PAYNE v. COMMONWEALTH OF VA
January 8, 1999
Record No. 980559
ERIC CHRISTOPHER PAYNE
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
PRESENT: Carrico, C.J., Compton, Hassell, Keenan,
Koontz, and Kinser, JJ., and Stephenson, Senior Justice
OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON,
Record No. 980879
ERIC CHRISTOPHER PAYNE
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H.C. Taylor, Judge
Eric Christopher Payne received two death
sentences in each of these appeals. Although Payne has waived his
appeals of right, former Code Sect. 17-110.1 (now Code
Sect. 17.1-313) mandates that we review the death sentences
nonetheless. In this review, we consider and determine whether
the sentences were imposed "under the influence of passion,
prejudice or any other arbitrary factor" and whether the
sentences are "excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant." Former Code Sect. 17-110.1(C).
The Fazio Case
Payne was charged with the capital murder of
Sally Marie Fazio in the commission of robbery, in violation of
Code Sect. 18.2-31(4), and with the capital murder of Fazio
in the commission of rape, in violation of Code
Sect. 18.2-31(5) (the Fazio case). In the first phase
of a bifurcated trial, the jury found Payne guilty of both
capital murders. At the penalty phase of the trial, after hearing
evidence of Payne’s prior criminal history, the jury found the
"future dangerousness" predicate and the
"vileness" predicate to be present and unanimously
fixed Payne’s punishment at death for each of the two capital
murder convictions. Code Sect. 19.2-264.2. After considering
a probation officer’s report and conducting a sentencing hearing,
the trial court sentenced Payne in accord with the jury verdicts.
Payne filed a notice of appeal, but
subsequently requested permission to waive his appeal of right.
We directed the trial court to conduct an evidentiary hearing to
determine whether Payne’s decision to waive his appeal was made
knowingly, voluntarily, and intelligently. The trial court
conducted such a hearing and found that Payne’s waiver was made
knowingly, voluntarily, and intelligently, and we conclude that
the record supports that finding.
The evidence in the Fazio case is
undisputed. On the evening of June 11, 1997, Payne saw Fazio
outside her residence in the City of Richmond, caring for her
sick dog. When Fazio entered her house, Payne put a 22-ounce
hammer in his pants, went to Fazio’s front door, and asked to use
the telephone. Fazio permitted Payne to use a portable telephone
outside her house, and, after feigning a telephone call, Payne
returned the telephone. As he handed the telephone to Fazio,
Payne forced his way into Fazio’s house and struck her in the
head with the hammer, knocking her down.
Fazio briefly struggled with Payne and then
attempted to flee down a hallway to her bedroom. As she fled, she
threw a chair behind her, attempting to block Payne. Fazio tried
to close the bedroom door, but Payne forced his way into the
room. Fazio pleaded for her life and offered to write a check to
Payne told Fazio that, if she removed her
clothes, he would not hurt her. Fazio removed her clothes, and
Payne raped her. During the attack, Payne repeatedly struck Fazio with
Thereafter, Payne took money from Fazio’s
pocketbook and ransacked her house looking for more money and
guns. He then removed his bloodstained clothing and dressed in
sweatpants and a T-shirt belonging to Fazio. He left the
bloodstained clothing in Fazio’s house.
As Payne was preparing to leave the house, he
noticed that Fazio was still breathing, so he hit her with the
hammer several times in the head. Fazio continued breathing, so
Payne "hit her maybe ten, twelve times in the chest."
Payne wrapped the hammer in a towel and
subsequently threw the hammer out of his car window. Later that
night, Payne disposed of the clothing he had taken from Fazio’s
home in a dumpster at a public high school.
The police recovered the hammer, and forensic
evidence established that the hammer contained traces of blood
consistent with Fazio’s blood type. Semen stains from a bedspread
and clothing found at the crime scene were consistent with
Payne’s blood type and DNA profile.
The medical examiner’s autopsy revealed that
Fazio had died from blunt force trauma to the head, the result of
multiple blows that had caused fractures, contusions,
hemorrhaging, and edema. Fazio also had sustained multiple bone
fractures and contusions to her chest and a fractured right
In the penalty phase of the trial, the
Commonwealth presented evidence of Payne’s prior criminal
history. This included the attempted rape and murder of Ruth
Parham on June 5, 1997. The Commonwealth also presented evidence
of an assault by Payne on Ridley Fleck and her eight-year-old
son, W. Dean Fleck. This attack also occurred on June 11, 1997,
shortly before Payne murdered Fazio. Payne attacked the Flecks
with a hammer, and he told the police that he attacked them
because he wanted to incapacitate Ms. Fleck and take her
elsewhere to rape her. Payne, however, was forced to leave the
scene because Dean Fleck was screaming and fighting. The Flecks
both suffered skull fractures in the attack.
We first consider whether the death sentences
in the Fazio case were imposed "under the influence
of passion, prejudice or any other arbitrary factor." Former
Code Sect. 17-110.1(C)(1). Payne contends that a videotape
of the crime scene and autopsy and crime scene photographs,
presented during the guilt phase of the trial, were unduly
graphic and were shown to inflame the passions of the jury. He
further contends that a crime scene videotape related to his
earlier attempted rape and murder of Ruth Parham, presented
during the penalty phase of the trial, also was unduly graphic.
We consistently have held that the admission of
photographs into evidence rests within the sound discretion of a
trial court, and the court’s decision will not be disturbed on
appeal unless the record discloses a clear abuse of discretion. Walton
v. Commonwealth, 256 Va. 85, 91-92, 501 S.E.2d 134,
138 (1998); Goins v. Commonwealth, 251 Va. 442,
459, 470 S.E.2d 114, 126, cert. denied, 519 U.S.
887 (1996); Washington v. Commonwealth, 228 Va.
535, 551, 323 S.E.2d 577, 588 (1984), cert. denied,
471 U.S. 1111 (1985). Photographs of a victim are admissible to
prove motive, intent, malice, premeditation, method, and the
degree of atrociousness of the crime. Walton, 256 Va. at
92, 501 S.E.2d at 138; Goins, 251 Va. at 459, 470 S.E.2d
at 126. Photographs that accurately portray the crime scene are
not rendered inadmissible simply because they are gruesome or
shocking. Walton, 256 Va. at 92, 501 S.E.2d at 138; Gray
v. Commonwealth, 233 Va. 313, 343, 356 S.E.2d 157, 173, cert.
denied, 484 U.S. 873 (1987); Washington, 228 Va. at
551, 323 S.E.2d at 588. Likewise, videotapes that accurately
depict a crime scene are admissible to show motive, intent,
method, malice, premeditation, and the atrociousness of the
crime, even if photographs of the crime scene also have been
admitted into evidence. Stewart v. Commonwealth,
245 Va. 222, 235, 427 S.E.2d 394, 403, cert. denied,
510 U.S. 848 (1993).
We have examined the videotapes of the Fazio
crime scene and the Parham crime scene, the photographs of the
Fazio crime scene, and the Fazio autopsy photographs. While the
photographs and videotapes are shocking and gruesome, they
accurately depict the crime scenes and the conditions of the
victims and are relevant to show motive, intent, method, malice,
premeditation, and the atrociousness of the crimes. They also are
relevant to show the likelihood of Payne’s future dangerousness.
Therefore, we cannot say that the trial court abused its
discretion in admitting this evidence, and we reject Payne’s
contention that the evidence was so graphic as to unduly
influence the emotions of the jury.
Payne also contends that evidence about Dean
Fleck’s injuries and the Commonwealth’s Attorney’s references to
the child’s bravery in identifying Payne and, thereby, assisting
in Payne’s capture were intended to inflame the passions of the
jury. This evidence was presented in the penalty phase of the
trial and was relevant to show Payne’s future dangerousness.
Furthermore, the Commonwealth’s Attorney’s remarks were accurate
and based upon the evidence.
Upon our review of the entire record in the Fazio
case, having considered the contentions advanced by Payne, we
conclude that the death sentences were not imposed under the
influence of passion, prejudice, or any other arbitrary factor.
We next consider whether the death sentences in
the Fazio case are "excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime
and the defendant." Former Code Sect. 17-110.1(C)(2).
Pursuant to former Code Sect. 17-110.1(E), we have
accumulated and reviewed the records in all capital murder cases
decided by this Court, including both cases in which the death
sentence was imposed and cases in which life imprisonment was
imposed. From these cases, we determine whether "juries in
this jurisdiction generally approve the supreme penalty for
comparable or similar crimes." Stamper v. Commonwealth,
220 Va. 260, 284, 257 S.E.2d 808, 824 (1979), cert. denied,
445 U.S. 972 (1980). In making this review, we have given
particular attention to those cases in which the death sentence
was based upon both the "vileness" and the "future
dangerousness" predicates. From this review, we conclude
that Payne’s sentences were neither excessive nor
disproportionate to penalties generally imposed by other
sentencing bodies in the Commonwealth for similar or comparable
crimes. See, e.g., Barnabei v. Commonwealth,
252 Va. 161, 179-80, 477 S.E.2d 270, 281 (1996), cert. denied,
520 U.S. 1224 (1997); Breard v. Commonwealth, 248
Va. 68, 89, 445 S.E.2d 670, 682, cert. denied, 513
U.S. 971 (1994); Satcher v. Commonwealth, 244 Va.
220, 261, 421 S.E.2d 821, 845-46 (1992), cert. denied,
507 U.S. 933 (1993); Spencer v. Commonwealth, 238
Va. 295, 318-20, 384 S.E.2d 785, 799-800 (1989), cert. denied,
493 U.S. 1093 (1990).
The Parham Case
Payne pleaded guilty to the capital murder of
Ruth Parham while in the commission of or subsequent to object
sexual penetration and to the capital murder of Parham while in
the commission of or subsequent to attempted rape, both in
violation of Code Sect. 18.2-31(5) (the Parham case).
The trial court accepted Payne’s voluntary pleas and found him
guilty of both capital murders.
In a separate sentencing proceeding, the court
found that the evidence established beyond a reasonable doubt
both aggravating factors; i.e., "vileness" and
"future dangerousness." The court imposed the death
penalty for each offense.
Payne filed a motion to waive his appeal of
right, and we remanded the case to the trial court for a
determination whether the waiver was made knowingly, voluntarily,
and intelligently. Payne was examined, at his request, by a
psychologist and was found to be competent to waive his appeal.
Thereafter, the trial court conducted a hearing and determined
that Payne’s waiver was made knowingly, voluntarily, and
intelligently, and we conclude that the record supports that
Although Payne waived his appeal of right, we
must review the death sentences nonetheless. Former Code
Sect. 17-110.1 (now Code Sect. 17.1-313). As previously
noted, this mandatory review directs this Court to consider and
determine whether the sentences were "imposed under the
influence of passion, prejudice or any other arbitrary
factor" and whether the sentences are "excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." Former Code
The evidence in the Parham case is
undisputed. On June 5, 1997, Payne saw Parham enter an office
building in Hanover County. Payne concealed a large hammer inside
his pants and entered the building. He found Parham, a
61-year-old woman who cleaned the offices, in a lunchroom. Payne
asked Parham if he could use the telephone, and she consented.
Parham had turned her back on Payne and had
taken about three steps when Payne hit her in the back of her
head with the hammer. Parham fell facedown, and Payne began to
rip off her clothes. Payne fondled Parham’s breast and inserted
his finger into her vagina. During the attack, Payne repeatedly
struck Parham’s head with the hammer.
Parham sustained four depressed skull
fractures, each of which was potentially fatal, and she also
sustained a fractured nose and numerous facial and skull bruises
and lacerations. Parham’s left hand had on it traces of her blood
and strands of her hair, indicating that she was alive during the
bludgeoning, and her brain was extruding through one of her skull
After the murder, Payne removed his shirt and
used it to wipe doorknobs and other items he may have touched in
the room. He then went throughout the building looking for
another female victim before leaving. Payne had decided not to
rape Parham because "she did not appeal to him."
In the sentencing proceeding, the trial court
received evidence about Payne’s prior criminal history. Less than
five months before Payne murdered Parham, he had been released on
parole after serving approximately five years in prison for drug
possession. Payne told the police that, during the entire time he
had been in prison, he had thought about raping and killing a
woman. The trial court heard about Payne’s attack upon Fleck and
her young son and Payne’s murder of Fazio, details of which are
more fully set forth in Part I, B hereof.
We first consider and determine whether the
death sentences in the Parham case were imposed
"under the influence of passion, prejudice or any other
arbitrary factor." Former Code Sect. 17-110.1(C)(1).
Payne contends that the Commonwealth’s Attorney made improper
remarks in the sentencing proceeding. Payne complains that the
prosecutor used the evidence of the Fazio and Fleck crimes to
justify the death penalty. He specifically complains about the
prosecutor’s referring to Payne as a "predator" and a
"monster" and showing photographs of the victims to the
court during the argument. Payne asserts that the prosecutor’s
argument "had the desired effect on the court" because
the court "described [him] as a mad dog who should be put in
a gunny sack with some bricks and dropped off a bridge."
Payne opines that this language by the court "is ample
evidence that the sentence of death was imposed under the
influence of passion and prejudice." We do not agree. When
all of the trial court’s remarks are read, it is apparent that,
before imposing the death sentences, the court considered not
only Payne’s criminal history, but also his evidence in
With respect to the prosecutor’s argument, we
conclude that it constituted fair comment upon properly admitted
evidence. The Commonwealth had the burden of proving beyond a
reasonable doubt that "there is a probability based upon
evidence of the prior history of the defendant
. . . that he would commit criminal acts of violence
that would constitute a continuing serious threat to
society." Code Sect. 19.2-264.4(C) (emphasis added).
Therefore, evidence of Payne’s other crimes was admissible. See
Gray v. Commonwealth, 233 Va. 313, 346-47, 356
S.E.2d 157, 175-76, cert. denied, 484 U.S. 873
(1987); Pruett v. Commonwealth, 232 Va. 266,
283-85, 351 S.E.2d 1, 11-12 (1986), cert. denied,
482 U.S. 931 (1987).
Having considered the entire record, we
determine that the death sentences imposed upon Payne were not
the product of passion, prejudice, or any other arbitrary factor.
Payne makes no argument that his death
sentences are excessive or disproportionate. He assumes that we
will consider all capital murder cases reviewed by this Court,
and we have done so. Suffice it to say, the evidence, including
that of the crimes themselves and Payne’s criminal history, is
gruesome and shocking, and, when this case is compared to other
attempted rape and/or robbery capital murder cases, we conclude
that the sentences were neither excessive nor disproportionate. See,
e.g., Walton v. Commonwealth, 256 Va. 85,
96, 501 S.E.2d 134, 140-41 (1998); Jackson v. Commonwealth,
255 Va. 625, 499 S.E.2d 538 (1998); Breard v. Commonwealth,
248 Va. 68, 89, 445 S.E.2d 670, 682, cert. denied,
513 U.S. 971 (1994); Satcher v. Commonwealth, 244
Va. 220, 261, 421 S.E.2d 821, 845-46 (1992), cert. denied,
507 U.S. 933 (1993).
The final issue we consider is common to both
the Fazio and the Parham cases; that is, whether
there can be more than one death sentence imposed when there is
only one victim.  Stated
another way, we must determine whether the imposition of multiple
death sentences violates the provision of the Fifth Amendment of
the Federal Constitution which states that no person "shall
. . . for the same offense . . . be twice put
in jeopardy of life or limb." This constitutional provision
guarantees protection against (1) a second prosecution for the
same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple punishments for
the same offense. Illinois v. Vitale, 447 U.S. 410,
415 (1980); North Carolina v. Pearce, 395 U.S. 711,
717 (1969); Blythe v. Commonwealth, 222 Va. 722,
725, 284 S.E.2d 796, 797 (1981).
When multiple convictions occur in a single
trial, only the third guarantee; i.e., against multiple
punishments for the same offense, is pertinent to a double
jeopardy inquiry. Blythe, 222 Va. at 725, 284 S.E.2d at
797-98; Turner v. Commonwealth, 221 Va. 513, 529,
273 S.E.2d 36, 46-47 (1980), cert. denied, 451 U.S.
1011 (1981). In the single-trial setting, "the role of the
constitutional guarantee is limited to assuring that the court
does not exceed its legislative authorization by imposing
multiple punishments for the same offense." Brown v. Ohio,
432 U.S. 161, 165 (1977). Thus, resolution of the question
whether punishments imposed by a court are unconstitutionally
multiple requires a determination of what punishments the
legislature has authorized. Whalen v. United States,
445 U.S. 684, 688 (1980).
In determining what punishments the General
Assembly has authorized, we first look to the capital murder
statute, Code Sect. 18.2-31. That statute provides, in
pertinent part, as follows:
The following offenses shall
constitute capital murder, punishable as a Class 1
. . . .
4. The willful, deliberate, and
premeditated killing of any person in the commission of
robbery or attempted robbery;
5. The willful, deliberate, and
premeditated killing of any person in the commission of, or
subsequent to, rape or attempted rape, . . . or
object sexual penetration.
(Emphasis added.) Clearly, the language in Code
Sect. 18.2-31 expresses the legislative intent that there
are multiple capital offenses.
Next, we look to the rule laid down in Blockburger
v. United States, 284 U.S. 299 (1932). In Blockburger,
the Supreme Court stated that, "where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires
proof of a fact which the other does not." Id. at
In the Fazio case, Payne, "in the
same act or transaction," violated "two distinct
statutory provisions;" i.e., the killing of Fazio in
the commission of robbery, in violation of Code
Sect. 18.2-31(4), and the killing of Fazio in the commission
of rape, in violation of Code Sect. 18.2-31(5). Each
statutory provision required proof of a fact that the other did
not. Therefore, the killing of Fazio constituted two capital
Likewise, in the Parham case, Payne,
"in the same act or transaction," violated "two
distinct statutory provisions" of subsection 5 of Code
Sect. 18.2-31; i.e., the killing of Parham in the
commission of attempted rape and the killing of Parham in the
commission of object sexual penetration. Again, each statutory
provision required proof of a fact that the other did not.
Therefore, the killing of Parham constituted two capital
Payne does not challenge the validity of his
multiple convictions. However, he suggests that one of his
sentences in each case should be vacated. We do not agree.
We think it is clear, as well as logical, that
the General Assembly intended for each statutory offense to be
punished separately "as a Class 1 felony."  It would be inappropriate for this Court, or the trial
court upon remand, to arbitrarily choose which one of the two
sentences should be vacated. Indeed, there would be no principled
basis for making such a choice. Nor do we think the Commonwealth
should be required to elect at trial or on appeal which offense
to have dismissed.
We hold, therefore, that each conviction was
for the violation of a distinct statutory provision for which a
separate statutory punishment was authorized. Consequently, the
convictions and sentences do not violate the constitutional
guarantee of protection against multiple punishments for the same
In sum, we determine that the death sentences
were not imposed under the influence of passion, prejudice, or
any other arbitrary factor and are not excessive or
disproportionate. We further determine that the convictions and
sentences do not violate the constitutional guarantee against
double jeopardy. Accordingly, we will affirm the judgments in
Record No. 980559 — Affirmed.
Record No. 980879 — Affirmed.
 Payne admitted penetrating Fazio’s vagina and
ejaculating on her.
 Although Payne did not pursue this
issue at trial and has waived his appeal of right in these cases,
we directed counsel to address the issue.
The authorized punishments for conviction of a Class 1
felony include death and life imprisonment. Code
JUSTICE KOONTZ, dissenting in part.
I respectfully dissent.
Today, for the first time, a majority of this
Court concludes that by enacting Code Sect. 18.2-31, our
General Assembly has authorized the imposition of more than one
death sentence for the capital murder of one victim. Indeed in
the present cases, the majority concludes that Eric Christopher
Payne is properly subject to the imposition of four death
sentences for the capital murder of only two victims. I cannot
join in such a patently strange result. Moreover, in my view,
such a result was not intended and, consequently, was not
authorized by our General Assembly in enacting Code
It is clear to me from our prior cases in which
this issue was implicated that we have not permitted more death
sentences to be imposed than there were victims. See Clagett
v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996), cert.
denied, 519 U.S. 1122 (1997)(vacating one sentence where
five death sentences were imposed for murder of four victims); Williams
v. Commonwealth, 248 Va. 528, 450 S.E.2d 365 (1994), cert.
denied, 515 U.S. 1161 (1995)(affirming five convictions of
capital murder of two victims, but only one death sentence
imposed for each victim); Wright v. Commonwealth, 245 Va.
177, 427 S.E.2d 379 (1993), remanded on other grounds, 512
U.S. 1217, aff’d., 248 Va. 485, 450 S.E.2d 361
(1994), cert. denied, 514 U.S. 1085
(1995)(defendant convicted of two counts of capital murder of one
victim, but sentenced to one death penalty for both convictions);
Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757
(1989), cert. denied, 493 U.S. 1063 (1990)(reducing
five death sentences to four where there were only four victims).
The majority correctly notes that the
constitutional guarantee against multiple punishments for the
same offense provided by the Fifth Amendment of the Federal
Constitution is limited to assuring in a single trial setting
that the court does not exceed its legislative authorization by
imposing multiple punishments for the same offense.
I agree with the majority that the resolution
of that issue in the present cases requires a determination of
the legislative intent underlying Code Sect. 18.2-31. I do
not agree, however, that the language of that statute evinces the
General Assembly’s intention that multiple punishments may
be imposed for the killing of one person where more than one
definition, or "offenses," of capital murder is found
to apply. See Gray v. State, 463 P.2d 897, 911
It is self-evident that there can be no more
than one killing of the same person. Accordingly, it necessarily
follows that the killing of one person in the commission of the
robbery and rape of that person is still but one killing.
Similarly, the killing of one person in the commission of the
rape and object sexual penetration of that person is still but
one killing. I have no difficulty in concluding the General
Assembly has always been well aware of these simplistic truths.
For that reason alone, I conclude that by enacting Code
Sect. 18.2-31, the General Assembly did not intend to
authorize more death sentences than there are victims killed as a
result of a defendant committing more than one of the enumerated
"offenses" that "constitute capital murder."
In short, more than one offense defined in Code
Sect. 18.2-31 may constitute the capital murder of a person
but there can only be one capital murder penalty for the murder
of that person.
The real difficulty presented in these appeals
is the appropriate remedy where two death sentences have been
imposed for the capital murder of each victim. I agree with the
majority that we should not "arbitrarily choose which one of
the two sentences should be vacated" in each case and that
"the Commonwealth should [not] be required to elect"
which offense to have dismissed. Rather, I would apply the
rationale of Wright and Williams and modify
Payne’s sentences to impose a single death sentence upon the
capital murder convictions for each victim. In doing so, the
patently strange and illogical result that would allow Payne to
be sentenced to the penalty of four death sentences for killing
two persons would be avoided.