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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983

## Text

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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

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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

i

= 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

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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
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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-

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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

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

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

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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.

i

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).”
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‘Because the string cf pearls was not identified in the warrant,
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| 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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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

i

first time on appeal. wle 5:21: Girardi v. Commonwealth, 221 Va.
4

9

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

as

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 s

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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 rey ade > =a 40m
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as tau “yt 4 = a * 2 om —_— *\.7 oo 5
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

Si a ee en ie el

TIMOTSRY DALE BUNCH
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1666%3A1. Public record. Not legal advice.
