Petition — BUNCH v. VIRGINIA (No. 83-5406)

Supreme Court brief1983

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| Dale Bunch was tried by a jury and found guilty as charged. In

| Bunch's punishment at death. After receipt of a pre-sentence

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Present: Carrico, C.J., Cochran, Poff, Compton. Stephenson, and

Russell, JJ., and Harrison, Retired Justice

TIMOTHY DALE BUNCH

OPINION BY CHIEF JUSTICE HARRY L. CARRICO

v. Record No. 822081 June 17, 1983

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

Percy Thornton, Jr., Judge

Indicted for capital murder in the commission of rob-

bery while armed with 4 deadly weapon, Code § 18.2-31(d), Timothy

the sentencing phase of the bifurcated proceeding, the jury fixed

report, the trial court confirmed the jury's verdict and imposed

the death penalcy. Bunch is here for automatic review of his

death sentence. This review has been consolidated with Bunch's

appeal from his conviction, and the matter has been given priority|

on our docket. Bunch seeks, alternatively, a new trial on 4

non-capital offense, a new trial on the capital charge, or com-

mutation of his death sentence.

The record shows that in the months of December, 1981,

and January and February, 1982, Bunch, a sergeant in the Uniteca

States Marine Corps, was detached from duty in Japan and assigned

to temporary duty 4¢t Quantico in Prince William County. During |

this period, he met Su Cha Thomas, a divorced woman living alone |

in Dale City near Quantico, and an intimate relationship developed |

between them. At the time, Bunch was separated from his wife. |

On February 2, after Thomas had failed to report for ;

work, Prince William County police went to her home and found her |

body hanging from a door knob by a scarf tied around her neck.

Au autopsy revealed a gunshot wound to the head and “congestion

of the blood [vessels] within the lungs." The medical examiner

I a ce

Record No. |concluded "this was 4 combined cause of death due to a gunshot

= wound to the head ... with a secondary complication, asphyxiation

by hanging.”

One of the items missing from Thomas's home was &

Jlady's Rolex wristwatch. On the day Thomas's body was discovered,

. sold a similar watch to an Arlington County pawn shop. A

ireport filed by the pawn shop with the police, as well as other

|, . |

information, led investigators to Bunch, who had returned to his

ipermanent duty station in Japan.

Bunch was interrogated in Japan on February 16 by

52st

Donald L. Cahill, a Prince William County police investigator who

had journeyed to Japan with warrants charging Bunch with the

robbery and murder of Thomas. In the course of the interrogation,

Bunch made certain incriminating statements to Cahill. Bunch

= returned to the United States, and, upon his arrival in

Prince William County on February 21, made a statement to Cahill

= he had killed Thomas on January 31 and had taken her

aa watch, a diamond ring, a string of pearls, and other items

lof jewelry. Bunch stated he killed Thomas because “she was 4

slut and she reminded him too much of his wife and he wanted her

money.”

I. Pretrial Proceedings

a. Suppression of Confession.

In a pretrial motion, Bunch sought to suppress the

confession he made to Investigetor Cahill on February 21, fol-

lowing his return to Prince William County from Japan. In the

lmotion, Bunch claimed that he gave the confession after his

jearlier “requests for counsel had been unfulfilled.” Finding

i Bunch had requested and been denied the assistance of counsel

fin Japan, the trial court suppressed the incriminating statements

‘made there by Bunch. The court refused, however, to suppress the

‘confession Bunch gave to Investigator Cahill on February 21 in |

= 2

Prince William County. Bunch contends this refusal was error.

The record shows that Investigator Cahill was ac-

companied to Japan by William Hamblen, an assistant Commonwealth's

attorney for Prince William County. Upon their arrival at Bunch's

duty station at Iwakuni, Bunch was brought to Naval Intelligence

Service Headquarters by military police. He was placed ina

room with Cahill and Hamblen, and Cahill read him his rights

under Miranda v. Arizona, 384 U.S. 436 (1966). Bunch signed a

"Warning and Consent” form and indicated he was willing to talk.

Cahill then began to interrogate hin.

According to Bunch's testimony at the suppression

hearing, he. asked to consult counsel "approximately a dozen times”

during the interrogation at Iwakuni. Cahill and Hamblen denied

Bunch made any outright request for counsel, but claimed he

stated once, after the interrogation had continued for some time,

that “he felt like he might want to talk to a lawyer.” When

this statement was made, Hamblen left the room and Cahill talked

to Bunch on another matter an additional several minutes. Then,

as Cahill was leaving the room to ask Hamblen whether the inter-

rogation should continue ia light of Bunch’s statement concerning

counsel, Bunch stated he woulé cooperate. He told Cahill that

"che gun" was at his mother's home in Indiana and that "the ring”

was in Japan.

Cahill and Hamblen decided Bunch should not be inter-

rogated further unless he signed another “Warning and Consent”

form. ‘When a new form was presented to him, Bunch refused to

sign it, and the interview was terminated.

In the custody of military personnel, Bunch was trans-

ported by plane from Japan to Dulles Airport in northern Virginia |

and by automobile from Dulles to Quantico, the trip consuming .

some forty-two hours. Although he was not questioned during the |

trip about Thomas's murder, military personnel escorting Bunch

ott

advised him of his Miranda rights on the flight from Los Angeles

to Dulles. Upon arrival in Quantico after midnight on February

21, Bunch was processed for delivery to Prince William County

authorities.

As a part of this process, Bunch consulted with Major

Donald R. Jillisky, a lawyer attached to the Marine Judge Advocat

General's Office. The major told Bunch that he was “a Marine

Corps lawyer ... not his lawyer" and that it was his, the major's,

| purpose “to inform [Bunch] of what his situation was and to sur-

render him to State authorities." Jillisky informed Bunch of

the charges against him and told him he would be required to hire

his own lawyer or secure court-appointed counsel. Jillisky ad-

vised Bunch that “he did not have to say anything until he con-

sulted with his lawyer, and that it was probably not in his best

interest to say anything until he consulted with his lawyer."

At the conclusion of the processing at Quantico, Bunch

was turned over to Investigator Cahill, who transported him to a

Prince William County police substation. En route, Cahill asked

Bunch "if he felt he was ready to sit down and go over the case.”

Cahill told Bunch that “(i]t was entirely up to him” and that

"he certainly was not required to talk to [Cahill] if he didn't

want to.” Bunch stated that he had talked to the Jawyer at

Quantico and had been advised "not to, say anything” and to talk

to a civilian lawyer before talking to the police. Bunch added,

however, that he had decided "he was ready to tell the whole

story" and that "he wanted to get it off his chest.”

At the substation, Bunch was advised of his Miranda

rights, and he executed a “Warning and Consent" form. He then

proceeded to give Cahill the confession that is now in controversy.

At the conclusion of the suppression hearing, the

| trial court ruled that Bunch had “intelligently, wittingly, freely

and voluntarily ... waived [his Miranda] rights” before he gave

Cahill his conf»ssion. Accordingly, the court held that the

‘eonfession was admissible into evidence.

Bunch argues that the confession should have been sup-

pressed because, despite his request, he was denied counsel

during his interrogation in Japan, as the trial court found in

|holding inadmissible the incriminating statements he made there.

Then, citing Edwards v. Arizona, 451 U.S. 477 (1981), Bunch as-

serts that he should not have been interrogated again until he

was allowed to consult with counsel or unless he initiated the

second interrogation himself. He did not initiate the second

interrogation, Bunch maintains, and his discussion with Major

Jillisky did not satisfy the requirement that he be allowed to

consult counsel before he was interrogated further.

In Edwards, the accused was arrested for robbery,

he indicated a willingness to submit to questioning. During the

course of the interrogation by a police officer, the defendant

stated he wanted an attorney, and the questioning ceased. The

next morning, two detectives who were colleagues of the previous

When informed of the request, the accused told the jail guard he

| did not want to talk to anyone. The guard told the accused that

“the had' to talk” to the officers and took him to them. Id. at

479. They advised him of his Miranda rights. He indicated he

Holding that the use of the accused's confession at

trial violated his rights under the Fifth and Fourteenth Amend-

ments, the United States Supreme Court reversed the conviction.

In the course of its opinion, the Court stated:

[W]hen an accused has invoked his right to have

counsel present during custodial interrogation,

burglary, and murder. After he was informed of his Miranda rights

was willing to talk and thereupon implicated himself in the crime.

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day's interrogator went to the jail and asked to see the accused.

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a valid waiver of that right caznot be established

by showing only that he responded to further

police-initiated custodial interrogation even

if he has been advised of his rights.... [A]n

accused ... having expressed his desire to deal

with the police only through counsel, is not

subject to further interrogation by the authorities

until counsel has been made available to hin,

unless the accused himself initiates further

communication, exchanges, or conversatsons with

the police.

| Record No.

822081

Id. at 484-85 (footnote omitted).

Factually, however, Edwards is distinguishable. Where

the accused in Edwards was told “"he had’ to talk" to the police,

in this case Bunch was advised “he certainly was not required to

talk to [the police] if he didn't want to." Further, where

Edwards involved an unequivocal statement by the accused that he

wanted counsel, Bunch's statement here was couched in ambiguous

terms to the effect that he might want to talk to a lawyer. And,

where the accused in Edwards made his statement “without having

‘had access to counsel,” id. at 487, Bunch was allowed to consult

\with Major Jillisky, who gave Bunch the same advice, “not to say

anything,” that counsel of Bunch’s own choosing or court-appointed

counsel probably would have given hin.

Furthermore, Edwards did not establish, as Bunch seems

to suggest, a per se rule forbidding any finding of waiver of -

counsel unless subsequent interrogation is suspect-initiated.

Wyrick v. Fields, _ U.S. ___. 103 S. Ct. 394 (1982). Indeed,

in Wyrick, the Supreme Court reversed summarily a holding of the

‘United States Court of Appeals for the Eighth Circuit that

Edwards had established such a per se rule. The Supreme Court

stated that the Court of Appeals’ holding “imposed a new and un-

justified limit on police questioning of a suspect who volun-

jtarily, knowingly, and intelligently waives his right to have

| counsel present [during questioning)." Id. at __. 103 S. Ce. at

1394.

4 Although the Supreme Court stated in Wyrick that “the

. oe 4 an

Record No. totality of the circumstances, including the fact that the

822081

suspect initiated the questioning, is controlling,” id. at ,

103 S. Ct. at 397, the Court has not ruled that the only way a

suspect may waive the right to counsel at a subsequent inter-

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rogation is by initiating the interrogation himself. Instead,

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the Court indicated in Wyrick that the ultimate test is whether

the suspect makes a "'knowing and intelligent relinquishment or

abandonment’ of his rights." Id. at, 103 S. Ct. at 396.

The question, therefore, is whether, as the trial couz=

found, Bunch made a knowing and intelligent waiver of his right

to have counsel present at the time he confessed to Investigator

Cahill on February 21. Whether such a waiver is made “depends ia

each case ‘upon the particular facts and circumstances surrounding

| that case, including the background, experience, and conduct of

the accused.'" Edwards, 451 U.S. at 482 (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938). See McFadden v. Commonwealth,

225 Va. _, __ $.E.2d __—-« (1983), and Simmons v. Commonwealth,

225 Va. , _.. §.8.24 __. 963).

J Bunch was no novice in police matters. A four-year

veteran in the Marines with the rank of sergeant, he was a

“correctional specialist" in the “military police field.“ Before

he confessed to Investigator Cahill on February 21, he had been

informed of ais Miranda rights on three different occasions in

the space of a little more than three days; he had received

advice from Major Jillisky “not to say anything"; and he had

been told he was not required to talk to Investigator Cahill.

In response to this admonition from Cahill, Bunch acknowledged

Major Jillisky’s advice “not to say anything” and stated he had

decided “he was ready to tell the whole story."

Even then, Investigator Cahill did not hasten to

WE SES aa

extract the story from Bunch. He again advised Bunch of his

Miranda rights and had him execute a "Warning and Consent" forn.

tl 23a

In the form, Bunch acknowledged, inter alia, that he had been

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Record No. advised he had the right to talk to a lawyer, to have the lawyer

822081

present during questioning, and to stop answering questions at

any time. In addition, under a heading entitled "Consent to

Speak" and directly over Bunch's signature, these statements

appeared:

1. I understand ny rights.

| 2. I do not want a lawyer.

3. No promise or threats have been made

to me by anyone.

4. I understand and know the purpose of

this interview.

5. 1 am willing to answer questions.

This is a case of an individual with background and

experience in police matters who, despite repeated warnings of

his rights and contrary to sound advice “not to say anything,”

decided "he was ready to tell the whole story” and “wanted to

get it off his chest." Moments before confessing, he stated in

writing that he did not want a lawyer and that he was willing to

answer euctitdens. We can conceive of no clearer case of a

"'knowing and intelligent relinquishment or abandonment’ of

[Miranda] rights," Wyrick, __ 'U.S. at ____, 103 S. Ct. at 396,

and we hold, therefore, that the evidence fully sustains the

| trial court's finding that Bunch “intelligently, wittingly,

freely and voluntarily ... waived those rights.”

The trial court's refusal to suppress Bunch's con-

fession may be sustained on yet another ground. As Justice

Powell pointed out in a concurring opinion in Edwards, “police

legitimately may inquire whether a suspect has changed his mind

about speaking to them without an attorney.” 451 U.S. at 490.

Investigator Cahill's inquiry whether Bunch “felt he was ready

to sit down and go over the case” amounted to nothing more than

an effort to ascertain if Bunch had changed his mind about

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Record No. wanting an attorney and, hence, did not amount to police-

- 822081

initiated interrogation within the meaning of Edwards.

b. Suppression of Property Seized in Japan.

Bunch contends that the trial court erred in refusing

‘

to suppress a diamond and setting purportedly belonging to Thomas

that was seized in a search of Bunch’s barracks in Japan pursuant

to a search warrant issued by a military commander. Bunch clains

that the warrant was issued on the basis of his statement to |

Investigator Cahill that “the ring” was in Japan, 4 statement

jthe trial court ruled inadmissible because made after Bunch had

requested and been denied the assistance of counsel in Japan,

Hence, Bunch concludes, because the ring was the "“fruic of the

poisonous tree,” it"should have been excluded from evidence.”

The trial court, however, made this specific finding

with respect to the property seized in Japan: "(Cahill] didn't

use a statement in order to get the search warran®™ or any

acknowledgement from the defendant. He used other information.”

On brief, Bunch mentions this finding, but does not question its

correctness. The finding is supported by the evidence and will

not be disturbed here. Stamper v. Commonwealth, 220 Va. 260, 268,

257 S.E.24 808, 814-15 (1979), cert. denied, 445 U.S. 972 (1980).

In connection with the search in Japan, Bunch also

complains that he was not permitted to inspect the affidavit

that supported the issuarce of the search warrant. We fail to

find in the record, however, amy request by Bunch to inspect the

affidavit or any ruling by the trial court concerning the matter.

We will not notice the point now. Rule 5:21.

c. Suppression of Property Seized in Indiana.

Bunch contends that the trial court should have sup-

pressed a string of pearls, allegedly belonging to Thomas, that

wee seized during « search of his mother's tome in Indians. |

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Bunch states on brief that an Indiana search warrant, pursuant

to which the search of his mother's home was conducted, listed

jonly “a .22 caliber weapon and ... two rings (diamond and pearl).”

‘Because the string cf pearls was not identified in the warrant,

| Bunch maintains, it was not properly seized and should have been

‘

suppressed.

The Indiana search warrant is not in the record, and

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emine otherwise what items were listed in the

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™

Further, we cannot find where any question was raised

lan the trial court concerning the sufficiency of the warrant with

respect to the string of pearls. As with all nonjurisdictional

ssues, a search and seizure question cannot be raised for the

first time on appeal. wle 5:21: Girardi v. Commonwealth, 221 Va.

9, 465-66, 270 S.E.2d 743, 747 (1980), cert. denied, 451 U.S.

3 98

motion for discovery, Bunch requested,

[acon other chings, “(sjummaries of any statements given to

lagents of the Commonwealth by persons the Commonwealth intends

ito call as witnesses upon the [trial] of ‘this matter)."” Bunch

os that, given the seriousness of the charge upon which he

™ to be tried, the trial court should have exercised its

| discretion and granted his request in order to prevent a “trial

by ambush.”

Rule 3A:14(b)(2) provides that upon the written motion

of an accused, the court shal’ order the Commonwealth's attorney

to permit the accused to inspect and copy or phetograph certain

materials. The rule provides further, however, that “{c)his sub-

| paragraph does not authorize the discovery or inspection of

statements made by Commonwealth witnesses or prospective Con-

|monwealth witnesses to agents ef the Commonvealth Hence,

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Record No. | the trial court did not err in denying discovery of the requested

822081

statements. Bellfield v. Commonwealth, 215 Va. 303, 306-07, 208

S.E.24 771, 773-74 (1974), cert- denied, 420 U.S. 965 (1975).

II. The Guilt Phase

a. Admissibility of Photograph of Deceased.

At trial, Bunch objected to the admission into evidence

jot a black and white facial photograph cf Thomas, taken at the

| cime of the autopsy. Bunch argues that because he conceded in

baila statement having shot Thomas, it was unnecessary to use

es morgue photograph to prove her identity. Furthermore, Bunch

Oy the photograph may have aroused the “sympathies and/or

passions” of the jury and should not have been admitted.

By We have said repeatedly that the admissibility of

photographs is a matter within the sound discretion of the trial

court, e.g., Waye v. Commonwealth, 219 Va. 683, 692, 251 S.E.2d

202, 208, cert. denied, 442 U.S. 924 (1979), and Peterson v.

Commonwealth, 225 Va. ___, sta. ee and

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that we will not reverse the trial court's action except in cases

of clear abuse of discretion. Martin v. Commonwealth, 221 Va.

436, 447, 271.S.E.2d 123, 130 (1980). We do nor find any abuse

of discretion here.

b. Admissibility of Items of Jewelry.

Bunch contends that the trial court erred in admitting

into evidence the Rolex watch recovered from the pawn shop, the

diamond and setting seized in Japan, and the string of pearls

seized in Indiana. Bunch argues that these items were not suf-

ficiently identified as the property of the victim to be ad- ee

missible into evidence.

We disagree with Bunch. Both in his confession and

from the witness stand, Bunch admitted that he took Thomas's

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watch, diamond ring, and string of pearls. Thomas's former

im » « il eae ~~ oo eam ee 8 ee w- a ee

husband identified the items proffered at trial and said that

they were “identical” with those owned by Thomas; he particularly

noted the unusual nature of the clasp on the string of pearls.

Furthermore, the evidence showed that shortly after

Thomas's death and the theft of her watch, diamond ring, and

string of pearls, Bunch was in possession of goods of the type

stolen. Hence, “strict. proof of identity of the goods [was] not

required." Henderson v. Commonwealth, 215 Va. 811, 813, 213 S.E.

2d 782, 783 (1975).

c. Admissibility of Evidence of Another Crime.

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The Commonwealth called as a witness one Lynn Rider,

in whose home Bunch resided at the time of Thomas's murder. Over

Bunch's objection, Rider was permitted to state that approximately

two weeks before the murder, Bunch proposed to Rider that the

two of them “commit a robbery at a Pizza Hut." According to

Rider, Bunch stated “he needed some money and he needed it bad."

Rider refused to become involved and, in his words, “that really

ce as far as [the robbery plan] went."

Bunch concedes that evidence of other crimes is ad-

missible to show the motive, intent, and knowledge of an accused

ves one or more of those:elements is at issue in the trial of

an offense. Bunch maintains, however, that, while the a

offered the disputed evidence to show that robbery. was the motive

for Thomas's murder, the evidence was inadmissible because ‘so

remote in time to the present offense as to be" without “probative

| purpose.”

Whether evidence is so remote that it lacks probative

value is a matter resting largely within the discretion of the

trial court. In Brown v. Coumonwealth, 208 Va. 512, 516-17, 158

)S.E.2d 663, 667 (1968), we affirmed the admission into evidence

I of acts of incestuous intercourse occurring during a period of

= 28

Record No.

822081

\Moore v. Commonwealth, 222 Va. 72, 75-/7, 278 S.E.2d 822, 824-25

several years prior to the date of the offense on trial. in

(1981), involving charges of sexual enticement and fondling of

la child, we approved the admission into evidence of similar acts

occurring some twenty months before and three months after the

idate of the offense on trial. And in Brooks v. Commonwealth, 220

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Va. 405, 406-07, 258 S.E.2d 504, 506 (1979), a case of welfare

ee - S

i fraud, we sustained the admission into evidence of the defendant's

jconvictions on four similar charges one month before the date of

ithe offense on trial.

In the present case, the disputed evidence related to

an incident occurring only two weeks before the date of Thomas's

imurder. Under these circumstances, we cannot say that the

levidence was unduly remote; hence, we hold that the trial court

lista not abuse its discretion in admitting the evidence.

d. Scope of Cross-Examination of Bunch.

Bunch contends that the trial court erred in permitting

the Commonwealth to cross-examine him excessively concerniay his

“contact with certain prostitutes the day before [Thomas's]

death." Bunch argues that the testimony brought out on cross-

examination was not "sufficiently related in time and subject

= to [Thomas'sj death ... to render [the] testimony ...

relevant.” ,

Bunch concedes, as he should, that his own testimony on

direct examination "opened the door” to inquiry into “this sub-

ject area." The permissible scope of cross-examination on the

subject became, therefore, a matter for the exercise of discretion

by the trial court; we will not interfere with the court's action

""unluss [its] discretion has been plainly abused.'” Spruill v.

Commonwealth, 221 Va. 475, 485, 271 S.E.2d 419, 425 (1980),

iquoting from Worrell v. Kinnear-Co., 103 Va. 719, 724, 49 S.E.

(988, 990 (1905). We find no abuse of discretion here.

: - 13 -

SSE SOR SO EE

e. Sufficiency of Evidence of Robbery.

Bunch contends that the trial court erred in failing to

grant his motion to strike the evidence on the charge of capital

murder at the conclusion of the Commonwealth's case. Bunch

points out that the burden was upon the Commonwealth to prove

Thomas was killed during the commission of robbery; es part of

this burden, the Commonwealth was required to show there was a

taking of property from the person or presence of Thomas. Yet,

Bunch maintains, "the Commonwealth presented no evidence as to

the items being taken from the person of Mrs. Thomas or from her

presence." It is reasonable to infer, Bunch states, “that the

items mentioned could have been taken from parts of the residence

away from where the victim was shot.” Furthermore, Bunch asserts,

"at least one if not two hours elapsed between the shooting of

Mrs. Thomas and the taking of the items of personal property.”

Under these circumstances, Bunch concludes, the evidence was suf-

ficient to make a prima facie case of homicide and larceny, but

not of capital murder in the commission of robbery.

Bunch, however, waived the right to rely upon his

motion to strike, made at the conclusion of the Commonwealth's

case, by introducing evidence in his own behal&. We determine

whether the evidence of robbery was sufficient, therefore, upon

the whole record. Hargraves v. Commonwealth, 219 Va. 604, 605,

248 S.E.2d 814, 815 (1978).

mY?

Robbery is a common law offense, defined as the

taking, with intent to steal, of the personal property of another,

from his person or in his presence, against his will, by violence

or intimidation.'” Mason v. Commonwealth, 200 Va. 253, 254, 105

S.E.2d 149, 150 (1958). The essential element of violence must

precede or be concomitant with the taking of property from the

person or presence of the owner. Stamper, 220 Va. at 274, 257

«- i.

Record No. S.E.2d at 818.

822081 .

We believe the evidence is overwhelming that Thomas was

killed during the commission of-robbery. As indicated in Part

II (c) of this opinion, the witness Rider testified that ap-

proximately two weeks before Thomas's murder, Bunch said he

"needed some money and ... needed it bad.” Rider testified

further that on January 29, two days before Thomas's murder,

Bunch stated he "ought to ... go up there to Dale City and knock

that bitch [Thomas] off ... and get her rings and things.” In

his confession to Investigator Cahill, Bunch stated that “when he

woke up" on the morning of January 31, "he decided that was the

day he was going to kill [Thomas]," His plan, Bunch said, was

"to go down and take her jewelry and kill her and leave the area.”

He killed Thomas, Bunch continued, "because she was a slut and

she reminded him too much of his wife and he wanted her money."

During Bunch's cross-examination at trial, he admitted

that after he shot Thomas and "[jJust before" he “hung her up,”

he removed from her body the ring he “ended up with over in Japan"

as well as "{a] chain and a watch and another ring." Bunch

claimed in his testimony that Thomas was dead when he "hung her

up," but the record indicates otherwise. While awaiting trial,

Bunch told a fellow jail inmate that "[w]hen he hung [Thomas] up

he thought she was still alive." And medical evidence

recited infra indicated that Thomas a still alive when Bunch

"hung her up.”

Thus, the evidence shows clearly that on January 3l,

1982, Bunch went to Thomas's home with the intent to kill her and

steal her property, that he did kill her as planned, and that he

did steal property from her person. She may or may not have been

alive at the time he stole her property, and she may even have

been dead for some time when he accomplished the theft. Neither

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Record No. of these eventualities is material, however; the important con-

822081

siderations are that robbery was the motive for the killing and

that Bunch had the intent to rob when he killed Thomas. Whitley

v. Commonwealth, 223 Va. 66, 73, 28€ $.E.2d4 162, 166, cert.

denied, U.S. ___, 103 S. Ct. 181 (1982); see also Wn. Patterson

i v. Commonwealth, 222 Va. 653, 664, 283 S.E.2d 212, 219 (1981).

Nor does it make any difference whether, as Bunch asserts, “the

items [stolen] could have been taken from parts of the residence

away from where the victim was shot." The phrase "'of the

personal property of another, from his person or in his presence"

has been broadly construed to include the taking of property

from the custody ... or ... the constructive possession of ...

another." Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d

¢ 603, 605-06 (1973).

f. Instructions on Second Degree Murder.

Citing the rule that every killing is presumed to be

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murder of the second degree, Bunch contends the trial court erred

consider this lesser offense. Bunch asserts that he “testified

in a manner which would allow the trier of fact to conclude that

he acted without premeditation"; therefore, "“[t]o hold as a

matter of law that no case exists for second degree murder is to

invade the province of the jury." ‘

We disagree with Bunch. He fails to point out where in

the record we might find any evidence that “would allow the trier

se <> ee

of fact to conclude that he acted without premeditation.” All

the evidence, including the testimony from Bunch himself, showed

that Thomas's killing was a premeditated act. An accused is not

entitled to instructions on lesser included offenses “solely

because the case is one of murder.” Clark v. Comnonwealth, 220

Va. 201, 209, 257 S.E.2d 784, 789 (1979), cert. denied, 444 U.S.

* « 16 <

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1049 (1980). A "“second-degree-murder instruction is appropriate

only where there is evidence to support it." Justus v. Common-

wealth. 222 Va. 667, 678, 283 S-E.2d 905, 911 (1981), cert.

denied, 455 U.S. 983 (.982). See also Hopper v. Evans, __ U.S.

___, 102 S. Ct. 2049 (1982).

III. The Sentencing Phase

a. Constitutional Challenges.

Bunch attacks Virginia's death penalty statute as “being

overly inclusive." This overbreadth, Bunch maintains, creates

the substantial risk that a sentence of deat» will be imposed

arbitrarily and capriciously, contrary to the holding in Furman

v. Georgia, 408 U.S. 238 (1972). Repeatedly, however, in—

decisions from Smith v. Commonwealth, 219 Ya. 455, 248 S.E.2d

135 (1978), cert. denied, 441 U.S. 967 (1979), to LeVasseur v.

ee”

Commonwealth, 225 Va. _, ___ S.E.2d _—s- (1983), we have upheld

the statute against similar attacks. We reaffirm those holdings.

b. Sufficiency of Evidence of Aggravating

Circumstances.

Under Virginia's death penalty statute, a sentence of

death may not be imposed unless there is proof of either (1)

dangerousness, viz., that there is a probability the defendant

) would commit criminal acts of violence which would constitute

a continuing threat to society, or (2) vileness, viz., that the

defendant's conduct in committing the offense was outrageously or

wantonly vile, horrible, or inhuman in that it involved torture,

depravity of mind, or an aggravated battery to the victim. Code

§§ 19.2-264.2, -264.4(C). Because Bunch had no prior criminal ..

record, the trial court refused to permit the jury to consider

the aggravating circumstance of dangerousness, but submitted the

case to the jury on the vileness standard, and the jury based

its verdict upon that standard. Bunch contends the court erred

, in permitting the jury to consider the death penalty at all.

“17s

Citing Godfrey v. Georgia, 446 U.S. 420 (1980), Bunch

contends that the three statutory terms of torture, depravity of

Imind,- and aggravated battery must be considered together in

determining vileness, with the result that “depravity of mind

does not exist in the situation where there is no torture and

Iwhere there is no aggravated battery to the victim.” Bunch

imight wish to go."

concedes this interpretation is not constitutionally mandated by

Godfrey, but he suggests it is "a direction in which [this] Court

We reject Bunch's suggestion. We velieve a mere

linspection of the statutory language in question demonstrates

clearly that the term “vileness" includes three separate and

distinct factors, with the proof of any one factor being suf-

ficient to support a finding of vileness and hence a sentence of

death. _ Code §§ 19.2-264.2. and -264.4(C) define vileness as conduct

that involves torture, depravity of mind, or aggravated battery

to the victim; the use of the disjunctive word “or,” rather than

the conjunctive “and,” signifies the availability of alternative

choices. Hence, depravity of mind can exist independently of

the presence of torture or aggravated battery and may alone sup-

port a finding of vileness as a basis for a sentence of death.~

We have interpreted depravity of mind, as used in its

statutory context, to mean "a degree of moral turpitude and

psychical debasement surpassing that inherent in the definition

of ordinary legal malice and premeditation.” Smith, 219 Va. at

478, 248 S.E.2d at 149. We believe that Bunch's conduct as

depicted in the record clearly revealed a depraved mind within

this definition.

Bunch planned days ahead to .irder and rob Thomas, a

leor the reasons expressed in the text, we reject Bunch's conten-

ition that the trial court erred in instructing the jury in the

,disjunctive on the factors of torture, depravity of mind, and

-aggravated battery.

h ; - 18 -

woman with whom he had been involved in an intimate relationship.

She was not the only object of his murderous musings, however;

he "wanted to kill somebody,” and he thought about “killing some

prostitutes.” In any event, when he awoke on January 31, he

decided he would kill and rob Thomas that day. He went to her

home about noon, had intercourse with her, and left with the

promise to return later. He returned at 6:00 p-m. and invited

iher to go to dinner. While she dressed, he "drank some wine."

When Thomas announced she was “ready to go,” Bunch

started playing "hide and ... seek" with her. He hid in the bath-

lroom, and when she found him, she said, “okay ... let's go." As

they walked down the hallway, he shot her. He felt "real good

when he shot her, to the point where he actually had a sexusl

orgasm."

During the next hour or so, with Thomas dying on the

floor, Bunch amused himself drinking Thomas's wine, listening to

music, and ransacking her house. He had "a euphoric feeling about

the whole thing."

After some two hours, Bunch tied a knot in a scarf

Thomas was wearing, dragged her to a door, and “draped the scarf

lover the doorknob." He "hung her up ... to make sure she didn't

talk and there were no witnesses around.” After Bunch "exerted

[himself] by pulling [Thomas] across the floor,” he had a “blood

flow" to his “sexual parts” and experienced a "feeling" of a

“full erection." Before leaving the house with Thomas's jewelry

and other items, Bunch wiped his fingerprints "off everything” and

"took the phone off the hook.” ec

Bunch told Investigator Cahill that he had “gotten a

thrill" from killing Thomas, that he “wanted to kill some more,”

and that he "would have killed some hookers ... if he had stayed

}

in the area.” Earlier, Bunch had told his friend Rider that he

eet

would like "to maybe become a hit man or a mercenary," and he

told another friend he “wanted to be in the Mafia."

Investigator Cahill gave a final word of testimony

relating to the depravity-of-mind issue. He was asked while on

the witness stand whether Bunch displayed any remorse or sorrow

for killing Thomas. Cahill replied, "No, sir.”

Bunch argues, however, that his sentence of death is

impermissible under Godfrey. In our opinion, the circumstances

surrounding Thomas's death clearly distinguish this case from

Godfrey. There, in a prosecution for capital murder under a

statute defining vileness in terms identical with our statutory

aanguage, the defendant was sentenced to death for killing his

wife and mother-in-law. Believing that the mother-in-law had

prevented a reconcilitation with his wife, he went to the mother-

in-law's trailer and fired a shot through a window, killing his

wife instantly; he entered the trailer ind shot his mother-in-law,

killing her instantly. He then called the sheriff's office,

reported the crimes, and asked to be arrested. He later told an

officer he had committed “a hideous crime." 446 U.S. at 426.

Holding that the validity of the defendant's death

sentence turned on whether, in light of the facts and circumstances

the Georgia Supreme Court had applied a constitutional construction

of the depravity-of-mind factor, the Ynited States Supreme Court

Istated that "the answer must be no." Id. at 432. The Court

ipointed out that the defendant's victims were killed instantly,

‘that they were family members who were causing him extreme

InP ES trauma, and that he acknowledged his responsibility for

his acts and the heinous nature of his crimes.

In stark contrast, the facts of this case display

extreme baseness. Bunch, with no provocation whatsoever from

‘his victim, planned her murder with cold-hearted calculation and

- 2-

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larcenous intent. He carried out his murderous plan in true

“hit man” style of complete detachment, yet with a bizarre

sexual reaction on his part. As she lay dying, he removed her

jewelry and enjoyed himself by partaking of her wine, listening

to music, and rifling through her personal belongings. Then, in

a final gesture of contempt for his victim and to make certain

she would never bear witness against him, he garroted her,

dragged her across the floor, and hung her from a doorknob, the

BSS eo Biss IS

exertion causing his sexual arousal. From these facts, the jury

clearly could find that mutter depravity of mind accompanied the

murder in this case.

Bunch also contends that proof of an aggravated battery

ee ee eee

requires “evidence of serious physical abuse of the victim before

j death.” There is “no compelling evidence” in this case, Bunch

maintains, “to support the proposition that the victim ... suf-

fered an aggravated battery prior to her death."

We considered an identical contention in Whitley.

There, we said:

The statutory construction Whitley urges, one

announced by the Georgia Supreme Court in Blake

v. State, 239 Ga. 292, 236 S.E.2d 637 (1977), and

noted in passing in Godfrey, was not the ratione

decidendi in Godfre Codtrey's victim died al-

most instantaneously from a single gunshot, and

the defendant's sentence was “based upon no more

than a finding that the offense was ‘outrageously

or wantonly vile, horrible and inhuman.*" Godfrey,

446 U.S. at 428. S.ch an amorphous finding, un-

related to any constituent element of the statu-

tory definition, was constitutionally insufficient

to support the death penalty. The Supreme Court

was not required to decide, and did not decide,

whether an aggravated battery must precede the

victim's death in order to satisfy the vileness

standard.

pore vent 4

Nor need we decide that question here, for

the evidence fully supports the conclusion that

{the victim's] death was the result of aggravated

battery upon her person.... We have construed

the term "aggravated battery” as used in Code

§ 19.2-264.2 to mean “a battery which, qualitatively

and quantitatively, is more culpable than the

minimum necessary to accomplish an act of murder.”

§ 223 Va. at 78-79, 286 S.E.2d at 169-70 (footnote omitted)

2 Sse

Record No.

822081

(citation omitted).

We believe that Whitley's rationale is applicable here

and, hence, we nae not decide in this case whether proof of an

aggravated battery requires evidence of serious physical abuse

of the victim before death. From the evidence previously recited,

the jury could have found that Bunch shot Thomas and then, while

she was still alive, garroted her and hung her on the doorknob

until she succumbed. This, clearly, was an aggravated battery

to Thomas's person, viz., one “which, qualitatively and quanti-

tatively, [was] more culpable than the minimum necessary to ac-

complish an act of murder.” Id. at 79, 286 S.E.2d at 170.

Bunch asserts, however, that his version of the shooting

which he says was “not contradicted by any other evidence," was

that he shot the victim "once in the head, as she walked away

from him," that she "did not see [Bunch] preparing to shoot her,"

and that she immediately lost and never regained consciousness.

Hence, Bunch maintains, the shooting, even when coupled with the

subsequent hanging, did not amount to an aggravated battery.

The medical examiner testified, however, that the bullet

struck Thomas, not in the back of the head, but on the left side

above her ear and that the bullet's path was “towards the back,

downward, and to the deceased's right." As the Attorney General

suggests on brief, the doctor's testimony permitted the inference

that Bunch was “standing above and facing [Thomas] at her side

with the gun pointing down" and that she knew Bunch “was preparing

to shoot her.”

Furthermore, the medical examiner testified that Thomas

could have lived "for an hour to two hours” after she was shot.

The doctor also stated that Thomas's lungs “exhibited congestion™

1 and that with “constriction around the neck, one would get

i congestion of the lungs." After stating these observations, the

i o

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Best Copy Available

medical examiner opined that “this was a cout-—

due to a gunshot wound to the head and ... W-

complication, asphyxiation by hanging." Froc —

evidence previously recited, the jury could +-——-—

was still alive when Bunch “hung her up” and = -<s

that she was the victim of an aggravated batc=

c. Closing Argument of the Commonve

Bunch contends that because the tri-.——

jury could consider the aggravating circumste-- <=

not dangerousness, it was error for the court ——

Commonwealth's attorney in his closing argume- ——

evidence which pertained to dangerousness. ¥

tention. The trial court's ruling on dangerc=

foreclose the Commonwealth's attorney from cc—— —-se

that tended to establish both dangerousness & —

portions of the closing argument Bunch challe———

evidence 2f this dual character. It was not ==

Commonwealth's attorney to comment upon this c—

effort, as he told the jury, to show that Bun: ;

"co kill somebody” indicated "a depraved pers:

d. Instructions Defining Torture, -—

Mind, and Aggravated Bat=

As indicated previously, the trial <=

tencing phase of the case permitted the jury = —

the aggravating circumstance of vileness. In -——

generally tracking, but expanding upon, the iz—

§ 19.2-264.4(C), the court told the jury in pc——:

Before the penalty can be fixed at <—

Commonwealth must prove beyond a rez—

doubt that the Defendant's conduct —-—

the offense was outrageously or wan=-

horrible or inhuman, in that it inv-

a. torture; or

b. depravity of mind; or

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¢. aggravated battery to the victia beyond

the minimum necessary to accomplish the act of

Murcer. |[Emphasis acced. |<

Bunch contends the trial court erred in denying in-

structions he proffered which, he says, would have properly

defined the terms “torture,” "depravity of mind,” and “ag-

gravated battery.” We disagree with Bunch. We held in Clark

that it is not reversible error for a trial court to refuse to

define the statutory terms included in the aggravating circum-

stances upon which a sentence of death may be based. 220 Va. at

211, 257 S.E.2d at 790.

Bunch argues, however, that Godfrey mandates defini-

tional instructions and thus overrules Clark. We do not concur

in Bunch's reading of Godfrey. The Court's concern there was

not with the trial court's instructions, but with the Georgia

Supreme Court's adoption, contrary to its earlier holdings, of

such a broad construction of the term “depravity of mind” that

the death penalty could be imposed for crimes reflecting “a

consciousness materially [no] more ‘depraved’ than that of any

person guilty of murder." 446 U.S. at 433. But, given the

lesson of Godfrey and considering the construction we have applied

consistently to the term “depravity of mind” ever sirte our

first decision on the subject in Smith,” we do not believe there

can exist in Virginia the danger expressed in Godfrey that the

<The italicized words were added to the statutory language by

the trial court.

In its verdict, the jury found that Bunch's conduct in con-

mitting the offense was “outrageously or wantonly vile, horrible

or inhuman in that it involved torture, depravity of mind or ag-

gravated battery to the victim beyond the minimum necessary to

accomplish the act of murder.”

310 Smith, we interpreted the term “depravity of mind” as “a

degree of moral turpitude and aavekiaet debasement surpassing

that inherent in the definition of ordinary legal malice and

premeditation.” 219 Va. at 478, 248 S.£.2d at 149.

> s

2 ‘ —— : ——— ‘ ie ue * — —— i a ie ee ee

death sentence might be imposed on "'caprice or emotion.'” 446

1U.S. at 433.

We adhere to the view expressed in Clark, therefore,

and hold that the trial court's instruction on vileness was

sufficient. Indeed, "[a]s to the trial court, Godfrey does not

require that the court do any more than state exactly what the

(Ga. 1981); accord Stamper v. Baskerville, 531 F. Supp. 1122,

1130-32 (E.D. Va. 1982).

e. Failure of Trial Court to Set Aside Death

Sentence.

the report of a probation officer as well as all other relevant

facts and, “upon good cause shown,” may set aside the sentence

of death and impose a life sentence. Bunch contends the trial

court erred in not setting aside his death sentence.

The record shows that the trial court received the

report and heard the testimony of a probation officer and also

heard the testimony of Robert Showalter, M.D., a psychiatrist.

After hearing argument cf counsel, the trial judge stated that

he had spent “many, many hours reviewing the evidence” and had

compared Bunch's sentence with “all the cases involving the dea

penalty” that "were forwarded to [him] by the Supreme Court”

pursuant to Code § 17-110.1(E). The judge concluded that he

would not “interfere with the jury's verdict."

Bunch's argument on this point stresses his lack of a

prior criminal record. He also emphasizes the te -:imony of the

| distress at the time he murdered Thomas and yet is capable of

rehabilitation. As the Attorney General points out on brief,

. - 25 -

statute says." Westbrook v. Zant, 518 F. Supp. 1262, 1264 (M.D.

psychiatrist to the effect that Bunch was under extreme emotional

Under Code § 19.2-264.5, before imposing sentence when

punishment has been fixed at death, the trial court shall consider |

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however, the record unerringly supports the proposition that the

murder of Thomas "resulted from a depraved and evil mind, rather

than a disturbed one.” Hence, we do not believe Bunch established

“good cause” sufficient for the trial court to set aside the

sentence of death.

IV. Propriety of the Death Sentence

Under Code § 17-110.1(C), we are required to determine

whether the death sentence was "imposed under the influence of

passion, prejudice or any other arbitrary fector." We are also

obligated to decide whether the sentence is "excessive or dis-

proportionate to the penalty imposed in similar cases, con-

sidering both the crime and the defendant.”

a. Product of Passion.

Here, Bunch reiterates his contention that there was

insufficient evidence of vileness to support the death penalty.

He also adverts to the testimony concerning his contact with

certain prostitutes the night before Thomas's murder. He then

reasons that the ,ury must have been offended by the testimony

concerning the prostitutes and that the death verdict, there-

fore, was the product of passion, prejudice, or some other

arbitrary factor.

We disagree with Bunch. We have previously demon-

strated that the evidence of vileness was amply sufficient to

support the death penalty. Given the depravity of mind exhibited

by Bunch on the day of Thomas’s murder, we do not believe that

the evidence of his contact with prostitutes the night before

would have swayed the jury to return a death verdict if not

otherwise so inclined.

b. Excessiveness and Disproportionality.

In this connection, Bunch belabors his lack of a prior

criminal record, and he repeats his assertions that Thomas was

» Sea

unaware she was about to be shot and that she was either dead

or unconscious when he hung her by the neck “over the doorknob.”

He then argues that his sentence of death is excessive and dis-

porportionate.

Bunch cites three cases in which we upheld the death

penalty but where, he says, there was evidence not only of the

defendants’ "prior criminal record and/or history involving

crimes of violence” but also of torture or aggravated battery

to the victims while still eonscious.” Because, Bunch argues,

he had “no prior criminal record” and the evidence of aggravate:

battery "at most” showed he tied the scarf around the victim's

neck while she was unconscious although still alive, the “factusl

pattern” of this case “does not come within the legislative

intent with regard to the imposition of the ultimate penalty."

Aside from the fact that the record doesnot support

the "factual pattern” which forms the basis of Bunch's argument,

the argument is fallacious. The presence or absence of a

criminal record is pertinent to the dangerousness standard.

Bunch's argument suggests that a defendant without a criminal

record but who conmits a murder satisfying the vileness staz.dar<

cannot be sentenced to death and, conversely, that a defendant

as to whom the dangerousness standard is satisfied but whose

crime does not meet the vileness test cannot be sentenced to desech

either. Code §§ 19.2-264.2 and -264.4(C) state the dangerousness

and vileness standards in the disjunctive; only one, not both,

need be present to support 4 valid sentence of death.

Gccammer v. Commonwealth, 220 Va. 260; 257 S.E.2d 808 (1979),

cert. denied, 445 U.S. 972 (1980) (three restaurant employees

murdered during the commission of robbery; defendant had ex-

tensive record of violent crime); Co ola v. Commonwealth, 220

Va. 243, 257 S.E.2d 797 (1979), cert. denied, .5. 1103

(1980) (victim murdered durin commission of robbery; no eviderce

of prior ¢riminal record or history involving crimes of violence) ;

Mason v. Commonwealth, 219 Va. 1091, 254 $.E.2d 116, cert. denied,

GGG U.S. S15 (1979) (elderly woman murdered curing commission c=

rape; defendant had extensive criminal record).

- 2%

| determining whether the sentence imposed in the case under review

- em ee ‘ ——_ -— ae _ ~_—— —— -_— _-—— -_ -- _ oo ——--+-- — — ee ae

; {

i Responsive to Code § 17-110.1(E), we have accumulated

; “the records of all capital felony cases ... as a guide in

}

, is excessive.” We have compared Bunch's case with those cases,

| giving particular emphasis to the instances where the death

} sentence was based upon vileness. See Peterson v. Commonwealth,

225 Va. - . S.E.2d ; (1983). As a result, we

j are satisfied that Bunch's sentence of death is not excessive or

| disproportionate. While his prior record may not have warranted

j a finding of dangerousness, the vileness of his offense, as

exemplified by the aggravated battery he committed upon Thomas

and the depravity of mind with which he executed the crime, at

least equals any vileness we have encountered in other cases,

including those cited by Bunch, viz., Stamper, Coppola, and Mason,

and those decided since this matter was argued before the Court.?

For the reasons assigned, we will neither-disturb the

trial court's rulings*nor commute Branch's sentence of death.

Affirmed.

Peterson v. Commonwealth, 225 Va. _, __S.E.24 (1983), |

and LeVasseur v. Commonwealth 2775 Va Ss FE _7a (1983).

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OMES NOW the Defendant, Timothy Dale Bunch, by Cou

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and moves this Court to quash the incictment for capital mus

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against him. As ground therefore Defencant states thet Vitg

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TIMOTSRY DALE BUNCH

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By Counsel

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: STEPHENS, BOATWRIGHT & HOWARD

: 0255 Lee Avenue

Marassas, Virginia, 22119

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I hereby certify that a true copy of the forecoing =

to Quash capital murder indictment was hand deliverec shis 3

Gay of July 1982, to the Office of the Commonweaith'’s Atterne

9304 Peabody Street, Manassas, Virginia. 22110.

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Circuit Court Clerk's Office

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