Present: All the Justices
ANDRE L. GRAHAM
v. Record Nos. 942189 and 942192
OPINION BY JUSTICE HENRY H. WHITING
June 9, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Andre L. Graham was tried upon indictments charging him with
eight felonies arising out of the October 8, 1993 shootings of
Sheryl L. Stack and Edward Martin. One indictment charged Graham
with Stack's capital murder with a deadly weapon during the
commission of Martin's robbery, another indictment charged Graham
with an attempt to rob Stack, two indictments charged Graham with
Martin's robbery and malicious wounding, and the remaining four
indictments charged Graham with the use and display of a firearm
in a threatening manner during the commission of the foregoing
four felonies.
In the first stage of a bifurcated trial conducted pursuant
to Code §§ 19.2-264.3 and -264.4, a jury convicted Graham of all
eight charges. A subsequent proceeding was conducted under the
provisions of Code § 19.2-295.1 in which the Commonwealth
*
introduced Graham's record of prior convictions. The jury then
*
Graham's prior convictions were: November 20, 1991:
unauthorized use of an automobile, assumption of the name of
another, concealed weapon, trespass on posted property; January
17, 1992: failure to appear in court, possession of cocaine,
possession of cocaine with firearm; August 25, 1994: capital
murder, use of firearm in commission of capital murder, robbery,
use of firearm in commission of robbery, capital murder, robbery,
use of firearm in commission of robbery.
fixed Graham's punishments at the following periods of
imprisonment for six of the non-capital convictions: life for
the aggravated malicious wounding, 25 years for the robbery, 10
years for the attempted robbery, and five years each for three of
the firearm convictions, all of which the court imposed.
In the second stage of the capital murder trial, the jury
fixed Graham's punishment for the capital murder of Stack at
death based on its findings of "future dangerousness" and
"vileness," and at five years imprisonment for the firearm
conviction in connection with the murder. The court then
referred the matter to the probation officer for an investigation
and report pursuant to the provisions of Code § 19.2-264.5.
After considering the report, the court imposed the death
sentence and the penitentiary sentence for the firearm
conviction.
Graham is before this Court for automatic review of his
death sentence, Code § 17-110.1(A), and we have consolidated that
review with the appeal of his capital murder conviction. Code
§ 17-110.1(F). We have also certified Graham's appeal of his
remaining convictions from the Court of Appeals, transferring
jurisdiction over that appeal to this Court pursuant to Code
§ 17-116.06, thereby consolidating all these matters.
Since the Commonwealth prevailed in the trial court, we
review the evidence and all reasonable inferences arising
therefrom in the light most favorable to the Commonwealth. Swann
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v. Commonwealth, 247 Va. 222, 225, 441 S.E.2d 195, 198, cert.
denied, ___ U.S. ___, 115 S.Ct. 234 (1994).
EVIDENCE
After finishing their work at the Steak and Ale Restaurant
on Midlothian Turnpike in south Richmond on the night of October
7, 1993, Stack drove her Volvo sedan and Martin drove his red
sports car to another restaurant in Richmond where they had
something to eat. James Jones, the night auditor of a motel
adjacent to the Steak and Ale Restaurant parking lot, was
standing outside the motel talking to another employee when he
saw Stack and Martin return to the parking lot after 2:00 a.m. on
October 8. Jones noticed Stack and Martin standing beside one of
the two cars talking and kissing until Jones returned to work
inside the motel. Twenty to twenty-five minutes later, Jones
heard two loud noises, "two or three seconds [apart], maybe up to
ten seconds" and saw a third car being driven from the area.
When Jones looked toward the parking lot, he noticed that
the Volvo's engine was running and its lights were on, but that
the red sports car was gone. As he walked toward the Volvo,
Jones noticed a body lying on the ground and immediately called
the police.
Harold Giles, a Richmond Police officer who was in the
immediate area, got Jones's call "[a]bout 3:59 [a.m.]" and was at
"the scene `within a minute or so.'" He found Stack and Martin,
both shot in the head, lying face down in a pool of blood, with
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their hands touching. Giles testified that "they were trying to
communicate to each other, but I couldn't make out what they were
saying." In addition to observing that the Volvo's engine was
running and its lights were on, Giles also noticed that the front
passenger door was open. Giles "protect[ed] the crime scene
until the detectives arrived."
When Detective Thomas R. Searles arrived at the scene at
"approximately" 6:00 a.m., Stack and Martin had been taken to the
hospital. Searles took photographs and collected the physical
evidence. One photograph of the front seat of Stack's car shows
that it had been ransacked, with Stack's personal property and
purse in disarray in the front seat. Searles found a .45 caliber
cartridge case and two .45 caliber bullets that were
approximately one foot apart.
Stack was comatose when she arrived at the hospital and died
some time later without regaining consciousness. Although Martin
had been shot in the head and suffered extensive brain injuries,
he survived and was able to testify. Dr. William Broaddus, a
neurosurgeon who treated Martin, testified that the bullet that
entered Martin's head damaged the left side of his brain,
resulting in Martin's loss of his left eye, a partial paralysis
on the right side of his body, and an impairment in his ability
to generate language. However, Dr. Broaddus said that Martin's
comprehension, memory, and intelligence were perfectly normal,
only his "ability to express what he is thinking is
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impaired. . . . It just takes him a lot longer and with a lot
more effort."
Martin testified that he and Stack were seated in her car in
the parking lot when a man Martin later identified from a
photographic spread as Graham approached the car. Graham had a
gun and told them to get out of the car. After Stack and Martin
got out of the car, Graham told Martin to hand over his wallet
and car keys to another man who was with him, but unarmed. As
Graham held "the gun on [Stack and Martin]," the other man first
got in Stack's car and started it, then got in Martin's car,
where, according to Martin, the other man "saw" Martin's compact
disc recordings (CDs). While the other man was in Martin's car,
Graham told Stack and Martin that if they would lie down on the
parking lot and close their eyes, he would not hurt them. Even
though both did as they were directed, they were each shot in the
head as they lay on the ground with their eyes closed.
Although Martin does not remember how long it was after he
closed his eyes that he was shot, Graham was the last person
Martin saw with a gun before he closed his eyes. After he was
shot, Martin realized that his "car was being started and the car
was coming at [him] so [he] quickly rolled over to get out of the
way of the car." After they were shot, Stack and Martin were
holding hands and he was trying to talk to her.
Priscilla Booker, who had been living with Graham in an
apartment on Midlothian Turnpike since early July 1993, testified
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that on the morning of Stack's murder, she saw Graham in the same
red car as that shown in a police photograph of Martin's car.
Later that morning, as Booker was watching the news on a local
television station, she mentioned to Graham the reports of the
shooting in the Steak and Ale parking lot. Graham's response
was, "why do [you] worry about other people."
Graham then asked Booker to stop looking at the news and,
when she continued to do so, he became upset. When Booker asked
Graham why she should not watch the news, he replied that "he
knew who did it[,] but he didn't."
Two or three days after the Stack murder, Booker found
Martin's box of over 200 CDs in the trunk of her car. Graham
told her that he had bought these CDs for $10, and Booker put
them in storage. The police recovered Martin's car a few days
after the crimes, but were unable to obtain any useful
fingerprint evidence from it.
On the morning of December 3, 1993, Graham, who was
incarcerated in the Chesterfield County jail on another charge,
made a telephone call to Booker in the presence of Gary McGregor,
a Chesterfield County deputy sheriff. Graham told Booker several
times during the conversation to "go into the closet, get the bag
with the contents and get rid of it." McGregor immediately
reported this conversation to his superiors. Shortly thereafter,
Detective W.F. Showalter of the Chesterfield County Police
Department went to Booker's apartment. There he found a .45
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caliber pistol in a plastic bag in a linen closet.
The gun was heavily oiled, and the police were unable to
recover any fingerprints from it. However, Booker testified that
she had seen the transaction in which Graham had obtained the gun
in September 1993, and that since that time, Graham had kept it
in his constant possession. Booker testified that Graham even
slept with it. After examining the gun, the bullets, and the
cartridge case found at the scene, Ann Davis Jones, a firearms
identification expert, testified that Graham's gun was the weapon
from which the bullets and the cartridge case found at the scene
had been fired and ejected.
The police found Martin's CDs in a storage locker rented by
Booker's mother. The CDs were examined by Leland W. Kennedy, a
fingerprint expert, who testified that 31 of the 48 identifiable
fingerprints found on the CDs were those of Graham.
ISSUES PREVIOUSLY DECIDED
Five of the issues that Graham presents for appeal he
candidly admits we have previously decided adversely to his
contentions. He further states that he "has no additional
argument that has not been raised by other death penalty
defendants in cases previously cited by this court." We know of
no reasons to modify our previous decisions and, therefore,
reject each of the following claims:
1. The statutes fail "to guide the jury's discretion in its
consideration of the `vileness' and `future dangerousness'
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aggravating factors." Rejected in Williams v. Commonwealth, 248
Va. 528, 535, 450 S.E.2d 365, 371 (1994).
2. The capital murder statutes "allow the jury to use the
evidence of prior convictions to impose the sentence of death,
violating defendant's protection against double jeopardy."
Rejected in Joseph v. Commonwealth, 249 Va. 78, 82, 452 S.E.2d
862, 865 (1995); Mickens v. Commonwealth, 247 Va. 395, 404, 442
S.E.2d 678, 684-85, vacated on other grounds, ___ U.S. ___, 115
S.Ct. 307 (1994).
3. "The death penalty, per se, constitutes cruel and
unusual punishment under current standards of decency." Rejected
in Joseph, 249 Va. at 82, 452 S.E.2d at 865; Williams, 248 Va. at
536, 450 S.E.2d at 371.
4. The "[f]ailure to give adequate jury instructions on
mitigation, use of model jury instructions, and jury verdict
forms inhibits the jury from giving independent weight to aspects
of the defendant's character and record and to circumstances of
the offense that are proffered in mitigation." Rejected in
Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 675,
cert. denied, ___ U.S. ___, 115 S.Ct. 442 (1994).
5. The "[f]ailure of Virginia to provide for meaningful
appellate review deprives [Graham] of statutory rights and due
process of law." Rejected in Joseph, 249 Va. at 82, 452 S.E.2d
at 865; Williams, 248 Va. at 536, 450 S.E.2d at 371.
GUILT PHASE
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Graham does not argue that the evidence is insufficient to
establish his presence when these crimes were committed. Indeed,
in exercising his right of allocution before sentencing, Graham
told the court, "[i]t was three of us there," but Graham denied
that he was the "triggerman."
Graham contends that the evidence is insufficient to prove
that he was the "triggerman." Since Martin cannot remember how
long it was after he closed his eyes before he and Stack were
shot, Graham argues that the Commonwealth had the burden of
excluding the hypothesis that Graham might have given the gun to
the other man, who then shot Stack and Martin.
Nothing in the evidence suggests that Graham may have given
the gun to the other man in the interval between the time Martin
closed his eyes and he and Stack were shot. Instead, Graham's
ownership of the gun, his retention of the gun even when
sleeping, Martin's testimony, and Graham's direction to Booker to
"get rid of the bag" containing the gun, taken together, amply
justify the conclusion that Graham was the person who shot the
victims.
Since nothing in the evidence supports Graham's hypothesis,
we conclude that his hypothesis does not spring from the
evidence, but from the imagination of Graham's counsel.
Therefore, the Commonwealth had no duty to negate this
hypothesis. Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d
325, 329 (1983); Turner v. Commonwealth, 218 Va. 141, 148-49, 235
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S.E.2d 357, 361 (1977). Accordingly, we find no merit in this
contention.
Next, Graham contends that the court erred in failing to
give an instruction that he described as a "cautionary eyewitness
identification instruction." This instruction provided:
In deciding what the facts are, you must consider
all the evidence. In doing this, you must decide which
testimony to believe and which testimony not to
believe. You may disbelieve all or any part of any
witness's testimony. In making that decision, you may
take into account a number of factors including the
following:
1. Was the witness able to see, or hear, or know
the things about which the witness testified?
2. How well was the witness able to recall and
describe those things?
3. What was the witness's manner while
testifying?
4. Did the witness have any interest in the
outcome of this case or any bias or prejudice
concerning any party or any matter involved in the
case?
5. How reasonable was the witness's testimony
considered in light of all the evidence in the case?
6. Was the witness's testimony contradicted by
what that witness has said or done at another time, or
by the testimony of other witnesses, or by other
evidence?
In deciding whether or not to believe a witness,
keep in mind that people sometimes forget things. You
need to consider therefore whether a contradiction is
an innocent lapse of memory or an intentional
falsehood, and that may depend on whether it has [to]
do with an important fact or with only a small detail.
These are some of the facts you may consider in
deciding whether to believe testimony.
The weight of the evidence presented by each side
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does not necessarily depend on the number [of]
witnesses testifying on one side or the other. You
must consider all the evidence in the case, and you may
decide that the testimony of a smaller number of
witnesses on one side has greater weight than that of a
larger number on the other.
All of these are matters for you to consider in
finding the facts.
We rejected a similar claim in Satcher v. Commonwealth, 244
Va. 220, 256, 421 S.E.2d 821, 843 (1992), cert. denied, 507 U.S.
___, 113 S.Ct. 1319 (1993). Since the Satcher jury was fully
instructed on the presumption of innocence and reasonable doubt,
we held that a separate instruction on identity was not required.
Here, the court fully instructed the jury on the presumption of
innocence, the Commonwealth's burden of proving guilt beyond a
reasonable doubt, the consideration of circumstantial evidence,
and the assessment of the credibility of witnesses and the weight
of the evidence. Accordingly, we conclude that Graham's proposed
instruction was not required, and that the court did not err in
refusing to grant it.
Finally, Graham contends that the trial court erred in its
refusal to set the verdicts aside and grant a new trial because
of the Commonwealth's alleged violation of the court's order
requiring it to disclose all exculpatory evidence prior to trial.
According to Graham, this alleged violation deprived him of the
due process rights articulated in Brady v. Maryland, 373 U.S. 83
(1963).
The alleged exculpatory evidence was the misidentification
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by Martin of the other man present at the scene in a photographic
spread of six suspects presented at the same time Martin picked
Graham from another photographic spread. Prior to trial, the
Commonwealth advised Graham only that Martin was unable to
identify the other man. However, we will not consider this
contention since Graham learned of Martin's misidentification
during his cross-examination of one of the Commonwealth's
witnesses, and he failed to bring the matter to the court's
attention at that time by way of a motion for mistrial, a motion
for a continuance, or a request for other relief. Instead, he
used the fact of Martin's misidentification to his own advantage
in his argument to the jury and raised the Brady issue only after
the jury returned an adverse verdict. By that time, he had
waived the point. Therefore, we will not consider his claim that
the court erred in denying his motion for a new trial. Rule
5:25.
SENTENCE REVIEW
Graham does not argue either that his death sentence was
imposed under the influence of passion, prejudice, or any other
arbitrary factor, or that it is excessive or disproportionate to
the penalty in similar cases. Nevertheless, we have reviewed his
death sentence on the record pursuant to the mandate of Code
§ 17-110.1.
At the sentencing phase, the Commonwealth referred to
Graham's record of previous convictions. It also introduced
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testimony showing Graham's two prior capital murder convictions
on August 25, 1994. These capital murder convictions arose from
Graham's participation in the murder and robberies of a
Chesterfield County couple on November 30, 1993. Both were shot
in the head.
Graham introduced mitigation evidence. Sherry Oliver, a
22-year-old friend of Graham, testified that Graham "was polite"
and never got angry with her or her two children. Jacqueline
Graham, Graham's mother, testified that he was 24 years old, that
he had one child, age 4, that he was always "very respectful"
with her and any other adult, and that he had never been violent
in his life.
Dr. Leigh D. Hagan, a forensic psychologist who examined and
tested Graham, testified that Graham had "an overall intelligence
score of 84, which places him mid-way in the lower average
range. . . . It tells us that this is not a matter of mental
retardation." Dr. Hagan described the results of researchers who
studied the incarceration history of 453 murderers whose death
sentences had been commuted to life imprisonment and found that
only nine-tenths of one percent committed other homicides in
prison during the following 15 years of imprisonment. Based upon
this study and his examination of Graham, Dr. Hagan opined that
Graham "will not pose any greater threat, ongoing threat to
society than any other murderer given a life sentence."
However, our review discloses nothing in the record to
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indicate that the jury was influenced by any arbitrary factor in
imposing the death sentence. And clearly the jury's findings of
both the "vileness" and "future dangerousness" factors are amply
supported by the evidence.
Further, we have examined the records that we have compiled
of all capital murder cases reviewed by this Court, Code
§ 17-110.1, including those in which life sentences were imposed.
In doing so, we have paid particular attention to those cases in
which the sentence was based on both the "vileness" and "future
dangerousness" predicates. Those cases are collected in Spencer
v. Commonwealth, 238 Va. 295, 318-20, 384 S.E.2d 785, 799-800
(1989), cert. denied, 493 U.S. 1093 (1990), supplemented in
Mueller v. Commonwealth, 244 Va. 386, 413-14, 422 S.E.2d 380, 397
(1992), cert. denied, 507 U.S. ___, 113 S.Ct. 1880 (1993), and in
Williams, 248 Va. at 550, 450 S.E.2d at 379. Since Williams, the
following cases also have considered sentences in which both
predicates were involved: Wilson v. Commonwealth, 249 Va. 95,
452 S.E.2d 669 (1995), and Burket v. Commonwealth, 248 Va. 596,
450 S.E.2d 124 (1994), cert. denied, ___U.S. ___, 115 S.Ct. 1433
(1995). Based upon our review of these records, we conclude that
Graham's death sentence was not excessive or disproportionate,
considering both the crime and the defendant.
CONCLUSION
Finding no error in the trial court's judgments and
perceiving no other reason to set aside the sentence of death, we
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will affirm the convictions and sentences.
Record No. 942189 -- Affirmed.
Record No. 942192 -- Affirmed.
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