Schmitt v. Commonwealth

Present: Carrico, C.J., Lacy, Hassell, Keenan, Kinser, and
Lemons, JJ., and Poff, S.J.
JOHN YANCEY SCHMITT
v. Record No. 003010 OPINION BY JUSTICE BARBARA MILANO KEENAN
Record No. 010007 June 8, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
In these appeals, we review the capital murder conviction
and death sentence imposed on John Yancey Schmitt, along with
his several non-capital convictions.
I. PROCEEDINGS
Schmitt was indicted for capital murder based on the
willful, deliberate, and premeditated killing of Earl Shelton
Dunning during the commission of a robbery, in violation of Code
§ 18.2-31(4). Schmitt also was indicted for armed entry of a
bank with the intent to commit larceny, in violation of Code
§ 18.2-93; two counts of robbery, in violation of Code § 18.2-
58; and three counts of use of a firearm, in violation of Code
§ 18.2-53.1.
In the first stage of a bifurcated trial conducted under
Code § 19.2-264.3, a jury convicted Schmitt of all the offenses
charged. In the penalty phase of the trial, the jury fixed his
punishment for capital murder at death based on a finding of
"future dangerousness," and for the other offenses at
imprisonment for a total of 118 years. The trial court
sentenced Schmitt in accordance with the jury verdict.
We consolidated the automatic review of Schmitt's death
sentence with his appeal of the capital murder conviction. Code
§ 17.1-313(F). We also certified Schmitt's appeal of his
convictions for the non-capital offenses from the Court of
Appeals and consolidated that appeal with his capital murder
appeal. Code § 17.1-409.
II. GUILT PHASE EVIDENCE
We will state the evidence presented at trial in the light
most favorable to the Commonwealth, the prevailing party in the
trial court. Burns v. Commonwealth, 261 Va. 307, 313, 541
S.E.2d 872, 877 (2001); Lovitt v. Commonwealth, 260 Va. 497,
502, 537 S.E.2d 866, 870 (2000). On February 17, 1999, Earl
Shelton Dunning was shot and killed while working as a security
guard at the Bon Air branch of NationsBank (the bank) on Buford
Road in Chesterfield County. About a month before Dunning was
killed, Schmitt had robbed this same bank and, after that
robbery, the bank had hired Dunning to work as a security guard.
Shortly after 1:00 p.m. on February 17, 1999, a man entered
the bank wearing dark sunglasses and a bulky jacket. He kept
his head lowered and appeared to scan the interior of the bank.
Bank manager Sara Parker-Orr testified that she was "nervous"
about this man because he was wearing sunglasses inside the bank
2
on a "really cloudy day." Dunning was outside the bank and,
after the man went inside, Dunning entered the bank and walked
across the lobby to stand at the end of the "teller line" in
which customers were waiting.
The man stood in the teller line behind several customers.
Parker-Orr watched him leave his place in line and walk toward
Dunning. When the man was within "a foot or so" of Dunning,
Parker-Orr heard two gunshots and then heard someone scream,
"[G]et down, get down."
The man next approached Parker-Orr's teller window and
banged on the counter yelling, "Money, give me money," and "[I]f
I don't get money, I'm going to kill everybody." Parker-Orr
opened her cash drawer and threw money into a black plastic bag
that the robber was holding.
The robber continued to bang on the counter demanding "more
money." He announced that he would give the tellers "ten
seconds" to give him more money, and began counting backward
from the number "ten." By the time he reached "nine," teller
Marlene Austin was "throwing money in the bag." Parker-Orr also
gave him money from a third teller's drawer. When she told the
robber that she had no more money to give him, the robber left
the bank.
The bank's security camera system recorded photographs of
Schmitt approaching the end of the teller counter and standing
3
at a teller window holding a bag and pointing a gun. None of
the witnesses who testified at trial saw the actual shooting of
Dunning, and the shooting was not recorded by the bank's
security camera system. However, Parker-Orr, Austin, and Kelli
Konstaitis, another teller, all identified a photograph of
Schmitt recorded by the bank's security camera system as
depicting the man who robbed the bank that day.
After Schmitt left the bank, witnesses telephoned the "911"
emergency response number and attended to Dunning, who was lying
on the floor. By the time emergency medical personnel arrived,
Dunning was dead. The witnesses in the bank testified that they
did not touch or see anyone else touch Dunning's gun or its
holster. Dunning's gun was found in its holster, which was
closed and snapped.
An autopsy revealed that Dunning was killed as a result of
a gunshot wound to his chest. The bullet entered the right side
of Dunning's chest, causing significant injuries to the aorta,
and exited from the right side of his back.
After the murder and robbery, Schmitt registered at a
Williamsburg hotel the same day under the name "R. Napier." The
hotel desk clerk testified that Schmitt asked for directions to
the local shopping areas, and that when Schmitt later returned
to the hotel, his hair was a different color. Schmitt paid cash
for a three-day stay at the hotel.
4
Captain Karl S. Leonard of the Chesterfield County Police
Department identified Schmitt after reviewing the photographs
taken by the bank's security camera system. Two days after the
murder and robbery, on February 19, 1999, Leonard learned where
Schmitt was staying in Williamsburg. The James City County
Tactical Team surrounded Schmitt's hotel room, and a crisis
negotiator, Lieutenant Diane M. Clarcq of the James City County
Police Department, attempted to persuade Schmitt to surrender.
About 10:30 a.m. the following morning, Schmitt surrendered and
was taken into police custody.
Leonard obtained a search warrant for Schmitt's hotel room,
where a satchel, a handgun, a box of shotgun shells, a black
leather jacket, and a variety of newly purchased clothing items
were seized. Inside the satchel was $27,091 in cash, most of
which still bore "bank bands" identifying the money as coming
from the Bon Air branch of NationsBank.
John H. Willmer, a firearms and tool mark examiner employed
by the Virginia Division of Forensic Science, qualified as an
expert witness on the subject of firearms. Willmer testified
that he examined the handgun found in Schmitt's hotel room and
the cartridge casings and bullets found in the bank. He stated
that based on his examination, the cartridge casings and bullets
had been fired from this handgun. Willmer also tested the
handgun and items of Dunning's clothing to establish the
5
distance of the firearm from Dunning at the time of the
shooting. Based on these tests, Willmer concluded that the
pattern of gunpowder residue found on Dunning's clothing
indicated that when Dunning was shot, the distance between him
and the firearm muzzle was between 12 and 36 inches.
III. PENALTY PHASE EVIDENCE
During the penalty phase of the trial, the Commonwealth
presented evidence of Schmitt's criminal record. Between 1992
and 1996, Schmitt was convicted twice of possession of marijuana
with the intent to distribute, and also had convictions of
receiving stolen property, possession of a firearm by a
convicted felon, and possession of marijuana. Schmitt was on
probation for some of these offenses at the time of the capital
murder and robbery. He had failed to keep the conditions of his
probation requiring him to have regular drug tests and to meet
with his probation officer and, as a result, a capias had been
issued for his arrest prior to both bank robberies.
In the earlier robbery of the bank on January 19, 1999,
Schmitt and another man had stolen over $65,000. Schmitt was
armed with a sawed-off shotgun in that robbery. The
Commonwealth presented evidence that before the first robbery,
police were called to investigate an argument between Schmitt
and a girlfriend involving a shotgun, and that Schmitt had
6
"sawed off" the barrel of the gun the night before the first
bank robbery.
The Commonwealth also presented evidence of a tape
recording of a telephone conversation between Schmitt and a
friend in which Schmitt described the present offenses. In
addition, the Commonwealth introduced evidence of the "drug
dealer lifestyle" that Schmitt had been leading in the months
before he committed the present offenses.
The Commonwealth presented testimony from Dunning's family
and friends concerning the impact of Dunning's murder on them.
Dunning's mother and brother testified that in January 1999, a
month before his murder, Dunning had retired from the United
States Army after over 20 years of service, and that he had
received many commendations honoring his bravery and leadership
while in military service. The Commonwealth also presented
testimony that Dunning had three children and that he had
planned to marry in March 1999. Several bank employees
testified that during the few weeks that Dunning worked at the
bank, he had developed close relationships with his fellow
employees that demonstrated extraordinary thoughtfulness and
generosity.
Schmitt presented testimony from the crisis negotiator,
Lieutenant Clarcq, that Schmitt had expressed remorse over the
killing during the negotiations culminating in his surrender.
7
In addition, Schmitt presented testimony from a medical
specialist dealing with adolescent addiction who testified
generally concerning the effects of drug addiction and
withdrawal. However, this specialist had never treated or
evaluated Schmitt. Schmitt also presented testimony from his
juvenile probation officer, friends, and family members who
described Schmitt as courteous and respectful when he was not
under the influence of drugs.
IV. ISSUES WAIVED OR DEFAULTED
Schmitt raises on appeal the following issues that are
procedurally defaulted from consideration in this Court:
1. Schmitt did not ask the trial court to strike
prospective juror James J. Goodin for cause based on Goodin's
statements concerning the death penalty. Therefore, Schmitt has
waived his objection to the seating of this juror. Rule 5:25. 1
2. Schmitt did not object in the trial court to the
exclusion of prospective jurors Linda Miles and Leo Gibbs based
on their statements expressing objections to the death penalty.
Schmitt also did not argue in the trial court that by excluding
1
Schmitt asserts that his later motion objecting to the
seating of the entire panel was sufficient to preserve this
issue. That motion, however, merely referenced "all the reasons
stated in our objections to particular jurors," and Schmitt had
stated during the voir dire of Goodin that he had no objection
to Goodin serving as a juror. Thus, Schmitt's motion was
insufficient to preserve for appeal any objection to Goodin
serving on the jury.
8
Miles, Gibbs, and others, the court adopted a "pattern of
seating pro-death penalty jurors." Because Schmitt failed to
make these objections in the trial court, he has waived these
issues on appeal. Rule 5:25.
3. Schmitt did not argue in the trial court that the
capital murder charge should be struck on the ground that the
charge encouraged the jury to impose harsher sentences for the
non-capital offenses. Since Schmitt failed to raise this
argument in the trial court, he has waived the issue on appeal.
Rule 5:25.
4. Schmitt filed a pre-trial motion to bar admission
during the penalty phase of the trial of evidence of his
unadjudicated conduct. Prior to the trial, the court reserved
ruling on the motion. During the penalty phase proceedings,
Schmitt did not object to the testimony of several witnesses
concerning Schmitt's unadjudicated conduct. Because Schmitt
failed to object contemporaneously to the admission of this
evidence, Schmitt has waived this objection on appeal. Rule
5:25.
5. Schmitt argues that the trial court erred in allowing
the jury to consider the issue of "future dangerousness." In
the trial court, Schmitt argued that the "future dangerousness"
aggravator is unconstitutionally vague and violates the Sixth,
Eighth, and Fourteenth Amendments. However, on brief, he refers
9
solely to his motion presented to the trial court with regard to
this issue. Schmitt's references to arguments that he made in
the trial court are insufficient and amount to procedural
default of this issue. Burns, 261 Va. at 319, 541 S.E.2d at
881; Hedrick v. Commonwealth, 257 Va. 328, 336, 513 S.E.2d 634,
638, cert. denied, 528 U.S. 952 (1999); Swisher v. Commonwealth,
256 Va. 471, 478, 506 S.E.2d 763, 767 (1998), cert. denied, 528
U.S. 812 (1999).
6. At the conclusion of his brief, Schmitt sets forth an
additional argument "relating to all assignments of error" that
the alleged errors violated his constitutional rights. However,
Schmitt failed to specify in what manner his rights were
violated with respect to each assignment of error.
Consequently, this argument is waived, and we will not consider
it on appeal. See Burns, 261 Va. at 318, 541 S.E.2d at 880;
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)).
V. ISSUE PREVIOUSLY DECIDED
Schmitt raises an argument that we have resolved in a
previous decision. Since we find no reason to modify our
previously expressed view, we reaffirm our earlier holding and
reject the following argument:
10
The trial court erred in admitting "victim impact evidence"
because it is not relevant to the jury's sentencing decision in
a capital murder case. Rejected in Weeks v. Commonwealth, 248
Va. 460, 476, 450 S.E.2d 379, 480 (1994), cert. denied, 516 U.S.
829 (1995) (citing Payne v. Tennessee, 501 U.S. 808, 827
(1991)).
VI. JURY SELECTION
Schmitt argues that the trial court abused its discretion
in refusing to strike certain prospective jurors for cause based
on their alleged biases in favor of the death penalty. Schmitt
also contends that the trial court abused its discretion in
refusing to strike one prospective juror who formerly was
employed as a bank teller. Finally, Schmitt argues that the
court abused its discretion in striking for cause one
prospective juror who stated that her objection to the death
penalty would prevent her from voting to impose it. We disagree
with Schmitt's arguments.
A prospective juror should be excluded for cause based on
the juror's views about the death penalty if those views would
substantially impair or prevent the performance of the juror's
duties in accordance with his oath and the court's instructions.
Barnabei v. Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277
(1996), cert. denied, 520 U.S. 1224 (1997) (citing Wainwright v.
Witt, 469 U.S. 412, 424 (1985)). On appellate review, we give
11
deference to the trial court's determination whether to retain
or exclude a prospective juror because the trial court is able
to see and hear each member of the venire respond to the
questions posed. Thus, the trial court is in a superior
position to determine whether a prospective juror's responses
during voir dire indicate that the prospective juror would be
prevented or impaired in performing the duties of a juror.
Lovitt, 260 Va. at 510, 537 S.E.2d at 875; Vinson v.
Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999),
cert. denied, 530 U.S. 1218 (2000). A trial court's decision
regarding the selection or exclusion of jurors will be upheld on
appeal unless it is shown that the trial court abused its
discretion. Id.In conducting our review, we consider a prospective juror's
entire voir dire, rather than isolated statements made by the
prospective juror. Id. In the present case, when prospective
juror Darlene W. Temple was asked, "generally speaking," about
her views on the death penalty, she responded that she was "in
favor" of the death penalty. When asked whether there was "any
particular type of crime in which you think a death penalty
would be appropriate," Temple responded, "[P]remeditated,
brutal, planned, and [sic] I'm going to kill you kind of
murder." In response to a question whether she could fairly
weigh the options of death or life imprisonment even in that
12
category of cases in which she considered the death penalty to
be appropriate, Temple answered in the affirmative.
Similarly, prospective juror William A. Chewning was asked
to assume that a defendant had been convicted of capital murder,
that the Commonwealth had proved "vileness" or "future
dangerousness," or both, and that the jury had "listened to all
the evidence[] [in] mitigation and aggravation." When asked
whether he would "automatically vote for the death penalty"
under these circumstances, Chewning stated, "I think I would,
yes." Chewning was then asked to state his understanding of the
jury's function after finding a defendant guilty of capital
murder. Chewning responded:
[T]he Commonwealth presents you with evidence[]
[whether] they were violent crimes or [whether] he
would be able to in the future commit more violence
and malice. And if you did find it, then the death
penalty should be justified, but if it's not so
strong, the evidence, then you might give him a life
sentence.
In addition, Chewning responded in the affirmative when asked
whether he would be able "to fairly listen to that evidence
before deciding whether to give [a defendant] the death penalty
or a life sentence."
Prospective juror Mary T. Richardson stated that she
previously transferred from a job as a bank teller because she
was afraid to work in a bank that had been robbed several times.
When asked whether this experience would affect her ability to
13
be an impartial juror, Richardson responded, "I can't say that
it will or that it won't," and she later added, "I want to
listen to all the facts before I ma[k]e any decision. But
knowing that, you know, I've had that fear when I worked at a
bank, I might let that sway [me]. I don't know." When asked
whether she could "put aside that bias" and base her decision on
the evidence in this case and on the law as instructed by the
trial court, Richardson responded that she could do so "because
the case would not be about me."
The above responses are illustrative of the entire voir
dire testimony of these prospective jurors, which contains no
indication that the trial court abused its discretion in
accepting their statements that they could fulfill the duties of
jurors in the trial of the case. The responses of prospective
jurors Chewning and Temple indicated that they could consider
both the death penalty and life imprisonment in sentencing a
defendant for capital murder. Prospective juror Richardson
indicated that she could fairly evaluate the evidence, follow
the court's instructions, and not be influenced by her
experience as a bank teller because the present case was not
"about" her. Thus, we conclude that the trial court did not
abuse its discretion in refusing to strike these jurors for
cause.
14
In contrast, prospective juror Lyn S. Carroll advised the
trial court that she had "moral, religious, or conscientious
objections to voting for the death penalty," and indicated that
she did not think she "could ever vote [for] or consider the
death penalty." Carroll also acknowledged that she could not
foresee any circumstance under which she "would consider voting
for the death penalty." We conclude that the trial court did
not abuse its discretion in striking Carroll from the jury panel
because her responses demonstrated that her personal objections
to the death penalty would have substantially impaired or
prevented her from carrying out her duties as a juror. See
Vinson, 258 Va. at 467, 522 S.E.2d at 176; Barnabei, 252 Va. at
173, 477 S.E.2d at 277; Yeatts v. Commonwealth, 242 Va. 121,
134-35, 410 S.E.2d 254, 262-63 (1991), cert. denied, 503 U.S.
946 (1992).
Schmitt next argues that the trial court erred in limiting
his questioning of prospective jurors during voir dire regarding
their views on the death penalty. In support of his argument,
Schmitt identifies three portions of the voir dire record in
which the trial court limited his attempts to have prospective
jurors respond to hypothetical questions concerning the death
penalty, and contends that he should have been "allowed latitude
in probing the juror's true position."
15
We find no merit in this argument. In the identified
portions of the voir dire examination, Schmitt improperly asked
the prospective jurors to speculate regarding whether they would
automatically impose a death sentence for certain types of
killings or under certain hypothetical circumstances. These
questions were posed without any reference to the prospective
jurors' ability to consider the evidence and the court's
instructions in deciding whether to impose the death penalty.
In addition, the record demonstrates that the trial court
allowed Schmitt considerable latitude in questioning members of
the venire concerning their beliefs on the death penalty. Thus,
we conclude that the trial court did not abuse its discretion in
restricting Schmitt's questions during voir dire, and that the
questioning allowed by the trial court assured the removal of
those prospective jurors who would automatically impose the
death penalty. See Clagett v. Commonwealth, 252 Va. 79, 89, 472
S.E.2d 263, 269 (1996), cert. denied, 519 U.S. 1122 (1997);
Beavers v. Commonwealth, 245 Va. 268, 277-78, 427 S.E.2d 411,
418, cert. denied, 510 U.S. 859 (1993); Mueller v. Commonwealth,
244 Va. 386, 400-01, 422 S.E.2d 380, 389-90 (1992), cert.
denied, 507 U.S. 1043 (1993).
Schmitt next argues that the trial court improperly asked
leading questions of prospective jurors during voir dire to
"rehabilitate" them and to make them "appear to qualify" for
16
service on the jury, without probing these jurors for their true
opinion or bias. Schmitt contends that the trial court
improperly used these responses to its questions to "offset or
override" other responses elicited by his counsel.
We do not reach the merits of this argument because Schmitt
did not object to any particular question posed by the trial
court to any individual member of the venire. See Rule 5:25.
Instead, he raised only a general objection after 14 potential
jurors had been questioned by the parties and the court, and
again referred to that general objection at the conclusion of
all the voir dire testimony in the case. These general
objections were based on Schmitt's assertion that the trial
court acted "inappropriate[ly]" by asking prospective jurors
whether they could fairly consider both sentencing alternatives,
thereby "hindering [Schmitt's] opportunity to get valid
responses."
Such general objections were insufficient to preserve this
issue for appeal. While a party may state an objection to any
question posed by a trial judge during voir dire, including an
objection that the trial judge improperly has asked a leading
question, the objection must be stated in a timely manner with
reference to the precise question at issue. Therefore, a
defendant may not assert on appeal that the trial judge has
asked improper questions during voir dire unless he first has
17
given the judge a timely opportunity to rule on the merits of
such objections and to take any necessary corrective action.
See Hodges v. Commonwealth, 213 Va. 316, 317-18, 191 S.E.2d 794,
795 (1972).
VII. GUILT PHASE ISSUES
Schmitt argues that the trial court erred in denying his
motions to strike the capital murder charge and that the
evidence was insufficient as a matter of law to support his
conviction on that charge. Schmitt contends that certain
physical evidence supports a reasonable hypothesis that the
shooting occurred during a struggle and was unintentional,
thereby negating the element of premeditation. Schmitt relies
on the evidence of powder residue on Dunning's jacket, the
location of the bullet hole in the jacket, as well as the
evidence of blood on Schmitt's left hand and the location of the
bullet casings "to the left of where the defendant would have
been." We disagree with Schmitt's arguments.
The issue of premeditation is a question to be resolved by
the finder of fact. Bailey v. Commonwealth, 259 Va. 723, 749,
529 S.E.2d 570, 585, cert. denied, ___ U.S. ___, 121 S.Ct. 488(2000); Weeks, 248 Va. at 477, 450 S.E.2d at 390; Clozza v.
Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 (1984),
cert. denied, 469 U.S. 1230 (1985). The intent to kill need not
exist for any specific period of time before the actual killing.
18
Id. To establish the element of premeditation, the Commonwealth
need only show that the intent to kill existed for a moment
before the fatal act was committed. Id.The evidence showed that Schmitt entered the bank armed
with a loaded and concealed weapon. After Dunning came inside
the bank and stood near the end of the teller line, Schmitt left
his place in that line and walked directly to the location where
Dunning was standing. Without saying anything, Schmitt fired
two shots, one of which hit Dunning in the chest. After the
shooting, Schmitt shouted, "get down," and threatened to "kill
everybody" if he did not get some money.
We conclude that this evidence was sufficient to establish
the element of premeditation. Viewed in the light most
favorable to the Commonwealth, the evidence supported a
conclusion that Schmitt intended to kill Dunning from the moment
that Schmitt left his place in the teller line and began to
approach Dunning. At this point, he possessed a concealed,
loaded weapon, which he used to shoot Dunning at close range
within seconds of departing from his place in the teller line.
Schmitt's contrary argument relies largely on speculation,
rather than on reasonable inferences that can be drawn from the
evidence. Moreover, the jury was entitled to reject his view of
the evidence and conclude that he acted with premeditation when
he fired the shot that killed Dunning. Therefore, we conclude
19
that the evidence was sufficient to support the jury's
determination of guilt on the capital murder charge.
Schmitt argues that the trial court erred in refusing to
permit the crisis negotiator, Lieutenant Clarcq, to testify
regarding statements Schmitt made to Clarcq about the robbery
and shooting. These statements included Schmitt's admission
that he robbed the bank and a statement that he did not intend
to kill Dunning but shot him during a struggle. Schmitt
contends that these statements were admissible as a declaration
against his penal interest. We disagree.
Schmitt's statements to Clarcq do not qualify as
declarations against his penal interest. This exception to the
hearsay rule allows out-of-court statements that tend to
incriminate a declarant to be received in evidence upon a
showing that the declaration is reliable and that the declarant
is presently unavailable. Ellison v. Commonwealth, 219 Va. 404,
408, 247 S.E.2d 685, 688 (1978). Underlying this exception is
the presumption that individuals have a strong interest in
protecting themselves and thus do not often make statements that
expose themselves to criminal liability unless those statements
are true. See Newberry v. Commonwealth, 191 Va. 445, 461, 61
S.E.2d 318, 326 (1950); Hines v. Commonwealth, 136 Va. 728, 743-
44, 117 S.E. 843, 847 (1923). When the declarant has made an
incriminating statement that is contrary to his self-interest,
20
this "element of self-interest" functions as "a reasonably safe
substitute for the oath and cross-examination as a guarantee of
truth." Newberry, 191 Va. at 461, 61 S.E.2d at 326 (citing
Hines, 136 Va. at 744, 117 S.E. at 847).
Here, however, the chief portion of the statement that
Schmitt sought to have admitted was a self-serving denial of his
criminal intent on the capital murder charge. 2 Schmitt's
statement that he shot Dunning during a struggle is not contrary
to Schmitt's self-interest but instead promotes the goal of
protecting himself from criminal liability for capital murder.
For this reason, as a threshold matter, the statement is not a
declaration against penal interest. 3 Accordingly, we conclude
that the trial court did not err in refusing Schmitt's request
to admit evidence of these statements made to Lieutenant Clarcq.
Schmitt argues that the trial court erred in refusing his
tendered jury instruction concerning the Commonwealth's alleged
failure to produce as witnesses two bank customers who were
shown in a bank camera photograph standing behind Schmitt in the
2
Schmitt cannot plausibly argue that he was prejudiced by
the trial court's refusal to admit that portion of his statement
to Clarcq that admitted his culpability in the robberies.
Moreover, this portion of his statement to Clarcq was cumulative
evidence of his guilt on the robbery charges. See Harrison v.
Commonwealth, 244 Va. 576, 585, 423 S.E.2d 160, 165 (1992).
3
Based on our disposition of this assignment of error, we
need not address whether Schmitt's declaration was reliable or
whether his decision not to testify made him "unavailable" for
purposes of the hearsay exception on which he relies.
21
teller line. The refused instruction stated that the
Commonwealth's "unexplained" failure to produce these witnesses
raised a presumption that their testimony would be unfavorable
to the Commonwealth.
We find no merit in this argument. The granting of such an
instruction in a criminal case is improper. Russell v.
Commonwealth, 216 Va. 833, 836-37, 223 S.E.2d 877, 879 (1976).
The rationale underlying this rule is plain. The Commonwealth's
burden of proof does not include the duty to produce all
witnesses possibly having some knowledge of a case, and a
criminal defendant need not prove anything or call any witnesses
in his defense. Id.; see Wise v. Commonwealth, 230 Va. 322,
330, 337 S.E.2d 715, 721 (1985), cert. denied, 475 U.S. 1112(1986); Robinson v. Commonwealth, 207 Va. 66, 69, 147 S.E.2d
730, 732 (1966). Thus, the trial court properly refused the
instruction at issue.
Schmitt argues that the trial court erred in instructing
the jury that "[i]t is permissible to infer that every person
intends the natural and probable consequences of his or her
acts." Schmitt contends that this instruction effectively
created an improper presumption that "negated or diminished the
effect of the presumption of innocence." We disagree with
Schmitt's argument.
22
This instruction did not establish an improper presumption
but merely stated a permissive inference. Kelly v.
Commonwealth, 8 Va. App. 359, 374, 382 S.E.2d 270, 278 (1989).
Unlike conclusive or burden shifting presumptions regarding a
defendant's criminal intent, which are constitutionally invalid,
the present instruction did not require the jurors to draw any
inference or alter the Commonwealth's burden of proving
Schmitt's criminal intent beyond a reasonable doubt. Id.; see
Connecticut v. Johnson, 460 U.S. 73, 84 (1983); Sandstrom v.
Montana, 442 U.S. 510, 521 (1979).
VIII. SENTENCING PHASE ISSUES
Schmitt argues that the admission into evidence of the tape
recording of the telephone conversation between him and his
friend, Clifford Sauer, violated his Fifth and Sixth Amendment
rights because Sauer acted as a "police agent" during the
conversation. In response, the Commonwealth asserts that
Schmitt's failure to comply with the notice requirements of Code
§ 19.2-266.2 in the trial court bars consideration of this issue
on appeal. We agree with the Commonwealth.
Code § 19.2-266.2 requires that, in the absence of good
cause shown and in the interests of justice, all motions seeking
suppression of evidence based on an alleged violation of the
Fourth, Fifth, or Sixth Amendments be made in writing, not later
than seven days before trial. Schmitt does not dispute that he
23
failed to comply with these statutory requirements, and he does
not argue on appeal that he satisfied the good cause exception
provided in the statute. Since Schmitt has failed to meet these
statutory requirements, he has waived on appeal his argument
regarding the admissibility of the tape recording. See Upchurch
v. Commonwealth, 31 Va. App. 48, 51, 521 S.E.2d 290, 291-92
(1999).
Schmitt argues that the trial court erred in refusing to
admit evidence concerning prison life and the security features
of a "maximum security" prison in the Commonwealth to rebut the
Commonwealth's contention of Schmitt's future dangerousness. He
asserts that in a capital murder sentencing, such evidence is
relevant to the issue whether a defendant will pose a future
threat to society.
We conclude that Schmitt's argument has no merit, given the
sentencing phase evidence presented by the Commonwealth. In
that portion of the trial, the Commonwealth did not present
evidence concerning prison security or the nature of prison
confinement imposed on a defendant who has been convicted of a
capital murder offense. Therefore, Schmitt's proffered evidence
was not admissible to rebut any particular evidence concerning
prison security or prison conditions offered by the
Commonwealth.
24
In addition, Schmitt's proffered evidence was inadmissible
to rebut the Commonwealth's contention that he would commit
future acts of violence. As we explained in Burns:
[T]he relevant inquiry is not whether [the defendant]
could commit criminal acts of violence in the future
but whether he would. . . . 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.
261 Va. at 339-40, 541 S.E.2d at 893.
Schmitt also argues that the trial court erred in refusing
three supplemental jury instructions, each of which advised the
jury that a life sentence would be imposed if the jury could not
unanimously agree on a penalty. Schmitt asserts that these
instructions were tendered after "the jury's deliberations
became extended," and contends that the instructions were
correct statements of the law and should have been given at that
stage of the jury's deliberations. We disagree with Schmitt's
arguments.
The trial court properly refused the proffered
instructions. As we have explained in earlier decisions, such
instructions concern a procedural matter that is not an
appropriate subject for a jury instruction. Spencer v.
Commonwealth, 238 Va. 295, 318, 384 S.E.2d 785, 799 (1989),
25
cert. denied, 493 U.S. 1093 (1990) (quoting Justus v.
Commonwealth, 220 Va. 971, 979, 266 S.E.2d 87, 92 (1980), cert.
denied, 455 U.S. 983 (1982)); see also Pruett v. Commonwealth,
232 Va. 266, 279 n.6, 351 S.E.2d 1, 9 n.6 (1986), cert. denied,
482 U.S. 931 (1987). Instructions of this nature also
constitute an open invitation for the jury to avoid its
responsibility and to disagree on the sentence that a capital
murder defendant should receive. Id.; see also Eaton v.
Commonwealth, 240 Va. 236, 257, 397 S.E.2d 385, 398 (1990),
cert. denied, 502 U.S. 824 (1991).
Schmitt next argues that the trial court erred in refusing
to grant a mistrial or to give curative instructions to the jury
based on allegedly inflammatory comments made by the prosecutor
in his closing argument. The prosecutor's comments at issue
concerned: (1) Schmitt's use of a stolen gun when the
Commonwealth earlier had stipulated that the gun was not stolen;
(2) Schmitt's prior "shotgun assault" on his girlfriend; and (3)
the "wonderful life" in prison Schmitt would have were he
sentenced to life imprisonment. Schmitt asserts that the trial
court's failure to take corrective action in this regard denied
him a fair trial and violated his due process rights. We
disagree with Schmitt's arguments.
The record shows that after Schmitt objected to the
Commonwealth's improper reference to his use of a stolen gun,
26
the Commonwealth acknowledged its mistake and the trial court
granted a curative instruction. The court told the jury that
the parties had stipulated that "[t]he weapon was not stolen,
but [that Schmitt] was a convicted felon when he came into
possession of it." When the prosecutor then stated to the jury
that "your recollection of the evidence is what counts in this
case," Schmitt again objected, contending that this argument
effectively suggested that the jury could ignore the trial
court's curative instruction. In response to this objection,
the trial court stated again that there was no evidence that the
gun had been stolen.
We will presume that a jury has followed the trial court's
prompt and explicit curative instructions, unless the record
clearly shows that the jury disregarded the instructions.
Beavers, 245 Va. at 280, 427 S.E.2d at 420; Spencer v.
Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619, cert. denied,
498 U.S. 908 (1990). Here, the trial court promptly gave
explicit curative instructions after Schmitt timely objected to
the prosecutor's remarks, and the record does not show that the
jury disregarded the curative instructions. It is well
established that a judgment will not be reversed for a statement
of counsel that the court promptly directs the jury to disregard
unless there is a manifest probability that the improper
comments were prejudicial to the defendant. Kitze v.
27
Commonwealth, 246 Va. 283, 288, 435 S.E.2d 583, 585 (1993)
(citing Saunders v. Commonwealth, 218 Va. 294, 303, 237 S.E.2d
150, 156 (1977)). We hold that the record fails to show a
manifest probability of prejudice, and we conclude that the
trial court did not abuse its discretion in its response to the
objections raised and in denying Schmitt's motion for a mistrial
related to those objections.
We do not reach the merits of Schmitt's arguments
concerning the trial court's failure to give a curative
instruction or to grant a mistrial regarding the prosecutor's
comment on Schmitt's prior "shotgun assault" on his girlfriend,
and on the "wonderful life" that he would experience in prison.
Schmitt did not make a request for a curative instruction or a
mistrial at the time either of these remarks were made, but
waited until after the jury had retired to place the issues
before the trial court in the form of a motion for a mistrial.
Unless a defendant has made a timely motion for a cautionary
instruction or for a mistrial, we will not consider his
assignments of error alleging that improper remarks were made by
the prosecutor. Sheppard v. Commonwealth, 250 Va. 379, 394-95,
464 S.E.2d 131, 140-41 (1995), cert. denied, 517 U.S. 1110(1996); Breard v. Commonwealth, 248 Va. 68, 82, 445 S.E.2d 670,
679, cert. denied, 513 U.S. 971 (1994); Cheng v. Commonwealth,
240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990). A motion for a
28
mistrial is untimely and is properly refused when it is made
after the jury has retired from the courtroom. Breard, 248 Va.
at 82, 445 S.E.2d at 679; Cheng, 240 Va. at 39, 393 S.E.2d at
606.
Schmitt also asserts that the trial court erred in
"allowing" the prosecutor to argue, in support of a death
sentence, that the jury should not "trust the system that can be
so easily manipulated by the defendant." However, we do not
reach the merits of this argument because Schmitt failed to
object to the argument at the time it was made. Rule 5:25.
Also, since Schmitt did not request a mistrial based on this
remark, we do not consider his argument that the trial court
erred in failing to grant a mistrial on this ground. Rule 5:25.
Schmitt next argues that the trial court erred in allowing
the Commonwealth to present evidence regarding the "vileness"
statutory aggravator, and in allowing the jury to consider this
factor. Schmitt contends that the evidence of "vileness" was
insufficient as a matter of law, and that although the jury did
not render its sentence of death based on the "vileness"
predicate, the arguments concerning "vileness" were prejudicial
to the jury's consideration of his "future dangerousness." We
disagree with Schmitt's arguments.
A finding of "future dangerousness" rests upon different
considerations than a finding of "vileness." We will presume
29
that a jury has followed the trial court's instructions setting
forth the separate considerations for determining each
aggravating factor unless the record clearly shows that the jury
disregarded these instructions. See Beavers, 245 Va. at 280,
427 S.E.2d at 420; Spencer, 240 Va. at 95, 393 S.E.2d at 619.
Here, the jury rejected a finding of "vileness" and based
Schmitt's sentence of death solely on the "future dangerousness"
predicate. Schmitt has pointed to nothing in the record
suggesting that the jury failed to follow the trial court's
instructions, and the jury's rejection of the "vileness"
predicate indicates that it considered this aggravating factor
separately as the law requires.
We next consider Schmitt's argument that the evidence is
insufficient to support the jury's finding of "future
dangerousness." Schmitt contends that neither his prior
criminal record nor that record combined with evidence of his
unadjudicated conduct was sufficient to support such a finding.
He asserts that this fact "is particularly true" given that his
"society" for the rest of his life would be a "close custody"
prison. We disagree with Schmitt's arguments.
Under Code § 19.2-264.2, the death penalty may not be
imposed unless the trier of fact finds one or both of the two
aggravating factors that we have referred to as "vileness" and
"future dangerousness." Lovitt, 260 Va. at 516, 537 S.E.2d at
30
878; Roach v. Commonwealth, 251 Va. 324, 347, 468 S.E.2d 98,
111-12, cert. denied, 519 U.S. 951 (1996). In the present case,
the jury found "future dangerousness," meaning "there is a
probability that [Schmitt] would commit criminal acts of
violence that would constitute a continuing serious threat to
society." Code § 19.2-264.2.
We have held that the facts and circumstances surrounding a
capital murder may be sufficient, standing alone, to support a
finding of "future dangerousness." See Lovitt, 260 Va. at 516,
537 S.E.2d at 878; Roach, 251 Va. at 348, 468 S.E.2d. at 112;
Murphy v. Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 53,
cert. denied, 510 U.S. 928 (1993). Here, Schmitt murdered
Dunning, an innocent security guard, to facilitate a robbery and
to avoid being apprehended at the robbery scene. The jury was
entitled to find that this violent, premeditated action was
strong evidence that Schmitt is a dangerous person who would
commit future criminal acts of violence.
The jury also was entitled to consider Schmitt's criminal
record. As we have stated, this record includes two convictions
of possession of marijuana with the intent to distribute,
possession of a firearm by a convicted felon, and receiving
stolen property. After being released from confinement in 1997,
Schmitt was placed on probation. Based on his failure to comply
with drug testing requirements and to report to his probation
31
officer, Schmitt was charged with violating his probation and
failed to appear in court to answer those charges. Further,
during the time leading up to the present offenses, Schmitt had
been "working" as a drug dealer.
Significantly, the jury also was allowed to consider the
fact that Schmitt had committed another armed robbery less than
one month prior to the present offense. This evidence, in
addition to evidence of the present crimes, demonstrated that
Schmitt did not refrain from violent criminal behavior, even
after having experienced incarceration and having received the
benefit of probation supervision.
We find no merit in Schmitt's argument that the evidence of
his "future dangerousness" was insufficient because his
"society," after receiving a sentence of life imprisonment for
capital murder, would have been a "close custody" prison. Code
§ 19.2-264 does not limit the jury's consideration to a type of
"prison society," and we will not rewrite the statute to
restrict its scope in that manner. Lovitt, 260 Va. at 517, 537
S.E.2d at 879. Therefore, we conclude that the evidence of the
present offenses and of Schmitt's prior criminal behavior is
sufficient to support the jury's finding of "future
dangerousness."
We next consider Schmitt's argument that the trial court
erred in refusing to instruct the jury on certain "facts" in
32
alleged mitigation of the present offenses. Those "facts"
included a statement that the capital murder was committed while
Schmitt was under the influence of controlled substances, that
Schmitt had shown remorse for his actions, and that a term of
life imprisonment would be served without parole.
We conclude that the trial court properly refused Schmitt's
proposed instruction. Since the trial court separately
instructed the jury that imprisonment for life in this case
excluded the possibility of parole, the portion of the disputed
instruction that also contained this information was
repetitious. See Burns, 261 Va. at 343, 541 S.E.2d at 895; Gray
v. Commonwealth, 233 Va. 313, 351, 356 S.E.2d 157, 178, cert.
denied, 484 U.S. 873 (1987). The remainder of the disputed
instruction was properly refused because a defendant who has
been convicted of capital murder is not entitled to a jury
instruction that emphasizes any particular mitigating factors.
Burns, 261 Va. at 343, 541 S.E.2d at 895; George v.
Commonwealth, 242 Va. 264, 283, 411 S.E.2d 12, 23 (1991), cert.
denied, 503 U.S. 973 (1992).
X. SENTENCE REVIEW
Passion and Prejudice
Under Code § 17.1-313(C), we review the death sentence
imposed on Schmitt to determine whether it (1) was imposed under
the influence of passion, prejudice, or any other arbitrary
33
factor; or (2) is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant. Schmitt argues that the sentence was based on
passion, prejudice, and arbitrariness because the Commonwealth
improperly was permitted to argue that Schmitt's crime satisfied
the "vileness" aggravating factor in the absence of a sound
legal basis for making that argument. Schmitt also asserts that
no evidence was presented of any prior violent conduct on his
part that resulted in harm to any person, or of him having
caused "the slightest difficulty" during his previous
incarcerations.
In addition, Schmitt contends that the jurors' passions
were improperly inflamed by evidence of his tape-recorded
conversation with Clifford Sauer and by the testimony of
Dunning's family. Schmitt also argues that the prosecutor
engaged in an intentional effort during closing argument to
raise the jurors' passions by making improper comments to
encourage them to vote for the death penalty. We find no merit
in Schmitt's arguments.
First, the jury's rejection of the "vileness" aggravator
demonstrates that the death sentence was not affected by the
prosecutor's argument regarding "vileness." In addition, the
jury fixed sentences of 35 years each on the two charges of
robbery when it could have sentenced Schmitt to life
34
imprisonment for each charge. These sentencing decisions show
that the argument and evidence concerning the "vileness"
aggravator did not inflame the passions of the jury.
Second, since the "victim impact" testimony and Schmitt's
own tape-recorded conversation were properly received as
evidence in the penalty phase of the trial, the jury was
entitled to consider this evidence in making its sentencing
determination. Likewise, Schmitt's criminal record and his
conduct during prior periods of incarceration were also evidence
properly presented to the jury, which was permitted to accord
that evidence whatever weight it deemed proper.
We also conclude that the record fails to demonstrate that
the prosecutor's comments during closing argument resulted in a
death sentence that was imposed under the influence of passion,
prejudice, or any other arbitrary factor. Moreover, based on
our independent review of the record, we find no evidence that
any such impermissible factor was present or influenced the
jury's sentence.
Excessiveness and Proportionality
Schmitt argues that his sentence is excessive and
disproportionate to the penalty imposed in similar cases. He
asserts that only one capital murder defendant in Virginia, the
defendant in Roach, received the death penalty for a murder that
resulted from a single gunshot wound in the absence of torture
35
or other aggravating factor. Schmitt thus contends that juries
have not generally imposed the death penalty for crimes similar
to Schmitt's, but instead generally impose life imprisonment for
such offenses.
In conducting our proportionality review, we do not isolate
our consideration to any particular prior case, but must
determine whether "other sentencing bodies in this jurisdiction
generally impose the supreme penalty for comparable or similar
crimes, considering both the crime and the defendant." Lovitt,
260 Va. at 518, 537 S.E.2d at 880; Johnson v. Commonwealth, 259
Va. 654, 683, 529 S.E.2d 769, 786, cert. denied, ___ U.S. ___,
121 S.Ct. 432 (2000) (quoting Jenkins, 244 Va. at 461, 423
S.E.2d at 371). Thus, we reject Schmitt's invitation to focus
solely on the method in which the murder was accomplished in
this case, because to do so would ignore our statutory mandate
to conduct our review with full consideration of both the crime
and the defendant. See Code § 17.1-313(C)(2).
We have compared the record in the present case with the
records of other capital murder cases, including those in which
a sentence of life imprisonment was imposed. We also have
examined the records of all capital cases reviewed by this Court
pursuant to Code § 17.1-313(E). Since the jury imposed the
death sentence based on the "future dangerousness" predicate, we
36
give particular consideration to other capital murder cases in
which the death penalty was obtained under that predicate.
We observe that juries in this Commonwealth, with some
exceptions, generally have imposed the death sentence for
convictions of capital murder based on a finding of "future
dangerousness" in which the underlying qualifying crime was
robbery. See, e.g., Lovitt, 260 Va. 497, 537 S.E.2d 866; Orbe
v. Commonwealth, 258 Va. 390, 519 S.E.2d 808 (1999), cert.
denied, 529 U.S. 1113 (2000); Roach, 251 Va. 324, 468 S.E.2d 98;
Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, cert.
denied, 516 U.S. 889 (1995); Joseph v. Commonwealth, 249 Va. 78,
452 S.E.2d 862, cert. denied, 516 U.S. 876 (1995); Swann, 247
Va. 222, 441 S.E.2d 195; Chichester v. Commonwealth, 248 Va.
311, 448 S.E.2d 638 (1994), cert. denied, 513 U.S. 1166 (1995);
Dubois v. Commonwealth, 246 Va. 260, 435 S.E.2d 636 (1993),
cert. denied, 511 U.S. 1012 (1994); Yeatts, 242 Va. 121, 410
S.E.2d 254; Savino v. Commonwealth, 239 Va. 534, 391 S.E.2d 276,
cert. denied, 498 U.S. 882 (1990); Mackall v. Commonwealth, 236
Va. 240, 372 S.E.2d 759 (1988), cert. denied, 492 U.S. 925(1989); Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650(1987), cert. denied, 485 U.S. 971 (1988). Based on this
review, we hold that Schmitt's death sentence is neither
excessive nor disproportionate to penalties imposed by other
37
sentencing bodies in the Commonwealth for comparable crimes,
considering both the crime and the defendant.
IX. CONCLUSION
We find no reversible error in the judgments of the trial
court. Having reviewed Schmitt's death sentence pursuant to
Code § 17.1-313, we decline to commute the sentence of death.
Accordingly, we will affirm the trial court's judgments.
Record No. 003010 — Affirmed.
Record No. 010007 — Affirmed.
38