Barnes v. Commonwealth

THOMAS, J.,

concurring in part and dissenting in part.

In my opinion, the death sentence in this case should have been commuted to one of life imprisonment. This is so because the Commonwealth failed to prove beyond a reasonable doubt that the defendant’s conduct in killing Jenkins met the legal definition of vileness.

Jenkins’ murder was deplorable. I do not condone anything that this criminal defendant did. He is deserving of punishment. But under our system of law, the use of the death penalty as punishment is narrowly circumscribed. Here, the Commonwealth simply showed that Jenkins was shot three times and then demanded the death penalty. Virginia law requires more than that.

Under Virginia’s statutory scheme, a defendant convicted of capital murder cannot be sentenced to death unless it is first established beyond a reasonable doubt that he presents a future danger to society or that his conduct in committing capital murder is vile. Here, the trial court specifically found that Barnes did not present a future danger to society. The death penalty in this case rested solely on vileness.

In Virginia, there are three ways to establish vileness: (1) proof of torture, (2) proof of depravity of mind, or (3) proof of an aggravated battery to the victim. In this case, the trial court did not rest its decision upon either torture or depravity of mind. Here, the trial court concluded that the defendant’s conduct was vile solely because it involved what the court considered to be an aggravated battery to the victim.

“Aggravated battery,” as used in the vileness test, is a defined phrase. In Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 967 (1979), this Court said that aggravated battery is “a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder.” The gravamen of Smith is that once the assailant has inflicted a disabling, incapacitating, potentially fatal wound which leaves his victim helpless, defenseless, and unable to flee or fight, then to inflict any additional wounds constitutes aggravated battery. Thus, in order for the Commonwealth to secure the death penalty in this case, it was bound to prove the factors set forth in Smith. In my opinion, there was a failure of proof.

The Commonwealth’s argument on brief gives a first indication of the weakness of the case concerning vileness. The Commonwealth contended that Jenkins’ murder was vile because the defendant shot Jenkins a third time after Jenkins already was seriously wounded and because the defendant also shot Afifi. Virginia’s statutory scheme does not permit the blending together of the facts from two killings in deciding whether one killing was vile. Each murder must be examined separately and a separate determination of vileness must be made for each one. The Commonwealth’s attempt to prove that Jenkins’ murder was vile by pointing to Afifi’s murder signals the general problems that exist on this issue.

In oral argument, the Commonwealth backed away from the position it took on brief and argued, instead, that the third shot made Jenkins’ murder vile. But nothing in the record supports the argument that the third shot was more culpable than the minimum necessary to accomplish the act of murder. Indeed, the evidence shows that it was the combined effect of all three shots that killed Jenkins.

Jenkins was shot in the neck, chest, and abdomen. The autopsy report listed the cause of death as follows: “sepsis, respiratory, hepatic and renal failure due to neck, chest and abdominal gunshot wounds.” (Emphasis added.) In his testimony, the assistant medical examiner who performed the autopsy made clear that Jenkins died from the effects of all three wounds. He testified as follows: “All of these wounds produced initially some low blood pressure, which contributed to his multi-organ failure, his lungs failing and subsequently his liver, kidneys, and, of course, terminally his heart.” (Emphasis added.) Given the foregoing evidence, there was no basis upon which a trier of fact could have concluded, as the Commonwealth theorizes, that the third shot went beyond the minimum necessary to commit murder. It may be that Jenkins’ murder fell within the ambit of Smith, but the Commonwealth made no effort to prove that it did. And absent such proof, the death penalty cannot be imposed.

There are at least two major problems with the majority opinion on the vileness issue. The most critical is the redefinition of aggravated battery. The majority redefines that phrase in a manner that fits the facts of the instant case while silently overruling the long-established test set forth in Smith, which was the law at the time of the offense and at the time of trial. Smith required an analysis of whether the defendant’s conduct exceeded the minimum necessary to kill. The majority’s new test eliminates that inquiry. With today’s opinion, aggravated battery can now be shown where there “is an appreciable lapse of time between the first shot and the last, and where death does not result instantaneously from the first.”

Significantly, this wholesale change in the definition of aggravated battery takes place without the benefit of briefing or argument. Neither the Commonwealth nor the defendant sought such a definition. The Commonwealth’s only argument was that Smith applied and Smith was met. What happened here is akin to ex post facto legislation. Because the Commonwealth failed to prove that which was required by Smith, the majority simply abandoned Smith and announced a new test — never before seen in Virginia law — which the Commonwealth could meet.

The second major problem is that even though the majority abandons Smith, it nevertheless attempts to portray the facts in a manner that implies compliance with Smith. The majority suggests that the first two shots were fatal, thus, intimating that the third shot exceeded the minimum necessary to commit murder. The majority writes as follows: “Jenkins died, after a ‘stormy hospitalization’ lasting over two weeks, of pneumonia complicated by liver and renal failure resulting primarily from the injuries inflicted by the first two wounds.” It is certainly true that Jenkins’ liver and renal failure resulted primarily from the first two shots. It cannot be stated, however, based on this record, that it was the first two shots which were primarily responsible for Jenkins’ death. Any such suggestion is refuted by the autopsy report and the testimony of the assistant medical examiner.

Further, the majority’s reliance upon Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099 (1986), and Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011 (1981), is misplaced. Neither case involved the precise question raised here of proof of vileness based solely on proof of aggravated battery. As a result, neither case involved a critical analysis of Smith. In addition, the death sentence in Turner was based on future dangerousness and vileness; the same was true in Watkins.

Moreover, the facts in both cases clearly met the burden imposed by Smith. As noted above, Smith focuses upon whether a defendant continued to inflict wounds upon a helpless, defenseless victim. In Turner and in Watkins, the victims were helpless, defenseless, and unable to flee or fight at the time additional shots were fired into their bodies. At the time those victims received additional wounds, they presented no threat whatever to their assailant. In the instant case, though Jenkins was seriously wounded, the evidence does not show that he was helpless, defenseless, and unable to flee or fight when the third shot was fired. In fact, at the time of the third shot Jenkins was attempting to stand up. The helplessness and defenselessness of the victim is the unifying theme in all the previous aggravated battery cases. This seemingly small difference in the facts has heretofore marked the boundary line between cases in which the death penalty was warranted and cases in which it was not. Today, the majority obliterates that line.

POFF, J., joins concurring in part and dissenting in part.