Mickens v. Commonwealth

Present: All the Justices

WALTER MICKENS, JR.
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 961216
November 1, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge

In this appeal, we review a judgment sentencing Walter

Mickens, Jr., to death following a second sentencing hearing.

I
Mickens was convicted of the capital murder of Timothy Jason

Hall, i.e., the willful, deliberate, and premeditated killing of

Hall in the commission of, or subsequent to, attempted forcible

sodomy, in violation of Code § 18.2-31(5), and sentenced to

death. We affirmed the conviction and death sentence. Mickens

v. Commonwealth, 247 Va. 395, 442 S.E.2d 678 (1994) (Mickens I).

The Supreme Court of the United States, however, vacated the

judgment and remanded the case to this Court for reconsideration

in light of Simmons v. South Carolina, 512 U.S. 154 (1994).
Mickens v. Virginia, 513 U.S. ___, 115 S.Ct. 307 (1994). Upon

remand, we concluded that the holding in Simmons required a

remand of the case to the trial court for a new sentencing

hearing. Mickens v. Commonwealth, 249 Va. 423, 457 S.E.2d 9

(1995) (Mickens II). 1

On February 5-8, 1996, the trial court conducted the new
1
In Mickens II, we ruled that the jury was entitled to be
informed of Mickens' parole ineligibility. 249 Va. at 425, 457
S.E.2d at 10. To this end, the trial court, upon remand,
instructed the jury that "imprisonment for life" meant life
imprisonment "without possibility of parole."
sentencing hearing, and, after hearing evidence in aggravation

and in mitigation, the jury fixed Mickens' punishment at death,

based upon both the "vileness" and the "future dangerousness"

predicates. Code § 19.2-264.2. After considering a probation

officer's report and additional evidence presented during a post-

sentencing hearing, the trial court sentenced Mickens in

accordance with the jury's verdict.

In this appeal of right, we review Mickens' death sentence

and consider Mickens' assignments of error to various rulings by

the trial court during the new sentencing hearing. Code § 17-

110.1.
II

A

A full statement of the facts surrounding the crime is set

forth in Mickens I, 247 Va. at 398-401, 442 S.E.2d at 681-83. At

the new sentencing hearing, however, evidence of the crime was

limited to the testimony of two witnesses, an Identification

Technician with the Crime Scene Search Unit of the Newport News

Police Department and an Assistant Chief Medical Examiner for the

Commonwealth.

In the early afternoon of March 30, 1992, the police

technician was dispatched to the crime scene on the shoreline of

the James River, near 29th Street, in the City of Newport News.

There she saw the body of the victim, later identified as Timothy

Jason Hall. The body was nude from the waist down, except for

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white athletic socks, and the victim's legs were spread apart

approximately 12 inches. Pubic hairs were recovered from the

victim's buttocks. Bloody "transfer" stains were apparent on the

outsides of the victim's thighs, and a "whitish" fluid was

evident around the victim's anus and on his inner thighs. 2

An autopsy on the victim's body, performed by the medical

examiner, revealed 143 separate "sharp force injuries." Of

these, 62 were paired stab wounds which were present over the

victim's head, neck, back, and shoulders. There also were 13

single stab wounds and three paired incised wounds. The medical

examiner concluded that the victim had bled to death and that 25

of the 143 wounds were fatal. The fatal wounds included a stab

wound to the right neck that severed the carotid artery and the

jugular vein, four paired stab wounds that punctured the right

lung, three stab wounds that punctured the left lung, seven stab

wounds to the skull that penetrated the brain, a stab wound to

the forehead that also penetrated the brain, and one pair of stab

wounds that perforated the liver. The medical examiner opined

that the fatal wounds may not have caused instant death, and she

estimated that the victim could have survived for as long as 30

to 40 minutes after the last wound had been inflicted.
B

In the new sentencing hearing, as in the first trial, the
2
Bloody "transfer" stains occur when a bloody object comes
into contact with a surface, thereby leaving a stain on the
surface.

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Commonwealth proved that Mickens had been convicted of six prior

felonies, which are summarized as follows:

Date Offense Punishment
March 16, 1973 Attempted larceny 3 years'
from the person imprisonment

June 3, 1974 Sodomy 3 years'
imprisonment

June 3, 1974 Robbery 6 years'
imprisonment

June 3, 1974 Grand larceny from 4 years'
the person imprisonment
February 4, 1980 Sodomy 10 years'
imprisonment

February 4, 1980 Robbery 7 years'
imprisonment

The evidence also established that Mickens had been paroled

from prison three times. His initial parole on October 30, 1973,

was revoked on August 16, 1974, because he had been convicted of

robbery, grand larceny from the person, and sodomy. Mickens'

second parole on July 1, 1979, was revoked on April 11, 1980,

because he had been convicted of sodomy and robbery. His third

parole commenced on December 19, 1991, and he was on parole when

Hall was murdered.

Charles Edward Siron, one of Mickens' sodomy victims,

testified that, on February 14, 1974, when he was 18 years old,

he and Mickens were incarcerated in the Newport News City Jail.

While Siron was sleeping, Mickens put a razor blade to Siron's

throat and forced him out of bed and into the shower area where

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Mickens attempted to sodomize him.

Ruby Bunn, one of Mickens' robbery victims, testified that,

on February 7, 1974, she was teaching her second grade class at

Erwin School in the City of Newport News. Mickens appeared at

the classroom door holding a knife and demanding her pocketbook.

Bunn went to get her money from her purse, and, when she looked

up, she saw Mickens standing near a small boy and holding the

knife a few inches from the boy's head. Bunn gave Mickens her

money, and he left the classroom.
Mickens called three witnesses, Darius L. Robinson,

Jacquelyn Carter Brown, and his mother, Catherine Mickens.

Robinson, a correctional officer who supervises Mickens in

prison, testified that Mickens does his assigned chores "very

well." Also, Mickens participates in a Literacy Incentive

Program that teaches inmates mathematics, spelling, and reading.

Robinson stated that Mickens has not been a problem to him while

in prison and that he has no "personal apprehension" of Mickens.

Robinson further stated that, if Mickens were given a life

sentence, he first would be "housed in an area of people of the

same type of conviction," and, if he "progresses," he probably

would be placed in a "less secure area," with nonviolent

offenders.

Brown, a counselor with the Department of Corrections, talks

to prisoners "about family situations, personal problems, [and]

things of that nature." She has provided counseling services to

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Mickens and has found him to be receptive to her counseling.

Mickens' mother testified that Mickens has two siblings and

that the three children lived with her during their

"developmental years." The children's father was not at home and

did not provide assistance, and Mrs. Mickens worked and supported

the family with the help of her grandfather. Mrs. Mickens

testified that her son began to get into trouble when he was

about 12 or 13 years old. During that time, she said, the "court

system" did not provide any help for Mickens or services to

assist her. She expressed hope that the jury would give her son

a life sentence.
III

In this appeal, Mickens revisits many claims that he

asserted, and we rejected, in Mickens I. After reconsidering

those claims, we adhere to our previous decisions and, therefore,

reject the following claims:

A

The death penalty is unconstitutional per se in that it
constitutes cruel and unusual punishment in violation of the

Eighth Amendment to the Federal Constitution, and the use of

electrocution to carry out a death penalty also violates the

Eighth Amendment. Both claims were rejected in Mickens I, 247

Va. at 402, 442 S.E.2d at 683. 3
3
On appeal, Mickens also challenges the use of lethal
injection, the alternate method of execution provided for in Code
§ 53.1-233, contending that it too is cruel and unusual
punishment. This claim was not made in the trial court, and,

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 B

The aggravating factors set forth in Code § 19.2-264.4(C) as

predicates for the imposition of the death penalty are

unconstitutionally vague and unreliable. This claim was rejected

in Mickens I. Id. at 402-03, 442 S.E.2d at 684.

C

Virginia's death penalty statutes are unconstitutional

because they do not require a jury to find that aggravating

circumstances "outweigh" mitigating circumstances and because

they do not require jury instructions defining mitigating

evidence, specifying the burden of proof for such evidence, and

specifying how jurors must consider such evidence. This claim

was rejected in Mickens I. Id. at 403-04, 442 S.E.2d at 684. 4

D

Virginia fails to provide meaningful appellate review of

death penalty cases. This claim was rejected in Mickens I. Id.

at 405, 442 S.E.2d at 685.

E

An accused in a capital case is entitled to additional

peremptory jury strikes. This claim was rejected in Mickens I.
Id. at 404, 442 S.E.2d at 685.
(..continued)
therefore, we will not consider it for the first time on appeal.
Rule 5:25.
4
On appeal, Mickens also challenges the trial court's giving
of Instructions 1 and 3, which governed the jury's consideration
of aggravating and mitigating circumstances. We reject this
contention, finding that the jury was properly instructed.

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 F

The trial court erred in admitting into evidence five

photographs of the victim's body. This claim was rejected in

Mickens I. Id. at 407-08, 442 S.E.2d at 687.

IV

Mickens contends that the trial court erred in refusing to

remove prospective juror Frank Johnson for cause. We do not

agree.
During the jury voir dire, the prospective jurors were

examined individually. The trial court excluded prospective

juror Robin Johnson, who is Frank Johnson's sister, because she

told the court that one of her brothers had been murdered and

that she would be unable to be impartial in judging Mickens. She

stated that she would be more prone to vote for the death penalty

than for life imprisonment.

The next prospective juror to be examined was Frank Johnson.

After a thorough examination, he unequivocally stated that his

brother's murder would not influence his decision as a juror or

prevent him from judging Mickens impartially.

The trial court retained Frank Johnson as a juror. The

court observed that he "was emphatic about [his] being able to be

impartial" and that it had no reason to believe otherwise.

An appellate court must give deference to a trial court's

decision whether to exclude or retain a prospective juror because

the trial court "`sees and hears the juror;'" therefore, a trial

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court's decision in the matter will not be disturbed on appeal

absent a showing of manifest error. Eaton v. Commonwealth, 240

Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S.

824 (1991) (quoting Wainwright v. Witt, 469 U.S. 412, 426

(1985)). Accord Sheppard v. Commonwealth, 250 Va. 379, 386-87,

464 S.E.2d 131, 136 (1995), cert. denied, ___ U.S. ___, 116 S.Ct.

1332 (1996); Stockton v. Commonwealth, 241 Va. 192, 200, 402

S.E.2d 196, 200, cert. denied, 502 U.S. 902 (1991).

Additionally, there is no rule of automatic exclusion of a

prospective juror simply because a family member was the victim

of a violent crime. Stockton, 241 Va. at 200, 402 S.E.2d at 200;

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, it is clear from Frank Johnson's

answers that his brother's murder would not have prevented him

from judging Mickens impartially or made him more inclined to

impose the death penalty. Thus, giving the trial court the

deference it is due, the record fully supports the trial court's

ruling, and we cannot say that the ruling constituted manifest

error.

V

Mickens contends that the trial court erred in denying his

motion for a bill of particulars, seeking the Commonwealth's

identification of all the evidence "on which it intends to rely

in support of the aggravating factors . . . and its contention

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that the death penalty is the appropriate punishment." 5 We

reject this contention.

An accused is not entitled to a bill of particulars as a

matter of right. Code § 19.2-230. Whether to require the

Commonwealth to file a bill of particulars is a matter that rests

within the sound discretion of the trial court. Goins v.

Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123 (1996). It

is not the proper function of a bill of particulars to require

the Commonwealth to identify all the evidence it intends to

produce in the penalty phase of a capital murder trial.
Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218,

223, cert. denied, 502 U.S. 834 (1991).

In the present case, the record shows that Mickens had full

knowledge of all evidence to be used against him. The

Commonwealth's Attorney advised the court and Mickens that "the

evidence . . . will be substantially the same as the evidence

. . . produced [in the first trial]," and, except in one

particular of which Mickens was advised, the evidence was the

same. Clearly, therefore, the trial court did not abuse its

discretion in denying Mickens' motion for a bill of particulars.

VI

Code § 17-110.1(C) requires us to review Mickens' death

5
The Commonwealth did not intend to introduce any
unadjudicated criminal conduct by Mickens. Therefore, Code §
19.2-264.3:2, which requires notice of such intention and a
description of such conduct, was not applicable.

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sentence on the record to determine whether the sentence (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. We conduct this review even though Mickens has

not claimed that his death sentence was the product of any

arbitrary factor or that it is excessive or disproportionate.

From our independent review of the record, we have found

nothing to suggest that the death sentence was imposed under the

influence of passion, prejudice, or any other arbitrary factor.
In making the proportionality review, we must determine

whether other sentencing bodies in this jurisdiction generally

impose a death sentence for similar or comparable crimes,

considering both the defendant and his crime. Goins, 251 Va. at

469, 470 S.E.2d at 131-32. In Mickens I, we concluded that

Mickens' death sentence was not excessive or disproportionate to

penalties generally imposed by other sentencing bodies in the

Commonwealth. 247 Va. at 412, 442 S.E.2d at 689. In discharging

the same duty here, we have compiled and examined the records of

all capital murder cases reviewed by this Court since Mickens I,
Code § 17-110.1(E), giving particular attention to the cases in

which the death sentence was based upon both the "vileness" and

the "future dangerousness" predicates. From this review, we

conclude that Mickens' death sentence is neither excessive nor

disproportionate to penalties generally imposed by other

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sentencing bodies in the Commonwealth for similar and comparable

crimes. See, e.g., Barnabei v. Commonwealth, 252 Va. 161, 179,

___ S.E.2d. ___, ___ (1996); Goins, 251 Va. at 469-70, 470 S.E.2d

at 132; Sheppard, 250 Va. at 395, 464 S.E.2d at 141; Breard v.

Commonwealth, 248 Va. 68, 89, 445 S.E.2d 670, 682, cert. denied,

___ U.S. ___, 115 S.Ct. 442 (1994).

VII

Accordingly, we conclude that there is no reversible error

in the trial court's judgment and that the sentence of death

should be affirmed. Consequently, we will affirm the judgment.
Affirmed.

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