Likening Eric Payne to a
mad dog, Hanover Circuit Judge Richard Taylor sentenced him to death for
the murder and attempted rape of Ruth Parham.
At the end of a 3-day
sentencing hearing, Taylor said that "when you have a mad dog in the
pack, you get him out. The only question is whether you put him in
another pen or take him down the river and put him in a gunnysack with a
In opting for the gunnysack,
Taylor said that "under certain circumstances, he (Payne) would do the
same thing again." After hearing that, Payne stood and said, "no, sir,"
when Taylor asked him if he had anything to say before the sentence was
Minutes later, Jeff Fazio
and Anthony Parham stood by themselves in the courthouse lobby and wept,
each with an arm on the shoulder of the other. Parham is the son of the
61-year-old custodial worker whose body was found June 6, 1997 in a
dental office in Richmond.
Fazio is the son of Sally
Marie Fazio; Payne raped, robbed and bludgeoned Fazio to death on June
11, 1997 in her home with the same hammer that he used to kill Parham.
A Richmond Circuit Court
jury recommended the death penalty in November 1997 for Payne in Fazio's
death. Payne, 25, pleaded guilty in December to capital murder in the
death of Parham and placed the decision between death and life in prison
without parole in Taylor's hands.
Anthony Parham said that "I
am pleased with the decision." His aunt, Ida Butts, added that "I'm glad
this phase of it is over. Maybe we can pick up and go on and not having
to keep going back" to the death of Ruth Parham.
Fazio noted that his sister,
Lisa Moseley, was not present because she recently gave birth to her 1st
child; "it is a new lease of on life for them," he said. Earlier
Gerald Payne, who adopted
the defendant when he was 8 years old and surrendered custody of him
when he was 14, testified that he spent about $70,000 in counseling for
Payne, but "we never felt in those 6 years that we were able to
He lied, stole and never
really became part of the family, the elder Payne said. Despite that,
Payne "had every opportunity for a good life" while he was in his home,
Gerald Payne added.
Although the witness stand
is barely 10 feet from the defendant in the Hanover courtroom, the 2 men
never made eye contact while the father was testifying.
Earlier testimony had shown
that Payne was orphaned at 4 months when his father shot and killed his
mother, and then hanged himself the next day.
Over the next 18 years,
Payne was in 22 homes, shelters and institutions before spending 6 years
at a correctional center on an LSD distribution charge.
He married in July 1996
while in prison; he was released in January 1997, obtained a job with a
dry-wall company and moved into an apartment with his wife in western
Henrico County. But he also started abusing alcohol and crack cocaine
and exposing himself to women.
Psychologist Nelson Evans
testified that the sexual attacks on the women were an abnormal
extension of the exhibitionism and his seeking sexual gratification by
touching strange women in crowds. The stress of trying to build a normal
life despite his mental problems helped explain but did not excuse the
attacks, Evans said.
In urging Taylor to
sentence Payne to death, Senior Assistant Commonwealth's Attorney
William R. Coleman acknowledged that Payne had a miserable upbringing.
He told Taylor: "We'd ask you to pity the child but punish the man."
Defense attorney Patrick
Bynum responded that there is no evidence of violence or aggressiveness
at all" on Payne's part other than the 2 murders and an attack on a
woman and her 8-year-old son just before Fazio was killed. He had
adapted well in prison and would not be a threat there, Bynum said.
Taylor recalled that Payne
had said he deserved to die and asked his attorneys to abandon any
appeals when he was sentenced in Fazio's death last month. Taylor said
that "he is entitled to be relieved of his of his misery. I think
probably it is the best thing for everybody."
Eric Christopher Payne, 26, 99-04-28, Virginia
In Jarratt, a Virginia man convicted of sexually assaulting and
killing 2 women with a hammer in 1997 was executed by lethal
injection in a state prison on Wednesday, a prison spokesman said.
Eric Christopher Payne, 26, confessed to murdering the women and
beating another woman and her son in a series of attacks 6 months
after he was released from prison. He refused to file appeals or
seek clemency to delay his execution.
"I love you Margie. We will be together again," Payne said to his
wife just before he was injected with a dose of lethal chemicals in
the Greensville state prison in Jarratt, about 55 miles from the
state capital Richmond. He died at 9:04 p.m. EDT.
Payne was the 1st of 2 death row inmates set to die in as many days.
According to prosecutors, Payne admitted to the June 1997
bludgeoning and attempted rape of Ruth Parham, a 61-year old
cleaning woman, in Hanover County. 6 days later, he raped, beat to
death and robbed Sally Fazio, 57, in nearby Richmond.
Hours earlier, Payne had attacked Ridley Fleck and her 8-year-old
son, Dean, who suffered extensive head wounds when he beat them with
the 22-ounce hammer outside a Richmond movie theater.
During Payne's sentencing hearing, a psychologist testified he
suffered from sexual disorders stemming in part from a life spent
largely in foster homes and institutions. His father shot his mother
to death and then hanged himself when Payne was 4 months old.
Payne also never received counseling recommended while he was in
prison serving a 6-year sentence on drug charges.
"He was bound to lose, you know. He never had a chance from the
beginning," attorney Carolyn Grady said. "He really kind of got the
shaft all along from the system."
Payne married his wife, Margaret Dalton Payne, while in prison
serving time on the drug charge.
Payne becomes the 7th condemned inmate to be put to death this year
in Virginia, and the 66th overall since the state resumed capital
punishment on Aug. 10, 1982.
(sources: Reuters & Rick Halperin)
ERIC CHRISTOPHER PAYNE
COMMONWEALTH OF VIRGINIA
Record No. 980559
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
ERIC CHRISTOPHER PAYNE
COMMONWEALTH OF VIRGINIA
Record No. 980879
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H.C. Taylor, Judge
January 8, 1999
SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
Eric Christopher Payne
received two death sentences in each of these appeals. Although
Payne has waived his appeals of right, former Code 17-110.1 (now Code
17.1-313) mandates that we review the death sentences nonetheless.
In this review, we consider and determine whether the sentences were
imposed "under the influence of passion, prejudice or any other
arbitrary factor" and whether the sentences are "excessive or
disproportionate to the penalty imposed in similar cases, considering
both the crime and the defendant." Former Code 17-110.1(C).
The Fazio Case
Payne was charged with the capital murder
of Sally Marie Fazio in the commission of robbery, in violation of Code
18.2-31(4), and with the capital murder of Fazio in the commission of
rape, in violation of Code 18.2-31(5) (the Fazio case). In the
first phase of a bifurcated trial, the jury found Payne guilty of both
capital murders. At the penalty phase of the trial, after hearing
evidence of Payne's prior criminal history, the jury found the "future
dangerousness" predicate and the "vileness" predicate to be present and
unanimously fixed Payne's punishment at death for each of the two
capital murder convictions. Code 19.2-264.2. After
considering a probation officer's report and conducting a sentencing
hearing, the trial court sentenced Payne in accord with the jury
Payne filed a notice of
appeal, but subsequently requested permission to waive his appeal of
right. We directed the trial court to conduct an evidentiary
hearing to determine whether Payne's decision to waive his appeal was
made knowingly, voluntarily, and intelligently. The trial court
conducted such a hearing and found that Payne's waiver was made
knowingly, voluntarily, and intelligently, and we conclude that the
record supports that finding.
The evidence in the Fazio case is
undisputed. On the evening of June 11, 1997, Payne saw Fazio
outside her residence in the City of Richmond, caring for her sick dog.
When Fazio entered her house, Payne put a 22-ounce hammer in his pants,
went to Fazio's front door, and asked to use the telephone.
Fazio permitted Payne to use a portable
telephone outside her house, and, after feigning a telephone call, Payne
returned the telephone. As he handed the telephone to Fazio, Payne
forced his way into Fazio's house and struck her in the head with the
hammer, knocking her down.
Fazio briefly struggled
with Payne and then attempted to flee down a hallway to her bedroom.
As she fled, she threw a chair behind her, attempting to block Payne.
Fazio tried to close the bedroom door, but Payne forced his way into the
room. Fazio pleaded for her life and offered to write a check to
Payne told Fazio that, if she removed her
clothes, he would not hurt her. Fazio removed her clothes, and
Payne raped her. During the attack, Payne repeatedly struck Fazio
with the hammer.
Thereafter, Payne took money from Fazio's
pocketbook and ransacked her house looking for more money and guns.
He then removed his bloodstained clothing and dressed in sweatpants and
a T-shirt belonging to Fazio. He left the bloodstained clothing in
As Payne was preparing to leave the house,
he noticed that Fazio was still breathing, so he hit her with the hammer
several times in the head. Fazio continued breathing, so Payne
"hit her maybe ten, twelve times in the chest."
Payne wrapped the hammer in a towel and
subsequently threw the hammer out of his car window. Later that
night, Payne disposed of the clothing he had taken from Fazio's home in
a dumpster at a public high school.
The police recovered the
hammer, and forensic evidence established that the hammer contained
traces of blood consistent with Fazio's blood type. Semen stains
from a bedspread and clothing found at the crime scene were consistent
with Payne's blood type and DNA profile.
The medical examiner's autopsy revealed
that Fazio had died from blunt force trauma to the head, the result of
multiple blows that had caused fractures, contusions, hemorrhaging, and
edema. Fazio also had sustained multiple bone fractures and
contusions to her chest and a fractured right middle finger.
In the penalty phase of the trial, the
Commonwealth presented evidence of Payne's prior criminal history.
This included the attempted rape and murder of Ruth Parham on June 5,
1997. The Commonwealth also presented evidence of an assault by
Payne on Ridley Fleck and her eight-year-old son, W. Dean Fleck.
This attack also occurred on June 11,
1997, shortly before Payne murdered Fazio. Payne attacked the
Flecks with a hammer, and he told the police that he attacked them
because he wanted to incapacitate Ms. Fleck and take her elsewhere to
rape her. Payne, however, was forced to leave the scene because
Dean Fleck was screaming and fighting. The Flecks both suffered
skull fractures in the attack.
We first consider whether the death
sentences in the Fazio case were imposed "under the influence of passion,
prejudice or any other arbitrary factor." Former Code
Payne contends that a videotape of the
crime scene and autopsy and crime scene photographs, presented during
the guilt phase of the trial, were unduly graphic and were shown to
inflame the passions of the jury. He further contends that a crime
scene videotape related to his earlier attempted rape and murder of Ruth
Parham, presented during the penalty phase of the trial, also was unduly
We consistently have held that the
admission of photographs into evidence rests within the sound discretion
of a trial court, and the court's decision will not be disturbed on
appeal unless the record discloses a clear abuse of discretion.
Walton v. Commonwealth, 256 Va. 85, 91-92, 501 S.E.2d 134, 138
(1998); Goins v. Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126,
cert. denied, 519 U.S. 887 (1996); Washington v. Commonwealth, 228 Va.
535, 551, 323 S.E.2d 577, 588 (1984), cert. denied, 471 U.S. 1111
Photographs of a victim are admissible to
prove motive, intent, malice, premeditation, method, and the degree of
atrociousness of the crime. Walton, 256 Va. at 92, 501 S.E.2d at
138; Goins, 251 Va. at 459, 470 S.E.2d at 126. Photographs that
accurately portray the crime scene are not rendered inadmissible simply
because they are gruesome or shocking. Walton, 256 Va. at 92, 501
S.E.2d at 138; Gray v. Commonwealth, 233 Va. 313, 343, 356 S.E.2d 157,
173, cert. denied, 484 U.S. 873 (1987); Washington, 228 Va. at 551, 323
S.E.2d at 588.
Likewise, videotapes that
accurately depict a crime scene are admissible to show motive, intent,
method, malice, premeditation, and the atrociousness of the crime, even
if photographs of the crime scene also have been admitted into evidence.
Stewart v. Commonwealth, 245 Va. 222, 235, 427 S.E.2d 394, 403, cert.
denied, 510 U.S. 848 (1993).
We have examined the videotapes of the
Fazio crime scene and the Parham crime scene, the photographs of the
Fazio crime scene, and the Fazio autopsy photographs. While the
photographs and videotapes are shocking and gruesome, they accurately
depict the crime scenes and the conditions of the victims and are
relevant to show motive, intent, method, malice, premeditation, and the
atrociousness of the crimes.
They also are relevant to show the
likelihood of Payne's future dangerousness. Therefore, we cannot
say that the trial court abused its discretion in admitting this
evidence, and we reject Payne's contention that the evidence was so
graphic as to unduly influence the emotions of the jury.
Payne also contends that evidence about
Dean Fleck's injuries and the Commonwealth's Attorney's references to
the child's bravery in identifying Payne and, thereby, assisting in
Payne's capture were intended to inflame the passions of the jury.
This evidence was presented in the penalty phase of the trial and was
relevant to show Payne's future dangerousness. Furthermore, the
Commonwealth's Attorney's remarks were accurate and based upon the
Upon our review of the entire record in
the Fazio case, having considered the contentions advanced by Payne, we
conclude that the death sentences were not imposed under the influence
of passion, prejudice, or any other arbitrary factor.
We next consider whether the death
sentences in the Fazio case are "excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
defendant." Former Code 17-110.1(C)(2). Pursuant to former
Code 17-110.1(E), we have accumulated and reviewed the records in all
capital murder cases decided by this Court, including both cases in
which the death sentence was imposed and cases in which life
imprisonment was imposed.
From these cases, we determine whether "juries
in this jurisdiction generally approve the supreme penalty for
comparable or similar crimes." Stamper v. Commonwealth, 220 Va.
260, 284, 257 S.E.2d 808, 824 (1979), cert. denied, 445 U.S. 972 (1980).
In making this review, we have given particular attention to those cases
in which the death sentence was based upon both the "vileness" and the
"future dangerousness" predicates.
From this review, we conclude that Payne's
sentences were neither excessive nor disproportionate to penalties
generally imposed by other sentencing bodies in the Commonwealth for
similar or comparable crimes. See, e.g., Barnabei v. Commonwealth,
252 Va. 161, 179-80, 477 S.E.2d 270, 281 (1996), cert. denied, 520 U.S.
1224 (1997); Breard v. Commonwealth, 248 Va. 68, 89, 445 S.E.2d 670,
682, cert. denied, 513 U.S. 971 (1994); Satcher v. Commonwealth, 244 Va.
220, 261, 421 S.E.2d 821, 845-46 (1992), cert. denied, 507 U.S. 933
(1993); Spencer v. Commonwealth, 238 Va. 295, 318-20, 384 S.E.2d 785,
799-800 (1989), cert. denied, 493 U.S. 1093 (1990).
The Parham Case
Payne pleaded guilty to the capital murder
of Ruth Parham while in the commission of or subsequent to object sexual
penetration and to the capital murder of Parham while in the commission
of or subsequent to attempted rape, both in violation of Code
18.2-31(5) (the Parham case). The trial court accepted Payne's
voluntary pleas and found him guilty of both capital murders.
In a separate sentencing proceeding, the
court found that the evidence established beyond a reasonable doubt both
aggravating factors; i.e., "vileness" and "future dangerousness."
The court imposed the death penalty for each offense.
Payne filed a motion to waive his appeal
of right, and we remanded the case to the trial court for a
determination whether the waiver was made knowingly, voluntarily, and
intelligently. Payne was examined, at his request, by a psychologist and
was found to be competent to waive his appeal. Thereafter, the
trial court conducted a hearing and determined that Payne's waiver was
made knowingly, voluntarily, and intelligently, and we conclude that the
record supports that determination.
Although Payne waived his appeal of right,
we must review the death sentences nonetheless. Former Code
17-110.1 (now Code 17.1-313). As previously noted, this
mandatory review directs this Court to consider and determine whether
the sentences were "imposed under the influence of passion, prejudice or
any other arbitrary factor" and whether the sentences are "excessive or
disproportionate to the penalty imposed in similar cases, considering
both the crime and the defendant." Former Code 17-110.1(C).
The evidence in the Parham case is
undisputed. On June 5, 1997, Payne saw Parham enter an office
building in Hanover County. Payne concealed a large hammer inside
his pants and entered the building. He found Parham, a 61-year-old
woman who cleaned the offices, in a lunchroom. Payne asked Parham
if he could use the telephone, and she consented.
Parham had turned her back on Payne and
had taken about three steps when Payne hit her in the back of her head
with the hammer. Parham fell facedown, and Payne began to rip off
her clothes. Payne fondled Parham's breast and inserted his finger
into her vagina. During the attack, Payne repeatedly struck
Parham's head with the hammer.
Parham sustained four depressed skull
fractures, each of which was potentially fatal, and she also sustained a
fractured nose and numerous facial and skull bruises and lacerations.
Parham's left hand had on it traces of her blood and strands of her hair,
indicating that she was alive during the bludgeoning, and her brain was
extruding through one of her skull fractures.
After the murder, Payne removed his shirt
and used it to wipe doorknobs and other items he may have touched in the
room. He then went throughout the building looking for another
female victim before leaving. Payne had decided not to rape Parham
because "she did not appeal to him."
In the sentencing proceeding, the trial
court received evidence about Payne's prior criminal history. Less
than five months before Payne murdered Parham, he had been released on
parole after serving approximately five years in prison for drug
possession. Payne told the police that, during the entire time he
had been in prison, he had thought about raping and killing a woman.
The trial court heard about Payne's attack upon Fleck and her young son
and Payne's murder of Fazio, details of which are more fully set forth
in Part I, B hereof.
We first consider and determine whether
the death sentences in the Parham case were imposed "under the influence
of passion, prejudice or any other arbitrary factor." Former Code
17-110.1(C)(1). Payne contends that the Commonwealth's Attorney
made improper remarks in the sentencing proceeding. Payne
complains that the prosecutor used the evidence of the Fazio and Fleck
crimes to justify the death penalty.
He specifically complains about the
prosecutor's referring to Payne as a "predator" and a "monster" and
showing photographs of the victims to the court during the argument.
Payne asserts that the prosecutor's argument "had the desired effect on
the court" because the court "described [him] as a mad dog who should be
put in a gunny sack with some bricks and dropped off a bridge."
Payne opines that this language by the
court "is ample evidence that the sentence of death was imposed under
the influence of passion and prejudice." We do not agree.
When all of the trial court's remarks are read, it is apparent that,
before imposing the death sentences, the court considered not only
Payne's criminal history, but also his evidence in mitigation.
With respect to the
prosecutor's argument, we conclude that it constituted fair comment upon
properly admitted evidence. The Commonwealth had the burden of
proving beyond a reasonable doubt that "there is a probability based
upon evidence of the prior history of the defendant . . . that he would
commit criminal acts of violence that would constitute a continuing
serious threat to society." Code 19.2-264.4(C) (emphasis added).
Therefore, evidence of Payne's other crimes was admissible. See
Gray v. Commonwealth, 233 Va. 313, 346-47, 356 S.E.2d 157, 175-76, cert.
denied, 484 U.S. 873 (1987); Pruett v. Commonwealth, 232 Va. 266,
283-85, 351 S.E.2d 1, 11-12 (1986), cert. denied, 482 U.S. 931 (1987).
Having considered the entire record, we
determine that the death sentences imposed upon Payne were not the
product of passion, prejudice, or any other arbitrary factor.
Payne makes no argument that his death
sentences are excessive or disproportionate. He assumes that we
will consider all capital murder cases reviewed by this Court, and we
have done so. Suffice it to say, the evidence, including that of
the crimes themselves and Payne's criminal history, is gruesome and
shocking, and, when this case is compared to other attempted rape and/or
robbery capital murder cases, we conclude that the sentences were
neither excessive nor disproportionate. See, e.g., Walton v.
Commonwealth, 256 Va. 85, 96, 501 S.E.2d 134, 140-41 (1998); Jackson v.
Commonwealth, 255 Va. 625, 499 S.E.2d 538 (1998); Breard v. Commonwealth,
248 Va. 68, 89, 445 S.E.2d 670, 682, cert. denied, 513 U.S. 971 (1994);
Satcher v. Commonwealth, 244 Va. 220, 261, 421 S.E.2d 821, 845-46
cert. denied, 507 U.S. 933 (1993).
The final issue we consider
is common to both the Fazio and the Parham cases; that is, whether there
can be more than one death sentence imposed when there is only one
victim. Stated another way, we must determine whether the
imposition of multiple death sentences violates the provision of the
Fifth Amendment of the Federal Constitution which states that no person
"shall . . . for the same offense . . . be twice put in jeopardy of life
This constitutional provision guarantees
protection against (1) a second prosecution for the same offense after
acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense.
Illinois v. Vitale, 447 U.S. 410, 415 (1980); North Carolina v. Pearce,
395 U.S. 711, 717 (1969); Blythe v. Commonwealth, 222 Va. 722, 725, 284
S.E.2d 796, 797 (1981).
When multiple convictions occur in a
single trial, only the third guarantee; i.e., against multiple
punishments for the same offense, is pertinent to a double jeopardy
inquiry. Blythe, 222 Va. at 725, 284 S.E.2d at 797-98; Turner v.
Commonwealth, 221 Va. 513, 529, 273 S.E.2d 36, 46-47 (1980), cert.
denied, 451 U.S. 1011 (1981).
In the single-trial setting, "the role of
the constitutional guarantee is limited to assuring that the court does
not exceed its legislative authorization by imposing multiple
punishments for the same offense." Brown v. Ohio, 432 U.S. 161,
165 (1977). Thus, resolution of the question whether punishments
imposed by a court are unconstitutionally multiple requires a
determination of what punishments the legislature has authorized.
Whalen v. United States, 445 U.S. 684, 688 (1980).
In determining what
punishments the General Assembly has authorized, we first look to the
capital murder statute, Code 18.2-31. That statute provides, in
pertinent part, as follows:
The following offenses shall constitute
capital murder, punishable as a Class 1 felony:
. . . .
4. The willful, deliberate, and
premeditated killing of any person in the commission of robbery or
5. The willful, deliberate, and
premeditated killing of any person in the commission of, or subsequent
to, rape or attempted rape, . . . or object sexual penetration.
(Emphasis added.) Clearly, the
language in Code 18.2-31 expresses the legislative intent that there
are multiple capital offenses.
Next, we look to the rule laid down in
Blockburger v. United States, 284 U.S. 299 (1932). In Blockburger,
the Supreme Court stated that, "where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does
not." Id. at 304.
In the Fazio case, Payne,
"in the same act or transaction," violated "two distinct statutory
provisions;" i.e., the killing of Fazio in the commission of robbery, in
violation of Code 18.2-31(4), and the killing of Fazio in the
commission of rape, in violation of Code 18.2-31(5). Each
statutory provision required proof of a fact that the other did not.
Therefore, the killing of Fazio constituted two capital offenses.
Likewise, in the Parham case, Payne, "in
the same act or transaction," violated "two distinct statutory
provisions" of subsection 5 of Code 18.2-31; i.e., the killing of
Parham in the commission of attempted rape and the killing of Parham in
the commission of object sexual penetration. Again, each statutory
provision required proof of a fact that the other did not.
Therefore, the killing of Parham constituted two capital offenses.
Payne does not challenge the validity of
his multiple convictions. However, he suggests that one of his
sentences in each case should be vacated. We do not agree. We
think it is clear, as well as logical, that the General Assembly
intended for each statutory offense to be punished separately "as a
Class 1 felony." It would be inappropriate for this Court,
or the trial court upon remand, to arbitrarily choose which one of the
two sentences should be vacated. Indeed, there would be no
principled basis for making such a choice. Nor do we think the
Commonwealth should be required to elect at trial or on appeal which
offense to have dismissed.
We hold, therefore, that each conviction
was for the violation of a distinct statutory provision for which a
separate statutory punishment was authorized. Consequently, the
convictions and sentences do not violate the constitutional guarantee of
protection against multiple punishments for the same offense.
In sum, we determine that
the death sentences were not imposed under the influence of passion,
prejudice, or any other arbitrary factor and are not excessive or
disproportionate. We further determine that the convictions and
sentences do not violate the constitutional guarantee against double
jeopardy. Accordingly, we will affirm the judgments in both cases.
Record No. 980559 - Affirmed.
Record No. 980879 - Affirmed.
JUSTICE KOONTZ, dissenting
I respectfully dissent.
Today, for the first time,
a majority of this Court concludes that by enacting Code 18.2-31, our
General Assembly has authorized the imposition of more than one death
sentence for the capital murder of one victim. Indeed in the
present cases, the majority concludes that Eric Christopher Payne is
properly subject to the imposition of four death sentences for the
capital murder of only two victims. I cannot join in such a
patently strange result. Moreover, in my view, such a result was
not intended and, consequently, was not authorized by our General
Assembly in enacting Code 18.2-31.
It is clear to me from our prior cases in
which this issue was implicated that we have not permitted more death
sentences to be imposed than there were victims. See Clagett v.
Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996), cert. denied, 519 U.S.
1122 (1997)(vacating one sentence where five death sentences were
imposed for murder of four victims); Williams v. Commonwealth, 248 Va.
528, 450 S.E.2d 365 (1994), cert. denied, 515 U.S. 1161 (1995)(affirming
five convictions of capital murder of two victims, but only one death
sentence imposed for each victim); Wright v. Commonwealth, 245 Va. 177,
427 S.E.2d 379 (1993), remanded on other grounds, 512 U.S. 1217, aff'd.,
248 Va. 485, 450 S.E.2d 361 (1994), cert. denied, 514 U.S. 1085 (1995)(defendant
convicted of two counts of capital murder of one victim, but sentenced
to one death penalty for both convictions); Buchanan v. Commonwealth,
238 Va. 389, 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063 (1990)(reducing
five death sentences to four where there were only four victims).
The majority correctly notes that the
constitutional guarantee against multiple punishments for the same
offense provided by the Fifth Amendment of the Federal Constitution is
limited to assuring in a single trial setting that the court does not
exceed its legislative authorization by imposing multiple punishments
for the same offense.
I agree with the majority
that the resolution of that issue in the present cases requires a
determination of the legislative intent underlying Code 18.2-31.
I do not agree, however, that the language of that statute evinces the
General Assembly's intention that multiple punishments may be imposed
for the killing of one person where more than one definition, or "offenses,"
of capital murder is found to apply. See Gray v. State, 463 P.2d
897, 911 (Alaska 1970).
It is self-evident that there can be no
more than one killing of the same person. Accordingly, it
necessarily follows that the killing of one person in the commission of
the robbery and rape of that person is still but one killing.
Similarly, the killing of one person in the commission of the rape and
object sexual penetration of that person is still but one killing.
I have no difficulty in concluding the General Assembly has always been
well aware of these simplistic truths.
For that reason alone, I conclude that by
enacting Code 18.2-31, the General Assembly did not intend to
authorize more death sentences than there are victims killed as a result
of a defendant committing more than one of the enumerated "offenses"
that "constitute capital murder." In short, more than one offense
defined in Code 18.2-31 may constitute the capital murder of a person
but there can only be one capital murder penalty for the murder of that
The real difficulty presented in these
appeals is the appropriate remedy where two death sentences have been
imposed for the capital murder of each victim. I agree with the
majority that we should not "arbitrarily choose which one of the two
sentences should be vacated" in each case and that "the Commonwealth
should [not] be required to elect" which offense to have dismissed.
Rather, I would apply the rationale of Wright and Williams and modify
Payne's sentences to impose a single death sentence upon the capital
murder convictions for each victim. In doing so, the patently
strange and illogical result that would allow Payne to be sentenced to
the penalty of four death sentences for killing two persons would be
Payne admitted penetrating
Fazio's vagina and ejaculating on her.
Although Payne did not pursue this issue
at trial and has waived his appeal of right in these cases, we directed
counsel to address the issue.
The authorized punishments for conviction
of a Class 1 felony include death and life imprisonment. Code