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WALTON v. COMMONWEALTH OF VIRGINIA (59771)


WALTON v. COMMONWEALTH
OF VIRGINIA


June 5, 1998

Record Nos. 980010 and 980011

PERCY LAVAR WALTON

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUSTICE LEROY R. HASSELL, SR.

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE

James F. Ingram, Judge

Present: All the Justices


In this appeal, we review the capital murder convictions, the
related felony convictions, and the death sentences imposed upon
Percy Lavar Walton for the murders of Elizabeth W. Kendrick,
Jessie E. Kendrick, and Archie D. Moore, Jr.

I. PROCEEDINGS

Walton, age 21 at the time of the offenses, pled guilty to the
following: four charges of capital murder, three charges of
robbery, one charge of burglary, and six charges of using a
firearm in the commission of a felony. Before accepting the
guilty pleas, the trial court questioned Walton and made a
determination that his guilty pleas were made voluntarily,
intelligently, and knowingly. Walton and the Commonwealth
stipulated evidence that would have been adduced had the case
been tried.

The trial court scheduled a separate sentencing hearing. The
defendant and the Commonwealth presented evidence, and the trial
court received the probation officer’s report in the manner
prescribed by law. After considering the evidence and argument of
counsel, the trial court stated orally that Walton’s conduct in
each murder involved depravity of mind, and his conduct
associated with each capital offense indicated that there is a
probability that he will commit criminal acts of violence that
would constitute a continuing, serious threat to society.
However, the trial court entered a sentencing order which did not
mention depravity of mind, but stated that "there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing serious threat to
society." The trial court fixed Walton’s punishment at three
separate death sentences and imposed three separate life
sentences for each of the three robbery convictions, ten years’
imprisonment for the burglary conviction, and three years’
imprisonment for each of the six firearms convictions.[1]

We have consolidated the automatic review of Walton’s death
sentences with his appeal of right of his capital murder
convictions, Code Sec.17-110.1(A) and -110.1(F). We have
also consolidated Walton’s appeal to the Court of Appeals of
Virginia from his non-capital convictions, and we have given his
appeals priority on our docket. Code Sec.17-110.2.

II. FACTS

A. THE MURDERS OF ELIZABETH AND JESSIE KENDRICK

On November 16, 1996, Barbara K. Case, who was in Mississippi,
made a telephone call to her parents, Elizabeth and Jessie
Kendrick, who resided in Danville. Mrs. Case informed her parents
during this telephone conversation that she planned to visit them
during the approaching Thanksgiving holiday season. Mr. and Mrs.
Kendrick agreed to meet their daughter at an airport in
Greensboro, North Carolina, on November 25, 1996, three days
before Thanksgiving, and return to Danville for the holidays.
Mrs. Case made several attempts to reach her parents by telephone
between November 16 and 25, 1996, but no one answered the
telephone. Mrs. Case did not consider her parents’ failure to
answer the telephone unusual because her parents "traveled a
lot."

When Mrs. Case arrived at the airport in Greensboro on
November 25, 1996, her parents failed to meet her. She waited
several hours, and then she became alarmed and disturbed. A woman
at the airport gave Mrs. Case a ride to Danville.

When Mrs. Case arrived at her parents’ home in Danville, their
townhouse was dark, and their car was missing. Mrs. Case then
went to her aunt’s home, which is across the street from her
parents’ townhouse. Mrs. Case and her aunt went to the Kendricks’
residence, but no one answered the door.

Mrs. Case spent the night of November 25, 1996, with her aunt,
and she contacted the Danville Police Department the next
morning. Several police officers arrived at Mr. and Mrs.
Kendricks’ townhouse and eventually entered the residence. The
police officers found the body of Mr. Kendrick, lying face down
on a living room floor. Mr. Kendrick’s hands were "clasped,
and above his head, clinched together." The police found the
body of Mrs. Kendrick on the floor in the den. A portion of her
body was covered with a sheet, and the upper portion of her body
was wrapped in a "pinkish-orange material." Mrs.
Kendrick’s shirt had "been rolled up, and then taped"
and was loosely tied around her neck with a slipknot. She had on
undergarments below her waist, her pants had been cut from her
body, and her body had been dragged across the floor.

Mr. Kendrick, who was 80 years old at the time of his murder,
had been shot in the top of the head at close range. He suffered
a very large explosive type of wound where the bullet entered his
head. A "star-shaped appearance" and the presence of
soot on his head indicated that a muzzle of a gun was pressed
tightly against the top of Mr. Kendrick’s head when the gun was
discharged and that gases emitted from the muzzle caused the skin
around the entry point to "tear and rip." Mr. Kendrick
also suffered superficial non-lethal cuts on the front of his
neck and the palmar side of his left wrist.

Mrs. Kendrick, who was 81 years old at the time of her death,
also suffered a tight contact gunshot wound to the top of her
head. Her shirt, which was fashioned into a slipknot and tied
around her neck, did not cause or contribute to her death.

The Kendricks were last seen alive on November 19, 1996, when
Mrs. Kendrick, accompanied by her husband, went to a hospital in
Danville. The police officers found the Kendricks’ car a short
distance behind their townhouse.

B. THE MURDER OF ARCHIE D. MOORE, JR.

On November 28, 1996, Thanksgiving Day, Roxanne Moore, who was
in Greensboro, North Carolina, placed a telephone call to the
Danville Police Department. Ms. Moore informed the police
personnel that her brother, Archie Moore, who lived at the Cabin
Lake Apartment Complex in Danville, was supposed to have met her
at an airport in Greensboro on November 27, 1996, but he failed
to appear. Ms. Moore informed the police personnel that neither
she nor her parents in North Carolina were able to contact Archie
Moore by telephone at his Danville apartment.

Danville police officers entered Archie Moore’s apartment
around 8:00 a.m. on November 28. While searching the apartment,
they found Archie Moore’s body in a closet behind a suitcase. A
plastic bag had been placed over Mr. Moore’s head, and his feet
were "propped up" against the closet wall. There was a
strong odor of cologne in the closet and on the victim’s body.
The cause of Mr. Moore’s death was a gunshot wound to his head,
immediately above his left eye. The bullet exited his head and
was found on the floor in his apartment.

Shortly after Moore’s body was discovered, two witnesses
informed the Danville Police Department that they had recently
observed Walton driving Moore’s Ford Mustang automobile. Other
witnesses had also observed Walton walking on a sidewalk from the
area near Mr. and Mrs. Kendricks’ townhouse toward Cabin Lake on
several occasions between November 19 and November 26, 1996.

Subsequently, the police found Moore’s Mustang, "parked
right across the street from [Walton's] house." Walton lived
in a condominium with his parents a short distance from Moore’s
apartment and the Kendricks’ townhouse.

Lieutenant Kenneth D. Fitzgerald, a Danville police detective,
went to Walton’s home, spoke with Walton, and asked him if he
knew Moore. Walton denied that he knew Moore, and he denied
"ever [having] been in Archie Moore’s car." Walton
agreed to go to the police department for further questioning.
Detective Fitzgerald left Walton’s home and later, Walton,
accompanied by his father, went to the police department.

The police obtained a search warrant for Walton’s residence.
During a search of Walton’s bedroom, police personnel found a
silver metal box inside one of Walton’s boots. The box contained
a diploma and an "ATM card," both bearing Archie
Moore’s name. The police also found a set of car keys; one key
fit Moore’s Mustang and two other keys fit locks on the doors of
Moore’s apartment. The police also found a ring, which contained
a very distinctive letter "A", which was similar to a
ring that Moore had been wearing before his death.

When the police officers searched Moore’s car, they found a
box containing two dozen .32-caliber bullets as well as keys that
fit locks in the Kendricks’ car and home. The police officers
also found a plastic bag which contained a "plastic
sleeve" from a wallet. Jessie Kendrick’s driver’s license
and his "Knights of Columbus" card were inside the
"plastic sleeve." Walton’s fingerprints were identified
on the "plastic sleeve." Walton’s fingerprints were
also found on numerous items at various locations in Moore’s
apartment and car.

When the police searched the Kendricks’ car, they found a
shotgun that had been stolen from the Kendricks’ townhouse.
Walton’s fingerprint was found on the shotgun. A knife, found in
a toolbox in the trunk of the Kendricks’ car, contained blood
which matched Mr. Kendrick’s DNA.

The police officers recovered two .32-caliber bullet
cartridges that had been partially submerged near the shoreline
of Cabin Lake. The lake was drained, and the police officers
recovered a .32-caliber pistol that Mr. Kendrick had purchased in
1970. Ballistic tests conducted on a bullet that had been removed
from Mr. Kendrick’s head revealed that the bullet
"matched" the .32-caliber pistol recovered from the
lake and was consistent with the bullets that had killed Moore
and Mrs. Kendrick. The pistol contained four bullets and two
spent cartridges. The lead contained in the bullets found in
Moore’s car, the bullets recovered from the heads of the victims,
and the bullets in the revolver originated from the same
manufacturing source.

While in jail awaiting trial for the capital murder charges
and related offenses, Walton admitted to several inmates that
"he had killed three people at Cabin Lake." Walton also
described the graphic details of the murders at length to Lacy H.
Johnson, with whom Walton shared a cell in the Danville City
Jail.

III. ISSUES WAIVED

Walton argues that the trial court "erred in finding the
stipulated evidence at the guilt phase sufficient to convict
[him], even on his pleas of guilty, in violation of his rights
under the Fifth and Fourteenth Amendments to the United States
Constitution." This assignment of error seeks to raise
issues that Walton waived by the entry of his guilty pleas and,
thus, these issues are not cognizable in this appeal. We have
repeatedly held that a defendant who appeals a judgment of death
may not complain of any non-jurisdictional defects that occurred
prior to his guilty plea. Beck v. Commonwealth, 253
Va. 373, 380, 484 S.E.2d 898, 903, cert. denied,
___ U.S. ___, 118 S.Ct. 608 (1997); Murphy v. Commonwealth,
246 Va. 136, 141, 431 S.E.2d 48, 51, cert. denied,
510 U.S. 928 (1993); Savino v. Commonwealth, 239
Va. 534, 539, 391 S.E.2d 276, 278, cert. denied,
498 U.S. 882 (1990); Stout v. Commonwealth, 237 Va.
126, 131-32, 376 S.E.2d 288, 291, cert. denied, 492
U.S. 925 (1989); Beaver v. Commonwealth, 232 Va.
521, 526, 352 S.E.2d 342, 345, cert. denied, 483
U.S. 1033 (1987); Peyton v. King, 210 Va. 194,
196-97, 169 S.E.2d 569, 571 (1969).

IV. ADMISSIBILITY OF EVIDENCE DURING THE
SENTENCING PHASE

Walton argues that the trial court erred by admitting
"the photographs of the victims as they were discovered at
the crime scenes and of their autopsies over defense objections
that such photographs were so prejudicial and inflammatory as to
outweigh any probative value in violation of Walton’s due process
rights under the Fifth and Fourteenth Amendments of the United
States Constitution." We find no merit in Walton’s argument.

We have repeatedly held that the admission of photographs in
evidence rests within the sound discretion of the trial court. Goins
v. Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126, cert.
denied, 519 U.S. ___, 117 S.Ct. 222 (1996); Quesinberry
v. Commonwealth, 241 Va. 364, 378, 402 S.E.2d 218, 226, cert.
denied, 502 U.S. 834 (1991). Photographs of a victim are
admissible to show motive, intent, method, malice, premeditation,
and the atrociousness of the crime. Goins, 251 Va. at 459,
470 S.E.2d at 126. Photographs which accurately depict the crime
scene are not rendered inadmissible simply because they are
gruesome or shocking. Goins, 251 Va. at 459, 470 S.E.2d at
126; Gray v. Commonwealth, 233 Va. 313, 343, 356
S.E.2d 157, 173, cert. denied, 484 U.S. 873 (1987).

We have examined the photographs, and we find no abuse of
discretion by the trial court. Furthermore, the defendant’s
conclusional assertion that the admission of these photographs
somehow violates his due process rights under the Fifth and
Fourteenth Amendments to the United Constitution is without
merit.

V. CONTINUING SERIOUS THREAT TO SOCIETY

Walton argues that the trial court erred by holding that
"the Commonwealth’s evidence [was] sufficient to prove,
beyond a reasonable doubt, the statutory aggravator of future
dangerousness in violation of Walton’s rights under the Fifth and
Fourteenth Amendments of the United States Constitution, because
. . . Walton had no prior history of significant
violent offenses." Continuing, Walton says that his prior
criminal history does not demonstrate a propensity for violence,
that the circumstances surrounding the crimes that are the
subject of this appeal do not show a propensity for violence, and
that the credible evidence of record in this case does not prove
beyond a reasonable doubt that he poses a threat of future
danger. We disagree with Walton’s assertions.

Code Sec.19.2-264.4(C) states, in relevant part:

"The penalty of death shall not be imposed unless
the Commonwealth shall prove beyond a reasonable doubt
that there is a probability based upon evidence of the
prior history of the defendant or of the circumstances
surrounding the commission of the offense of which he is
accused that he would commit criminal acts of violence
that would constitute a continuing serious threat to
society . . . ."

The evidence of record supports the trial court’s finding
beyond a reasonable doubt that there is a probability based upon
both Walton’s prior history and the circumstances surrounding the
commission of the present offenses that he would constitute a
continuing serious threat to society. The evidence of record
reveals that Walton killed an 80-year-old man and an 81-year-old
woman by shooting both victims in the head. Walton killed Mr.
Kendrick by placing the muzzle of the pistol tightly against the
top of the victim’s head and then discharging the weapon. Walton
later shot Moore in the head and killed him simply because he
wanted to drive Moore’s car.

When Walton was incarcerated awaiting trial for the capital
offenses, he described the murders to several inmates, including
Lacy Johnson, to whom he related the following facts. Walton had
"broken into" the Kendricks’ residence when the
Kendricks unexpectedly arrived home. Walton forced Mr. Kendrick
to lie face down on the floor. Walton then turned to Mrs.
Kendrick, who "dropped down to [her] knees," and
"started begging and crying." Walton told her to
"shut up," and then he "shot her in the top of the
head." Walton then "looked over at Mr. Kendrick, who
was laying there crying, and [Walton] started laughing at him,
and he walked over to him. As [Walton] walked over to [Mr.
Kendrick], [Walton] tried to cut his throat, with a knife.
[Walton] said that didn’t work, so he leaned down, and shot him
in the top of the head." Walton told Johnson that Walton had
seen the Kendricks before, but "they didn’t really matter to
him . . . they won’t nobody."

Walton also related the following facts to Johnson about
Moore’s murder. Walton went to Moore’s apartment and asked to use
his telephone. Moore permitted him to do so, and Walton called
his own home telephone number. Walton then returned to his home
and used a telephone feature to acquire Moore’s telephone number.
He later returned to Moore’s residence and asked to use the phone
again. Moore hesitated by looking at Walton, who then smiled. In
response, Moore invited Walton in to use his telephone. When
Moore handed to Walton a portable telephone, Walton, using his
pistol, fired a shot at Moore, which missed. Walton fired a
second shot which "hit [Moore] over the eye." Then,
Walton demonstrated to Johnson how he had killed Moore by
"dropp[ing] to the floor . . . laughing."

According to Johnson, Walton said:

"[A]fter he did the first killing, he knew what
he wanted to do. And then he said that he wanted to be
famous, for killing a bunch of people, and that’s why he
wanted a high powered enough gun, where he can kill
everybody over in Cabin Lake, and he wanted to catch
everybody, like at the swimming pool one day, and just
gun ‘em all down. . . . [H]e wanted to be
famous . . . especially, in Danville, for
killing a bunch of folks."

We hold that the facts and circumstances surrounding these
murders are sufficient to support the trial court’s finding of
future dangerousness. Moreover, Walton’s criminal history also
supports the trial court’s finding of future dangerousness.
Walton had been convicted of statutory burglary and grand
larceny. He had also been convicted of resisting arrest and
assault and battery on a police officer. As a juvenile, Walton
was convicted of two different offenses of possession of a
firearm and one charge of assault and battery.

VI. DEPRAVITY OF MIND

Walton argues that "[i]t was error for the trial court to
find the Commonwealth’s evidence sufficient to prove, beyond a
reasonable doubt, the statutory aggravator of vileness, in
violation of Walton’s rights under the Fifth and Fourteenth
Amendments of the United States Constitution because the facts of
the offenses do not establish torture, depravity of mind or
aggravated battery to the victims." We will not consider
this assignment of error.

As we have already mentioned in Section I of this opinion, the
trial court stated orally that each of the three murders Walton
committed demonstrated Walton’s "depravity of mind."
However, the trial court’s sentencing order did not sentence
Walton to death on that basis. Rather, the trial court stated in
its sentencing order that there is a probability that Walton
would commit criminal acts of violence that would constitute a
continuing serious threat to society.

We have stated that "[i]t is the firmly established law
of this Commonwealth that a trial court speaks only through its
written orders." Davis v. Mullins, 251 Va.
141, 148, 466 S.E.2d 90, 94 (1996). Accord Robertson
v. Superintendent of the Wise Correctional Unit, 248 Va.
232, 235 n.*, 445 S.E.2d 116, 117 n.* (1994); Town of Front
Royal
v. Industrial Park, 248 Va. 581, 586, 449 S.E.2d
794, 797 (1994); Martin v. Coleman, 234 Va. 509,
510 n.1, 362 S.E.2d 732, 733 n.1 (1987); Hill v. Hill,
227 Va. 569, 578, 318 S.E.2d 292, 297 (1984); Nash v. Jewell,
227 Va. 230, 237, 315 S.E.2d 825, 829 (1984); Walker v. Commonwealth,
225 Va. 5, 8, 301 S.E.2d 28, 29 (1983); Cunningham v. Smith,
205 Va. 205, 208, 135 S.E.2d 770, 773 (1964). Thus, the trial
court’s sentence of death was not predicated upon the statutory
aggravator of vileness.

After oral argument before this Court, the Commonwealth
forwarded a letter to the Clerk of this Court and a document
which purported to be a "nunc pro tunc sentencing
order." The purported order, dated April 20, 1998, and
signed by the trial court, contains a finding that the sentences
of death were also imposed upon the defendant because in
committing the capital murders, his acts were "outrageously
or wantonly vile, horrible or inhumane in that [the acts] involved depravity of mind."

We do not consider this purported order because the trial
court was divested of jurisdiction once the defendant filed his
notices of appeal. We have stated that the "orderly
administration of justice demands that when an appellate court
acquires jurisdiction over the parties involved in litigation and
the subject matter of their controversy, the jurisdiction of the
trial court from which the appeal was taken must cease." Greene
v. Greene, 223 Va. 210, 212, 288 S.E.2d 447, 448 (1982).

VII. PASSION AND PREJUDICE

Code Sec.17-110.1(C)(1) requires that we determine
"[w]hether the sentence of death was imposed under the
influence of passion, prejudice or any other arbitrary
factor." Walton argues that the trial court’s failure to
impose life sentences instead of the death penalties
"demonstrates that [the court] was swept away on a tide of
passion, prejudice and other arbitrary factors." We have
reviewed the evidence of record, and we reject Walton’s
contentions because they are without merit. Our review of the
record indicates that the trial court gave thoughtful and careful
consideration to all the evidence, and we find nothing in the
record to suggest that the trial court imposed the sentences of
death under the influence of passion, prejudice, or other
arbitrary factors.

VIII. EXCESSIVENESS AND DISPROPORTIONALITY

Code Sec.17-110.1(C)(2) requires this Court to consider
and determine "[w]hether the sentence of death is excessive
or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." Walton argues
that a review of the record of all comparable cases throughout
the Commonwealth, including those that resulted in non-capital
dispositions, reveal that his death sentences are
disproportionate. We disagree.

The test of proportionality that we apply is whether
"juries in this jurisdiction generally approve the supreme
penalty for comparable or similar crimes." Murphy,
246 Va. at 145, 431 S.E.2d at 54 (quoting Stamper v. Commonwealth,
220 Va. 260, 284, 257 S.E.2d 808, 824 (1979), cert. denied,
445 U.S. 972 (1980)); Jenkins v. Commonwealth, 244
Va. 445, 461, 423 S.E.2d 360, 371 (1992), cert. denied,
507 U.S. 1036 (1993).

Our comparison of the record in this case with the records in
other capital cases, including capital cases in which life
sentences were imposed, fails to indicate that the death
penalties imposed here are "excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime
and the defendant." Code Sec.17-110.1(C)(2).

We have given particular consideration to other capital cases
in which robbery or attempted robbery was the underlying felony
and the death penalty was based only on the future dangerousness
predicate. Such cases were compiled in Yeatts v. Commonwealth,
242 Va. 121, 143, 410 S.E.2d 254, 267-68 (1991), cert. denied,
503 U.S. 946 (1992), and supplemented in Jackson v. Commonwealth,
255 Va. ___, ___, ___ S.E.2d ___, ___ (1998), Chichester
v. Commonwealth, 248 Va. 311, 332-33, 448 S.E.2d 638, 652
(1994), cert. denied, 513 U.S. 1166 (1995), and Roach
v. Commonwealth, 251 Va. 324, 351, 468 S.E.2d 98, 113, cert.
denied, 519 U.S. ___, 117 S.Ct. 365 (1996).

IX. CONCLUSION

Having reviewed the sentences of death and related
convictions, finding no reversible error in the record, and
perceiving no reason to commute the death sentences, we will
affirm the judgment of the trial court.

Affirmed.

FOOTNOTES:

[1] The trial court convicted
Walton of three charges of capital murder during the commission
of robbery and one charge of capital murder for the willful,
deliberate, and premeditated killing of more than one person
within a three-year period. See Code Sec.18.2-31(4)
and (8). The trial court imposed the three death sentences for
the three convictions for capital murder during the commission of
robbery, and at the time of sentencing, the trial court dismissed
the remaining capital murder conviction. See Clagett
v. Commonwealth, 252 Va. 79, 95-96, 472 S.E.2d 263, 273
(1996), cert. denied, ___ U.S. ___, 117 S.Ct. 972
(1997).

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