be vacated.
Indeed, there would be no principled basis for making such a
choice. Nor do we think the Commonwealth should be required to
elect at trial or on appeal which offense to have dismissed.
We hold, therefore, that each conviction was for the
violation of a distinct statutory provision for which a separate
statutory punishment was authorized. Consequently, the
convictions and sentences do not violate the constitutional
guarantee of protection against multiple punishments for the
same offense.
IV
In sum, we determine that the death sentences were not
imposed under the influence of passion, prejudice, or any other
arbitrary factor and are not excessive or disproportionate. We
further determine that the convictions and sentences do not
violate the constitutional guarantee against double jeopardy.
Accordingly, we will affirm the judgments in both cases.
Record No. 980559 — Affirmed.
Record No. 980879 — Affirmed.
JUSTICE KOONTZ, dissenting in part.
I respectfully dissent.
3
The authorized punishments for conviction of a Class 1 felony
17
Today, for the first time, a majority of this Court
concludes that by enacting Code § 18.2-31, our General Assembly
has authorized the imposition of more than one death sentence
for the capital murder of one victim. Indeed in the present
cases, the majority concludes that Eric Christopher Payne is
properly subject to the imposition of four death sentences for
the capital murder of only two victims. I cannot join in such a
patently strange result. Moreover, in my view, such a result
was not intended and, consequently, was not authorized by our
General Assembly in enacting Code § 18.2-31.
It is clear to me from our prior cases in which this issue
was implicated that we have not permitted more death sentences
to be imposed than there were victims. See Clagett v.
Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996), cert. denied,
519 U.S. 1122 (1997)(vacating one sentence where five death
sentences were imposed for murder of four victims); Williams v.
Commonwealth, 248 Va. 528, 450 S.E.2d 365 (1994), cert. denied,
515 U.S. 1161 (1995)(affirming five convictions of capital
murder of two victims, but only one death sentence imposed for
each victim); Wright v. Commonwealth, 245 Va. 177, 427 S.E.2d
379 (1993), remanded on other grounds, 512 U.S. 1217, aff’d.,
248 Va. 485, 450 S.E.2d 361 (1994), cert. denied, 514 U.S. 1085
(1995)(defendant convicted of two counts of capital murder of
include death and life imprisonment. Code § 18.2-10(a).
18
one victim, but sentenced to one death penalty for both
convictions); Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d
757 (1989), cert. denied, 493 U.S. 1063 (1990)(reducing five
death sentences to four where there were only four victims).
The majority correctly notes that the constitutional
guarantee against multiple punishments for the same offense
provided by the Fifth Amendment of the Federal Constitution is
limited to assuring in a single trial setting that the court
does not exceed its legislative authorization by imposing
multiple punishments for the same offense.
I agree with the majority that the resolution of that issue
in the present cases requires a determination of the legislative
intent underlying Code § 18.2-31. I do not agree, however, that
the language of that statute evinces the General Assembly’s
intention that multiple punishments may be imposed for the
killing of one person where more than one definition, or
“offenses,” of capital murder is found to apply. See Gray v.
State, 463 P.2d 897, 911 (Alaska 1970).
It is self-evident that there can be no more than one
killing of the same person. Accordingly, it necessarily follows
that the killing of one person in the commission of the robbery
and rape of that person is still but one killing. Similarly,
the killing of one person in the commission of the rape and
object sexual penetration of that person is still but one
19
killing. I have no difficulty in concluding the General
Assembly has always been well aware of these simplistic truths.
For that reason alone, I conclude that by enacting Code § 18.2-
31, the General Assembly did not intend to authorize more death
sentences than there are victims killed as a result of a
defendant committing more than one of the enumerated “offenses”
that “constitute capital murder.” In short, more than one
offense defined in Code § 18.2-31 may constitute the capital
murder of a person but there can only be one capital murder
penalty for the murder of that person.
The real difficulty presented in these appeals is the
appropriate remedy where two death sentences have been imposed
for the capital murder of each victim. I agree with the
majority that we should not “arbitrarily choose which one of the
two sentences should be vacated” in each case and that “the
Commonwealth should [not] be required to elect” which offense to
have dismissed. Rather, I would apply the rationale of Wright
and Williams and modify Payne’s sentences to impose a single
death sentence upon the capital murder convictions for each
victim. In doing so, the patently strange and illogical result
that would allow Payne to be sentenced to the penalty of four
death sentences for killing two persons would be avoided.
20