Jackson v. Commonwealth, 266 Va. 423, 587
S.E.2d 532 (Va. 2003) (Direct Appeal).
Defendant was convicted in the Circuit Court, City of
Newport News, Verbena M. Askew, J., of, among other things, capital
murder, and received death penalty sentence on basis of aggravating
factor of vileness. Defendant appealed from his capital murder
conviction and from his non-capital convictions, and those appeals were
consolidated with the automatic review of his death sentence. The
Supreme Court, Elizabeth B. Lacy, J., held that: (1) evidence was
insufficient that defendant's confession was involuntary; (2) defendant
was not entitled to poll jury as to which statutory element(s)
established vileness; (3) commonwealth gave sufficient race-neutral
justifications for exercising all of its five peremptory challenges
against African-Americans; (4) trial court acted within its discretion
in allowing commonwealth to cross-examine defendant's DNA expert
regarding his refusal to meet with commonwealth's DNA expert; (5) trial
court properly barred defendant from asking his expert witness a line of
questions regarding veracity of defendant's confession based on
transference theory; (6) lack of forensic evidence connecting defendant
to crime scene, other that DNA testing results which involved only eight
loci, six of which were matched by defendant's DNA, did not support
conclusion that evidence was insufficient to prove defendant's guilt;
and (7) death sentence was neither excessive nor disproportionate to
penalty imposed in similar cases. Affirmed.
OPINION BY Justice ELIZABETH B. LACY.
In this appeal, we review the capital murder
conviction and death penalty imposed on Kent Jermaine Jackson, along
with his convictions of robbery, felony stabbing, and statutory burglary.
FACTS
In accord with established principles of appellate
review, we recite the facts in the light most favorable to the
Commonwealth, the party prevailing below. Commonwealth v. Bower, 264 Va.
41, 43, 563 S.E.2d 736, 737 (2002).
On April 18, 2000, the body of Beulah Mae Kaiser, 79
years of age, was found in her apartment. According to the medical
examiner, Mrs. Kaiser died from a combination of a stab wound to her
jugular vein, a fractured skull, and asphyxia caused by blockage of her
airway by her tongue. Any one of these injuries could have been fatal.
In addition to these injuries, Mrs. Kaiser suffered
two black eyes, a broken nose, and multiple abrasions, lacerations, and
bruises. She had five stab wounds to her head and neck, including the
wound to her jugular vein.
The medical examiner also testified that Mrs. Kaiser
had been anally sodomized with her walking cane and that the cane then
had been driven into her mouth with such violence that it knocked out
most of her teeth, tore her tongue and forced it into her airway,
fractured her jaw, and penetrated the left side of her face.
When Mrs. Kaiser's body was found, her apartment was
in disarray. Personal items were strewn throughout the apartment, blood
spatters were on the surfaces of the apartment, and the contents of Mrs.
Kaiser's purse had been dumped on the floor. The police were unable,
however, to find a weapon or any fingerprints of value.
The crime went unsolved for over 16 months until DNA
testing of saliva on a cigarette butt found in the apartment implicated
an individual named Cary Gaskins.
An interview with Gaskins led the police to Joseph M.
Dorsett and Jackson, who had been roommates in an apartment across the
hall from Mrs. Kaiser's apartment at the time of her death. Following an
interview with Dorsett, Newport News police arrested Dorsett, charging
him with Mrs. Kaiser's murder, and obtained a warrant for Jackson's
arrest.
Police arrested Jackson at a girlfriend's home in
King George County around 4:00 a.m. on August 29, 2001. During an
interview with Newport News police detectives at the King George County
jail that afternoon, Jackson confessed to the murder of Mrs. Kaiser.
PROCEEDINGS
On January 14, 2002, Jackson was indicted by a
Newport News grand jury for the capital murder of Beulah Mae Kaiser in
the commission of a robbery or attempted robbery, robbery, felony
stabbing,statutory burglary, and object sexual penetration, in violation
of Code §§ 18.2-31, 18.2-58, 18.2-53, 18.2-90, and 18.2-67.2,
respectively.
Prior to trial, Jackson filed motions seeking a
change of venue, suppression of his confession, a bill of particulars,
and additional peremptory strikes. The trial court denied these motions
and rejected Jackson's arguments that Virginia's capital murder statutes
are unconstitutional. Following a six-day trial, a jury convicted
Jackson of all charges except object sexual penetration.
In a subsequent sentencing proceeding, the jury found
the aggravating factor of vileness and fixed a sentence of death for the
capital murder conviction and fixed sentences totaling life imprisonment
plus 25 years and a $100,000 fine for the remaining convictions. During
a post-verdict hearing, the trial court considered the pre-sentence
report, further evidence presented by Jackson, and the arguments of
counsel. In its final judgment, the trial court imposed the sentences
fixed by the jury.
We have consolidated the automatic review of
Jackson's death sentence with his appeal of the capital murder
conviction in Record No. 030749 and have given them priority on the
docket. Code §§ 17.1-313(A), (F), and (G). We have also certified
Jackson's appeal of his non-capital convictions from the Court of
Appeals of Virginia, Record No. 030750, and have consolidated the two
records for consideration.
ISSUES PREVIOUSLY DECIDED
Jackson raises fifteen assignments of error, four of
which contain arguments that this Court has rejected in previous cases.
Since Jackson presents no new arguments on these questions, we adhere to
our previous holdings and affirm the rulings of the trial court:
(1) denying the defendant's motion for a bill of
particulars seeking a narrowing construction of the vileness aggravator
and identification of the evidence on which the Commonwealth intended to
rely when seeking the death penalty. See Green v. Commonwealth, 266 Va.
81, 107, 580 S.E.2d 834, 849 (2003); Goins v. Commonwealth, 251 Va. 442,
454, 470 S.E.2d 114, 123 (1996); Strickler v. Commonwealth, 241 Va. 482,
490, 404 S.E.2d 227, 233 (1991).
(2) refusing to declare Virginia's capital murder
statutes unconstitutional because (a) they do not adequately instruct
the jury on the weight it should assign to aggravating and mitigating
factors,Satcher v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826
(1992), (b) do not require aggravating factors to outweigh mitigating
factors beyond a reasonable doubt, Mickens v. Commonwealth, 247 Va. 395,
403, 442 S.E.2d 678, 684 (1994), vacated and remanded on other grounds,
513 U.S. 922, 115 S.Ct. 307, 130 L.Ed.2d 271 (1994); (c) are
unconstitutionally vague in defining “vileness” and “future
dangerousness,” Id.; (d) allow evidence of unadjudicated criminal
conduct in the sentencing phase, Satcher, 244 Va. at 228, 421 S.E.2d at
826; (e) constitute cruel and unusual punishment, Spencer v.
Commonwealth, 238 Va. 275, 280-81, 384 S.E.2d 775, 777-78 (1989), and
are contrary to “evolving standards of decency” under Trop v. Dulles,
356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), Satcher, 244 Va.
at 228, 421 S.E.2d at 826; (f) do not require the court to set aside the
death penalty on showing of good cause, Breard v. Commonwealth, 248 Va.
68, 76, 445 S.E.2d 670, 675-76 (1994); (g) allow the court to consider
hearsay evidence in its post-sentencing report, O'Dell v. Commonwealth,
234 Va. 672, 701-02, 364 S.E.2d 491, 507-08 (1988); and (h) fail to
provide meaningful appellate review, Satcher, 244 Va. at 228, 421 S.E.2d
at 826. See generally Breard, 248 Va. at 75-76, 445 S.E.2d at 675.
(3) denying the defendant's motion for additional
peremptory challenges. See Green, 266 Va. at 107, 580 S.E.2d at 849;
Spencer, 240 Va. at 84, 393 S.E.2d at 613; Buchanan v. Commonwealth, 238
Va. 389, 405, 384 S.E.2d 757, 767 (1989); O'Dell, 234 Va. at 690, 364
S.E.2d at 501.
(4) refusing the defendant's request to use a juror
questionnaire. See Green, 266 Va. at 95-96, 580 S.E.2d at 842-43;
Strickler, 241 Va. at 492-93, 404 S.E.2d at 234.
ISSUES NOT PRESERVED
A. Change of Venue
Jackson, in his second assignment of error, charges
that the trial court erroneously denied his motion for change of venue.
The Commonwealth argues that Jackson has waived this assignment of error
because he neither renewed the motion at the time the jury was selected
nor objected to the seating of the panel.
In Green, we stated that when a change of venue
motion is taken under advisement or continued until the jury is
empaneled, it is incumbent on the party seeking a change of venue to
renew the motion or otherwise bring it to the court's attention. Green,
266 Va. at 94-95, 580 S.E.2d at 842. Failure to do so implies
acquiescence in the jury panel and is tantamount to waiver of the motion
for change of venue. Id.
In this case, the trial court denied Jackson's motion
for a change of venue in a pre-trial hearing but stated that the motion
was “a continuing motion as we go through this process.” Jackson did not
seek a ruling on this “continuing motion,” did not bring the matter to
the trial court's attention, and made no objection based on venue before
the trial court empaneled the jury. Accordingly, Jackson has waived this
assignment of error, and we will not address his claims that the trial
court erred by refusing to grant his motion for a change of venue. Id.;
Rule 5:25.
B. Admission of Photographs
Jackson's eighth assignment of error challenges the
trial court's refusal to limit the presentation of crime scene and
autopsy photographs of the decedent. Jackson argues here that the
gruesome content of the photographs served merely to shock and inflame
the jury, and, because Jackson had stipulated to an autopsy report and
diagrams indicating the manner of Mrs. Kaiser's death, the fourteen
photographs introduced by the Commonwealth were cumulative and had no
probative value. The Commonwealth argues that Jackson has waived this
claim because he did not object to the admission of the photographs at
trial.
In a pre-trial motion, Jackson sought to limit the
number of photographs depicting the condition of the decedent that could
be introduced at trial, arguing that the photographs were cumulative.
The trial court agreed that it would not admit cumulative evidence but
denied Jackson's motion as premature because the Commonwealth had not
yet determined which photographs it would introduce at trial. When the
Commonwealth introduced all fourteen photographs as evidence, Jackson
did not object. Jackson's failure to renew his objection at that time
precludes him from raising this issue on appeal. Rule 5:25.
C. Trial Court's Proportionality Review
Jackson asserts that the trial court erred in not
examining whether the jury's verdict imposing the penalty of death was
based on passion or prejudice and whether the punishment was
disproportionate in this case pursuant to Code § 17.1-313. While we note
that Code § 17.1-313 does not require such a review by the trial court,
Green, 266 Va. at 107, 580 S.E.2d at 849, Jackson neither asked the
trial court to conduct such a review nor addressed such review by the
trial court on brief or in oral argument in this Court. Accordingly,
Jackson has waived this assignment of error. Rule 5:25.
PRE-TRIAL
A. Motion to Suppress
In his first assignment of error, Jackson asserts
that the trial court erred in failing to suppress the confession Jackson
made to the Newport News police officers while detained in the King
George County Jail. Jackson asserts that the confession should have been
suppressed because he did not knowingly and intelligently waive his
constitutional rights to counsel and against self-incrimination and
because the confession itself was not given voluntarily.
Longstanding principles of federal constitutional law
require that a suspect be informed of his constitutional rights to the
assistance of counsel and against self-incrimination. Miranda v.
Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These
rights can be waived by the suspect if the waiver is made knowingly and
intelligently. Id. at 475, 86 S.Ct. 1602. The Commonwealth bears the
burden of showing a knowing and intelligent waiver. Id. Whether the
waiver was made knowingly and intelligently is a question of fact that
will not be set aside on appeal unless plainly wrong. Harrison v.
Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163 (1992).
At the suppression hearing, Detective Larry P. Rilee
testified that he informed Jackson of his Miranda rights when he began
questioning Jackson at the King George County Jail around 2:50 p.m. on
August 29 and that Jackson orally waived those rights at that time.
Detective Rilee began taping the interrogation about 25 minutes later.
The transcript of the taped portion of the interrogation recites that
Detective Rilee stated, “We've advised you of your Miranda Rights, you
understood those is that correct?” Jackson responded, “That's correct.”
Following this exchange, Jackson made a statement confessing to the
murder of Mrs. Kaiser.
Jackson asserts that because Detective Rilee did not
use a written waiver of rights form and did not repeat the elements of
the Miranda warning during the taped portion of the interrogation, the
record is insufficient to show that Jackson intelligently and knowingly
waived his Miranda rights. We disagree.
A valid waiver of Miranda rights does not require the
waiver to be in writing. Harrison, 244 Va. at 583, 423 S.E.2d at 163.
Detective Rilee's testimony and the transcript of the interrogation
support the trial court's factual determination that Jackson was
informed of his Miranda rights and that he knowingly and intelligently
waived those rights.
Jackson also contends that his confession was not
voluntary because it was not the product of his free and unconstrained
will. Whether a confession was voluntary is a legal question to be
resolved by the court, considering all the circumstances. Roach v.
Commonwealth, 251 Va. 324, 341, 468 S.E.2d 98, 108 (1996).
Jackson maintains that the officers conducting the
interrogation overbore his will. The police officers, according to
Jackson, applied psychological pressure and engaged in trickery, and
lied to him about the evidence connecting him with Mrs. Kaiser's death.
These actions along with his conditions of confinement resulted in a
confession that, he argues, he did not voluntarily make. We disagree
with Jackson.
Jackson recites a number of factors that, he argues,
rendered his statement involuntary. Prior to and during his
interrogation, he was tired, hungry, and kept in a “freezing” cell.
According to his court-appointed expert psychologist, Dr. Stephen C.
Ganderson, the verbal performance component of Jackson's IQ was below
average although his overall IQ was in the normal range. Jackson further
maintains that he was told that if he made a statement he could call his
mother, and he stated that the promise was the reason he gave the
statement confessing to the murder.
We agree with the trial court that neither the expert
testimony nor the adverse conditions Jackson alleged constituted
sufficient evidence that Jackson suffered from an impaired ability to
understand what he was doing or saying, or that his ability to decide
whether to give a statement of his own free will was overcome. As noted
by the trial court, the degree of detail in Jackson's confession belies
his assertion that he only gave the statement to secure the right to
telephone his mother.
The interrogation methods used by the officers in
this case do not render this confession involuntary per se. Smith v.
Commonwealth, 219 Va. 455, 470, 248 S.E.2d 135, 144-45 (1978).
Furthermore, the record shows that Jackson did not cite police trickery
or deceit as a ground for suppressing his confession in the trial court.
Jackson has not preserved that argument for consideration here. Rule
5:25.
Based on our review of the record, we hold that
Jackson confessed voluntarily and that the trial court did not err in
concluding that Jackson knowingly and intelligently waived his Miranda
rights.
B. Polling Jurors
In a pre-trial motion, Jackson asked that, if the
jury imposed the death sentence based on the aggravating factor of
vileness, the jury be polled as to “which statutory element(s)
established vileness, specifying at the time of polling one or more of
torture, depravity of mind or aggravated battery.” To that end, Jackson
requested jury instructions and a verdict form that required unanimity
on one or more vileness elements. Relying on Richardson v. United States,
526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), Jackson argues
that when imposing the death sentence, due process requires unanimity
not only as to the aggravating factor of vileness but also to one or
more of its composite elements.
This Court has rejected the proposition that the jury
must identify the element or elements of the vileness factor upon which
it based its decision. Clark v. Commonwealth, 220 Va. 201, 213, 257
S.E.2d 784, 791 (1979). The Supreme Court's decision in Richardson does
not require us to revisit our decision in Clark.
Richardson involved a prosecution for engaging in a
continuing criminal enterprise. As relevant here, conviction required
proof that the defendant committed a specific federal offense and that
the offense was part of a “continuing series” of offenses undertaken by
the defendant in concert with five or more other persons.
The trial court instructed the jury that it had to
find unanimously that the defendant committed at least three federal
narcotics offenses but did not have to agree as to the particular three
offenses. The Supreme Court reversed, holding that the several
violations required for conviction were an element of the offense and
thus the jury had to agree on the same three violations. Richardson, 526
U.S. at 819-20, 824, 119 S.Ct. 1707.
The Supreme Court explained in Richardson that, for
example, the jury must unanimously find force as an element of the crime
of robbery, but whether the force is created by the use of a gun or a
knife is not an element of the crime and therefore does not require jury
unanimity. Id. at 817, 119 S.Ct. 1707.
In this case, the element the jury was required to
find unanimously to impose the death sentence was the aggravating factor
of vileness, which requires the defendant's actions be “outrageously or
wantonly vile, horrible or inhuman.” Code § 19.2-264.2. Depravity of
mind, aggravated battery, and torture are not discrete elements of
vileness that would require separate proof but rather are “several
possible sets of underlying facts [that] make up [the] particular
element.” Richardson, 526 U.S. at 817, 119 S.Ct. 1707. Neither Clark nor
Richardson, therefore, requires juror unanimity on these points.
Accordingly, we reject this assignment of error.
GUILT PHASE
A. Juror Disqualification
Jackson charges that the trial court erred in not
striking Sandra Peiffer from the jury panel for cause.
Absent manifest error, we will not disturb the trial
court's judgment whether to strike a potential juror for cause. Green,
266 Va. at 98, 580 S.E.2d at 844; Clagett v. Commonwealth, 252 Va. 79,
90, 472 S.E.2d 263, 269 (1996). The law does not require that a juror be
ignorant of all facts, only that jurors be impartial. Breeden v.
Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 736 (1976).
During voir dire, Peiffer volunteered that she had
read newspaper accounts about the case and remembered that the person
charged with the crime had made some comments to the newspaper earlier.
Peiffer did not remember the name of the person. She went on to say,
however, that she had not formed an opinion on the defendant's guilt and
repeated that she would decide the case based on the evidence produced
at trial.
Because the person interviewed by the media was
Dorsett and not Jackson, Jackson maintained that Peiffer could not be
impartial and would taint the jury if she told them her recollections of
the newspaper account. The trial court refused to strike Peiffer for
cause, finding that the juror was “very, very emphatic” about her
ability to decide the case solely on the law and on the evidence.
Peiffer's statements, taken as a whole, demonstrate
that she would be impartial in deciding the case. We find no error in
the trial court's decision not to strike Peiffer for cause.
B. Batson Challenge
In Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that
excluding a potential juror solely on the basis of the juror's race is
purposeful discrimination and a violation of the Equal Protection Clause
of the Fourteenth Amendment of the United States Constitution. In his
tenth assignment of error, Jackson claims that the trial court erred in
rejecting his claim that the Commonwealth violated the rule in Batson
because the Commonwealth exercised all five of its peremptory strikes
against African-Americans.
When a defendant raises a challenge based on Batson,
he must make a prima facie showing that the peremptory strike was made
on racial grounds. At that point, the burden shifts to the prosecution
to produce race-neutral explanations for striking the juror.
The defendant may then provide reasons why the
prosecution's explanations were pretextual and the strikes were
discriminatory regardless of the prosecution's stated explanations.
Whether the defendant has carried his burden of proving purposeful
discrimination in the selection of the jury is then a matter to be
decided by the trial court. The trial court's findings will be reversed
only if they are clearly erroneous. Buck v. Commonwealth, 247 Va. 449,
450-51, 443 S.E.2d 414, 415 (1994).
In this case, the Commonwealth offered the following
explanations for the exercise of its peremptory strikes against five
African-Americans: FN1
FN1. The Commonwealth argues that it was not required
to offer race-neutral explanations because Jackson did not make a prima
facie showing of purposeful discrimination. This argument was not made
in the trial court, was not asserted as cross-error, and we do not
consider it here. Rule 5:25.
(1) The Commonwealth struck Charles Blanco because he
was previously represented by one of the defense attorneys and would be
more likely to believe that attorney. Mr. Blanco also was concerned
about the impact of the trial on his responsibility to take care of his
children who had special needs.
(2) Amy Leggett was struck because she answered that
she did not believe in the death penalty and even though she said she
could apply it, “she would have a very, very hard time in applying the
laws and evidence.”
(3) Vento Carter, according to the Commonwealth,
changed his position throughout his voir dire, stating initially he
would impose a higher standard of proof on the Commonwealth but then
stating that he could nevertheless listen to the instructions of the
court on the Commonwealth's burden. Carter also changed his position
with regard to the necessity of the defendant testifying. The
Commonwealth stated it had no “faith” in Carter's final answers.
(4) The Commonwealth struck Geraldine Thomas because
she stated that she would have to have “no doubt” as to the guilt of the
defendant before imposing the death penalty regardless of what the court
said.
(5) Christopher Sledge testified that he would hold
the Commonwealth to a higher standard even though he supposed he could
follow the court's instructions. Sledge also stated that he “didn't like”
the death penalty.
The trial court concluded that these explanations
were race-neutral and rejected Jackson's Batson challenge. FN2. Jackson
did not assert that these answers were pre-textual.
On appellate review, the trial court's conclusion
regarding whether reasons given for the strikes are race-neutral is
entitled to great deference, and that determination will not be reversed
on appeal unless it is clearly erroneous. Wright v. Commonwealth, 245
Va. 177, 186, 427 S.E.2d 379, 386 (1993), vacated and remanded on other
grounds, 512 U.S. 1217, 114 S.Ct. 2701, 129 L.Ed.2d 830 (1994).
The trial court has the unique opportunity to observe
the demeanor and credibility of potential jurors during voir dire, and
the record supports the Commonwealth's characterization of the
statements made by the potential jurors in question. Based on our review
of the record, we conclude that the trial court's ruling on Jackson's
Batson challenge was not clearly erroneous.
C. Question Regarding Failure to Cooperate
Jackson complains that the trial court improperly
allowed the Commonwealth to cross-examine his court-appointed DNA expert,
Shawn Weiss, regarding the witness' refusal to meet with the
Commonwealth's DNA expert.
In his direct testimony, Weiss testified that he did
not conduct independent testing of the DNA samples but questioned the
Commonwealth's testing results in a number of areas. During cross-examination,
Weiss acknowledged that the Commonwealth had attempted to set up a
meeting between Weiss and the Commonwealth's DNA experts to “talk about”
and “look at each other's calculations.”
The Commonwealth then asked Weiss why he had not
agreed to the meeting. Weiss replied that he was “under the direction of
the person that hired [him].” The Commonwealth went on to ask if Weiss
knew that the Commonwealth had “just opened everything up, showed it, no
requests having been made.” At this point Jackson objected, saying that
the Commonwealth's questioning implied that “somehow we weren't
following the rules.” The trial court overruled the objection.
Jackson argues here that the Commonwealth's
questioning misled the jury because it implied that Jackson did not
adhere to the rules of discovery. FN3 The Commonwealth responds, that by
asking the reasons for Weiss' refusal to meet with the Commonwealth's
DNA experts, it was exploring Weiss' credibility, potential bias and the
basis of his opinions.
FN3. Jackson also asserts that the exchange violated
his constitutional rights of due process. He did not make this argument
in the trial court and we do not consider it here. Rule 5:25.
Cross-examination of a witness to establish or
explore the bias of that witness based on a relationship to a party in
the case is proper. Goins v. Commonwealth, 251 Va. 442, 465, 470 S.E.2d
114, 129 (1996). Furthermore, limitation of cross-examination is within
the trial court's discretion. Norfolk & Western Railway Co. v. Sonney,
236 Va. 482, 488, 374 S.E.2d 71, 74 (1988).
In this case Weiss' statement that he refused to meet
with the Commonwealth's DNA experts because of his relationship to the
defense could have reflected bias. Accordingly, we cannot say that the
trial court erred in overruling Jackson's objection to the
Commonwealth's question.
D. Expert Testimony on False Confessions
Jackson argues in his fourteenth assignment of error
that the trial court incorrectly barred Jackson from asking his expert
witness, Dr. Steven C. Ganderson, “a hypothetical question about false
confessions.” FN4 While the trial court was willing to permit Dr.
Ganderson to testify generally regarding circumstances that could lead
to false confessions, it forbade Dr. Ganderson from testifying about the
truth or falsity of Jackson's statement. We find no error in the trial
court's ruling.
FN4. Jackson does not isolate any specific question
in his brief.
The physical and psychological environment
surrounding a confession can be very relevant in determining whether a
confession is reliable, and expert witnesses may testify “to a witness's
or defendant's mental disorder and the hypothetical effect of that
disorder.” Pritchett v. Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205,
208 (2002). Expert witnesses may not, however, render an opinion on the
defendant's veracity or reliability of a confession because whether a
confession is reliable is a matter in the jury's exclusive province. Id.
During voir dire, the trial court accepted Dr.
Ganderson as an expert on psychology and sexual-psychological issues.
Jackson elicited testimony from the doctor on the factors that
contribute to “transference,” a phenomenon in which a subject becomes
more prone to suggestion and may say things which are untrue in an
attempt to gain approval from an authority figure.
Dr. Ganderson also testified about antecedents and
objective goals of a defendant that could affect the reliability of a
defendant's statements. While the trial court permitted this questioning,
it sustained the Commonwealth's objection when Dr. Ganderson questioned
the veracity of Jackson's statement based on transference theory. The
trial court, relying on our decision in Pritchett, ruled that Dr.
Ganderson could testify regarding the circumstances surrounding
Jackson's confession but not about its truth:
Now, I still think in terms out of what he can't say,
that's a false confession. I think the jury still has to make those
kinds of conclusions. Those are factual conclusions, but he can testify
about the surroundings and what he believes the impact has on this
defendant with his mental capacity as well as the surroundings of the
circumstances out of which the confession was taken.
There is no error in this holding.
E. Negative Evidence of Reputation
Jackson asserts that the trial court erred in
“preventing Jackson from presenting certain so-called ‘negative’
evidence of good character.” Jackson refers specifically to the
testimony of two individuals he called as character witnesses. Jackson
asked the witnesses if they were aware of or had heard that Jackson had
a reputation in the community for being violent. The Commonwealth
objected, stating that before asking a question of this sort, Jackson
had to establish that the witness was aware of Jackson's reputation in
the community. The trial court sustained the objections.
This assignment of error is without merit. Jackson
was not prohibited from presenting negative evidence of good character.
Negative evidence of good character is based on the theory that a person
has a good reputation if that reputation has not been questioned. Zirkle
v. Commonwealth, 189 Va. 862, 871-72, 55 S.E.2d 24, 29-30 (1949). It is
admissible, as is other reputation evidence, if the proper foundation is
established. See Barlow v. Commonwealth, 224 Va. 338, 340-41, 297 S.E.2d
645, 646 (1982). Thus, a witness must be aware of the party's reputation
in the community before he may testify as to the lack of any reputation
for a particular characteristic.
Jackson did not establish that either witness had
knowledge of Jackson's reputation in the community before asking the
type of question recited above. Accordingly, the trial court not only
was correct in sustaining the Commonwealth's objection to the questions,
but nothing in the record shows that Jackson was prevented from
introducing negative evidence of reputation.
In fact, the record shows that in at least one
instance, Jackson proceeded to establish that the witness had the
requisite knowledge of Jackson's reputation in the community and then
testified that he never “heard anything from anybody of [Jackson] doing
any wrongdoing to anybody.” We find no error in the ruling of the trial
court.
F. Motion to Strike
Jackson asserts that the trial court erred in denying
his motion to strike the Commonwealth's evidence. He argues that the
evidence was insufficient to support his convictions because his
confession was not reliable, the forensic testing was inadequate, and no
other evidence connected him to the crime scene.
In reviewing the record to determine whether the
evidence was sufficient to support the convictions, we consider the
evidence in the light most favorable to the Commonwealth and give the
Commonwealth all inferences fairly deducible from that evidence. Burns
v. Commonwealth, 261 Va. 307, 313-14, 541 S.E.2d 872, 878 (2001).
Jackson argues that his confession was not reliable
for two reasons: his will was overborne by the deception of the officers
and the confession was false. We have already held that Jackson's will
was not overborne, and, therefore, we reject that argument as a basis
for finding his confession unreliable.
Jackson also bases his assertion that his confession
was false on the alleged deception of the officers during his
interrogation. Jackson does not offer, and we cannot find, any rationale
or evidence supporting the conclusion that the tactics utilized by the
officers during his interrogation caused Jackson's confession to be
false.
The forensic testing was inadequate, according to
Jackson, because the DNA testing of the blood mixture on the toe of a
sock found at the crime scene involved only eight loci. Jackson's DNA
loci matched six of the eight loci. The standard procedure of the state
laboratory is to test 13 or 16 loci. Shawn Weiss, Jackson's expert in
DNA testing, testified that, had 13 or 16 loci been tested, there was a
“possibility” that other suspects may have had more loci matches than
Jackson.
Jackson's criticism of the Commonwealth's forensic
testing does not change the fact that some of the loci matched his DNA.
Under these circumstances, as his own expert testified, “Kent Jackson
cannot be excluded as a minor contributor.”
Finally, the lack of other forensic evidence
connecting Jackson to the crime scene does not support the conclusion
that the evidence was insufficient to prove Jackson's guilt beyond a
reasonable doubt. Jackson's detailed confession, corroborated by
evidence of the injuries Mrs. Kaiser suffered, was sufficient to
establish his guilt beyond a reasonable doubt. The trial court did not
err in denying Jackson's motion to strike. Clozza v. Commonwealth, 228
Va. 124, 133, 321 S.E.2d 273, 279 (1984).
STATUTORY REVIEW
Under Code § 17.1-313(C)(1), we must inquire whether
passion, prejudice, or any other arbitrary factor affected the
sentencing decision. Jackson contends that “numerous horrific
photographs of the decendant” inflamed the jury and improperly
influenced its sentencing decision. Jackson's argument is not, and
cannot be, that allowing the pictures to be seen by the jury was error.
As discussed above, he did not object to their introduction during the
guilt phase of the trial.
Thus, whether the these pictures were properly or
improperly admitted is not the issue before us in this statutory review.
We do however, consider the potential impact these pictures may have had
on the decision to impose the death sentence. Emmett v. Commonwealth,
264 Va. 364, 371, 569 S.E.2d 39, 44 (2002).
The pictures at issue, while gruesome, accurately
depicted the condition of the victim and were relevant to the “motive,
intent, method, malice, premeditation and the atrociousness of the crime.”
Id. at 372, 569 S.E.2d at 45. In this context, the jury was entitled to
use the photographs to make an informed decision on the defendant's
guilt and the appropriate sentence thereafter.
The record contains ample evidence supporting the
imposition of the death sentence, and nothing in the record suggests
that passion or prejudice played any part in that decision. Code §
17.1-313(C)(2) requires us to determine whether the sentence in this
case is “excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.” Our examination
seeks “ to reach a reasoned judgment regarding what cases justify the
imposition of the death penalty.” Orbe v. Commonwealth, 258 Va. 390,
405, 519 S.E.2d 808, 817 (1999).
We have examined the capital murder cases where
robbery was the predicate offense and where the Commonwealth sought the
death penalty based on the aggravating factor of vileness. Our review
encompassed both cases where the jury fixed the death penalty and where
it fixed life imprisonment. Based on that review, we find that
defendant's sentence was not excessive or disproportionate to sentences
imposed in capital murder cases similar to the instant case. See Bennett
v. Commonwealth, 236 Va. 448, 374 S.E.2d 303 (1988) (defendant bound,
beat, and stabbed victim); Boggs v. Commonwealth, 229 Va. 501, 331
S.E.2d 407 (1985) (defendant beat his 87-year-old neighbor with a piece
of steel and then stabbed her); Bunch v. Commonwealth, 225 Va. 423, 304
S.E.2d 271 (1983)(defendant shot his lover in the head, ransacked her
house, and hung her from a doorknob); LeVasseur v. Commonwealth, 225 Va.
564, 304 S.E.2d 644 (1983) (defendant beat victim and stabbed her with a
carving fork and ice pick); Whitley v. Commonwealth, 223 Va. 66, 286
S.E.2d 162 (1982) (defendant strangled victim, cut her throat, and
inserted umbrellas into her anus and vagina post-mortem ); Coppola v.
Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979) (defendant entered
house with co-conspirators, robbed victim, and then choked and beat her
to death).
At oral argument, Jackson's counsel argued that the
death penalty should not be imposed in this case because Jackson himself
did not commit some of the more heinous acts involved in the murder of
Mrs. Kaiser, but rather primarily assumed the role of a bystander and
only stabbed Mrs. Kaiser with a knife. Counsel asked this Court to set
aside the death penalty and impose a penalty of life pursuant to the
provisions of Code § 17.1-313(D)(2).
We reject this request. Beulah Mae Kaiser suffered a
brutal, vicious, and painful death at Kent Jermaine Jackson's hands. The
record indicates that Jackson agreed to the plan to enter Mrs. Kaiser's
apartment and rob her and that he kicked her and held her down while
Dorsett punched, kicked, and stabbed her. Jackson stabbed Mrs. Kaiser
and he handed Dorsett the cane that ultimately was shoved through her
face.
For the above reasons we affirm the conviction for
capital murder and the imposition of the death penalty entered in Case
No. 030749 and affirm the non-capital convictions in Case No. 030750.
Jackson v. Johnson, 523 F.3d 273 (4th Cir.
2008) (Habeas).
Background: Following affirmance of first-degree
murder conviction and death sentence, 587 S.E.2d 532, petition for writ
of habeas corpus was filed. The United States District Court for the
Eastern District of Virginia, Walter D. Kelly, Jr., J., 2007 WL 1052547,
denied the petition. Petitioner appealed.
Holding: The Court of Appeals, Williams, Chief Judge,
held that state court determination in rejecting ineffective assistance
of counsel claim did not represent an unreasonable application of
Supreme Court precedent. Affirmed.
WILLIAMS, Chief Judge:
On April 18, 2000, Petitioner Kent Jermaine Jackson
brutally killed Beulah Mae Kaiser, a 79-year-old woman who lived in the
apartment across the hall from him. A Virginia jury convicted Jackson of
first-degree, premeditated murder during the commission of a robbery or
attempted robbery, robbery, felony stabbing, and burglary, all in
connection with Kaiser's death. The jury sentenced him to death for the
first-degree murder conviction.
After unsuccessfully working his way through
Virginia's direct-appeal and post-conviction review processes, Jackson
filed a petition under 28 U.S.C.A. § 2254 (West 2006) seeking habeas
relief in federal court. In his federal habeas petition, Jackson raised
numerous claims, including a claim that his trial counsel was
ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), for failing to object to the Commonwealth
of Virginia's closing argument at his sentencing, an argument that
Jackson claims rendered his trial fundamentally unfair and violated the
Due Process Clause of the Fourteenth Amendment. The district court
denied Jackson's petition, and, for the reasons that follow, we affirm.
I.
A.
The grisly facts of Kaiser's murder, as recounted by
the Supreme Court of Virginia in its opinion in Jackson's direct appeal,
are as follows:
On April 18, 2000, the body of Beulah Mae Kaiser, 79
years of age, was found in her apartment. According to the medical
examiner, Mrs. Kaiser died from a combination of a stab wound to her
jugular vein, a fractured skull, and asphyxia caused by blockage of her
airway by her tongue. Any one of these injuries could have been fatal.
In addition to these injuries, Mrs. Kaiser suffered
two black eyes, a broken nose, and multiple abrasions, lacerations, and
bruises. She had five stab wounds to her head and neck, including the
wound to her jugular vein.
The medical examiner also testified that Mrs. Kaiser
had been anally sodomized with her walking cane and that the cane then
had been driven into her mouth with such violence that it knocked out
most of her teeth, tore her tongue and forced it into her airway,
fractured her jaw, and penetrated the left side of her face.
When Mrs. Kaiser's body was found, her apartment was
in disarray. Personal items were strewn throughout the apartment, blood
spatters were on the surfaces of the apartment, and the contents of Mrs.
Kaiser's purse had been dumped on the floor. The police were unable,
however, to find a weapon or any fingerprints of value.
The crime went unsolved for over 16 months until DNA
testing of saliva on a cigarette butt found in the apartment implicated
an individual named Cary Gaskins. An interview with Gaskins led the
police to Joseph M. Dorsett and [Kent Jermaine] Jackson, who had been
roommates in an apartment across the hall from Mrs. Kaiser's apartment
at the time of her death. Following an interview with Dorsett, Newport
News police arrested Dorsett, charging him with Mrs. Kaiser's murder,
and obtained a warrant for Jackson's arrest.
Police arrested Jackson at a girlfriend's home in
King George County around 4:00 a.m. on August 29, 2001. During an
interview with Newport News police detectives at the King George County
jail that afternoon, Jackson confessed to the murder of Mrs. Kaiser.
Jackson v. Commonwealth, 266 Va. 423, 587 S.E.2d 532, 537-38 (2003).
B.
On January 14, 2002, a grand jury in the Circuit
Court for the City of Newport News, Virginia indicted Jackson, charging
him with pre-meditated murder in the commission of a robbery or
attempted robbery, robbery, felony stabbing, burglary, and object sexual
penetration.FN1 Id. at 538. In December of the same year, a jury
convicted Jackson of all counts except the object sexual penetration
count. FN1. The grand jury also indicted Dorsett on the same charges.
According to Jackson's brief, “Dorsett received multiple terms of years
for these crimes.” (Petitioner's Br. at 9.)
Pursuant to Virginia law, a capital sentencing
proceeding was held. Va.Code Ann. § 19.2-264.4 (2004). The jury found
“unanimously and beyond a reasonable doubt that [Jackson's] conduct in
committing the offense was outrageously or wantonly vile, horrible, or
inhuman in that it involved torture, depravity of mind or aggravated
battery to the victim beyond the minimum necessary to accomplish the act
of murder.” (J.A. at 1090 (tracking language from Va.Code §
19.2-264.4(C)).) Based on this finding, the jury recommended that
Jackson be sentenced to death. The trial court accepted the jury's
recommendation and imposed a death sentence.
Jackson appealed, and the Supreme Court of Virginia
unanimously affirmed his convictions and death sentence, Jackson, 587
S.E.2d at 546. The U.S. Supreme Court later denied his petition for a
writ of certiorari, Jackson v. Virginia, 543 U.S. 842, 125 S.Ct. 281,
160 L.Ed.2d 68 (2004).
Shortly thereafter, the trial court appointed Jackson
new counsel to represent him in state post-conviction proceedings, and
on December 2, 2004, Jackson filed a habeas corpus petition in the
Supreme Court of Virginia, raising a host of federal constitutional
claims. One of Jackson's claims focused on the Commonwealth's closing
argument at his sentencing: Jackson argued that, under Strickland, his
trial counsel was ineffective because he did not object to the
Commonwealth's comparing Jackson to his victim and urging the jury to
choose a death sentence based on this comparison. On July 10, 2005, the
Supreme Court of Virginia denied Jackson's petition in a lengthy order,
and the U.S. Supreme Court denied Jackson's attendant certiorari
petition on August 26, 2005. Jackson v. True, 545 U.S. 1160, 126 S.Ct.
29, 162 L.Ed.2d 928 (2005).
Jackson then turned to the federal courts for habeas
relief, filing a 28 U.S.C.A. § 2254 petition in the Eastern District of
Virginia that raised essentially the same federal constitutional claims
presented in his state habeas petition. The Commonwealth filed a motion
to dismiss the petition, and a magistrate judge issued a report and
recommendation that the petition be dismissed. On March 30, 2007, the
district court accepted the magistrate judge's recommendation and
dismissed Jackson's habeas petition.
Jackson timely appealed, and on October 15, 2007,
during the pendency of the appeal, the district court granted Jackson a
certificate of appealability (“COA”) on the following issue: whether,
under Strickland, Jackson's trial counsel was ineffective for failing to
object to the Commonwealth's victim-to-defendant comparison at
sentencing.
*****
This appeal focuses on the Commonwealth's closing
argument at the sentencing phase of Jackson's trial. The argument
proceeded as follows:
Ladies and gentlemen, because the Commonwealth has
proved the aggravating factors does not mean that you're required to
find that death is the appropriate punishment. You may impose the death
penalty. You may.
What you have to do is weigh the evidence to include
the evidence in mitigation. You've taken an oath to take that into
consideration as well. Weigh the evidence to include the defendant's
evidence in mitigation against the defendant's conduct in committing the
crime; the helplessness of the victim and the effects that Kent
Jackson's crime has had on Beulah Mae Kaiser's family, friends and this
community.
That is what the Commonwealth is asking you to do.
The defendant's conduct we've already talked about; clearly horrible,
inhuman. Is there any question this was a defenseless woman? From what
you have heard about her, she had arthritis, she got around on a walker,
she probably would have given Mark Dorsett and Kent Jackson anything
they wanted. There was no need for this. None. It didn't have to happen.
What's the evidence in mitigation against this?
You've heard from his family. Kent Jackson came from a very good family.
There's no doubt about that. The people that took that stand told the
truth about what they know about this person, and when they looked at
the Kaiser family and said they were remorseful for what he did and that
they truly felt pain for this family, they meant it.
I know that every single one of you felt that. They
meant it from the bottom of their hearts, and the Kaiser family felt it,
too.
What did you see from him? He strolled to this
witness stand with his hands in his pockets. Said Mark Dorsett may have
had an influence on Kent Jackson's life, but when he picked up that
sharp instrument, he made the decision to thrust it into Beulah Kaiser's
throat. Mark Dorsett didn't make it for him. As she laid there and he
was kicking her on the ground, he made that decision.
Mark Dorsett didn't make it for him. Mark Dorsett
will be held answerable another day. Today is Kent Jackson's day to be
answerable for what he chose to do and what he did to this woman. Look
at the effects that this crime has had on Beulah Mae Kaiser's family,
friends and on this community.
As I listened to this testimony today, I couldn't
help but realize that what we're talking about here are two lives that
were completely opposite. You had Beulah Mae Kaiser who literally during
her life lost everything material, just about everything you can lose,
and who only sought to give. She lost what she had and she wanted to
give more.
Then you have Kent Jackson who was given everything
and only sought to take more. This family has lost an incredible person.
I've only gotten to know Beulah Kaiser through talking to family and
friends, but from what you have heard about her, it's not only clear
that this family lost her, we lost her. People like her don't come along
every day. She was a gift to the community, and when Kent Jackson went
in there that day and took rings and coins and worthless trinkets, he
took something far more valuable, something that can never be replaced.
Weigh the life he had against what he has taken, and
when you do you will know that the appropriate punishment for capital
murder is death. (J.A. at 1014-1016.)
In his Virginia habeas petition, Jackson contended
that his trial counsel was constitutionally ineffective for failing to
object to this closing argument because the Commonwealth's comparison of
Jackson to his victim severely prejudiced the proceedings, thus
rendering the trial fundamentally unfair and violative of the Fourteenth
Amendment's Due Process Clause. Although Jackson acknowledged that the
U.S. Supreme Court approved of the use of victim-impact evidence in
Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720
(1991), he argued that our panel decision in Humphries v. Ozmint, 366
F.3d 266 (4th Cir.2004), made clear that Payne does not allow for the
kind of victim-to-defendant comparison that the Commonwealth made during
its closing.
The Supreme Court of Virginia rejected Jackson's
Strickland claim on the merits. Rendering its decision on Jackson's
habeas petition after the en banc Humphries court vacated the panel
opinion and reinstated the death sentence in that case, Humphries v.
Ozmint, 397 F.3d 206, 226-27 (4th Cir.2005)(en banc), the Supreme Court
of Virginia ruled as follows:
The Court holds that [Jackson's ineffective-assistance]
claim satisfies neither the “performance” nor the “prejudice” prong of
the two-part test enunciated in Strickland. This Court has previously
held that “victim impact testimony is relevant to punishment in a
capital murder prosecution in Virginia.” Weeks v. Commonwealth, 248 Va.
460, 450 S.E.2d 379, 389-90 (1994).
The record, including the trial transcript,
demonstrates that the Commonwealth's comments about the victim and
petitioner were based on evidence already in the record. Petitioner does
not argue that the comments, standing alone, were factually inaccurate
or unsupported by the record. Petitioner concedes that the United States
Supreme Court approved the use of victim impact evidence in Payne v.
Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), but
argues there is a judicial movement towards recognizing that victim
impact statements and argument could be “so unduly prejudicial that it
renders the trial fundamentally unfair.” Id. at 825, 111 S.Ct. 2597.
In support of this argument, petitioner asks this
Court to consider Humphries v. Ozmint, 366 F.3d 266 (4th Cir.2004). The
United States Court of Appeals, however, has since vacated that panel
opinion and affirmed the judgment of the district court, holding that
the South Carolina Supreme Court did not err when it held that the
solicitor's comparison of the defendant's life to that of the victim in
closing argument during the sentencing phase did not render the trial
fundamentally unfair. Humphries v. Ozmint, 397 F.3d 206, 226 (4th
Cir.2005)(en banc). Thus, petitioner has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged error, the result of the
proceeding would have been different.
*****
Jackson concedes, as he did before the Supreme Court
of Virginia, that Payne permits the admission of victim-impact evidence
at capital trials, but he claims that Payne clearly established that
arguments of the sort made by the Commonwealth at his trial-those he
styles as comparing the worth of the victim to the defendant-render
capital trials fundamentally unfair in violation of the Due Process
Clause of the Fourteenth Amendment.
Our en banc court has previously rejected this very
characterization of Payne. See Humphries, 397 F.3d at 224. In Humphries,
we stated what is obvious from the Payne opinion itself: “the Payne
Court did not disapprove of comparisons between the defendant and the
victim.” Id. at 224.
The Payne Court did allow for the possibility that a
petitioner could make out a Fourteenth Amendment due-process claim “[i]n
the event that [victim-impact] evidence is introduced that is so unduly
prejudicial that it renders the trial fundamentally unfair,” 501 U.S. at
825, 111 S.Ct. 2597, but it did not “set the parameters of what type of
victim-impact evidence would render a trial fundamentally unfair under
the Due Process Clause of the Fourteenth Amendment,” Humphries, 397 F.3d
at 218. See also id. at 231 (Luttig, J., concurring)(noting that Payne
does not address victim-to-defendant comparisons); Humphries v. State,
351 S.C. 362, 570 S.E.2d 160, 167 (2002) (“ Payne does not indicate any
concern about comparisons between the victim and the defendant.”).
Indeed, as the Humphries en banc court pointed out,
Payne's only reference to comparative worth arguments was its
observation that, as a general matter, victim impact evidence is not
offered to make victim-to-victim comparisons. Humphries, 397 F.3d at 224
(citing Payne, 501 U.S. at 823, 111 S.Ct. 2597). Because Payne does not
expressly disapprove of victim-to-defendant comparisons at trial, we
held in Humphries that the South Carolina Supreme Court did not
unreasonably apply Strickland in concluding that Humphries's trial
counsel was constitutionally effective despite not objecting to the
comparisons between Humphries and his victim. Humphries, 397 F.3d at
222-23.
The same reasoning holds true in this case. In light
of Payne's silence regarding victim-to-defendant comparisons, we cannot
say that the Supreme Court of Virginia unreasonably applied Payne in
rejecting Jackson's purported comparative-worth argument. More to the
point, we believe that a reasonable attorney in the shoes of Jackson's
trial counsel would not have felt compelled by Payne to object on the
ground that the Commonwealth's closing argument violated Due Process.
Even assuming arguendo that Jackson's counsel should
have objected to the Commonwealth's closing argument, however, Jackson
has not demonstrated a reasonable probability that the objection would
have led to a result other than a death sentence. As was true in
Humphries, the evidence concerning the appropriate sentence for Jackson
was “not close.” Humphries, 397 F.3d at 222. Jackson confessed to
murdering Beulah Mae Kaiser, and the autopsy revealed the brutality of
the murder. The Commonwealth's closing argument surely “did not inflame
[the jury's] passions more than did the facts of the crime.” Payne, 501
U.S. at 831, 111 S.Ct. 2597 (O'Connor, J., concurring).
III.
In sum, we cannot say that the Supreme Court of
Virginia incorrectly, let alone unreasonably, applied Strickland in
denying Jackson habeas relief. Accordingly, for the aforesaid reasons,
the judgment of the district court is AFFIRMED.
