Payne v. Commonwealth

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