Present: All the Justices
THOMAS LEE ROYAL, JR.
v. Record No. 942223 OPINION BY JUSTICE ELIZABETH B. LACY
June 9, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Nelson T. Overton, Judge
Thomas Lee Royal, Jr., was indicted for the capital murder
of City of Hampton police officer Kenneth Earl Wallace and use
of a firearm in the commission of the murder in violation of
Code §§ 18.2-31 and -53.1, respectively. Royal entered pleas
of guilty on both charges and received sentences of death for
the capital murder charge and three years' imprisonment for the
firearm charge. The trial court denied Royal's motion for
reconsideration of the death sentence.
We consider Royal's appeal of the imposition of the death
penalty with the automatic review of the death sentence to
which he is entitled under Code § 17-110.1.
I. The Guilt Phase
At a hearing held by the trial court on September 19,
1994, the Commonwealth presented the following facts as
stipulated by the parties:
On Monday, February 21st, 1994, Thomas Royal,
Yancy M. Mitchener, Eldred Acklin, and Willie Sanders
met in the vicinity of Chesapeake Court Apartments
near Wythe Shopping Center. Thomas Royal handed each
of the other three a gun with the intention to kill
Hampton police officer Curtis Cooper. These four
persons started to cross Wythe Shopping Center and
they did not see Office[r] Cooper but did see Officer
Kenneth E. Wallace of the Hampton Police Department.
Thomas Royal pursued Officer Wallace, followed
by Yancy M. Mitchener and Eldred Acklin. Willie
Cardell Sanders hung back. Thomas Royal encountered
Officer Wallace and fired two shots from a .380
caliber handgun at Officer Wallace while Officer
Wallace was seated in his police cruiser on
Pocahontas Place in Hampton, Virginia. Thomas Royal
fled. Officer Wallace died as a result of a wound
inflicted by Thomas Royal.
Yancy M. Mitchener and Eldred Acklin both fired
at the marked police car hitting the car but not
Officer Wallace. Both Mitchener and Acklin then fled
following Thomas Royal. Royal, Mitchener, and Acklin
rejoined Sanders back at the Chesapeake Court
Apartments. All four eventually fled Hampton that
night and spent it in a motel in Norfolk.
Royal also introduced a letter he had written to Officer
Wallace's father expressing his sorrow for the murder and
asking for the family's forgiveness. The trial court accepted
Royal's guilty pleas after finding that the pleas were made
freely and voluntarily following full consultation with
counsel.
II. The Penalty Phase
On October 19, 1994, the trial court conducted a hearing
encompassing the proceedings required by Code §§ 19.2-264.4 and
-264.5. In addition to the testimony of the probation officer
who prepared the pre-sentence report, the Commonwealth's
evidence consisted of the testimony of Dr. Miller M. Ryans, a
forensic psychiatrist who evaluated Royal; Detective Corporal
Edgar A. Browning of the Hampton Police Department who, while
investigating the murder of Officer Wallace, took a statement
from Royal regarding the murder; Officer Curtis C. Cooper of
the Hampton Police Department, Royal's intended victim; and Dr.
Greg Wolber, a psychologist and rebuttal witness. Royal
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introduced the testimony of his wife, Pamela, and Dr. Andrew J.
Billups, III, a psychologist.
The Commonwealth's evidence showed that Royal's prior
criminal record began in 1983 as a juvenile and included
involvement with numerous offenses against property. As an
adult, he was convicted of destroying property, petit larceny,
assault and battery, interfering with a police officer,
trespass, and possession of cocaine. In August 1994, shortly
before his conviction for the murder of Officer Wallace, Royal
was convicted of second degree murder and use of a firearm in
the commission of the 1991 murder of James Smith.
Dr. Ryans testified that Royal displayed six of the seven
diagnostic criteria connected with an antisocial personality
disorder. For example, Royal did not "conform to social norms
with respect to lawful behaviors as indicated by repeatedly
performing acts that are grounds for arrest," exhibited
"reckless disregard for safety of self or others," and
displayed "lack of remorse as indicated by being indifferent to
or rationalizing having hurt, mistreated, or stolen from
another." Dr. Ryans testified that there is no treatment for
this condition and that, in Royal's case, this pattern of
behavior was "gradually escalating." As to his future
dangerousness, Dr. Ryans stated that "I cannot say with
reasonable medical certainty that under certain circumstances
there would not be a repetition of violent behavior by this
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individual that would put others at risk."
Royal's expert, Dr. Billups, testified that school
personnel had concluded that Royal was mentally retarded based
on intelligence evaluations administered in 1982 and 1986. Dr.
Billups concluded, based on his own testing, that Royal
functioned "in the borderline range of intelligence." Dr.
Billups agreed that Royal had an antisocial personality
disorder and surmised that the conditions of his childhood,
including encouragement from family members to engage in
criminal acts, would have contributed to such a disorder. This
disorder, Dr. Billups testified, "has a chronic course that may
become less evident or remit as the individual grows older,
particularly by the fourth decade of life." Finally, Dr.
Billups testified that Royal had expressed genuine remorse and
had the potential to be rehabilitated.
At the close of the evidence, the trial court granted
Royal's motion to strike the Commonwealth's evidence relating
to the statutory predicate of vileness but not as to the future
dangerousness predicate. The trial court, after "taking into
consideration all the evidence in the case, the report of the
Probation Officer, the matters brought out on cross examination
of the Probation Officer, and such additional facts as were
presented by the accused," held that "there is a probability
that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society." The trial
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court fixed Royal's sentence at death. After offering Royal
the opportunity to present any evidence or reason why the death
penalty should not be imposed, the trial court entered judgment
imposing the death penalty.
Royal assigns error to a number of the trial court's
actions during the sentencing phase of the proceedings. These
involve the type of evidence which the trial court could
consider in determining the statutory predicate of future
dangerousness, the sufficiency of the evidence to establish
future dangerousness, the failure of the trial court to impose
life imprisonment as an alternative to the death penalty, and
the trial court's denial of Royal's motion for reconsideration
of the imposition of the death penalty. We consider Royal's
assignments of error in order.
a. Admissibility of Evidence
At the beginning of the sentencing hearing, the
Commonwealth stated that it was not proceeding on the statutory
predicate of vileness, only on future dangerousness. Royal
asserts that, when future dangerousness is the sole statutory
predicate relied on by the Commonwealth, Code § 19.2-264.2
limits the relevant evidence solely to consideration of the
defendant's record of past criminal convictions. Therefore,
Royal contends, the trial court erred in considering
circumstances surrounding the murder of Officer Wallace in
making a determination as to Royal's future dangerousness. In
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addition, Royal asserts that by allowing circumstances of the
crime to be considered in determining future dangerousness, the
offense becomes the sole basis for determining the sentence and
thus, in this case, the death penalty is the "ipso facto result
of the murder of a police officer." This result, Royal argues,
violates the principle of individualized sentencing required in
death penalty cases. Woodson v. North Carolina, 428 U.S. 280,
303-04 (1976). We disagree.
The statutory provisions governing the imposition of the
death penalty do not limit consideration of whether a defendant
will be a future danger to the defendant's prior criminal
record. Both subsections B and C of Code § 19.2-264.4
specifically provide that evidence of the circumstances of the
offense may be considered. 1 Neither restricts this evidence to
proceedings based on the vileness predicate. We have
previously rejected the restrictive construction of the
1
Code § 19.2-264.4 provides, in pertinent part:
B. Evidence which may be admissible, subject to
the rules of evidence governing admissibility, may
include the circumstances surrounding the offense, the
history and background of the defendant, and any other
facts in mitigation of the offense.
. . . .
C. The penalty of death shall not be imposed
unless the Commonwealth shall prove beyond a
reasonable doubt that there is a probability based
upon evidence of the prior history of the defendant or
of the circumstances surrounding the commission of the
offense of which he is accused that he would commit
criminal acts of violence that would constitute a
continuing serious threat to society.
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relevant statutes advanced by Royal and find no reason to
depart from that position here. Frye v. Commonwealth, 231 Va.
370, 392, 345 S.E.2d 267, 283 (1986).
Furthermore, the statutory scheme comports with the
constitutional requirement of individualized sentencing. Where
the sentencing body is required to find a statutorily
prescribed aggravating factor to qualify a defendant for
consideration of the death penalty, "[t]he aggravating
circumstance may be contained in the definition of the crime or
in a separate sentencing factor (or in both)." Tuilaepa v.
California, ___ U.S. ___, 114 S.Ct. 2630, 2635 (1994).
Therefore, the circumstances of the crime appropriately may be
considered when determining whether the statutory predicate of
future dangerousness exists. The individualized sentencing
required by the Constitution is further satisfied when, having
established the statutory predicate, the sentencing body then
proceeds to consider whether the death penalty should be
imposed in each specific case. See Zant v. Stephens, 462 U.S.
862, 879 (1983).
Royal also contends that the trial court erred in not
limiting the evidence relating to the murder of Officer Wallace
to that stipulated by the parties in the guilt phase of the
trial. Specifically, Royal objects to the admission of
Detective Browning's testimony and a videotape in which Royal
told Browning that he planned to kill Officer Cooper to avoid
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threatened harm to his family, a story Royal later admitted was
false.
A function of stipulations is to identify factual matters
which are not in dispute. The stipulations recited factual
events which occurred when Wallace was murdered. They did not
include an agreement precluding either Royal or the
Commonwealth from offering other particulars of the crime for
the factfinder's consideration. Therefore, neither the
Commonwealth nor the trial court was under any obligation to
limit evidence of the crime to the stipulated facts.
Accordingly, the trial court did not err in considering
relevant evidence in addition to Royal's prior criminal record
and the factual stipulations in determining whether Royal would
be a future danger to society.
b. Sufficiency of the Evidence
Royal next argues that the trial court erred in
determining that he would be a future danger to society because
the Commonwealth failed to establish a prima facie case of
future dangerousness and, therefore, his motions to strike the
Commonwealth's evidence should have been granted.
In determining whether the trial court erred in denying
Royal's motion to strike the Commonwealth's evidence of future
dangerousness, we consider the evidence in the light most
favorable to the Commonwealth. It is undisputed that Royal
planned the murder of Officer Cooper and furnished each of the
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three co-conspirators with the weapons for the crime.
Moreover, when Royal realized the officer in the car was not
his original intended victim, Officer Cooper, he did not
abandon his plan. He proceeded to murder Officer Wallace, not
because of any acrimony toward Officer Wallace, but apparently
because Officer Wallace was there and Officer Cooper was not.
Dr. Billups, Royal's expert witness described Royal's mental
capacity as borderline, which he explained as "not high enough
to be considered normal, but yet not low enough to be
considered retarded." Nevertheless, the evidence shows that
Royal had the capacity to, and did, plan a serious criminal
offense, recruit others to participate, and execute the plan.
More importantly, killing a person under these circumstances
shows clear disregard for human life. This evidence, combined
with the "escalating nature" of Royal's antisocial personality
disorder, is sufficient to support a finding that Royal would
be a future danger to society.
Royal asserts, however, that comments made by the trial
court while ruling on Royal's motion to strike the
Commonwealth's evidence show that the trial court erroneously
shifted the burden to him to disprove that he was a future
danger. Those comments, however, must be considered in
context.
Royal based his motion to strike, in part, on Dr. Ryans'
statement that he could not state with medical certainty that
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under certain circumstances Royal would not repeat violent
behavior that would put others at risk. Royal characterized
this testimony as "equivocal." In response, the Commonwealth
argued that the issue of future dangerousness was not for Dr.
Ryans or any other qualified medical person to decide, but for
the trier of fact to resolve based on the medical evidence as
well as all other relevant evidence. In denying the motion to
strike, the trial court commented that,
[i]n fairness or in passing, if Dr. Ryans or anyone
else had sat there and said as a matter of psychiatry
or psychology we were able to say to a reasonable
degree of medical certainty that Mr. Royal wouldn't
do this again, I would have listened to them.
Taken in context, the court's comment does not establish a
requirement of affirmative expert testimony that Royal was or
would not be a future danger to society as a prerequisite to
such a finding by the court. Rather, this comment was directed
at the evidentiary weight the trial court would give to Dr.
Ryans' testimony. Nothing in the trial court's statement
placed the burden of proof on Royal to affirmatively show that
he would not be a future danger to society.
Finally, Royal argues that the finding of future
dangerousness was flawed because the Commonwealth was bound by
the expert testimony of Dr. Ryans, which did not establish
future dangerousness, and because Royal's prior conviction for
second degree murder was on appeal and therefore should not
have been considered as evidence of future dangerousness. We
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disagree. Dr. Ryans' testimony was not an affirmative opinion
that Royal either would or would not be a future danger to
society. This statement did not preclude the Commonwealth from
proving future dangerousness by other evidence. Furthermore,
the trial court was entitled to consider Royal's prior murder
conviction even though that conviction was on appeal at the
time of sentencing. Peterson v. Commonwealth, 225 Va. 289,
297-98, 302 S.E.2d 520, 525-26, cert. denied, 464 U.S. 865
(1983). Accordingly, the trial court did not err in denying
Royal's motion to strike.
c. Imposition of the Death Penalty
Royal argues that the trial court erred in not considering
life imprisonment as a viable sentencing alternative. Dr.
Billups testified that Royal had potential for rehabilitation
and that his antisocial personality disorder might subside or
go into remission by his fourth decade of life. On this basis,
Royal asserts that lengthy incarceration is appropriate. The
record shows, however, that the trial court did consider Dr.
Billups' testimony, but concluded that, based on the evidence,
rehabilitation would not occur and that Royal's criminal record
was one of increasing violence. In sum, the trial court
appropriately considered all the evidence and decided against
the position advanced by Royal.
d. Recusal
Royal assigns error to the trial court's failure to grant
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his motion for reconsideration in which he asserted that the
trial judge should vacate the sentence of death, recuse
himself, and ask that a new judge be appointed to impose
sentence. This action was necessary, Royal argues, because of
the substantial publicity surrounding the case and,
specifically, the public pressure directed toward the judge to
impose the death penalty.
We find no merit in this assignment of error. Public
notoriety of a trial does not prove that a sentence is
improperly imposed. Beaver v. Commonwealth, 232 Va. 521, 536,
352 S.E.2d 342, 350, cert. denied, 483 U.S. 1033 (1987). The
record is devoid of any indication that the trial court's
sentencing decision was affected by public pressure or
publicity. The trial judge did not abuse his discretion in
refusing to recuse himself on this basis and did not err in
denying Royal's motion for reconsideration.
III. Statutory Review
Pursuant to Code § 17-110.1(C), we must review Royal's
death sentence to determine whether it was imposed under the
influence of passion, prejudice, or any other arbitrary factor
and whether it is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant.
Royal argues that the death penalty was imposed under the
influence of passion and was arbitrary and disproportionate
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because the trial court stated that the "mitigating factors are
not sufficient, in the view of the Court, to make any
substantial difference in this situation." This statement,
Royal asserts, shows that the trial court "must have
overlooked" the mitigating factors, including Royal's guilty
pleas, his remorse for the crime, as shown in the letter to
Officer Wallace's father, his fatherless home life surrounded
by relatives involved in criminal activities, his attempts at
work and marriage, and his mental retardation. Thus, Royal
concludes, the sentence imposed was arbitrary. We disagree.
The trial court reviewed the aggravating and mitigating
evidence, finding that it showed "a life or a record of
increasing violence." The trial court noted that the
mitigating circumstances might engender "a distinct degree of
sympathy for Mr. Royal for some of the things which [have]
brought him to the place where he is." In the trial court's
view, however, those circumstances did not change the pattern
of escalating violence which had risen to the level of capital
murder of a police officer. There is no indication that the
trial court's sentencing decision was influenced by passion,
prejudice, or any other arbitrary factor.
Finally, the death penalty was neither excessive nor
disproportionate in this case. We have reviewed cases
involving the capital murder of a police officer in which the
penalty imposed was life imprisonment or death based solely on
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a finding of future dangerousness. Based on that review, we
conclude that sentencing bodies in Virginia generally have
imposed the death penalty in circumstances substantially
similar to those presented in this case. See, e.g., Delong v.
Commonwealth, 234 Va. 357, 362 S.E.2d 669 (1987), cert. denied,
485 U.S. 929 (1988); Beaver, 232 Va. at 524, 352 S.E.2d at 344;
Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 144 (1984),
cert. denied, 471 U.S. 1025 (1985). Accordingly, we hold that
the death penalty imposed here is neither excessive nor
disproportionate.
In conclusion, we find no reversible error among the
issues presented by Royal's appeal. Having conducted the
review mandated by Code § 17-110.1, we decline to commute the
sentence of death. Accordingly, we will affirm the judgment of
the trial court.
Affirmed.
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