Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice
ANDRE L. GRAHAM,
A/K/A LUIS A. RIVAS
v. Record No. 950948 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 3, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
In this appeal of a capital murder conviction, we consider
(1) whether the trial court erred in excluding a prospective
juror for cause, and (2) whether a defendant can be found guilty
of capital murder, under Code § 18.2-31(7), when he was the
"triggerman" in the premeditated killing of one person, but was
only an accomplice in the killing of the other person as part of
the same act or transaction.
Among other charges, Andre L. Graham was convicted by a jury
of the capital murder of Rebecca W. Rosenbluth as part of the
same act or transaction as the killing of Richard A. Rosenbluth,
her husband. Code § 18.2-31(7). The jury fixed punishment for
this offense at life imprisonment and a fine of $100,000. The
trial court sentenced Graham in accordance with the jury's
verdict.
The evidence at trial showed that, on November 30, 1993,
Chesterfield County police discovered the bodies of Richard and
Rebecca Rosenbluth in their home. Richard Rosenbluth had been
shot twice in the head, and Rebecca Rosenbluth had been shot
three times in the head and once in the neck. All these gunshot
wounds were lethal.
Both of Mr. Rosenbluth's gunshot wounds and two of Mrs.
Rosenbluth's wounds were inflicted by a handgun linked to
Graham's co-defendant, Mark Sheppard. * About one week prior to
these murders, Sheppard had accidentally shot his friend, Benji
Vaughn, using the same handgun.
Mrs. Rosenbluth's other two wounds were inflicted by a .45
caliber handgun, which the police found in the apartment of
Priscilla Booker, Graham's girlfriend, immediately after Graham
had telephoned Booker from the jail instructing her to "get rid
of it." Booker testified that Graham had obtained the handgun in
September 1993.
Other circumstantial evidence linked Graham and Sheppard to
the Rosenbluth murders. They were both seen in possession of the
Rosenbluths' vehicles. Graham pawned several items of the
Rosenbluths' jewelry, and the police found Mrs. Rosenbluth's comb
and brush set in Priscilla Booker's apartment.
At the time of his arrest, Sheppard had in his possession
Mrs. Rosenbluth's watch and one of Mr. Rosenbluth's company
credit cards. When the police searched Sheppard's place of
residence, they discovered the Rosenbluths' stereo equipment, a
piece of their luggage, and the license plates to one of their
*
Sheppard's convictions arising from these events are
reviewed by this Court in Sheppard v. Commonwealth, 250 Va. ___,
___ S.E.2d ___ (1995), decided today.
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vehicles. In addition, Sheppard's fingerprint was identified on
a package of razor blades found in the Rosenbluths' home.
The evidence also showed that Graham and Sheppard were
involved in the business of selling cocaine, and Graham admitted
to the police that he had made several sales of cocaine to Mr.
Rosenbluth. On occasion, Mr. Rosenbluth used credit cards to
obtain hotel rooms for Graham and received cocaine from him in
exchange. Graham told Priscilla Booker that Mr. Rosenbluth owed
him money.
The Rosenbluths both had ingested cocaine shortly before
they died. Traces of cocaine were found in their kitchen and
den. Based on the above evidence, the prosecution argued that
Graham and Sheppard killed the Rosenbluths and stole their
property to "settle" existing drug debts.
On appeal, Graham first argues that the trial court erred in
granting the Commonwealth's motion to exclude prospective juror
James Summers for cause. He contends that the record shows that
Summers did not have a fixed view against imposition of the death
penalty. Graham asserts that, in striking a juror who had only
"a general hesitancy" about his ability to consider the death
penalty, the trial court caused "the prejudicial effect of
impaneling a jury more prone to impose the death penalty."
In response, the Commonwealth argues that this claim is moot
because the jury did not impose the death penalty, but fixed
Graham's punishment at life imprisonment. We agree with the
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Commonwealth.
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme
Court held that a sentence of death cannot be upheld if the jury
that imposed or recommended the sentence was chosen by excluding
members of the venire solely because they expressed general
objections to capital punishment. See id. at 522. The rationale
underlying this rule is that any such exclusions of potential
jurors results in a jury that is "death prone." See id. at
520-21. However, prospective jurors may be excused for cause if
they state that they could never vote to impose the death
penalty, or that they would refuse even to consider its
imposition in the case before the court. Id. at 522 n.21; Morgan
v. Illinois, 504 U.S. 719, 728 (1992).
This Witherspoon inquiry is relevant, however, only when a
sentence of death has been imposed. As this Court explained in
Lewis v. Commonwealth, 218 Va. 31, 35, 235 S.E.2d 320, 323
(1977), "a Witherspoon error affects only the sentence of death
and not the conviction for which the penalty is imposed." See
also Bumper v. North Carolina, 391 U.S. 543, 545 (1968). Thus,
the Witherspoon error alleged here, that the trial court erred in
excluding prospective juror Summers for cause because he
expressed a "general hesitancy" about his ability to consider the
death penalty, is rendered moot by Graham's sentence of life
imprisonment.
We next consider Graham's argument that the trial court
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erred in instructing the jury that it could find him guilty of
capital murder if it found that he was the immediate perpetrator
with respect to one killing, but only an accomplice in the other
killing. Graham asserts that the Commonwealth was required to
prove that he was the immediate perpetrator, the triggerman, in
both killings. In support of this argument, Graham relies on
Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280
(1986), in which this Court held that, except in the case of
murder for hire, only the immediate perpetrator of a homicide may
be convicted of capital murder. We disagree with the conclusion
advanced by Graham.
We first note that Graham does not dispute that the evidence
is sufficient to establish he was an accomplice in the murder of
Richard Rosenbluth. Instead, Graham bases his argument on the
fact there is no evidence that he was the triggerman in that
murder.
In Fitzgerald v. Commonwealth, 223 Va. 615, 292 S.E.2d 798
(1982), cert. denied, 459 U.S. 1228 (1983), this Court explained
that
Code § 18.2-31, defining capital murder, was first
enacted by the General Assembly in 1975 as part of a
statutory scheme enacted to eliminate the "unbridled
choice between the death penalty and a lesser sentence"
prohibited by Furman v. Georgia, 408 U.S. 238 (1972).
. . . .
Subsequent amendments to the murder statutes, including
those enacted in response to Furman in 1975, have
changed the substance and the procedure of the
statutes, but not their evident purpose. That purpose
is gradation. The General Assembly grades murder in
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order to assign punishment consistent with prevailing
societal and legal views of what is appropriate and
procedurally fair.
Id. at 635-36, 292 S.E.2d at 810.
The language of Code § 18.2-31(7) evidences a legislative
determination that the described offense is qualitatively more
egregious than an isolated act of premeditated murder. This
result is accomplished by the addition of a gradation crime to
the single act of premeditated murder. Under this subsection,
the gradation crime is the defendant's killing of more than one
person as part of the same act or transaction.
Although this Court has not addressed the precise issue that
Graham raises, we have examined a related issue under Code
§ 18.2-31(4) and (5), in which the gradation crimes were robbery
and rape. In James Dyral Briley v. Commonwealth, 221 Va. 563,
273 S.E.2d 57 (1980), the defendant argued that, to be convicted
of capital murder during the commission of a robbery or a rape,
the prosecution was required to prove that he was a principal in
the first degree to the gradation crimes. We disagreed, holding
that
[Code] § 18.2-31 does not require proof that a
defendant charged with murder during the commission of
a robbery or a rape was a principal in the first degree
to the crimes of robbery or rape. It is only necessary
that the Commonwealth prove that the defendant was the
triggerman in the murder and an accomplice in the
robbery or rape to convict him of capital murder.
Id. at 573, 273 S.E.2d at 63; see also Watkins v. Commonwealth,
229 Va. 469, 485-86, 331 S.E.2d 422, 434-35 (1985), cert. denied,
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475 U.S. 1099 (1986).
We conclude that this holding is dispositive of the issue
before us, and that Code § 18.2-31(7) does not require proof that
a defendant charged with capital murder, in the premeditated
killing of more than one person as part of the same act or
transaction, was the triggerman in each murder referenced in the
indictment. Rather, this section requires proof only that the
defendant was the triggerman in the principal murder charged, and
that he was at least an accomplice in the murder of an additional
person or persons as part of the same act or transaction.
As stated above, Graham does not dispute that the evidence
is sufficient to establish he was an accomplice in the murder of
Richard Rosenbluth. Further, he does not dispute that the
evidence is sufficient to establish that he was the triggerman in
the willful, deliberate, and premeditated killing of Rebecca
Rosenbluth. Therefore, we conclude that the trial court did not
err in its instructions to the jury on the offense charged under
Code § 18.2-31(7).
For these reasons, we will affirm the trial court's
judgment.
Affirmed.
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