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VINSON v. COMMONWEALTH



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VINSON

v.

COMMONWEALTH


November 5, 1999

Record Nos. 990612, 990613

DEXTER LEE VINSON

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF
PORTSMOUTH

Von L. Piersall, Jr., Judge

Present: All the Justices

OPINION BY JUSTICE A. CHRISTIAN COMPTON


On May 19, 1996, Angela Felton was brutally
murdered in the City of Portsmouth. Subsequently, during a 1998
eight-day trial, a jury convicted defendant Dexter Lee Vinson,
upon not guilty pleas, of the following offenses in connection
with the homicide: Capital murder in the commission of abduction
with intent to defile, in violation of Code ? 18.2-31(1);
object sexual penetration, in violation of Code
? 18.2-67.2(A); abduction with intent to defile, in
violation of Code ? 18.2-48; and carjacking, in violation
of Code ? 18.2-58.1.

The jury fixed defendant’s punishment at death
for the capital offense based upon the vileness and future
dangerousness predicates of the capital murder sentencing
statute. Code ? 19.2-264.4. Also, the jury fixed
defendant’s punishment at life imprisonment for each of the
noncapital convictions. Following a February 1999 post-trial
hearing, at which the trial court considered a probation
officer’s report, the court sentenced defendant in accord with
the jury’s verdicts.

The death sentence is before us for automatic
review under Code ? 17.1-313(A), see Rule 5:22, and
we have consolidated this review with defendant’s appeal of the
capital murder conviction. In addition, by order entered March
22, 1999, we certified from the Court of Appeals of Virginia to
this Court the record of defendant’s appeals of the noncapital
convictions (Record No. 990613). The effect of this certification
is to transfer jurisdiction over the noncapital appeals to this
Court for all purposes. Code ? 17.1-409(A). Those appeals
have been consolidated with the capital murder appeal (Record No.
990612).

As required by statute, we shall consider not
only the trial errors enumerated by defendant but also whether
the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor, and whether the
sentence is excessive or disproportionate to the penalty imposed
in similar cases. Code ? 17.1-313(C).

The facts are virtually undisputed. The
defendant, who did not testify at trial, now argues through his
attorneys that, although he was present at the scene of the
homicide, there are certain "inconsistencies" in the
prosecution’s evidence on the question whether he was the actual
perpetrator of the offenses. However, when there are
inconsistencies in this evidence, we shall construe the facts in
the light most favorable to the Commonwealth, as required by
settled rules of appellate procedure.

On May 19, the victim, age 25, and her three
children resided with Nethie Pierce and her children in
Portsmouth. The victim and her children previously had lived with
defendant, age 33, in Portsmouth for "about a year and a
half." At the time of the homicide, the unmarried couple had
been living apart about three weeks.

About 9:00 a.m. on the day in question, the
victim borrowed Pierce’s "1988 red Beretta" automobile
to take the victim’s children to school. "[I]n a hurry to
get the kids to school," the victim wore only a
"shift-type" robe and underwear. Pierce’s 14-year-old
daughter, Willisa Joyner, rode with the victim.

About 6:30 a.m. on the same day, Faye Wilson
was completing a weekend stay with defendant in a Suffolk motel.
Wilson owned a 1988 blue Mercury Tracer automobile, which she
allowed defendant to use that morning.

After the victim delivered her children to
school, she drove with Willisa to the home she had shared with
defendant in order to "get the mail." Upon arrival,
Willisa "got out of the car," at which time the victim
saw the defendant driving a blue automobile. Willisa reentered
the red vehicle when the victim said, "’get back in the
car.’" As the victim "started driving," the
defendant twice rammed the rear of the red car with the front of
the blue car.

The victim stopped the red car and the
defendant walked to the driver’s side window where the victim was
sitting. He then "punched" out the window. Next,
defendant "grabbed" the victim, hit her in the face and
chest with his hand, and "took her out of the car." The
defendant held the victim by the arm and, in the presence of
bystanders, "snatched" off her robe leaving her
standing in her "underclothes," screaming and bleeding
from her nose and mouth.

Next, defendant "took" the victim to
the blue car and "made her get in." When the blue car
"wouldn’t start up," defendant "put her" in
the red car "and they drove away." Police officers
arrived on the scene after defendant had abducted the victim;
they obtained a description of defendant and of the red car.

Shortly thereafter, Vertley Hunter noticed from
her home a red car, "wrecked in the back," that was
"pulled off the street and parked behind" a vacant
house in her neighborhood; boards were nailed over the windows of
the house. She observed a young "white female" and a
young "black man" sitting in the vehicle, with the
female sitting in the driver’s seat with "her hand outside
the window to duck off a cigarette that she was smoking."

According to Hunter, the man "got out on
the passenger side of the car and went to the back
. . . and got a piece of rope out." The man
"leaned back into the car" holding the rope. Hunter
heard the woman tell the man "to leave her alone so she
could go on with her life," and heard her "ask the Lord
to spare her life because he was going to kill her." At that
time, the man was "[c]hoking her with the rope."

Then, the man "grabbed her by the hair
from the back seat of the car and pulled her over the seat
. . . and he pulled the rope from around her neck at
the same time." He then "pulled her down in the
floor" and "told her that he was going to kill
her." While the woman was still inside the car, the man
"slammed the door on her head twice," according to
Hunter.

Next, Hunter saw the man kick dirt beside the
car to cover blood that was on the ground. He then pulled off
"a board" covering a window of the house, raised the
window, and climbed inside through the window. Hunter saw the man
enter the house twice and wipe blood from his person with a
towel.

Hunter watched the events for a period of
several hours until the man drove the red car into the woods
behind the house and left the area around 11:00 a.m. During her
testimony, Hunter identified defendant in open court as the man
she observed committing the acts she described.

Janice Green, who also lived near the vacant
house, testified that during the morning of May 19, she observed
a man "messing around" with a red car in the yard
behind the house. She saw the man pull "boards off the
house" and enter the home twice. The second time, the man
"was dragging" into the house from the car
"something heavy"; she "thought it was a rug he
was pulling." Green also identified defendant in open court
as the man she observed at the vacant house.

On May 20, 1997, Portsmouth detective Jan
Westerbeck went to the vacant house and discovered the victim’s
body inside a recently "busted wall" in one of the
bedrooms. The body was nude and partially covered with a brown
blanket; feces were found on and under her neck.

Forensic evidence connected defendant with the
crimes. His fingerprints were found on the abandoned red car, on
the kitchen sink of the vacant house, and on a pane of glass from
the house’s kitchen window. Also, the victim’s DNA was matched to
a blood stain found on a pair of blue shorts belonging to
defendant. According to the witness Hunter, defendant was wearing
a "sky blue short set" when she observed him. An expert
placed the odds of the DNA on defendant’s shorts being that of
someone other than the victim at one in 5.5 billion.

An autopsy performed on the victim’s body
showed that she bled to death from deep cuts to both forearms,
either of which would have been sufficient to cause death. The
cut to the right forearm was two inches deep and severed two main
arteries; the left forearm bore a similar wound that cut one
artery. The victim did not die instantaneously; it "probably
would have taken her a few minutes, several minutes to die,"
according to the medical examiner.

The victim sustained numerous other injuries.
For example, there were additional knife wounds on her shoulders,
neck, and cheek. There were scratches on her buttocks and cuts on
her torso and on one of her legs. She suffered "blunt force
trauma" to her head.

Additionally, she sustained significant vaginal
injuries inflicted while she was alive. She sustained a
laceration of her inner vaginal lip, massive bruising over her
vulva area, and a "massive laceration," which tore the
tissue separating the vagina from the anus and which tore around
her anal opening. In the medical examiner’s opinion, the vaginal
injuries were not caused by an erect penis; the inner damage that
was done in the vaginal area "would have been done by an
object being penetrated in Miss Felton."

During the penalty phase of the trial, to prove
defendant’s future dangerousness, the prosecution presented
evidence that defendant had assaulted a police officer in 1987
who was attempting to arrest him; had assaulted a correctional
officer in 1988 who was attempting to move him to a cell; and had
resisted arrest in 1997 near a Suffolk convenience store so
violently that it took eight police officers to subdue him.
Additionally, the Commonwealth presented evidence that defendant
previously had been convicted of receiving stolen goods,
attempted statutory burglary, and two offenses of hit and run
with personal injury.

In mitigation, defendant presented testimony
from his 1982 high school band teacher, his mother, his
step-father, his supervisor in the construction work that he
performed, and a minister. Defendant was described as a
"mentor" to a blind student in the band, as one who was
"loved" by the victim’s "kids," and as a
person who would "do anything for anybody at work."

Defendant also presented the testimony of two
mental health experts, both of whom concluded that defendant
suffers from "intermittent explosive disorder" and that
he was unable to conform his conduct to the requirements of law
at the time of the crimes because of this disorder.

In rebuttal, the Commonwealth presented
testimony of another mental health expert who, while agreeing
that defendant had "the characteristics" of
intermittent explosive disorder, said that "almost all
violent criminals" fit that category of illness. This
expert, Dr. Paul Mansheim, expressed the opinion "that there
is at least a fifty percent chance" that defendant would
commit "another violent offense in the next five
years."

On appeal, defendant contends that Virginia’s
capital murder statutes are unconstitutional. Every ground of
alleged unconstitutionality relied upon by defendant has been
previously resolved by this Court adversely to his present
contentions, and he has advanced no persuasive reason warranting
a departure from our prior decisions. Thus, his contentions are
rejected.

Some of defendant’s assignments of error are
procedurally defaulted for lack of proper objection in the trial
court. We will not consider for the first time on appeal
nonjurisdictional issues not raised below. Rule 5:25.

Issues falling in this category are: The trial
court erred in allowing opinion evidence upon the question
whether the victim was the subject of object penetration; the
trial court erred in allowing Dr. Mansheim’s opinion that there
was a fifty percent chance defendant would commit another violent
offense within five years; and, the trial court erred by allowing
use of a penalty verdict form that allegedly violated the state
and federal constitutions.

The remaining issues raised by defendant
generally relate to a pretrial matter, jury selection, several
evidentiary questions, and sufficiency of the evidence of guilt.

First, defendant contends the trial court erred
in not "granting Vinson a DNA expert." There is no
merit to this contention.

Prior to trial, defendant requested appointment
by the court of an independent DNA expert. At a hearing on the
motion, defendant acknowledged he could locate no such expert,
and the court continued the matter until the next day to allow
defendant additional time to search for such an expert, after
noting defendant’s "request is somewhat vague." The
next day, defendant reported to the court that he had been
unsuccessful in his search, and the trial court denied the
motion.

The trial court was correct. Implicit in the
court’s ruling was the finding that defendant failed to
demonstrate the required showing of need for appointment of such
an expert. See Husske v. Commonwealth, 252 Va. 203,
211-12, 476 S.E.2d 920, 925 (1996), cert. denied,
519 U.S. 1154 (1997) (indigent defendant seeking appointment of
expert witness must demonstrate that subject necessitating expert
assistance likely will be significant factor in defense and that
defendant will be prejudiced by lack of expert assistance).
Moreover, defendant had ample opportunity to locate an expert
and, under these circumstances, there was no duty on the trial
court to search independently for an expert witness for the
defendant.

Next, defendant contends the trial court abused
its discretion during voir dire in seating certain prospective
jurors and dismissing others. We disagree.

Upon appellate review, this Court gives
deference to the trial court’s decision whether to retain or
exclude prospective jurors. This is because the trial judge has
observed and heard each member of the venire and is in a superior
position to evaluate whether the juror’s responses during voir
dire develop anything that would prevent or substantially impair
the juror’s performance of duty as a juror in accord with the
court’s instructions and the juror’s oath. Stewart v.
Commonwealth
, 245 Va. 222, 234, 427 S.E.2d 394, 402, cert.
denied, 510 U.S. 848 (1993); Eaton v. Commonwealth,
240 Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied,
502 U.S. 824 (1991). A trial court’s decision on this issue will
be affirmed absent a showing of manifest error. Id. And, a
juror’s entire voir dire, not isolated portions, must be
considered to determine a juror’s impartiality. Mackall v.
Commonwealth
, 236 Va. 240, 252, 372 S.E.2d 759, 767 (1988), cert.
denied, 492 U.S. 925 (1989).

Juror Clanton was properly stricken for cause.
She stated unequivocally that if faced with the alternative of
sentencing defendant to life imprisonment without parole, she
would not even consider imposing the death penalty. The trial
court’s decision to exclude Clanton is supported by the record.
Her views on imposition of the death penalty would substantially
impair her ability to follow the court’s instructions.

Likewise, and for the foregoing reason, we hold
that the trial court did not err in striking Jurors Dickens,
Nicholson, Scott, Warren, and Terrell. All of those jurors
indicated they could not impose the death penalty.

Furthermore, we conclude the trial court did
not abuse its discretion by refusing to exclude jurors Richardson
and Metcalfe. Although Richardson initially said during voir dire
that he "probably would" automatically impose the death
penalty upon a finding of guilt of capital murder, he later
stated that he would follow the court’s instructions and consider
the sentencing options of both life or death. Examining
Richardson’s entire voir dire, we cannot say the trial court
erred in seating him as a juror.

Metcalfe stated she could fairly and
impartially decide the case. Near the end of her individual voir
dire, however, she expressed some "hesitation" about
serving on a capital murder jury, noting a concern for her
"personal safety." In deciding to seat Metcalfe, the
trial judge said "there’s nothing in her statements that
would indicate she could not . . . be fair. Her
demeanor was that of a pretty self-assured person." The
trial court ruled properly in seating her.

Next, defendant contends the trial court erred
in admitting in evidence a statement he made in Suffolk to a
Portsmouth detective when he was arrested by Suffolk police,
accompanied by the Portsmouth detective, on May 20, the day after
commission of the crimes. During the first day of trial,
defendant moved to suppress the statement, and presented evidence
on the motion. He argued "he was arrested for no
reason" because "there was no warrant on file" in
Suffolk for his arrest.

The evidence showed there were outstanding
misdemeanor warrants for defendant’s arrest on file in
Portsmouth, and that the Portsmouth detective knew about the
warrants, although they were not in the officer’s hands at the
time of arrest. The evidence also showed defendant, at that time,
was under suspicion for abduction of the victim. Upon arrest,
defendant "signed a legal rights advice form" and
elected to make a statement.

The trial court denied the motion to suppress
and later admitted the statement in evidence through the
Portsmouth detective’s testimony. In the statement, defendant
denied seeing the victim in the past 48 hours and denied having
recently been in Portsmouth.

The trial court did not err in admitting the
statement, which actually set forth an alibi and was not a
confession. The arrest was proper because the arresting officers
had knowledge of the outstanding misdemeanor warrants, and the
police had every right to question him. See Code
? 19.2-81 (arrest for misdemeanor not committed in
officer’s presence valid under certain specified circumstances).
However, even if there was a violation of ? 19.2-81 and
even if the statement somehow can be considered a confession,
suppression of the statement was not required. Thompson v.
Commonwealth
, 10 Va. App. 117, 121, 390 S.E.2d 198, 200-01
(1990) (confession obtained during period of statutorily invalid
arrest not subject to exclusion when accused constitutionally in
custody and confessed voluntarily).

Next, defendant contends the trial court erred
in admitting a blood sample when the custodian made a mistake in
noting the date placed on the evidence envelope. There is no
merit to this contention.

Detective Westerbeck testified she was present
when blood samples were taken from defendant on June 4, 1997.
After the blood was taken by a physician, the vials were dated
June 4, 1997 and turned over to Westerbeck. She initialed the
vials, placed them in an envelope, and kept them in her exclusive
care and custody until she gave them to an evidence technician.
However, Westerbeck inadvertently dated the envelope into which
she placed the vials "June 3, 1997."

Defendant objected to introduction of the blood
samples, stating that a "simple error like that in a case
like this could be highly prejudicial." The trial court
overruled the objection, after determining that the evidence the
prosecutor was offering was, in fact, the blood taken from
defendant on June 4.

On appeal, defendant contends the blood samples
were inadmissible because they were not properly authenticated
and there was a defect in the chain of custody. We disagree.

The mistake in the date is inconsequential.
And, a chain of custody is properly established when the
Commonwealth’s evidence affords reasonable assurance that the
exhibits at trial are the same and in the same condition as they
were when first obtained. Pope v. Commonwealth, 234 Va.
114, 121, 360 S.E.2d 352, 357 (1987), cert. denied,
485 U.S. 1015 (1988). These samples met that criteria.

Next, defendant argues the trial court erred
"in not granting the motion to strike as to the capital
murder charge, the abduction charge, the abduction with the
intent to defile charge, the object penetration charge and the
carjacking charge." Now conceding he was the person who
abducted the victim, and not relying on any purported alibi,
defendant contends the "circumstances suggest that Vinson
drove away with Felton out of some misguided desire for
reconciliation or a desire to punish her for leaving him, but not
out of a specific intent to sexually molest her." He argues
the eyewitness testimony that he was the perpetrator of the
crimes is "inconsistent" and "unworthy of
belief." We reject this argument.

A further recitation of the facts is
unnecessary. It is sufficient to point out that the jury
determines the credibility of the witnesses and that there is
overwhelming credible evidence to establish defendant was the
perpetrator of each of these crimes.

The only offense which requires further
elaboration is the carjacking charge. To prove carjacking, the
Commonwealth was required to establish that defendant seized
control of the red automobile with an intent to permanently or
temporarily deprive the victim of the possession or control of
the vehicle by means of violence directed to her. Code
? 18.2-58.1(B). The testimony of Willisa Joyner amply
supports the finding that both the victim and the red car were
seized by defendant through the continuing use of violence
directed to the victim.

Next, in an obtuse argument, defendant
complains about the manner in which the Department of Corrections
responded to a subpoena duces tecum for records about his
unadjudicated criminal acts. He also complains about the receipt
in evidence of "certain unadjudicated criminal acts
allegedly committed by" him. We reject both contentions. The
first complaint merits no response. As to the second complaint,
we merely note the law is settled in this jurisdiction that prior
unadjudicated criminal conduct is admissible at the penalty stage
of a capital murder trial to establish future dangerousness. Poyner
v. Commonwealth
, 229 Va. 401, 418, 329 S.E.2d 815, 827-28, cert.
denied, 474 U.S. 865, 888 (1985).

Next, defendant argues the trial court erred in
permitting Dr. Mansheim to testify in rebuttal about defendant’s
future dangerousness "when the defense’s medical testimony
did not directly state future dangerousness." We disagree.

Even though defendant’s medical experts did not
use the term "future dangerousness" as applied to
defendant, they opined about defendant’s mental condition and
offered excuses for defendant’s behavior. Thus, the trial court
properly allowed the prosecutor to present evidence in rebuttal
regarding the probability of defendant’s future behavior.

Next, we reject defendant’s conclusory argument
that the trial court erred by permitting television cameras in
the courtroom because his "right to a fair and impartial
jury" was "prejudiced" by their presence. By
statute, the trial court "may solely in its discretion"
allow cameras in the courtroom. Code ? 19.2-266. There was
no abuse of that discretion in this case.

Next, as we have said, we must determine
whether the sentence of death in this case "was imposed
under the influence of passion, prejudice or any other arbitrary
factor." Code ? 17.1-313(C)(1). Defendant candidly
admits, "The record in this case does not clearly show
passion or prejudice." Indeed, there is not a hint in the
record that the determinations of vileness and future
dangerousness were made arbitrarily. On the contrary, the record
supports the conclusion that the sentence was appropriate under
the circumstances.

Finally, upon the question of
disproportionality and excessiveness, we determine whether other
sentencing bodies in this jurisdiction generally impose the
supreme penalty for comparable or similar crimes, considering
both the crimes and the defendant. Bramblett v. Commonwealth,
257 Va. 263, 278, 513 S.E.2d 400, 410 (1999). See Code
? 17.1-313(C)(2). In determining whether a death sentence
is excessive or disproportionate, we consider records of all
capital murder cases previously reviewed by this Court in which
the death sentence was based upon both the vileness and future
dangerousness predicates, including capital murder cases in which
a life sentence was imposed. Jenkins v. Commonwealth, 244
Va. 445, 462, 423 S.E.2d 360, 371 (1992), cert. denied,
507 U.S. 1036 (1993).

The defendant does not contend that the
sentence is excessive or disproportionate. He merely reasserts an
earlier contention, which was procedurally defaulted, that
"the penalty verdict form in this case was so defective that
the jury’s intent cannot be deduced from it." We will not
entertain such an argument because of the procedural default.

Manifestly, however, this sentence is not
excessive or disproportionate. Defendant brutally beat and
abducted the victim. Following the abduction, he beat and choked
her, sexually assaulted her in a savage manner, and murdered her
by inflicting deep cuts to both forearms. Furthermore, in
addition to the vile nature of the offenses, the evidence
established that defendant is a violent person who, in the
Attorney General’s words, "has no respect for authority and
who cannot be rendered non-violent even in a prison
setting." Juries in the Commonwealth generally impose the
death sentence for crimes like those committed by this defendant.
See, e.g., Cherrix v. Commonwealth, 257 Va.
292, 313-14, 513 S.E.2d 642, 655-56 (1999); Hedrick v.
Commonwealth
, 257 Va. 328, 342-43, 513 S.E.2d 634, 642
(1999); Barnabei v. Commonwealth, 252 Va. 161, 179, 477
S.E.2d 270, 281 (1996), cert. denied, 520 U.S. 1224
(1997); and Clozza v. Commonwealth, 228 Va. 124, 138, 321
S.E.2d 273, 282 (1984), cert. denied, 469 U.S. 1230
(1985).

Consequently, we hold the trial court committed
no error, and we have independently determined from a review of
the entire record that the sentence of death was properly
assessed. Thus, we will affirm the trial court’s judgment in the
capital murder case and in the noncapital cases.

Record No. 990612 — Affirmed.

Record No. 990613 — Affirmed.

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