Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ.
WILLIAM JOSEPH BURNS
OPINION BY
v. Record Nos. 001879 & 001880 JUSTICE CYNTHIA D. KINSER
March 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis Lee Hupp, Judge
A jury convicted William Joseph Burns of the capital
murder of Tersey Elizabeth Cooley in the commission of rape
and/or forcible sodomy in violation of Code § 18.2-31,
statutory burglary in violation of Code § 18.2-90, rape in
violation of Code § 18.2-61, and forcible sodomy (anal
intercourse) in violation of Code § 18.2-67.1. 1 At the
conclusion of the penalty phase of a bifurcated trial, the
jury recommended that Burns be sentenced to death on the
capital murder conviction, finding that “there is a
probability that [Burns] would commit criminal acts of
violence that would constitute a continuing serious threat to
society” and that his conduct in committing the offense was
“outrageously or wantonly vile, horrible or inhuman in that
it involved torture, depravity of mind or aggravated battery
to the victim beyond the minimum necessary to accomplish the
act of murder.” The jury also sentenced Burns to 18 years on
the statutory burglary conviction, and to life imprisonment
on each of the convictions for rape and forcible sodomy.
After reviewing the post-sentence report required by Code
§ 19.2-264.5, the trial court sentenced the defendant in
accordance with the jury verdicts.
Burns appealed his non-capital convictions to the Court
of Appeals pursuant to Code § 17.1-406. We certified that
appeal (Record No. 001880) to this Court under the provisions
of Code § 17.1-409 for consolidation with the defendant’s
appeal of his capital murder conviction (Record No. 001879)
and the sentence review mandated by Code § 17.1-313. After
considering Burns’ assignments of error, the record, and
argument of counsel, we find no error and will affirm the
judgments of the circuit court.
I. FACTS
Applying familiar principles of appellate review, we
will recite the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party before
2
the circuit court. Johnson v. Commonwealth, 259 Va. 654,
662, 529 S.E.2d 769, 773, cert. denied, ___ U.S. ___, 121
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1
The jury found Burns not guilty of forcible sodomy
(fellatio). The circuit court granted Burns’ motion to
strike the evidence with regard to a charge of robbery.
2
Some of the facts and material proceedings will be
summarized when addressing specific assignments of error.
2
S.Ct. 432 (2000); Walker v. Commonwealth, 258 Va. 54, 60, 515
S.E.2d 565, 568 (1999), cert. denied, 528 U.S. 1125 (2000).
We also accord that evidence all inferences fairly deducible
from it. Horton v. Commonwealth, 255 Va. 606, 608, 499
S.E.2d 258, 259 (1998) (citing Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
A. GUILT PHASE
During the day on September 20, 1998, Burns was drinking
heavily at his trailer in Baker, West Virginia. He resided
there with his wife, Penny Marlene Cooley Burns, and her two
sons. Apparently some home repairs were not going well, and
Burns became increasingly angry with his wife. Because Burns
had previously assaulted and battered Penny on several
occasions when he was drinking, she became concerned for her
safety and decided to leave their residence. She had left
Burns once before when he was drinking. On that occasion,
Penny went to her mother's house in Edinburg, Virginia, and
stayed there a few days before returning home. 3
When Penny left her home on September 20th, she did not
go to her mother’s home. Instead, she took a circuitous
route unfamiliar to Burns to the home of her friends, Amanda
3
Penny’s mother was Tersey Elizabeth Cooley, the victim
in this case.
3
and Leonard Funkhouser. 4 On the way to their house, Penny
stopped several times to telephone her mother. Penny wanted
her mother to know that Penny had left Burns and would be
staying at the Funkhousers’ house. Penny also wanted to warn
her mother not to let Burns into Cooley’s home if he came
there. 5 However, Penny was never able to reach her mother,
even after she arrived at the Funkhousers’ residence.
Around midnight, Burns showed up at the Funkhousers’
house and asked Penny to go home with him. She refused.
Burns then left but returned about an hour later. He
remained outside the Funkhousers’ home in his car until the
next morning. When the Funkhousers left for work that
morning, they did not want to leave Penny alone in their
home. So, Leonard took Penny to work with him. At Leonard’s
suggestion, Penny then went on a commercial truck run to Ohio
and Pennsylvania with a friend of Leonard’s. While in
Pennsylvania, Penny learned about her mother’s murder during
a telephone conversation with Penny’s son.
Around noon on September 21, 1998, Penny’s sister, Linda
Yvonne Heres, went to the home of her 73-year old mother.
4
The Funkhousers lived in Fort Valley, Virginia, which
is about a 45-minute drive from Cooley’s house in Edinburg.
5
According to Penny, when she left Burns the first time,
he threatened to kill her or her mother if she ever left him
again.
4
When Linda arrived at Cooley’s home, she discovered that the
screen on the kitchen door had been pushed in, and she later
realized that a window pane in the kitchen door had been
broken. After Linda entered the house, she yelled for her
mother but heard no response. Linda then proceeded into her
mother’s bedroom and found her mother’s unclothed, dead body
lying on the floor. 6 Cooley’s face was partially covered by a
mattress that had been pulled from the bed, and her lower
dentures were lying on the floor about four feet from her
jaw. The bedroom was in disarray, and the bedclothes were
scattered around the room.
Frances Patricia Field, Assistant Chief Medical Examiner
for the Northern Virginia District Medical Examiner’s Office,
performed an autopsy on Cooley’s body. Dr. Field reported
that Cooley had “multiple injuries about the head,” including
abrasions and bruises on the right forehead; beside the right
eyebrow; on the white part of the eyeball; on the right and
left jaw lines; on the neck; and on the right cheek, chin,
and mouth. Cooley also had large bruises on her upper chest
and lower neck. Cooley’s inner lips were likewise bruised,
and Dr. Field testified that the injuries to Cooley’s gums
and lips were consistent with her dentures having been in
______________________
6
Cooley had on only a bra when Linda found her body.
5
place at the time of the assault. Finally, Cooley sustained
24 fractures to her ribs.
Dr. Field determined that the cause of death was “blunt
force trauma to [Cooley’s] chest, with rupture of the heart”
and compression of the neck. There was also a tearing of
Cooley’s pericardium, causing blood to spill out of the heart
into the chest cavity. Dr. Field opined that a broken rib
probably had punctured the heart, although direct force
applied to the chest might have ruptured the heart. Because
bleeding is rapid when the heart is ruptured, Dr. Field
concluded that death occurred within two to three minutes
after Cooley’s heart ruptured.
After Linda found her mother’s body, she called “911.”
Soon thereafter, the police and rescue squad arrived at the
scene. Larry W. Green, Sheriff of Shenandoah County,
subsequently decided to set up a “traffic-canvassing detail”
to ascertain if any drivers had traveled through the area
where Cooley’s house was located between approximately 7:00
p.m. on September 20th and 11:30 a.m. on September 21st. As
Sheriff Green was moving a flare on the roadway south of the
Cooley residence, a vehicle approached him. Sheriff Green
testified that he “was in the center of the road, walking
with the flare, and, of course, that stopped the car, and
[he] approached the driver’s side.” Burns was operating that
6
vehicle. After Burns stopped and before Sheriff Green could
say anything, Burns asked, “What’s going on? That’s my
mother-in-law’s house.” Upon realizing that Burns was a
relative of the decedent, Sheriff Green asked him to speak
with Garlan Gochenour, a lieutenant with the Shenandoah
County Sheriff’s Office, who would explain what had happened.
Burns then walked over to a nearby police cruiser and
got into the right front seat as Gochenour got into the left
front seat. Gochenour informed Burns about Cooley’s death
and then advised Burns of his Miranda rights. Burns told
Gochenour that he had not been in the victim’s house within
the last five days or within the last year. However, Burns
admitted that he had driven by Cooley’s home on September
21st between 1:00 a.m. and 1:30 a.m., but insisted that he
had merely turned around in the driveway and then proceeded
to the Funkhouser residence.
Upon realizing that Burns had been at the crime scene
during the approximate time when the murder occurred,
Gochenour asked Burns to go to the sheriff’s department to be
fingerprinted. Burns agreed and drove his own vehicle to the
sheriff’s department, where he later was fingerprinted.
While at the sheriff’s office, Gochenour again advised Burns
of his Miranda rights, and during subsequent questioning,
Burns stated that he had been at a gas station near Cooley’s
7
residence at approximately 2:52 a.m. and again at
approximately 6:35 a.m. on September 21st. In fact, Burns
subsequently produced receipts for items that he had
purchased at the station, and explained that he kept the
receipts because he was on probation and needed to account
for every place that he went. Gochenour also talked with
Burns about a Physical Evidence Recovery Kit (PERK Kit), and
Burns agreed to go to the hospital so that samples of his
hair and bodily fluids could be obtained for the PERK Kit.
Gochenour and John Thomas, an investigator with the
Shenandoah County Sheriff’s Office, accompanied Burns to the
hospital, where the samples were taken.
On September 26th, Burns returned to the sheriff’s
office. After advising Burns of his Miranda rights,
Gochenour interviewed him again. This time, Burns admitted
that he was in the victim’s home on the night of the murder.
Burns stated that, when he entered the house, he encountered
a black male who had already murdered Cooley. According to
Burns, he killed that man and disposed of the body because
Burns did not want his wife to find out that a black man had
raped and murdered her mother. Burns further stated that, in
order to advance his cover-up, he cleaned Cooley’s vaginal
area with soap and water, masturbated, digitally inserted his
semen into Cooley’s vagina, and “smeared it on the bed.”
8
However, Burns specifically denied inserting his semen into
the victim’s anus. At the conclusion of this interview,
Burns was arrested.
At Burns’ request, Gochenour again spoke with him on
September 27th. After Gochenour informed Burns of his
Miranda rights, Burns admitted that he had not encountered an
unidentified black man at Cooley’s house on the night of her
murder. Instead, Burns admitted that he broke into Cooley’s
house by putting his hand through the screen and then
breaking a window pane in the door. However, Burns insisted
that Cooley was already dead when he broke in. Burns stated
that, because he thought his wife, Penny, had murdered her
mother, he decided that he wanted “the crime to lead to
[him].” So, he masturbated and digitally inserted his semen
into the victim.
Karolyn Leclaire Tontarski, a forensic scientist
employed by the Commonwealth of Virginia Department of
Criminal Justice Services Division of Forensic Science,
analyzed the physical evidence collected from Burns, Cooley,
and the crime scene. Tontarski reported the presence of
spermatozoa on vaginal and anal smears taken from the victim.
Based upon DNA typing results, Tontarski testified that the
sperm fraction found in the vaginal swab was 1.6 million
times more likely to have come from Burns than from any other
9
randomly chosen Caucasian individual, 100 million times more
likely in the Black population, and 18 million times more
likely in the Hispanic population. According to Tontarski,
the sperm fraction in the anal swab was 8.7 million times
more likely to have originated from Burns than from any other
randomly selected Caucasian individual, 540 million times
more likely in the Black population, and 86 million times
more likely in the Hispanic population. Tontarski also found
sperm cells on a sheet and pillowcase recovered from the
bedroom where Cooley’s body was discovered, on Cooley’s lower
denture found on the floor of the bedroom, on a washcloth
found under Cooley’s left thigh, and on several items
recovered from Cooley’s bathroom.
B. PENALTY PHASE
At the penalty phase of the trial, the Commonwealth
presented evidence primarily with regard to the issue of
Burns’ future dangerousness. To establish that predicate,
the Commonwealth introduced Burns’ prior convictions for
felony theft, breaking and entering, malicious destruction of
property, resisting arrest, battery, assault, disorderly
conduct, and a third-degree sex offense.
In addition, Hazel Buckley, Burns’ ex-girlfriend,
testified that Burns had anally raped her nine times during a
two-week period. Buckley stated that she did not report
10
those incidents to the police because Burns had threatened
her and her daughter.
Burns offered evidence in mitigation of his offense.
Members of his family testified regarding the abuse that
Burns suffered as a child, primarily from his father who was
an alcoholic. They also indicated that Burns did not do well
in school. A former inmate testified that Burns had been a
“peacemaker” when they were in jail together. Similarly, a
shift supervisor at the Shenandoah County Jail testified that
Burns was respectful and that Burns had never become violent
during his incarceration there.
II. ANALYSIS
A. ASSIGNMENTS OF ERROR WAIVED OR DEFAULTED
Burns filed 46 separate assignments of error, which he
has reduced to 26 questions presented on appeal. However,
Burns failed to brief several of his assignments of error.
Consequently, they are waived, and we will not consider them
on appeal. Kasi v. Commonwealth, 256 Va. 407, 413, 508
S.E.2d 57, 60 (1998), cert. denied, 527 U.S. 1038 (1999),
(citing Jenkins v. Commonwealth, 244 Va. 445, 451, 423 S.E.2d
360, 364 (1992), cert. denied, 507 U.S. 1036 (1993)). 7
7
Burns failed to brief the following assignments of
error:
No. 2: trial court erred in denying defendant’s motion
to make ex parte applications to the court;
11
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No. 4: trial court erred in denying defendant’s motion
for the appointment of a DNA expert, forensic pathologist,
and forensic scientist;
No. 5: trial court erred in appointing a mental health
expert under Code § 19.2-264.3:1 rather than under Ake v.
Oklahoma, 470 U.S. 68 (1985);
No. 6: trial court erred in denying defendant’s motion
for a bill of particulars regarding the aggravating factors
on which the Commonwealth intended to rely in the penalty
phase of the trial;
No. 14: trial court erred in denying defendant’s motion
for additional peremptory strikes;
No. 15: trial court erred in denying defendant’s motion
for individual, sequestered voir dire;
No. 21(c-h): trial court erred in failing to strike for
cause jurors Buchanon, Dellinger, Kruska, Kisamore, Showman,
and Lin;
No. 26: trial court erred in refusing to declare a
mistrial based on questions the court asked Penny Burns
concerning threats made by defendant;
No. 30: trial court erred in denying defendant’s motion
for a mistrial based on the hearsay testimony of Pam Cooley
concerning a threat made by defendant to kill Penny Burns;
No. 31: trial court erred in limiting cross examination
of the forensic scientist, Tontarski;
No. 33: trial court erred in admitting into evidence
testimony from Dr. Field that her findings were consistent
with intercourse in the vagina and anus;
No. 34: trial court erred in instructing the jurors that
they “may infer that a person intends the natural and
probable consequences of his acts,” as contained in
Instruction No. 6;
No. 35: trial court erred in allowing members of the
victim’s family to remain in the courtroom during closing
argument at the guilt phase even though several of those
family members were called as witnesses during the penalty
phase; and,
No. 36: trial court erred in denying defendant’s motion
for a mistrial when the Commonwealth’s Attorney, during
closing argument, misstated Instruction No. 6 by saying that
it created a “presumption” and by arguing that defendant was
a future danger during the guilt phase.
Burns’ attempt to save these assignments of error by
relying on his arguments contained in the record does not
cure his waiver. See Jenkins v. Commonwealth, 244 Va. 445,
12
Similarly in his first assignment of error, Burns
challenges the constitutionality of the Virginia capital
murder statute. However, on brief, he relied solely on his
memorandum presented to the circuit court with regard to this
issue. Burns’ reference to argument that he made in the
circuit court “is insufficient and amounts to procedural
default.” Jenkins, 244 Va. at 461, 423 S.E.2d at 370.
B. GUILT PHASE
1. INDICTMENT
Burns contends that the circuit court erred by failing
to quash the capital murder indictment on the basis that he
was denied a preliminary hearing and the indictment was
multiplicious. When Burns was arrested on September 26,
1998, he was charged with first degree murder. However,
after he was indicted by a grand jury on two counts of
capital murder, an order of nolle prosequi was entered with
regard to the first degree murder charge. So, Burns never
had a preliminary hearing. He now claims that he was
entitled to that hearing pursuant to Code § 19.2-218 because
both the capital murder and first degree murder charges arose
out of the same circumstances. He also argues that the
______________________
461, 423 S.E.2d 360, 370 (1992), cert. denied, 507 U.S. 1036
(1993).
13
Commonwealth’s failure to afford him a preliminary hearing
deprived him of substantive and due process rights.
In pertinent part, Code § 19.2-218 provides that “[n]o
person who is arrested on a charge of felony shall be denied
a preliminary hearing.” As the Commonwealth correctly notes,
this provision does not apply to the present situation.
Burns was not arrested on the charges of capital murder; he
was arrested on the charge of first degree murder. The
capital murder charges were brought by a direct indictment.
“[T]his Court has consistently held that a preliminary
examination of one accused of committing a felony is not
necessary where an indictment has been found against him by a
grand jury.” Webb v. Commonwealth, 204 Va. 24, 30-31, 129
S.E.2d 22, 27 (1963); accord Waye v. Commonwealth, 219 Va.
683, 689, 251 S.E.2d 202, 206, cert. denied, 442 U.S. 924
(1979). Thus, the procedure used to indict Burns, without
affording him a preliminary hearing, did not violate any of
his statutory rights. 8 Id.
8
There is no constitutional right to a preliminary
hearing. Ashby v. Cox, 344 F. Supp. 759, 763 (W.D. Va.
1972).
To the extent that Burns suggests that he was entitled
to a preliminary hearing on the charge of first degree
murder, that issue is moot. A nolle prosequi order was
entered on that charge, and Burns was tried and convicted on
the indictment.
14
Burns also contends that the indictment was
multiplicious because he was charged in one count with three
separate offenses of capital murder. Thus, according to
Burns, the indictment was confusing and caused a
“multiplication of issues.”
The original indictment contained two counts charging
Burns with the commission of capital murder. The first count
alleged that he committed capital murder in the commission of
robbery, and the second count alleged that he committed
capital murder in the commission of, or subsequent to, rape
or object sexual penetration. The Commonwealth amended the
first count to allege that Burns “did unlawfully,
feloniously, willfully, deliberately, and with premeditation
kill and murder Tersey Elizabeth Cooley, in the commission of
robbery or forcible sodomy or rape . . . .” 9 The defendant
voiced no objection to that amendment. The Commonwealth then
asked that the amendment say “and/or” rather than just “or.”
When the court asked the defendant if he objected to the new
wording, his counsel responded, “if I have an objection to
it, I will file it at a later date.” The court then stated
that it would allow the amendment, and the defendant’s
counsel replied, “I will object to it, subject to me
9
At the same time, the Commonwealth moved the circuit
court to “nol-pross” the second count.
15
submitting a motion on that. If I do not submit a motion,
then I will waive the objection.”
In a subsequent order dated October 20, 1999, the court
granted “the motion over the objection of the Defendant, but
the Defendant will waive this objection unless he files his
written objection stating his grounds therefore within two
(2) weeks of this date.” Burns never filed the referenced
objection within the allotted time, but on January 25, 2000,
he moved for leave to challenge the amendment and to dismiss
the indictment on the ground that it is multiplicious. The
Commonwealth asserts on brief that the motion was never ruled
on by the circuit court and that Burns’ multiplicity claim is
therefore waived. The Commonwealth is wrong. After a
hearing during which Burns argued his motion, the court
denied the motion in an order dated February 4, 2000, and
noted the defendant’s objection.
However, we agree with the circuit court that the
indictment, as amended, contained only one charge of capital
murder and merely provided alternative “gradation”
offenses. 10 Graham v. Commonwealth, 250 Va. 487, 491, 464
______________________
10
Since the circuit court struck the evidence on the
robbery charge, neither that offense nor the offense of
capital murder in the commission of robbery was before the
jury. Burns was convicted under Code § 18.2-31(5), which
16
S.E.2d 128, 130 (1995). The indictment did not contain more
than one charge in a single count. See Webb, 204 Va. at 32,
129 S.E.2d at 28. The amended indictment also clearly
notified Burns of the offense for which he was charged.
Thus, the circuit court did not err in denying Burns’ motion
to dismiss the indictment on the basis of multiplicity.
2. SUPPRESSION OF EVIDENCE
Burns argues that the circuit court erred by denying his
motion to suppress evidence. That motion included all his
statements to law enforcement officers; physical evidence,
including DNA testing results, seized from his person and
residence; and all documents obtained from him. Burns
contends that the roadblock was unconstitutional; that his
statements were not voluntarily made and thus violated his
rights under Miranda v. Arizona, 384 U.S. 436 (1966); that
his fingerprints, hair, and samples of bodily fluids were not
voluntarily provided; and that search warrants issued for his
personal property at the Shenandoah County Jail and his
residence were based on misleading information. We will
address each of these grounds separately.
a. ROADBLOCK
______________________
proscribes, in relevant part, capital murder in the
commission of rape or forcible sodomy.
17
Burns asserts that the roadblock that Sheriff Green set
up on the evening of September 21st did not pass
constitutional muster because the roadblock was established
at the sole discretion of law enforcement officers at the
crime scene, there was no plan regarding the particular time
and place of the roadblock, and there were no neutral
criteria for carrying out the roadblock. The Commonwealth
disagrees and contends that Burns’ argument is flawed because
Burns voluntarily stopped his vehicle before he reached the
roadblock rather than actually being stopped at the
roadblock. Alternatively, the Commonwealth argues that, if
Burns was stopped, the roadblock satisfied the three-prong
test enunciated in Brown v. Texas, 443 U.S. 47 (1979), as
adopted by this Court in Lowe v. Commonwealth, 230 Va. 346,
337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084 (1986).
While we believe that the circumstances under which Burns
stopped his vehicle as he approached the roadblock was a
“stop” and thus a “seizure” under the Fourth Amendment, see
id. at 349, 337 S.E.2d at 275, we agree with the Commonwealth
that the roadblock did not violate Burns’ constitutional
rights.
The constitutional legitimacy of a roadblock, such as
the one in this case, is determined by weighing “(1) the
gravity of the public concerns served by the seizure, (2) the
18
degree to which the seizure advances the public interest, and
(3) the severity of the interference with individual
liberty.” Id. at 350, 337 S.E.2d at 276. A roadblock is not
an unconstitutional infringement on an individual’s privacy
if it is “carried out pursuant to a plan or practice which is
explicit, contains neutral criteria, and limits the conduct
of the officers undertaking the roadblock.” Simmons v.
Commonwealth, 238 Va. 200, 203, 380 S.E.2d 656, 658 (1989).
The roadblock at issue satisfies these requirements.
Sheriff Green decided to establish the roadblock because a
brutal homicide had been recently committed in the area of
the roadblock, and because law enforcement officials did not
know the identity of the perpetrator or whether that person
was still in the area. According to Sheriff Green, the
purpose of the roadblock was to “canvas drivers who were
passing through the area, to see whether they had seen
anything or heard anything” during the time period when the
crime had probably been committed the previous day.
Certainly, the fact that a murder had occurred was a matter
of grave public concern, and the roadblock advanced that
concern by aiding in the investigation of the crime.
Additionally, Sheriff Green chose the location of the
roadblock and directed that it be conducted between the hours
of 7:00 p.m. on September 21st until approximately 11:30 a.m.
19
on September 22nd because he believed that the crime had been
committed between those hours on September 20th-21st. He
also directed that all vehicles be stopped and that the
operators be asked “if they were through that section during
those times, and if they were, did they see anything of a
suspicious nature in or around [the victim’s house].” If the
drivers inquired about what had happened, they were to be
told only that an incident had occurred; they were not to
receive specific information about the crime. Thus, the
roadblock was carried out pursuant to an explicit plan that
contained neutral criteria, and limited the discretion and
conduct of the law enforcement officers actually stopping
vehicles at the roadblock.
However, our analysis of this issue does not end here.
Recently, the Supreme Court of the United States considered
the constitutional propriety of a highway checkpoint program
whose primary purpose was to discover and interdict illegal
narcotics. Indianapolis v. Edmond, ___ U.S. ___, ___, 121
S.Ct. 447, 450 (2000). After discussing several of its prior
decisions, see e.g., Michigan Dept. of State Police v. Sitz,
496 U.S. 444 (1990); United States v. Martinez-Fuerte, 428
U.S. 543 (1976); Delaware v. Prouse, 440 U.S. 648 (1979), the
Court stated that “each of the checkpoint programs that we
have approved was designed primarily to serve purposes
20
closely related to the problems of policing the border or the
necessity of ensuring roadway safety.” Edmond, ___ U.S. at
___, 121 S.Ct. at 454. Thus, the Court concluded that the
narcotics checkpoint program contravened the Fourth Amendment
because its purpose was “to uncover evidence of ordinary
criminal wrongdoing.” Id. In reaching this conclusion, the
Court “decline[d] to suspend the usual requirement of
individualized suspicion where the police seek to employ a
checkpoint primarily for the ordinary enterprise of
investigating crimes.” Id. at 455. However, the Court
recognized that “there are circumstances that may justify a
law enforcement checkpoint where the primary purpose would
otherwise, but for some emergency, relate to ordinary crime
control.” Id.
The primary purpose of the roadblock that Sheriff Green
established obviously was not related to policing the
borders or ensuring road safety. Nor was its purpose simply
to investigate ordinary criminal wrongdoing as was the
checkpoint in Edmond. Instead, the roadblock in this case
was specifically designed to investigate a particular murder
that had recently occurred in the area where the roadblock
was placed. When Sheriff Green decided to set up the
roadblock, the perpetrator’s identity and whereabouts
remained unknown. Law enforcement officers were not stopping
21
vehicles merely to discover evidence of crimes in general.
Thus, we conclude that the roadblock in this case falls
within the exigent circumstances recognized by the Supreme
Court in Edmond and that it, therefore, did not contravene
the Fourth Amendment. 11
b. STATEMENTS AND PHYSICAL EVIDENCE
Burns contends that the circuit court erred by failing
to suppress his statements given to law enforcement officers
on September 21st, 26th, and 27th. He raises specific
objections with regard to each statement, so we will consider
them separately.
Commencing with the September 21st statement, Burns
claims that Gochenour provided only a “cursory rendition” of
Burns’ Miranda rights. Therefore, the record, according to
Burns, does not show that he sufficiently understood those
rights to enable him to make a voluntary and intelligent
waiver of them. We do not agree.
11
Even if the roadblock violated Burns' Fourth Amendment
rights, we believe that any connection between the roadblock
and the statements and physical evidence obtained from Burns
was entirely dissipated. See Wong Sun v. United States, 371
U.S. 471, 491 (1963); Warlick v. Commonwealth, 215 Va. 263,
266, 208 S.E.2d 746, 748 (1974). As will be discussed in
subsequent sections of this opinion, Burns was not in custody
when he voluntarily spoke with Gochenour at the site of the
roadblock. Nevertheless, Gochenour advised Burns of his
Miranda rights. Burns subsequently agreed to go to the
sheriff’s department and hospital.
22
“Miranda warnings are required only where there has been
such a restriction on a person’s freedom as to render him ‘in
custody.’ ” Oregon v. Mathiason, 429 U.S. 492, 495 (1977);
accord Bailey v. Commonwealth, 259 Va. 723, 745, 529 S.E.2d
570, 583, cert. denied, ___ U.S. ___, 121 S.Ct. 488 (2000).
As the circuit court correctly determined, Burns was not “in
custody” when he talked with Gochenour on the evening of
September 21st. 12 After Burns stopped at the roadblock and
asked Sheriff Green what was going on, Burns voluntarily got
into a police vehicle and talked with Gochenour. Burns
subsequently agreed to go to the sheriff’s office to be
fingerprinted. Even then, he traveled there in his own
vehicle, which is certainly not an indicia of being “in
custody.” After arriving at the sheriff’s office, Burns was
taken into an office that contained several desks and a
computer. It was not an interview room or a cell, and the
office was not locked. Thus, even though Gochenour advised
Burns of his Miranda rights both at the roadblock and again
upon arriving at the sheriff’s office, we conclude that Burns
was not in custody at either time. Consequently, he has no
basis upon which to allege that the statements obtained on
September 21st violated his Fifth Amendment rights.
12
The circuit court also concluded that Miranda rights
were given to Burns and that he made a voluntary and knowing
23
We reach the same conclusion with regard to Burns’
September 26th statement. Although Burns argues that he was
not advised of his Miranda rights before he made this
particular statement, the evidence before the circuit court
reflects that Burns again was not in custody when he made
that statement. Burns had previously agreed to provide some
receipts to Gochenour in order to document Burns’ activities
on the night of the murder. On September 26th, Burns and
Gochenour talked by telephone, and Burns agreed to bring
those receipts to the sheriff’s office that evening around
8:00 p.m. After he arrived, Gochneour again read Miranda
rights to Burns, and Burns then signed a written waiver
acknowledging that he understood those rights and that he
wished to talk to the law enforcement officers. During the
subsequent interview, Burns admitted that he had been in
Cooley’s residence on the night of her murder and claimed
that he had killed an unidentified black male whom he had
encountered there. Near the end of the interview, Burns
requested an attorney, and the interview was terminated.
Burns then asked to use a restroom, after which Gochenour
arrested him. Thus, Burns voluntarily came to the sheriff’s
office that evening and was never in custody until after he
made the statement.
______________________
waiver of those rights on September 21st.
24
After the interview on September 26th ended, Gochenour
told Burns that, if he wanted to talk to anyone again, he
could inform a jailer of that desire. According to
Gochenour, he received such a call from a jailer on September
27th. After returning to the jail, Gochenour first advised
Burns of his Miranda rights and then asked Burns if he had
requested to speak with Gochenour. The transcript of that
taped interview reflects that Burns responded affirmatively
to that question.
Nevertheless, Burns contends that, when he contacted the
jailer on September 27th, he did not intend to subject
himself to further interrogation by a police officer.
Relying on McNeil v. Wisconsin, 501 U.S. 171 (1991), Burns
argues that, once he asserted his right to counsel, he could
not be approached for further interrogation until counsel was
available to him. We do not agree with Burns’ argument.
As the circuit court concluded, Burns initiated contact
with Gochenour on September 27th. “If ‘the accused, not the
police, [reopens] the dialogue with the authorities’, a
court, upon consideration of that fact and ‘the totality of
the circumstances’, may reasonably find that the accused has
made a ‘knowing and intelligent’ waiver of his rights.”
Harrison v. Commonwealth, 244 Va. 576, 583, 423 S.E.2d 160,
164 (1992) (quoting Edwards v. Arizona, 451 U.S. 477, 486 n.9
25
(1981)). Here, the totality of the circumstances, including
the fact that Burns requested to speak with Gochenour and
that Gochenour re-advised Burns of his Miranda rights before
even inquiring whether Burns had made such a request, support
the circuit court’s conclusion that Burns’ September 27th
statement was “knowingly and intelligently and voluntarily
made.”
In addition to these specific objections to each of his
statements, Burns also asserts three additional reasons why
none of his statements “were voluntary in the constitutional
sense.” First, he claims that his intellectual functioning,
psychological problems, recent use of alcohol, and mental and
physical condition rendered him incapable of voluntarily
making the statements. Next, he argues that Gochenour “used
the prospect of the defendant seeing his wife” as a means of
pressuring Burns to the point that his ability to function
was critically impaired. Finally, Burns claims that
Gochenour repeatedly asked him to submit to a polygraph
examination, thus subjecting Burns to increased pressure.
Again, the record supports the circuit court’s
conclusion that all of Burns’ statements were made knowingly,
voluntarily, and intelligently. Although Burns was declared
incompetent to stand trial at one point before the trial
commenced, his competency was restored, and there is no
26
evidence that he was suffering from depression or was
incompetent when he made the statements to Gochenour. His
ability to understand and act voluntarily is further
reflected by the fact that he requested an attorney at one
point during the interview on September 26th. In short, the
totality of the circumstances demonstrates that Burns’
statements were “ ‘the product[s] of an essentially free and
unconstrained choice by [their] maker.’ ” Gray v.
Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163, cert.
denied, 484 U.S. 873 (1987) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 225 (1973)); accord Yeatts v.
Commonwealth, 242 Va. 121, 132, 410 S.E.2d 254, 261 (1991),
cert. denied, 503 U.S. 946 (1992).
Burns makes the same argument that his fingerprints,
hair, and samples of bodily fluids were taken in violation of
his constitutional rights. He claims that he did not execute
a written consent or waiver, and that his oral consent to be
fingerprinted and to provide hair and bodily fluids for the
PERK Kit was not “voluntarily, intelligently or freely
given.” For the reasons that we have already enunciated, we
do not agree. We have also recognized that consent to a body
search may be oral as well as written. Coleman v.
Commonwealth, 226 Va. 31, 49, 307 S.E.2d 864, 874 (1983),
cert. denied, 465 U.S. 1109 (1984).
27
Furthermore, according to Gochenour, Burns asked several
questions about how the bodily fluids would be obtained.
Those inquiries evidence Burns’ understanding of the PERK Kit
and what he was being asked to do. Gochenour also testified
that, while Burns was waiting at the hospital, Burns stated
that his stomach was hurting and that he would have to leave
and come back later if the medical personnel did not hurry.
When Burns went into the examination room at the
hospital, Thomas accompanied him into that room. Thomas
testified that, when the medical personnel asked Burns to
remove his underwear, Burns stated that he did not know that
his underwear would be taken. At that point, Thomas advised
Burns, “Well, you know, if you don’t want to do this, you
don’t have to, we can stop now.” According to Thomas, Burns
indicated that he wanted to go ahead and get it over. Thus,
the circuit court did not err in refusing to suppress the
results of the tests conducted on Burns’ fingerprints, hair,
and samples of bodily fluids.
c. SEARCH WARRANTS
Citing Franks v. Delaware, 438 U.S. 154 (1978), Burns
argues that the search warrants issued for his personal
property at the jail and for his residence were based on
misleading information and that, therefore, any evidence
seized as a result of those searches must be suppressed. In
28
the affidavit to obtain the warrants, Thomas included Burns’
admission that he had committed a sexual assault against
Cooley, but failed to mention Burns’ statements in which he
denied any criminal involvement in Cooley’s murder and
claimed that he was attempting to cover up the murder to
protect another individual.
This argument has no merit. We agree with the circuit
court that Burns’ admission regarding the sexual assault
established probable cause for issuance of the search
warrants. Burns offered no evidence at the suppression
hearing to show either an intention to deceive the magistrate
or a reckless omission of relevant information. A police
officer’s mere negligence “in checking or recording the facts
relevant to a probable-cause determination” is not enough to
necessitate further inquiry. Id. at 170; see also United
States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990).
3. EXAMINATION OF INVESTIGATORS UNDER OATH
Prior to trial, Burns moved to examine law enforcement
officials under oath to determine whether such officials had
disclosed all exculpatory evidence to the Commonwealth’s
Attorney. The circuit court denied the motion but directed
the Commonwealth’s Attorney to explain the meaning of
exculpatory evidence to the police officers and ask whether
29
all exculpatory evidence had been given to the Commonwealth’s
Attorney.
Burns now claims that “the problem of police-concealed
exculpatory evidence is pervasive . . . throughout the
country” and that the court’s failure to grant Burns’ motion
“impinged on [Burns’] constitutional right to effective
assistance of counsel.” He also asserts the court’s ruling
violated his Fourteenth Amendment right to a fair trial and
due process of law. This argument is without merit.
First, to the extent that Burns raises an ineffective
assistance of counsel claim, such a claim is not cognizable
on direct appeal. Johnson, 259 Va. at 675, 529 S.E.2d at
781. Second, Burns has offered no authority for the
proposition that he should have been allowed to examine the
police investigators under oath merely to determine whether
they had turned over all exculpatory evidence to the
Commonwealth’s Attorney. In Kyles v. Whitley, 514 U.S. 419,
437 (1995), the Supreme Court of the United States recognized
that it is “the individual prosecutor [who] has a duty to
learn of any favorable evidence known to the others acting on
the government’s behalf in the case, including the police.”
Finally, Burns admitted that the Commonwealth’s Attorney had
disclosed all exculpatory evidence in his possession, and the
30
circuit court directed the prosecutor to ensure that the
investigators had provided all such evidence.
4. JURY SELECTION
With regard to jury selection, Burns first claims that
the trial court erred by precluding him from asking questions
during voir dire to ascertain potential jurors’ “true
feelings” about the death penalty. Both parties submitted a
list of proposed voir dire questions to the circuit court,
and the court asked some, but not all, of those questions.
During Burns’ voir dire of the jurors, his counsel asked
whether any of them had “any particularly strong feelings for
or against the death penalty.” The court sustained an
objection to the question because it was not asked in
response to a juror’s specific answer to any previous
question.
The circuit court did not err in disallowing this
particular voir dire question. We stated in Mackall v.
Commonwealth, 236 Va. 240, 251, 372 S.E.2d 759, 766 (1988),
cert. denied, 492 U.S. 925 (1989), that “either party may
require prospective jurors to state clearly that whatever
view they have of the death penalty will not prevent or
substantially impair their performance as jurors in the
conformity with their oath and the court’s instructions.”
However, we held “that a party may [not] inquire what
31
prospective jurors’ views of the death penalty might be.”
Id. Furthermore, here, as in Mackall, the circuit court
repeatedly asked potential jurors such questions as whether
they would automatically impose the death penalty and whether
they would consider voting for a sentence less than death,
that is, life without parole, depending on the evidence. The
court’s questions assured “ ‘the removal of those [potential
jurors] who would invariably impose capital punishment.’ ”
Mueller v. Commonwealth, 244 Va. 386, 400-01, 422 S.E.2d 380,
390 (1992), cert. denied, 507 U.S. 1043 (1993) (quoting
Turner v. Commonwealth, 221 Va. 513, 523, 273 S.E.2d 36, 42-
43 (1980), cert. denied, 451 U.S. 1011 (1981)).
Burns also challenges the circuit court’s decision to
strike juror Trina H. Bailey for cause and its refusal to
strike juror Emma M. Smith for cause. Concerning juror
Bailey, Burns argues that she was improperly struck because
she expressed some doubt about the death penalty. However,
the record shows that the circuit court granted the
Commonwealth’s motion to strike this juror because she
indicated that she would hold the Commonwealth to a higher
burden of proof than is required by law because the death
penalty was at issue in the case. Burns moved to strike
juror Smith because she stated, “if [the defendant] did it, I
feel like that he should get [the death penalty],” and also
32
because her son was a jailer at the Shenandoah County Jail.
However, Smith stated that she had not discussed the case
with her son, and, in response to several questions, she
indicated that she could listen to the evidence and determine
the appropriate punishment. When asked if it would be
difficult for her to vote for life imprisonment if she found
Burns guilty of capital murder, Smith answered, “Not really,
no.”
Upon considering the entire voir dire of both jurors at
issue, see Mackall, 236 Va. at 252, 372 S.E.2d at 767,
(“entire voir dire examination must be considered”), we find
no error in the circuit court’s decisions regarding those
jurors. The circuit court heard those jurors’ responses and
observed their demeanor. Therefore, its findings are
entitled to great weight and will not be reversed on appeal
absent a “showing of manifest error or abuse of discretion.”
Id. No such showing has been made in this case.
5. PHOTOGRAPHIC EVIDENCE
Burns asserts that the trial court erred in admitting
into evidence certain photographs of the victim’s body,
specifically Exhibit Numbers 141, 142, 143, and 146. He also
challenges the court’s decision to admit into evidence all
the autopsy photographs of the victim. In Burns’ limited
33
argument on this issue, he merely asserts that these
photographs were prejudicial and cumulative.
We have repeatedly held that the admission of
photographic evidence rests within the sound discretion of
the trial court. See Hedrick v. Commonwealth, 257 Va. 328,
338, 513 S.E.2d 634, 639, cert. denied, 528 U.S. 952 (1999);
Walton v. Commonwealth, 256 Va. 85, 91-92, 501 S.E.2d 134,
138, cert. denied, 525 U.S. 1046 (1998); Goins v.
Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126, cert.
denied, 519 U.S. 887 (1996). We have examined all the
photographs admitted into evidence and conclude that the
circuit court did not abuse its discretion.
6. TRANSCRIPT OF VIDEOTAPED CONVERSATION
On September 20th, Burns went to the home of his friend,
Hazel Buckley, between 10:30 p.m. and 11:00 p.m. While he
was there, Burns, according to Buckley, told her that “[h]e
had done something really bad.” Buckley testified that Burns
then stated that he would need to account for his whereabouts
from about 7:30 p.m. until 12:00 p.m. that evening. Buckley
later contacted the police and agreed to assist in the
investigation of Cooley’s murder by allowing a subsequently
arranged meeting between her and Burns to be videotaped.
At trial, the Commonwealth played the videotape of the
meeting for the jury and, over Burns’ objection, provided the
34
jury with a transcript of the conversation between Buckley
and Burns as the tape was played. On appeal, Burns argues
that the circuit court erred in allowing the jury to use the
transcript because it “contained numerous ‘inaudible’
references and numerous gaps.” Burns also claims that the
transcript highlighted portions of the conversation that were
prejudicial to him.
“A court may, in its discretion, permit the jury to
refer to a transcript, the accuracy of which is established,
as an aid to understanding a recording.” Fisher v.
Commonwealth, 236 Va. 403, 413, 374 S.E.2d 46, 52 (1988),
cert. denied, 490 U.S. 1028 (1989). Burns has not challenged
the accuracy of the transcript, only its completeness. That
fact, coupled with the lengthy cautionary instruction that
the circuit court gave the jury regarding the portions of the
transcript that indicated the videotape was inaudible and
advising the jurors to decide for themselves what was being
said, persuade us that the court did not abuse its discretion
in allowing the jury to use the transcript.
7. TESTIMONY REGARDING COOLEY’S POWER OF ATTORNEY
During cross-examination of Penny’s sister, Linda, Burns
attempted to elicit testimony regarding why Cooley revoked
her power of attorney naming Penny as Cooley’s attorney-in-
fact. The court sustained the Commonwealth’s objection.
35
However, the court allowed cross-examination to establish
“that there was a new power of attorney, a revocation, and it
was at the request of Mrs. Cooley.” Later, during his case-
in-chief, Burns called Kermit L. Racey, Cooley’s attorney,
and attempted to ask Racey why Cooley had revoked her power
of attorney. The court again sustained the Commonwealth’s
objection. Burns later proffered Racey’s testimony that
there were two reasons why Cooley revoked her power of
attorney. The first reason was because Penny lived too far
away to take care of her mother’s needs, and the second one
was the fact that a judgment had been entered against Cooley
on a promissory note that Penny had signed by using her
mother’s power of attorney. The proceeds of the loan
evidenced by the note were for Penny’s benefit.
On appeal, Burns contends that the excluded evidence
should have been admitted to show that Penny had a motive to
murder her mother. However, the jury heard evidence from
Linda and Racey that Cooley had revoked the power of
attorney. Burns also introduced into evidence a notice that
a judgment entered against “PENNY M. COOLEY & TERSEY COOLEY
(PENNY COOLEY (BURNS) POWER OF ATTORNEY FOR TERSEY)” in West
Virginia had been docketed in Shenandoah County. Thus, we
conclude that, if there was error in excluding the reasons
36
why Cooley revoked the power of attorney, it was clearly
harmless.
8. TESTIMONY CONCERNING BURNS’ PROBATION
STATUS AND PRIOR ACTS OF VIOLENCE
Prior to trial, Burns filed a motion in limine to
exclude, during the guilt phase of his trial, references to
his probation status and to other offenses contained in his
statements to law enforcement officials. He specifically
objected to that portion of his statement to Gochenour where
Burns stated that he had to keep good records, including
receipts, because he was on probation. Burns also objected
to the statement, attributed to him by Buckley, that he had
done something “worse than his drug runs, and it was worse
than anything he had done.” With regard to each statement,
the Commonwealth argued that its probative value outweighed
any prejudice to the defendant. The circuit court agreed,
and so do we.
Burns referenced his probation status in an effort to
create an alibi for himself on the night of Cooley’s murder.
Similarly, his comment to Buckley reflects his awareness of
the seriousness of the crime he had committed and the reason
he needed her help to establish an alibi. “The
responsibility for balancing the competing considerations of
probative value and prejudice rests in the sound discretion
37
of the trial court. The exercise of that discretion will not
be disturbed on appeal in the absence of a clear abuse.”
Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 617,
cert. denied, 498 U.S. 908 (1990) (citing Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)).
We find no abuse of that discretion with regard to this
issue.
Burns also argues that the court erred in allowing into
evidence his wife’s testimony concerning prior episodes of
violence and threatening conduct, and Burns’ tendency to
become sexually aggressive when he consumed alcohol.
However, the court allowed the evidence only for the purpose
of showing why Penny left her residence on September 20th.
Furthermore, the jury heard the court’s ruling in open court,
and Burns did not request the court to give the jury a more
explicit cautionary instruction. See Cheng v. Commonwealth,
240 Va. 26, 40, 393 S.E.2d 599, 607 (1990). Thus, we find no
error in the court’s admission of this testimony. Its
probative value to explain why Penny left her home on
September 20th and took a circuitous route to a friend’s
house outweighed any prejudice to the defendant.
9. MARITAL COMMUNICATIONS
While incarcerated awaiting trial, Burns wrote several
letters to his wife. Those letters contained incriminating
38
statements by Burns and differing versions of the events
surrounding Cooley’s murder. Penny turned the letters over
to Thomas, who had the letters examined by a handwriting
expert. That examination revealed that Burns had written the
letters.
Relying on Code § 8.01-398, Burns filed a motion in
limine to exclude the letters from evidence. The circuit
court concluded that “[t]he statute does not prevent a third
party who is in possession of the letters, and has gained
that possession lawfully, from testifying.” Therefore, the
court denied Burns’ motion, and the letters were introduced
into evidence during the trial through the testimony of
Thomas. Penny did not testify about the letters.
On appeal, Burns contends that the privilege created in
Code § 8.01-398 is separate and distinct from the privilege
granted in Code § 19.2-271.2, and that the former privilege
applies in any case irrespective of whether the spouse of an
accused testifies. According to Burns, the court’s ruling
eviscerates the marital privilege and renders it meaningless
with regard to written communications. We do not agree.
Code § 8.01-398(A) provides:
Husband and wife shall be competent witnesses to
testify for or against each other in all civil actions;
provided that neither husband nor wife shall, without
the consent of the other, be examined in any action as
to any communication privately made by one to the other
39
while married, nor shall either be permitted, without
such consent, to reveal in testimony after the marriage
relation ceases any such communication made while the
marriage subsisted.
As Burns argues, we have construed the privilege embodied in
this statute broadly to include “all information or knowledge
privately imparted and made known by one spouse to the other
by virtue of and in consequence of the marital relation
through conduct, acts, signs, and spoken or written words.”
Menefee v. Commonwealth, 189 Va. 900, 912, 55 S.E.2d 9, 22
(1949). However, the plain words utilized in this statutory
provision limit the privilege to situations where a spouse is
being examined in an action or is revealing a private
communication through testimony. When a statute does not
contain an express definition of a term, we infer the intent
of the legislature from the plain meaning of the words used.
City of Virginia Beach v. Flippen, 251 Va. 358, 362, 467
S.E.2d 471, 473 (1996). Consequently, since Penny did not
testify about the letters or their content, Code § 8.01-
398(A) does not apply to the present situation. Thus, the
circuit court did not err in admitting Burns’ letters into
evidence through the testimony of a law enforcement officer.
10. COMPETENCY EVALUATION DURING TRIAL
On the second day of trial during the playing of the
audio-tape of Burns’ September 26th statement, Burns’ counsel
40
moved, pursuant to Code § 19.2-169.1, to have the defendant
evaluated for his competency to stand trial. 13 At that time,
Burns’ counsel proffered to the court that Burns had advised
his counsel that he did not want to participate anymore, and
wanted to leave the courtroom and return to the jail. After
hearing argument of both counsel, the court questioned Burns
about his wish to leave the courtroom. Burns repeatedly said
that he did not want to remain in the courtroom even though
the court advised Burns about the importance of his presence
at his trial. The court then decided to recess for about one
hour and twenty minutes.
After the recess, Burns returned to the courtroom. His
counsel proffered that Burns had expressed his willingness to
remain in the courtroom throughout the proceedings but that
Burns had indicated that he was having difficulty
understanding what was transpiring. Burns’ counsel then
moved again for an evaluation under Code § 19.2-169.1. In
doing so, counsel quoted from Dr. Stejskal’s June 10, 1999
13
Prior to trial, the circuit court found Burns
incompetent to stand trial based on an evaluation conducted
by Dr. William J. Stejskal, a licensed clinical psychologist.
Consequently, the court directed that Burns be committed on
an inpatient basis for further evaluation and for treatment
to restore his competency. Approximately four months later,
the court, after hearing evidence and argument, found that
Burns’ competency had been restored.
41
report, in which Dr. Stejskal stated that Burns’ “capacity to
assist in his own defense is marginally intact.”
Before ruling on the motion for a competency evaluation,
the court called the jail nurse, Bonnie Sager, to testify as
a witness. Sager explained the medications that had been
prescribed to treat Burns’ anxiety and depression, and to
help him sleep. She further stated that she had given Burns
his medicine at noon that day and that the jail records
indicated that Burns had been receiving his medications.
Finally, Sager described Burns as having occasional mood
changes when he became angry.
The court then denied the motion and made the following
relevant findings:
On June 23rd, 1999, I determined that [Burns]
competency had been restored, based on the opinion of
Dr. Stejskal and the psychologist from Central State
. . . .
Now, while the psychologist from Central State did
agree that Mr. Burns suffered from depression and did
need medication, she had also found, during the course
of the treatment, that he was malingering—that is,
acting—for a period of time. . . . [T]here are letters
from Mr. Burns, or at least one letter, where he admits
to acting.
I also note that Dr. Stejskal was appointed to be
the Defendant’s mental-health expert, and the Defendant
has already given notice that he does not intend to use
him in mitigation. Now, there can be a lot of reasons
for that, but again, it would indicate to me that this
problem that we are experiencing today, while it might
have some background, is fairly sudden.
42
He has prescribed medication. Dr. Stejskal
suggested that, in order for him to be competent to
stand trial, he must be given medication, as needed and
as prescribed. We have evidence from the jail nurse
that he is being furnished all of his medications, as
prescribed.
Mr. Burns' conduct in this trial, until this
morning, until his statement, his audio statement to Mr.
Gochenour was being played, was alert and attentive, he
participated. I saw him, numerous times, talking with
Counsel during voir dire. Certainly, he took notes at
other times. During the course of this trial, he has
taken notes and has interacted with Counsel, all of
those things that I would expect him to do as the
Defendant in this case.
He did get upset, visibly upset, as the statement
was being played, and there could be a whole number of
reasons for that. It was obviously stressful to him at
the time, he was emotional, at times, when giving the
statement, and that stress may now be recalled. It may
be that, hearing his statement today, he perceives it as
being harmful to his case, and that could be a
depressing event to anybody. And, perhaps, hearing the
statement, and playing it, may bring this whole episode,
and that, too, may be upsetting to him.
Now, during the pendency of this case, Mr. Burns
has written me a number of letters in chambers, all of
which I have shared with Counsel. I am now making this
part of this record, for this purpose: because I think
those letters indicate that he does understand the
proceedings against him. Many of the letters were
challenging the officers’ statements, as to what he told
them and how he was treated, which is exactly the
statements being played here today. And as I say, there
are a number of things covered in the letters, but, by
and large, it would indicate to me that he did indeed
understand the proceedings against him, and understood
just how important his own statements may be in the case
against him.
Earlier today, when I was asking him questions on
the record, his responses were inaudible, not
necessarily nonsensical. The bits and pieces that I
43
could understand were responsive to my questions. All
told, though, they were simply inaudible.
The other thing I think is worthy of note that the
attorneys have advised the Court, and Mr. Burns has
advised the Court, that he has made the request, several
times, not to be present at the trial. So his request
earlier today is consistent with a request made
pretrial, when there was no immediate question as to his
competency.
Code § 19.2-169.1 provides, in pertinent part, that
“[i]f . . . the court finds, upon hearing evidence or
representations of counsel for the defendant or the attorney
for the Commonwealth, that there is probable cause to believe
that the defendant lacks substantial capacity to understand
the proceedings against him or to assist his attorney in his
own defense, the court shall order that a competency
evaluation be performed . . . .” Upon our review of the
record, we do not find probable cause to believe that Burns’
mental state deteriorated to the point that he was no longer
competent to stand trial. The jail nurse indicated that
Burns had been receiving his medications, and until the tape
of his September 26th statement was played for the jury, he
had actively interacted with his counsel during the
proceedings. As the circuit court observed, it is entirely
understandable that Burns would become upset upon hearing his
statement to Gochenour. Also notable is the fact that Burns
had apparently expressed a desire to his counsel, even before
44
the tape was played, not to be present at his trial. Thus,
we conclude that the circuit court did not err in refusing to
order a competency evaluation during the trial of this case.
11. SUFFICIENCY OF THE EVIDENCE
Burns argues that the evidence is insufficient to
sustain the jury’s verdict finding him guilty of the offenses
of capital murder, rape, forcible sodomy, and statutory
burglary. He claims that, because he was allegedly
intoxicated, and because the Commonwealth’s evidence was in
conflict regarding Burns’ whereabouts on the night of
Cooley’s murder, the Commonwealth failed to prove beyond a
reasonable doubt that he committed a willful, deliberate, and
premeditated murder. He also claims that there was
insufficient evidence of penetration to support his
convictions for rape and forcible sodomy. Finally, Burns
concedes that the evidence established that he broke into and
entered Cooley’s residence, but he asserts that the evidence
failed to show that he did so with the intent to commit
murder or rape. We do not agree with any of Burns’ arguments
regarding the sufficiency of the evidence.
As we said earlier in this opinion, we must view the
evidence in the light most favorable to the Commonwealth and
afford that evidence all reasonable inferences that are
fairly deducible from it. Horton, 255 Va. at 608, 499 S.E.2d
45
at 259. Under that standard of review, we affirm the
judgment of the circuit court unless that judgment is without
evidence to support it or is plainly wrong. Id.
Viewed in the light most favorable to the Commonwealth,
the evidence showed that Burns had been drinking prior to
Cooley’s murder, but, as the circuit court noted in ruling on
Burns’ motion to strike the Commonwealth’s evidence, Burns
was not “so intoxicated as to be unable to premeditate.” He
drove his vehicle to several different locations on the
evening of the murder and even asked Buckley to help him
establish an alibi. The alleged conflicts in the evidence
regarding Burns’ whereabouts on the evening of Cooley’s
murder were matters for the jury to resolve. As the fact
finder, the jury was certainly free to reject Burns’ self-
serving statements regarding his activities on that evening.
As to the issue of penetration, Burns’ position
overlooks the fact that Burns’ sperm were found on the
vaginal and anal swabs taken from the victim. In Spencer v.
Commonwealth, 238 Va. 275, 284, 384 S.E.2d 775, 780 (1989),
cert. denied, 493 U.S. 1036 (1990), we found that the
presence of sperm in the victim’s vagina alone was sufficient
to support a finding that penetration had occurred.
Furthermore, Tontarski reported the presence of sperm cells
on a sheet and pillowcase recovered from the bedroom where
46
Cooley’s body was found, on Cooley’s lower denture found on
the floor of the bedroom, on a washcloth found under Cooley’s
left thigh, and on several items recovered from Cooley’s
bathroom. As we have already stated, the jury was free to
reject Burns’ self-serving statements, especially the
statement that he digitally inserted his semen into Cooley in
order to cover up the crime.
Finally, with regard to the statutory burglary
conviction, the evidence already discussed along with the
evidence detailing the circumstances of Cooley’s murder and
the wounds inflicted upon her are sufficient to establish
Burns’ intent to commit murder and/or rape when he broke into
and entered Cooley’s home. Intent is frequently shown by
circumstances or by a person’s conduct. Hargrave v.
Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974).
Thus, we find sufficient evidence to support all the
convictions in this case.
C. PENALTY PHASE ISSUES
1. REBUTTAL EVIDENCE FROM VIRGINIA
DEPARTMENT OF CORRECTIONS
At Burns’ request prior to trial, a subpoena duces tecum
was issued to a regional director of the Virginia Department
of Corrections. The subpoena sought “documents or records
describing the daily inmate routine, general prison
47
conditions, and security measures at the Red Onion
Correctional Center and Wallens Ridge State Prison, . . . and
videotapes” of those facilities. The Commonwealth moved to
quash the subpoena, and after a hearing on that motion, the
circuit court granted the motion. 14
During the penalty phase of his trial, Burns attempted
to introduce evidence concerning the conditions at those
prisons in rebuttal to the Commonwealth’s evidence of Burns’
future dangerousness. Burns’ counsel reminded the court that
subpoenas had been issued to the wardens of those two so-
called “super-max” prisons, but since the court had indicated
that it would grant a motion to quash those subpoenas,
counsel had obtained newspaper articles from the Internet
that discussed the security and life of a prisoner at those
facilities. Burns’ counsel proffered those articles as “what
the testimony would show.” The court adhered to its prior
decision and did not admit the testimony.
Recognizing that this Court held in Walker v.
Commonwealth, 258 Va. 54, 70, 515 S.E.2d 565, 574 (1999),
cert. denied, 528 U.S. 1125 (2000), and Cherrix v.
14
At Burns’ request, subpoenas were also issued to the
wardens of those facilities. Since the Commonwealth’s motion
did not cover those subpoenas, the court’s decision likewise
did not address them. However, the court indicated that it
would make the same ruling if a motion to quash those
subpoenas were before it.
48
Commonwealth, 257 Va. 292, 310, 513 S.E.2d 642, 653, cert.
denied, 528 U.S. 873 (1999), that evidence regarding the
conditions of prison life in a maximum security prison is not
proper mitigating evidence, Burns offered this evidence, not
in mitigation, but in rebuttal to the Commonwealth’s evidence
of Burns’ future dangerousness. Burns argues that, since the
only possible sentence for an accused convicted of capital
murder is either the death penalty or life imprisonment
without parole, the prison society is the only society to
which such a defendant can ever pose a “continuing serious
threat.” Code §§ 19.2-264.2 and -264.4(C). Thus, according
to Burns, evidence regarding the quality and structure of an
inmate’s life in a maximum security prison, as well as the
prison’s safety and security features, is relevant evidence
to rebut the Commonwealth’s evidence that a defendant would
“commit criminal acts of violence” in the future. Id. We do
not agree.
First, we have rejected the argument that a jury’s
determination, under Code §§ 19.2-264.2 and –264.4(C),
regarding whether a defendant “would commit criminal acts of
violence that would constitute a continuing serious threat to
society” is restricted to a consideration of only the prison
society. Lovitt v. Commonwealth, 260 Va. 497, 517, 537
S.E.2d 866, 879 (2000). Nevertheless, Burns contends that
49
his proffered evidence should have been admitted to dispel
the misconception that prison life includes such features as
weekend furloughs, conjugal visits, and unrestricted work
privileges. However, the Commonwealth offered no such
evidence regarding the nature of prison life for a defendant
convicted of capital murder or any other felony. Nor did the
Commonwealth introduce evidence about the number of violent
crimes committed in prison or the likelihood that a prisoner
could escape. Instead, the Commonwealth’s evidence
concerning Burns’ future dangerousness consisted of his prior
criminal record and unadjudicated criminal acts. Thus,
Burns’ evidence was not in rebuttal to any evidence
concerning prison life.
Instead, Burns wanted to show, in rebuttal to the
Commonwealth’s evidence of his future dangerousness, that his
opportunities to commit criminal acts of violence in the
future would be severely limited in a maximum security
prison. However, in Cherrix, we reiterated the principle
that the United States Constitution “does not limit ‘the
traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant’s character, prior
record, or the circumstances of his offense.’” Cherrix, 257
Va. at 309, 513 S.E.2d at 653 (quoting Lockett v. Ohio, 438
U.S. 586, 605 n.12 (1978)). Thus, the relevant inquiry is
50
not whether Burns could commit criminal acts of violence in
the future but whether he would. Indeed, Code §§ 19.2-264.2
and –264.4(C) use the phrase “would commit criminal acts of
violence.” Accordingly, the focus must be on the particular
facts of Burns’ history and background, and the circumstances
of his offense. In other words, a determination of future
dangerousness revolves around an individual defendant and a
specific crime. Evidence regarding the general nature of
prison life in a maximum security facility is not relevant to
that inquiry, even when offered in rebuttal to evidence of
future dangerousness such as that presented in this case.
We also note that the cases relied upon by Burns with
regard to this issue, specifically Gardner v. Florida, 430
U.S. 349 (1977), Skipper v. South Carolina, 476 U.S. 1
(1986), and Simmons v. South Carolina, 512 U.S. 154 (1994),
are inapposite. In Gardner, the trial court imposed a
sentence of death after reviewing the contents of a pre-
sentence report, part of which had not been disclosed to the
defendant. Gardner, 430 U.S. at 353. Skipper involved the
trial court’s refusal to allow the defendant to introduce
evidence showing his good behavior in jail while awaiting
trial. Skipper, 476 U.S. at 4. The Court in Skipper noted
that the relevancy of that evidence was “underscored . . . by
the prosecutor’s closing argument, which urged the jury to
51
return a sentence of death in part because petitioner could
not be trusted to behave if he were simply returned to
prison.” Id. at 5. Unlike the evidence proffered by Burns,
the evidence in Skipper was peculiar to that defendant’s
history and background. Finally, Simmons required the giving
of an instruction regarding life without parole when a
defendant is parole ineligible and future dangerousness is at
issue. Simmons, 512 U.S. at 156.
Accordingly, we find no error in the circuit court’s
decision quashing the subpoena directed to the Department of
Corrections and refusing to admit evidence about prison life
in a maximum security prison in rebuttal to the
Commonwealth’s evidence in this case of Burns’ future
dangerousness.
2. CLOSING ARGUMENT OF COMMONWEALTH’S ATTORNEY
During closing argument in the penalty phase of this
case, the Commonwealth’s Attorney argued that Cooley was a
modest, private person who had an “animal” enter her life.
At that point, Burns objected and the court stated, “Hold on,
Mr. Ebert [the Commonwealth’s Attorney].” The following
colloquy then occurred:
MR. EBERT: Excuse me. A person acting like an
animal. Excuse me.
THE COURT: All right.
52
MR. EBERT: A person acting with depravity of mind.
MR. ALLEN [Burns’ attorney]: I have a motion, Your
Honor. And I will make the motion after he finishes.
Note my objection at this time.
THE COURT: All right.
MR. EBERT: Excuse me, ladies and gentlemen. I
don’t mean to characterize him as an animal. But I will
characterize him as a human being with a depravity of
mind, a person who acted in a vile, horrible, inhumane
way, to an innocent person.
After the Commonwealth’s Attorney concluded his closing
argument, Burns argued that the reference to an “animal” was
improper and prejudicial, and that a mistrial was required.
He also complained because the court had not admonished the
Commonwealth’s Attorney at the time he made the statement.
The court then explained that, although Burns had objected at
the time, it had not admonished the Commonwealth’s Attorney
because he had corrected the statement. For the same reason,
the court denied the motion for a mistrial. Burns assigns
error to that ruling.
Although the Commonwealth argues that Burns procedurally
defaulted this assignment of error because he did not move
for a mistrial at the moment “when the objectionable words
were spoken,” Reid v. Baumgardner, 217 Va. 769, 774, 232
S.E.2d 778, 781 (1977), we are not inclined to agree. While
Burns’ counsel did not specifically move for a mistrial when
the Commonwealth’s Attorney said that an “animal” had entered
53
Cooley’s life, he did object and advised the court that he
had a motion that he would make after the Commonwealth’s
Attorney finished his closing argument. While the better
practice would have been to move for a mistrial at that very
moment, we cannot say under the circumstances of this case
that Burns’ motion came too late. 15 Accordingly, we will
address the merits of this assignment of error.
In doing so, we are mindful of the principle that “[a]
trial court exercises its discretion when it determines
whether it should grant a motion for mistrial.” Beavers v.
Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420, cert.
denied, 510 U.S. 859 (1993). “When a motion for mistrial is
made, based upon an allegedly prejudicial event, the trial
court must make an initial factual determination, in the
light of all the circumstances of the case, whether the
defendant’s rights are so ‘indelibly prejudiced’ as to
necessitate a new trial.” Spencer v. Commonwealth, 240 Va.
78, 95, 393 S.E.2d 609, 619, cert. denied, 498 U.S. 908
(1990) (quoting LeVasseur v. Commonwealth, 225 Va. 564, 589,
304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063
(1984)). Unless we find that the trial court’s denial of a
mistrial is wrong as a matter of law, we will not disturb the
15
However, Burns never asked the court to instruct the
jury to disregard the argument of the Commonwealth’s
54
court’s decision on appeal. Spencer, 240 Va. at 95, 393
S.E.2d at 619.
In the present case, we cannot say, as a matter of law,
that the circuit court erred in denying Burns’ motion for a
mistrial. By the time that Burns moved for a mistrial, the
Commonwealth’s Attorney had retracted the reference to Burns
as an “animal” and had stated to the jury three times,
“Excuse me.” Furthermore, despite the court’s explanation
why it did not admonish the Commonwealth’s Attorney, we
believe that the court’s initial response to Burns’
objection, i.e., “Hold on, Mr. Ebert[,]” was tantamount to an
admonishment, which the jury heard. An “admonition of [a]
trial court in the presence of [a] jury [makes] it known to
the jury that the court [is] not satisfied as to the
propriety of [an] argument.” Clanton v. Commonwealth, 223
Va. 41, 54, 286 S.E.2d 172, 179 (1982). Thus, we conclude
that Burns’ rights were not “indelibly prejudiced.”
LeVasseur, 225 Va. at 589, 304 S.E.2d at 657.
3. MENTAL EVALUATION PRIOR TO PENALTY PHASE
Prior to the commencing the penalty phase of the trial,
Burns moved for an evaluation pursuant to Code § 19.2-300.
The circuit court denied the motion on the basis that an
evaluation under that section is to guide the trial judge,
______________________
Attorney.
55
not the jury. The court advised Burns that he could renew
his motion at the proper time.
In pertinent part, Code § 19.2-300 provides, that, when
any person is convicted for
any criminal offense which indicates sexual abnormality,
the trial judge . . . shall upon application of the
attorney for the Commonwealth, the defendant, or counsel
for defendant . . . defer sentence until the report of a
mental examination conducted as provided in § 19.2-301
of the defendant can be secured to guide the judge in
determining what disposition shall be made of the
defendant.
Although Burns acknowledges that this statute provides for a
mental evaluation to “guide the judge,” he claims that such
an evaluation is equally valuable to a jury when it is
deciding the sentence for a capital murder conviction.
However, his argument overlooks the plain language of the
statute. This provision authorizes a mental evaluation for
the purpose of guiding the trial judge, not the jury.
Furthermore, Burns renewed his motion for an evaluation
under Code § 19.2-300 after the jury returned its sentencing
verdicts, and the court granted it. Thus, Burns received all
that he was entitled to under that statute. Accordingly, we
will reject his claim.
4. PENALTY PHASE JURY INSTRUCTIONS
Before the jury commenced its deliberations during the
penalty phase of the trial, the court instructed the jurors
56
that “[t]he words ‘imprisonment for life’ mean imprisonment
for life without possibility of parole.” In addition to this
instruction, the court stressed to the jury that imprisonment
for life does mean life without parole. Nevertheless, Burns
now complains because the circuit court refused his proposed
Instruction A, which instructed the jury that it could
“consider as a possible mitigating factor that a sentence of
life in prison means that the defendant will never be
eligible for parole[,]” and his proposed Instruction C, which
instructed the jury that, in determining the question of
future dangerousness, it “may consider the fact that if you
set the defendant’s punishment at life imprisonment, he will
never be eligible for parole.”
We conclude that the circuit court properly rejected
these instructions. Since the jury was instructed that
imprisonment for life means life without the possibility of
parole, both of Burns’ proposed instructions were
repetitious. See Gray, 233 Va. at 351, 356 S.E.2d at 178.
Furthermore, we have consistently held that a defendant
convicted of capital murder is not entitled to a jury
instruction that emphasizes a particular mitigating factor.
See e.g. George v. Commonwealth, 242 Va. 264, 283, 411 S.E.2d
12, 23 (1991), cert. denied, 503 U.S. 973 (1992); Gray, 233
57
Va. at 351, 356 S.E.2d at 178; LeVasseur, 225 Va. at 595, 304
S.E.2d at 661. 16
D. STATUTORY REVIEW
1. PASSION, PREJUDICE, AND PROPORTIONALITY
Pursuant to Code § 17.1-313(C)(1), we must determine
whether the death sentence in this case was imposed under the
influence of passion, prejudice, or other arbitrary factors.
Upon careful review of the record, we find no evidence that
any such factor was present or influenced either the jury’s
or the circuit court’s sentencing decision.
However, Burns contends that his sentence of death was
imposed under the influence of passion and prejudice because
the Virginia death penalty statute is unconstitutional; he
was not allowed to introduce evidence from prison officials
to rebut the Commonwealth’s closing argument that, if Burns
receives life imprisonment, he would pose a continuing danger
16
The court, sua sponte, asked the parties to address
the verdict form utilized during the penalty phase of Burns’
trial in light of our decision in Atkins v. Commonwealth, 257
Va. 160, 179, 510 S.E.2d 445, 457 (1999). Upon considering
the parties’ letter briefs, we conclude that any question
concerning the verdict form in this case is procedurally
defaulted because Burns neither raised the issue in the
circuit court nor assigned it as error before this Court.
See Rule 5:25; Orbe v. Commonwealth, 258 Va. 390, 403 n.13,
519 S.E.2d 808, 816 n.13 (1999), cert. denied, ___ U.S. ___,
120 S.Ct. 1970 (2000).
58
to the prison staff and could escape from prison; 17 and the
Commonwealth’s Attorney referred to Burns as an “animal” and
argued to the jury that their decision “will send a message.”
We do not believe that any of these factors created an
atmosphere of passion or prejudice that influenced the
sentencing decision.
2. PROPORTIONALITY REVIEW
Code § 17.1-313(C) (2) requires us to determine whether
the sentence of death in this case is “excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.” Pursuant to
Code § 17.1-313(E), we have accumulated the records of all
capital murder cases reviewed by this Court. The records
include not only those capital murder cases in which the
death penalty was imposed, but also those cases in which the
trial court or jury imposed a life sentence and the defendant
17
This argument by the Commonwealth occurred during its
rebuttal closing argument at the end of the penalty phase.
At that time, Burns did not object to the argument. However,
after the court explained the verdict forms to the jury and
the jury retired to deliberate, Burns moved for a mistrial on
the basis that the Commonwealth’s argument was precisely the
kind of argument that he sought to rebut with his evidence
concerning the security features of a maximum security prison
and the nature of an inmate’s life incarcerated in such a
facility. Clearly, this motion for a mistrial, unlike the
first one, came too late. See Reid, 217 Va. at 774, 232
S.E.2d at 781. However, we express no opinion regarding the
question whether Burns should have been allowed to introduce
59
petitioned this Court for an appeal. Whitley v.
Commonwealth, 223 Va. 66, 81, 286 S.E.2d 162, 171, cert.
denied, 459 U.S. 882 (1982). In complying with the statutory
directive to compare this case with “similar cases,” we have
specifically focused on cases in which a person was murdered
during the commission of rape and/or forcible sodomy, and the
death penalty was imposed upon both the future dangerousness
and vileness predicates. See, e.g., Cherrix, 257 Va. 292,
513 S.E.2d 642; Pruett v. Commonwealth, 232 Va. 266, 351
S.E.2d 1 (1986), cert. denied, 482 U.S. 931 (1987); Coleman
v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983), cert.
denied, 465 U.S. 1109 (1984); Mason v. Commonwealth, 219 Va.
1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919 (1979);
Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978),
cert. denied, 441 U.S. 967 (1979).
We have also considered cases in which defendants
received life sentences, rather than the death penalty, for
capital murder during the commission of rape. See, e.g.,
Horne v. Commonwealth, 230 Va. 512, 339 S.E.2d 186 (1986);
Keil v. Commonwealth, 222 Va. 99, 278 S.E.2d 826 (1981).
“However, our proportionality analysis encompasses all
capital murder cases presented to this Court for review and
______________________
that evidence to rebut the Commonwealth’s argument if he had
made a timely objection.
60
is not limited” to these selected cases. Overton v.
Commonwealth, 260 Va. 599, 605-06, ____ S.E.2d ____, ____
(2000) (citing Boggs v. Commonwealth, 229 Va. 501, 522, 331
S.E.2d 407, 422 (1985), cert. denied, 475 U.S. 1031 (1986)).
Our proportionality review also does not require that a given
capital murder case “equal in horror the worst possible
scenarios yet encountered.” Turner v. Commonwealth, 234 Va.
543, 556, 364 S.E.2d 483, 490, cert. denied, 486 U.S. 1017
(1988).
The defendant has argued that the sentence of death in
his case is disproportionate because of his borderline range
of intellectual functioning, 18 the physical and sexual abuse
that he suffered as a child, his incompetence to stand trial
at one time, his continued need for medications during the
trial, and his symptoms of anxiety and depression. Burns,
however, fails to address the fact that he broke into and
entered the home of his elderly mother-in-law, raped and
sodomized her, and killed her by breaking her ribs in 24
places and rupturing her heart. He also wants this Court to
ignore his lengthy criminal record and his repeated attacks
on Buckley. Finally, we have approved the imposition of the
death penalty for a defendant with a significantly lower IQ
61
than that of Burns. See Atkins v. Commonwealth, 260 Va. 375,
387-89, 534 S.E.2d 312, 319-21 (2000) (defendant had IQ of
59). Thus, we do not find that any of the factors identified
by Burns, when considered in light of his prior criminal
history and the circumstances of this offense, distinguish
him from other defendants who have received the death
penalty.
Accordingly, based on our review of this case and
“similar cases,” we conclude that Burns’ sentence of death is
not excessive or disproportionate to sentences generally
imposed in this Commonwealth for capital murders comparable
to the defendant’s murder of Tersey Elizabeth Cooley.
III. CONCLUSION
For the reasons stated, we find no error either in the
judgments of the circuit court or in the imposition of the
death penalty. We also see no reason to commute the sentence
of death. Therefore, we will affirm the judgments of the
circuit court.
Record No. 001879 — Affirmed.
Record No. 001880 — Affirmed.
JUSTICE KOONTZ, concurring in part and dissenting in part.
______________________
18
Dr. Cathy Williams-Sledge administered an intellectual
test to Burns. The results showed that he has a verbal IQ of
73, a performance IQ of 86, and a full-scale IQ of 77.
62
I respectfully dissent from that part of the majority
opinion in this case concluding that the trial court did not
err in refusing to order a competency evaluation of William
Joseph Burns upon motion of his counsel during his trial for
the capital murder of Tersey Elizabeth Cooley and other
related felony crimes. I concur in all respects with the
remainder of that opinion.
Beyond question, the conviction of a legally incompetent
defendant violates that defendant’s constitutional right to a
fair trial. Drope v. Missouri, 420 U.S. 162, 171-72 (1975).
In that regard, the issue in the present case does not
involve an insanity defense which would concern Burns’ mental
state at the time these crimes were committed. Nor does the
issue involve a final determination that Burns was, or was
not, incompetent to stand trial at some point during this
trial. Rather, the narrow issue is whether, under the facts
of this particular case, Burns was improperly denied a
competency evaluation pursuant to Code § 19.2-169.1(A) so as
to ensure that he received a fair trial. See Drope at 181-82
(due process violated when trial court failed to make further
inquiry into defendant’s competency during trial).
In pertinent part, Code § 19.2-169.1(A) provides that:
“If, at any time . . . before the end of trial, the court
finds, upon hearing evidence or representations of counsel
63
for the defendant . . . that there is probable cause to
believe that the defendant lacks substantial capacity to
. . . assist his attorney in his own defense, the court shall
order that a competency evaluation be performed.” (Emphasis
added). The probable cause standard in this statute is the
familiar objective one requiring less than a preponderance of
the evidence. Thus, where the circumstances of a particular
case would reasonably cause doubt with respect to the
defendant’s substantial capacity to assist his attorney in
his own defense, this statute mandates, as is
constitutionally required, that the trial judge order an
evaluation of the defendant’s competency. This statute does
not give the trial judge the discretion as to whether to
order that evaluation. Accordingly, our review of the trial
judge’s denial of the motion by Burns’ counsel for a
competency evaluation pursuant to this statute involves
consideration of the objective circumstances known to the
trial judge at the time of his ruling, and not the trial
judge’s subjective beliefs regarding Burns’ competency.
Although reflected only in a footnote in the majority
opinion, it is significant that prior to Burns’ trial the
trial judge had found him incompetent to stand trial, and
that only after approximately four months of inpatient care
had the trial judge found that Burns’ competency had been
64
restored. However, Dr. William J. Stejskal, a court-
appointed mental health expert, had opined in his report to
the trial court that Burns’ capacity to assist in his own
defense was only “marginally intact,” and that Burns would
require appropriate antidepressant and anxiety medication
under “continuing psychiatric care with respect to the
management of the medications.” Burns was receiving these
medications, prescribed by a physician, while in jail so that
his capacity to assist in his own defense could be
maintained. Nevertheless, on the first day of trial it
became necessary for the trial court to recess so that
medication could be administered to Burns. Then on the next
day of trial, Burns became “visibly upset” while a tape of
his statement to police was played for the jury. Again the
trial court recessed, questioned Burns, and heard evidence
from the jail nurse that Burns was receiving the prescribed
medications.
During the trial judge’s questioning of Burns, he gave
answers that the court reporter noted in some instances as
“inaudible” and in others as “unintelligible.” As indicated
in the majority opinion, the trial judge dismissed this
distinction in Burns’ answers, finding that Burns’ “responses
were inaudible, not necessarily nonsensical. The bits and
pieces that I could understand were responsive to my
65
questions. All told, though, they were simply inaudible.”
In contrast to this conclusion, admittedly based on only
“bits and pieces” that could be understood, Burns’ counsel
asserted that “quite clearly, [Burns] is not thinking
rationally at this time, and his statements are
incomprehensible. I am sitting right next to him.”
In denying the motion for a competency evaluation, the
trial judge expressed in detail his reasons for doing so.
Those reasons are related in the majority opinion and need
not be repeated here. It is apparent that the trial judge
concluded that because Burns was receiving medication he was
competent, that he was probably “malingering” or “acting,”
and that playing the tape of his statement to the police was
understandably “upsetting” to him. In short, the trial judge
simply did not believe that Burns lacked substantial capacity
to assist his attorney in his own defense. The trial judge
may have been right in his conclusions regarding Burns’
competency. No appellate court will ever know for sure,
however.
In any event, the trial judge was not called upon under
the proper application of Code § 19.2-169.1(A) to determine
Burns’ competency or to deny the requested evaluation upon a
subjective belief that Burns was “acting” incompetent.
Rather, the trial judge was called upon to determine
66
objectively whether from the undisputed facts there existed
probable cause to believe that Burns lacked the requisite
capacity to assist his attorney in his own defense. Upon a
showing of that probable cause, the trial judge was
statutorily mandated to order the requested competency
evaluation.
In my view, the conclusion that such probable cause was
established is compelled by the undisputed facts in this
case. Burns was known to be only “marginally” competent to
stand trial when the trial began. His competency during
trial depended entirely on the continuing effectiveness of
the prescribed medications and not merely that Burns received
them. On at least one occasion it became necessary to recess
the trial proceedings so that Burns could be given additional
medication. On another occasion, Burns became “visibly
upset,” another recess was required, and at that time he gave
“unintelligible” answers to some of the trial judge’s
questions. Moreover, Burns’ counsel advised the trial court
that Burns was not thinking “rationally” and that Burns’
statements were “incomprehensible” to him. Surely, these
circumstances created a reasonable question whether the
prescribed medications were continuing to be effective so
that Burns could maintain substantial capacity to assist his
attorney in his own defense. Accordingly, probable cause was
67
established on the issue of Burns’ competency and it was
error for the trial court to deny the motion for a competency
evaluation as mandated by Code § 19.2-196.1(A).
For these reasons and because the error in this case
denied Burns his right to a fair trial, I would reverse his
conviction and remand this case for a new trial.
68