Timothy Purcell Clark v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
TIMOTHY PURCELL CLARK
v. Record No. 0306-95-1 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA JANUARY 30, 1996
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
John D. Gray, Judge
James S. Ellenson for appellant.
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Timothy Clark was convicted by a jury of murder during the
commission of an attempted robbery, attempted robbery, and
related firearms offenses. He appeals his convictions on three
grounds: (1) that the Commonwealth impermissibly charged and
tried him for capital murder when he was under the age of sixteen
at the time of the offense; (2) that his confession was
improperly admitted; and (3) that the trial court improperly
restricted the scope of his opening remarks regarding the
confession. After reviewing the record, we find no error and
affirm the convictions.
On June 30, 1994, eighteen days before Clark's sixteenth
birthday, Clark and some companions stopped two other youths on
the street. Clark pointed a gun towards the boys and ordered
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
them to empty their pockets. When one of the boys showed Clark
he had no pockets, Clark hit him in the head with the gun. The
gun went off and the boy died twelve hours later from the
resulting head wound.
The police arrested Clark on July 9 in the middle of the
afternoon. He was held in an interview room until his parents
arrived and was then advised of his Miranda rights. Clark signed
a form indicating his understanding of his rights, and his
parents signed as witnesses. Clark then made out a written
statement of the events.
At trial, Clark's counsel attempted to argue to the
voluntariness of the confession in his opening remarks. The
judge ruled that counsel could not argue the validity of the
confession in his opening statement, but that he could argue as
to the weight in closing.
Clark first argues that he cannot be charged with a capital
crime because he was under the age of sixteen at the time of the
offense. Execution of a defendant less than sixteen years of age
violates the Eighth Amendment to the United States Constitution.
Thompson v. Oklahoma, 487 U.S. 815 (1988). No statutory or
constitutional prohibitions exist on merely charging a minor with
a capital crime when the death penalty is not being sought by the
Commonwealth. As expressly authorized by statute, Clark's
offense was such that the General Assembly has determined that he
could be treated as an adult in this case. Code § 16.1-269.1(B);
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Novak v. Commonwealth, 20 Va. App. 373, 383, 457 S.E.2d 402, 407
(1995). No error was committed in charging Clark with capital
murder.
Clark also contends that the trial court erred in
determining that his confession was voluntarily given. The
evidence viewed as a whole, including the environment of the
confession, the presence of his parents, and the signed waiver of
rights, demonstrates that the statement was voluntary. Admission
of the statement was not error.
Nor was it error to limit the defense's scope in opening
remarks. A trial court does not abuse its discretion in ruling
that counsel may not use opening statements for argument. See
Spencer v. Commonwealth, 238 Va. 295, 311-12, 384 S.E.2d 785,
795-96 (1989), cert. denied, 493 U.S. 1093 (1990). Defense was
given the opportunity, and used it, to argue to the weight of the
confession in closing.
For the foregoing reasons, we find no error. The
convictions are affirmed.
Affirmed.
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