Petition for Writ of Certiorari — Mueller v. Virginia
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No. OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
EVERETT LEE MUELLER, pro se,
Petitioner,
Ve
COMMONWEALTH OF VIRGINIA,
Respondent.
ANN
WRIT OF CERTIORARI
TO THE SUPREME COURT OF VIRIGNIA
PETITION FOR WRIT OF CERTIORARI
Everett Lee Mueller, pro se
#190275
Mecklenburg Correctional Center
P. O. Box 500
Boydton, VA 23917
Attorney Pro Se
Q>
]
QUESTIONS PRESENTED FOR REVIEW
Te Were Mueller's Fifth Amendment rights violated when
the interrogaton was not terminated after he repeatedly asked
to be taken to Jail?
2. Should the police be allowed to violate the Miranda
warnings earlier given to the defendant by later telling him
he didn't need a lawyer?
3. Was it improper for the Court to limit the defendant's
proposed voir dire of jurors regarding the death penalty?
)
TABLE OF CONTENTS
QUESTIONS PRESENTED ...+..+4 +++ © © © © © © © © © © @ @
TABLE OF AUTHORITIES . . . «© « «© © © © © © © © © © © © © @
OPINION BELOW a . . . . *. . . . . . . . . . * . . . . . .
JURISDICTION . . . 7 . . . * . . . * 7 * . . . * o . . .
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .... .
STATEMENT OF THE CASE ... ++ «© © © © © © © © © © © © «
STATEMENT OF FACTS . . * . . al . * *. . . . . . . 2 . . * .
REASONS FOR ALLOWING THE WRIT .. «2. «© «© «© © © © © © © @#
I.
II.
III.
CONCLUSION
APPENDIX
A.
B.
THE COURT INCORRECTLY ALLOWED INTO EVIDENCE
STATEMENTS MADE BY THE DEFENDANT AFTER HE
ATTEMPTED TO END HIS INTERROGATION BY POLICE . .
THE COURT INCORRECTLY ALLOWED INTO EVIDENCE
STATEMENTS MADE BY THE DEFENDANT AFTER ONE
OF THE POLICE INTERROGATORS TOLD THE DEFENDANT
THAT HE DID NOT NEED AN ATTORNEY . . .« «© «© « « «
THE COURT IMPROPERLY LIMITED THE DEFENDANT'S
PROPOSED VOIR DIRE OF JURORS . .. «© «© «© «© «© « «
Order of the Supreme Court of Virginia in Everett
Lee Mueller, v. Commonwealth of Virginia, Record
Nunber: 920287 (September 18, 1992)
Order of the Supreme Court of Virginia in Everett
Lee Mueller, v. Commonwealth of Virginia, Record
Numbers: 920287 and 920449 (November 6, 1992)
iii
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10
11
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19
Opinion of the Supreme Court of Virginia in Everett
Lee Mueller v. Commonwealth of Virginia, Record No.
920287 and 920449 (September 18, 1992)
“-ii-e
CASES:
Bunch v. Commonwealth,
464 U.S. 977 (1983)
)
TABLE OF AUTHOn. TIES
225 Va.
423, cert. denied,
Coppola v. Commonwealth, 220 Va. 243 (1979)
Eaton v. Commonwealth, 240 Va. 236, cert. denied,
112 S. Ct. 88, reh'g. denied, 112 S. Ct. 623
(1990)
Edwards v. Arrizona, 451 U.S. 477 (1981)
Foley v. Commonwealth, 8 Va. app. 149 (1989)
LeVasseur v. Commonwealth,
225 Va.
564 (1983)
Miranda v. Arizona, 384 U.S. 436 (1966)
Patterson v. Commonwealth,
Poyner v. Commonwealth,
474 U.S. 888 (1985)
229 Va.
222 Va.
653 (1981)
Rogers v. Commonwealth, 227 Va. 605 (1984)
Stockton v. Commonwealth,
Terrell v. Commonwealth,
Witherspoon v. Illinois,
Virginia Criminal Procedure, Section 7-2
(2nd ed.
Virginia Criminal Procedure, Section 7-3
(2d ed.
1989)
1989)
227 Va.
12 Va. App.
391 U.S.
124 (1984)
285 (1991).
510 (1968)
OTHER AUTHORITIES
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401, cert. denied,
PAGE
13, 14
os vw
passim
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IN THE SUPREME COURT OF THE UNITED STATES
EVERETT LEE MUELLER, pro se,
Petitioner,
Vv.
COMMONWEALTH OF VIRGINIA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF VIRIGNIA
The Petitioner, Everett Lee Mueller, respectfully
prays that a writ of certiorari issue to review the judgment
of the Supreme Court of Virginia in this case.
OPINION BELOW
The opinion of the Supreme Court of Virginia in this
case was rendered September 18, 1992, cited as Everett Lee
Mueller v. Commonwealth, Record #920287 (VA September 18, 1992).
JURISDICTION
The judgment sought to be reviewed was entered by |
the Supreme Court of Virginia on September 18, 1992 and a denial
of the Petition for a Rehearing on November 6, 1992.
-JYNSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fourteenth Amendment to the United States
Constitution states, in pertinent part:
No state shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
state deprive any person of life, liberty, or
property, without due process of law; nor deny
to any person within its jurisdiction the equal
protections of the law.
The Fifth Amendment to the United States Constitution
states, in pertinent part:
No person shall be held to answer for a
capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand jury,
except in cases arising in the land or naval
forces, or in the militia, when in actual service
in time of war or public danger; nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb, nor shall
be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty,
or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.
The Sixth Amendment to the United States Constitution
states, in pertinent part:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial,
by an impartial jury of the state and district
wherein the crime shall have been committed,-
which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation; to be
confronted with the witnesses against him; to
have compulsory process for obtaining witnesses
in his favor, and to have the assistance of
counsel for his defense.
o2-
}
STATEMENT OF THE CASE
The Defendant was convicted in Chesterfield Circuit
Court, before the Honorable William R. Shelton with a jury,
on September 12, 1991, of rape and was sentenced to life in
prison; of abduction and was sentenced to life in prison; and
of capital murder and was sentenced to death.
The capital conviction was appealed as a matter of
right to the Supreme Court of Virginia and was consolidated
with the non-capital convictions for review by said court.
On September 18, 1992, the Supreme Court of Virginia
found no error in the issues raised and the judgments were
affirmed. Subsequently, said court on petition to set aside
the judgment and grant a rehearing, said petition was denied
November 6, 1992.
STATEMENT OF FACTS
THE CRIME
On October 6, 1990, a ten year old girl named Charity
Powers went to a skating rink in Chesterfield County close to
the intersection of Routes 1 and 10. She was last seen alive
at a Hardees on Route 1 late on the evening of October 6, 1990.
The evidence showed that the arrangements Charity Powers’ mother
made to have her picked up after skating failed. The publicity
regarding her disappearance was both widespread and intense.
!
Within days of her disappearance, the investigative
team had focused on Everett Lee Mueller, the defendant herein,
as a prime suspect. The principal investigators involved were
Investigator Wayne Garber of the Chesterfield County Police
and Special Agent Jack Palfi of the Federal Bureau of
Investigation. They were supervised and assisted in part by
Sergeant Mike Spraker of the Chesterfield County Police. Within
days of her October 6 disappearance, Garber and Palfi made their
first contact with Mr. Mueller. At various times’ they
interviewed Mueller at his home, at his job, and at the
Chesterfield Police Station. Throughout these interviews he
consistently denied any involvement in the disappearance of
Charity Powers. In mid February of 1991, the investigating
officers received further information regarding the possible
whereabouts of the body. A further search of a wooded area
just off of Route 1 and close to the area of Mueller's house
revealed what later turned out to be the body of Charity Powers.
Her body was removed form the shallow grave close to a pond
and taken to the medical examiner's office in Richmond.
THE CONFESSION
On February 21, 1991, Investigator Garber and Agent
Palfi, accompanied by numerous other law enforcement officers,
arrested Mueller as he left his house that morning. meclier
was advised of his rights and taken to a small interrogation
room at the Chesterfield Police Station and a three to four
hour interrogation was begun. - This ‘interrogation was
video-taped. The video tape of the interrogation and subsequent
-4-
statement py the defendant was analyzed by an independent expert
at the request of the defendant. A review of the video tape
of that interrogation will show that Mueller was seated at a
table in a small room; across the table was agent Palfi; and
between the two and facing the table was investigator Garber.
Garber was seated with his back to the video camera and the
camera was posed so that Mueller's right side was exposed and
Plafi's left side was exposed. Throughout the three to four
hour interrogation Mueller made repeated requests that he be
carried to the jail. (App.181). After several hours of the
interrogation, with Mueller's repeated requests to be carried
to the jail being denied, Palfi left the room, stating that
he was fed up with Mueller's attitude and his refusal to accept
their help.
It should be noted that both agent Palfi and
Investigator Garber testified at the suppression hearing that
they interpreted the deiendant's requests to be taken to jail
was a way to avoid further questioning, but neither ever asked
Mueller specifically if he wanted to end the interrogation.
While Palfi was out of the interrogation room, Garber continued
his insistent requests for Mueller to help himself. Garber
and Palfi but especially Garber, consistently stated to Mueller
that he knew he wasn't the kind of person who would do something
like this to a young girl and that it must have been an accident.
They also repeatedly advised Mueller that they believed there
were two Muellers, the one who was "drinking" and the one who
was not “drinking”, with the “drinking” Mueller being the bad
ofa
one.
While Palfi was out of the room Mueller looked at
Garber and said, “Do you think I need a lawyer here?" (pp. 179).
The video tape shows that Garber shook his head in the negative
while speaking the words, “We're just talking here." At that
time, Mueller asked Garber to get agent Palfi back in the room
and thereupon advised both of them that they had the right guy.
A detailed admission followed.
Later on that day Mueller accompanied the police ‘to
the scene of the grave and proceeded to point out specific items
of evidence to the police. This activity was video taped by
the police. The exhumation and removal of Powers from the grave
site was video taped at another time.
Mueller's confession and his activities at the
subsequent inspection of the grave area were instrumental in
his convictions. There were no eye witnesses that specifically
placed Mueller at the Hardees where Powers was last seen alive.
There was no forensic evidence, such as finger prints or DNA
or otherwise, to link Mueller to Powers. There were no eye
witnesses to any of the offenses.
In his statement to the officers, Mueller admitted
that the had picked up Powers at the Hardees, that he had driven
her to his house, that they had walked into the woods and had
intercourse, and that he must have strangled her. The autopsy
of Powers revealed that there had been an injury to her neck.
During the guilt portion of the trial Dr. Marcella Fierro, who
testified on behalf of the Commonwealth, indicated that the
offs
cause of weath was acute neck injury.
Through another witness the Commonwealth introduced
a knife that had been found in the general vicinity of the grave.
Mueller admitted having been aware of the existence of the knife
but denied having used it with Powers. During the penalty phase
of the trial, Dr. Fierro was allowed to testify over the
defendant's objection that in her opinion that knife had been
used by Mueller to cut Powers's throat and this was the cause
of death. On cross examination, she admitted that her opinion
was not to a reasonable decree of medical certainty. The
Commonwealth conceded that Fierro's statements were feelings
she had, but that they created a factual issue for the jury
to decide.
PRETRIAL MATTERS
The defendant made a motion in limine prior to trial
in which he proffered to the Court that he had been convicted
of rape on two prior occasions and that a conviction of rape
in the Powers case would be his third such conviction. The
motion in limine relied upon the law of Virginia that makes
a defendant with a third rape conviction ineligible for parole.
The defendant asserted that, in the penalty phase at least,
the jury should know that with a third conviction for rape,
the defendant would not be eligible for parole on any like
sentence or term of years they might impose. The motion in
limine was denied by the Court after argument.
The defendant made pretrial motions and presented
argument regarding the constitutionality of the death penalty
ate
and the leness predicate of the bath penalty. The Court
overruled each of those motions.
Additionally, the defendant moved for a change of
venue because of the widespread publicity regarding the Powers
case. During the voir dire of prospective jurors, various
members of the venire admitted to the court that they had heard
and read the publicity and , as a result, knew that the defendant
had previously been convicted of rape, and also had confessed
to the crime. The defendant moved that each of those potential
jurors be stricken for cause. The court overruled the
defendant's motion.
The defendant also moved to suppress his statements
to the police but the Court denied the motion.
THE TRIAL
A motion for mistrial was made by the defendant after
Kevin Speaks' testimony. (App. 1010, 1097 and 1169). The basis
for the motion was that the Commonwealth had withheld exculpatory
evidence in spite of the defendant's timely filed Brady motion.
THE PENALTY PHASE
During the penalty phase of the trial, Carol Mueller
was called by the Commonwealth and testified that the defendant
had raped her in 1977. (App. 1205). She stated that she was
the sister of the defendant and that she knew he had become
eligible for and had made parole on the twenty year sentence
he received for raping her after he had served only some five
years. Judith Corbin was called by the Commonwealth in her
role as Custodian of Records of the Department of Corrections.
iin
She confi.med to the jury that Mueller had made mandatory parole
from the 1977 rape conviction of Carol Mueller. (App. 1240).
During the penalty phase of the trial the defendant
testified in his own behalf. His direct examination did not
touch at all on the Powers offenses but instead focused primarily
on his up-bringing as well as the sentence he had served for
the rape of Carol Mueller Bowers. He talked about his family
life and the difficulties he experienced with his schooling.
THE SENTENCING
At the hearing on November 26, 1990, when the
presentence report was presented to the court, the defendant
again argued the issue of parole eligibility and offered to
present the testimony of the jury foreman that the jury had
discussed parole during its deliberation. The Court would not
allow the testimony but did accept the foreman's affidavit.
The Court then imposed the sentences recommended by the jury.
REASONS FOR ALLOWING THE WRIT
I. THE COURT INCORRECTLY ALLOWED INTO EVIDENCE
STATEMENTS MADE BY THE DEFENDANT AFTER HE
ATTEMPTED TO END HIS INTERROGATION BY POLICE.
According to Miranda v. Arizona, 384 U.S. 436 (1966),
a confession must be voluntary, and an individual is always
free to exercise his right to remain silent. If he gives any
indication prior to or during an interrogation that he wishes
to remain silent, the interrogation must cease immediately,.
Id; See R. Bacigal, Virginia Criminal Procedure, Section 7-3
(2d ed. 1989). Whether a confession is voluntary is determined
in light of the totality of the circumstances, and whether the
suspect's will "has been overborne and his capacity of self-
determination critically impaired." Terrell v. Commonwealth,
12 Va. App. 285, 290 (1991) (citing Rodgers v. Commonwealth,
227 Va. 605 (1984)5 Stockton v. Commonwealth, 227 Va. 124
(1984)).
| Along with the details of the interrogation, the
personal characteristics of the accused must be considered in
the totality of the circumstances. Terrell, Supra at 290-91.
This includes the accused's intelligence, education, prior
edecntian, prior experience with the police, emotional or mental
disability, and the deprivation of physical comforts. Id. at
291 (citing R. Bacigal, Virginia Criminal Procedure, Section
7-2 (2d ed. 1989)).
In the present case, Mueller gave a confession after
he had repeatedly asked to be taken to jail. Although Mueller
atin
has had p.iior experience with the poiice, he only has an eighth
grade education. By asking to be taken to jail, Mueller was
clearly asking to terminate the interrogation. At this point
the questioning should have stopped.
When his request was denied, and questions continued,
he began about his right to counsel. After he was denied
counsel, Mueller did what he felt he had no other choice but
to do. He confessed. This type of coerced confession, however,
is exactly the type of situation that Miranda seeks to prevent.
Otherwise, the police would always be fee to prod confessions
out of suspects merely by denying basic requests.
When the police denied Mueller's request to be taken
back to his cell, they directly violated his right to remain
silent and his right to terminate the interrogation at any time.
II. THE COURT INCORRECTLY ALLOWED INTO EVIDENCE
STATEMENTS MADE BY THE DEFENDANT AFTER ONE OF
THE POLICE INTERROGATORS TOLD THE DEFENDANT THAT
HE DID NOT NEED AN ATTORNEY.
The police must stop any questioning when a defendant
invokes his sixth amendment right to counsel, and the questioning
may not be resumed until counsel is present or the suspect
re-initiates dialogue. Edwards v. Arizona, 451 U.S. 477 (1981).
The question then is, what is considered a request for counsel?
Virginia has established a "Bright Line" test in which "a request
for counsel must be ‘unambiguous and unequivocal' in order to
trigger the Edwards rule." Eaton v. Commonwealth, 240 Va. 236,
cert. denied, 112 S.Ct. 88, reh'g. denied, 112 S. Ct. 623 (1990).
wtitie
2 Sbaearr?
secu
vefendant's request here i: hes than merely a request
for counsel. It goes back to the basic warnings given in
Miranda. Once Garber responds in the negative, he undercuts
the earlier warnings and vitiates them.
In Eaton, the police interrogated the defendant.
During the questioning, Eaton asked, "Maybe I ought to talk
to a lawyer," “Didn't you say I had a right to a lawyer," and
"I need to talk to someone, a lawyer, a psychiatrist, someone."
Id. at 447. The detective questioning Eaton remained silent.
The interrogation continued, and Eaton's statements were used
against him at trial. Id. Since Eaton did not expressly state
that he wanted counsel present, he did not meet the “bright
line" test, and his statements were admissible. Id. at 435..
Like Eaton's first statement, Mueller also made a
statement contemplating the need for a lawyer but, specifically
in the form of a clear question: "Do you think I need a lawyer
here?". Mueller, however, did not continue with subsequent
equivocating statements like Eaton's. Eaton's second statement
was more of a question to clarify his rights. Mueller made
no such ambiguous statement and, most important of all,
Investigation Garber did not simply remain silent in response
to Mueller's question. Instead, Investigator Garber clearly
responded that Mueller did not need an attorney, thereby
undermining the earlier Miranda warnings.
In my opinion, when equivocal statements such
as these are made, the most oobvious’~ and
appropriate response is to ask the suspect, "Do
you want a lawyer?". The suspect's response
at2e
.o this question should .esolve the ambiguity
and allow the interrogators to proceed
accordingly. This test is easy to apply,
consistent with Miranda v. Arizona, 384 U.S.
436 (1966) and its progeny, and efficient in
terms of police and court time. It provides
a true bright-line rule which is fair to
defendants and police alike.
Id. at 448 (Lacy, J., dissenting) (footnotes omitted).
The bright-line test in Eaton gets its foundation from two cases:
Poyner v. Commonwealth, 229 Va. 401, cert. denied, 474 U.S.
888 (1985), and Bunch v. Commonwealth, 225 Va. 423, cert. denied,
464 U.S. 977 (1983).
In Poyner, the defendant asked during an interrogation,
"Didn't you say I have the right to counsel?" Poyner, supra
at 410. The Officers said "yes," and they began to stand up.
Id. at that point, Poyner spontaneously said, "Let me tell you
about the car." Id. The Court decided that Poyner question only
sought a clarification of his rights; he was not asking for
counsel. Id. furthermore, Poyner obviously was not demanding
counsel because he re-initiated the conversation. Id. at 411.
The present case is vastly different from Poyner.
During Mueller's questioning, Mueller asked the police, “Do
you think I need a lawyer here?" The police responded, “No,
we're just talking here." Unlike Poyner's question, Mueller's
question was not an attempt to clarify his rights. Instead,
Mueller's statement showed that he was consciously considering
invoking his right to counsel. When the policeman said that
Mueller did not need one, the policeman made an affirmative
attempt to deter Mueller from exercising his right to counsel.
«13e
Poyner v.untarily confessed after tt. was given an opportunity
to consider his options. Mueller, however, was denied the option
due to zealous police efforts to obtain a confession.
In Bunch v. Commonwealth, 229 Va 423, 430, cert.
denied, 464 U.S. 977 (1983), the defendant mentioned during
the interrogation that he might want an attorney, When Bunch
said this, the interrogation stopped. Id. The defendant then
voluntarily made a statement that he would cooperate, and he
signed a written waiver of counsel. Id. at 430-31.
Bunch, like Mueller, showed that he was contemplating
a request for counsel. At bunch's trial, the court considered
this to be an adequate request for counsel. Id. at 430. but
where the police remained silent in Bunch, They actively
convinced Mueller not to ask for counsel. Also, after allowing
Bunch to make up his own mind to cooperate, the police had Bunch
sign a written waiver of counsel. Mueller, on the other hand,
was continuously asked questions, so he did not re-initiate
the questioning.
In short, but for the investigator's statement to
dissuade the defendant from asking for counsel, Mueller may
have given an “unambiguous and unequivocal” request for counsel.
Second, the actual effect of the policeman's statement was to
diminish the importance of Miranda warnings. Mueller was given
his warnings, and when he considered exercising his rights,
he was told by the police that an attorney was not necessary
because “they were just talking." Thus, we do not even reach
otis
the bric -line test set forth in Jeon, because Mueller was
informed that his right against self-incrimination was not in
jeopardy. This type of police conduct is clearly more egregious
than the conduct in Eaton and cannot be condoned in light of
the Fifth and Sixth Amendments.
The police could have remained silent when Mueller
asked his question. They could have even reaffirmed his right
to counsel by rereading his Miranda warnings. They also could
have simply asked Mueller if ‘we wanted an attorney. But to
advise a defendant of his rights, and then tell him that a formal
interrogation is not important enough to have counsel present
is both offensive and shocking to the conscious. Allowing this
type of police action would effectively uproot the fundamental
principles of justice and fair play which is at the cornerstone
of our judicial system's aversion to police coercion. The police
simply cannot inform a suspect of his rights, and then actively
encourage a waiver of those right.
Iil. THE COURT IMPROPERLY LIMITED THE DEFENDANT'S
PROPOSED VOIR DIRE OF JURORS.
In Virginia, we operate from the general premise
that a juror may not be challenged for cause on his views about
capital punishment unless those views would prevent, or
substantially impair the performance of his(her) duties as a
juror, LeVasseur v. Commonwealth, 225 Va. 564 (1983); Coppola
v. Commonwealth, 220 Va. 243 (1979). The Commonwealth has carved
out a secure, safe and effective question -- Do you have any
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a ee ee te ae
IN THE SUPREME COURT OF TH UNITED STATES
EVERETT LEE MUELLER, pro se,
Petitioner
Vv.
COMMONWEALTH OF VIRGINIA,
Respondent.
CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of
February , 1993, a true copy of the foregoing Motion
for Leaving to Proceed in Forma Pauperis, and Affidavit in
Support of Motion to Proceed on Writ of Certiorari in Forma
Pauperis, and Petition for Writ of Certiorari to the Supreme
Court of Virginia, all of which are being filled pro se, were
mailed to the Honorable Clerk of the Supreme Court of the United
States, One First Street, Northeast, Washington, DC 20543,
and to the Honorable Attorney General of Virginia, 101 North
Eighth Street, Richmond, Virginia 23219, by depositing such
documents in a United States Post Office, postage prepaid.
bent Heads
L , pro se
religioud x moral objections to . death penalty? If the
answer is yes, the predictable result is that the juror is
stricken. the defense has, historically, not had such an easy
and effective method of determining which jurors would not
consider life imprisonment as an option in any given case.
The rulings in Patterson v. Commonwealth, 222 Va. 653 (1981)
give us some guidance as to what the state of the law is in
Virginia. In that case the court ruled that the question, "Do
you believe that the death penalty is ordinarily the proper
punishment for the crime of capital murder?" was too vague,
argumentative and non-specific. The court, on the other hand,
said that it was proper to use, ". . . and if the jury should
happen to convict the defendant of capital murder, would you
be able to consider voting for a sentence less than death?"
The key, of course, to qualification of a juror is
not opposition to death penalties or propensity towards the
death. penalty, but whether or not the juror could consider other
options, Witherspoon v. Illinois, 391 U.S. 510 (1968). In trying
to determine what a juror would “consider” it is apparently
permissible for the Commonwealth to ask if anything would
prohibit a juror from imposing death while the defendant is
not allowed the latitude to determine if something would prohibit
a juror from giving a life sentence. This clear inequity
certainly cannot be intentional.
The situation for the defendant is made worse when
the trial court not only refuses to allow the defense to ask
otGe
pointed y.estions to determine whether or not a juror is death
prone, but goes further and asks, or allows the Commonwealth
to ask, questions to which the "“proper" answer is obviously
one which leads the juror to express that he(she) is not
prejudiced. In Foley v. Commonwealth, 8 Va. App. 149 (1989),
the court reversed the defendant's conviction due to such voir
dire. Consider, in the instant case, the voir dire of potential
juror Zoeckler (App. 518-542). The Court asked a series of
questions designed to elicit “proper” answers. The Commonwealth
then followed with a series of statements designed to box the
juror in, and then asked if the juror would consider both
penalties. When the juror responded "I think so, yes" (App.
524) the Commonwealth followed with this statement: "In: other
words, you would not automatically, if you found him guilty,
vote to impose the death penalty, but you would wait and listen
and hear the evidence and decide what would be the appropriate
punishment."
What juror would say "No, I won't listen to the
evidence." or "“No., I won't decide on an appropriate
punishment."? Of course, the juror responds, "yes."
Under more direct questions, however, we can glean
the true feelings of the juror, if allowed. Unfortunately,
counsel was not allowed to ask specific questions in all
instances with his juror. For example, the question " ...
if in sitting in the guilt phase of this trial you conclude
beyond a reasonable doubt that Mueller has raped and killed
otPe
{
a 10 year old child, don't you think that death is the only
appropriate punishment for that?" (App. 529). The question
was not allowed. When counsel, after bench conference, added
to the question ". . . and then you sit in the sentencing phase
and listen to the evidence in aggravation and the evidence in
mitigation, aren't you going to think the only appropriate
sentence is death?" The court again sustained objection to
the question. The court instructed counsel that he could only
ask if the juror would consider both possible penalties (App.
535). That is, of course, the ultimate question for the court
to determine, but the court erred in not allowing counsel to
ask any questions to establish the jurors' ability or intent
to "consider" both penalties. The limited leeway that the court
gave the defense counsel in the Zoeckler voir dire established
that he was death prone, and that the defendant would bear the
burden to mitigate his actions in order to receive a life
sentence (App. 538). The court then permitted the Commonwealth
to lend the juror back to the neutral fold, and the juror was
deemed qualified to sit.
Similar questions by the defense were asked to
prospective juror Gryder and the Commonwealth's. objection was
sustained (App. 708, 709).
Interestingly, when juror Hutchins did not give
“proper” responses, the court asked the question that the defense
wanted to ask all jurors, essentially, if you found Mueller
guilty of capital murder would you only vote for death? (App.
ote
ee
810). This is, in fact, a proper question. It is the only
and the’ .vious counter to "Do yo ave any objection to the
death penalty" and the court should have allowed defense counsel
to ask it to the appropriate prospective jurors.
The court's refusal to allow the defense to voir dire
prospective jurors improperly deprived the defendant of a fair
and impart if! jury, and was in violation of his 6th and 14th
Amendment rights.
CONCLUSION
For the reasons stated above, the petitioner, Everett
Lee Mueller, respectfully requests this Court issue a writ of
certiorari to the Supreme Court of Virginia to review the
constitutionality of his conviction and sentence.
Respectfully submitted,
Clee LEE MUELLER, pro se
#190275
Mecklenburg Correctional Center
Post Office Box 500
Boydton, Virginia 23917
- Attorney Pro Se -
Subscribed and sworn to before me this (rsiraay of
February, 1993.
otary Pu c
My commission expires: (2) -3 {- o# °
ot@e
- VIRGINIA:
St the Seif eae Come f hirgéinen 4ebd at Mh. thy bre rhe Freel Building sn” lhe
Friday fir 8th
lity f Kih mend « ” day f November, 1992.
Everett Lee Mueller, Appellant,
against Record Nos. 920287 and 920449
Circuit Court Nos. CR91F00485,
CR91F0048-01 and -02
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing
On consideration of the petition of the appellant to set
aside the judgment rendered herein on the 18th day of September,
1992 and grant a rehearing thereof, the prayer of the said petition
is denied.
A Copy,
Teste:
!
VIRGII A:
Friday y, 18th day of September, 1992.
lily ff ‘ Gixboendan
Everett Lee Mueller, Appellant,
against Record No. 920287
Circuit Court No. CR91F00485
Commonwealth of Virginia, Appellee.
Upon an appeal of right from
a judgment rendered by the Circuit
Court of Chesterfield County on
the 19th day of December, 1991.
For reasons stated in writing and filed with the record,
the Court is of opinion that there is no error in the judgment
appealed from. Accordingly, the judgment is affirmed.
It is ordered that the said circuit court allow counsel
for the appellant a fee of $1,550 for services rendered the
cutee on this appeal, in addition to counsel's costs and
necessary direct out-of-pocket expenses.
This order shall be certified to the said circuit court.
A Copy,
Teste:
pp dsel
Clerk
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING, IF AND WHEN A
BETTER COPY CAN BE OBT AINED, A NEW FICHE
WILL BE ISSUED,
tess
Mueller v. Commonwealth
244 Va. 386 (1992)
EVERETT LEE MUELLER
\
COMMONWEALTH OF VIRGINIA
Record Nos. 920287 and 920449
September 18, 1992
Present: All the Justices
In the automatic review of a death sentence, consolidated
with the appeal of the capital murder conviction of the
lefendant as well as with the appeal of the non-capital con
victions, no error is found and the sentences and convictions
ire upnheid
Criminal Law — Capital Murder — Rape and Abduction —
Constitutional Law — Criminal Procedure — Miranda Warnings —
Confessions — Jury Selection — Change of Venue
=n year old child disappeared and four months later her body was recovered
from near the defendant's home. He was arrested and confessed to raping and
murdering the child. At the first stage of a bifurcated trial, a jury found the
defendant guilty of capital murder during the commission of rape and abduc-
tion. The jury also found him guilty of rape and abduction with intent to
defile. lt fixed his punishment at life imprisonment on each of these charges.
In the penalty phase of the capital murder trial, the jury fixed the defendant's
punishment for capital murder at death, based on findings of both vileness and
future dangerousness. At the hearing required by Code § 19.2-264.5, the trial
court imposed the sentences fixed by the jury. The defendant appeals
Legal issues raised by the defendant which are resolved by previous decisions
are not discussed beyond representative citations to cases in which those
issues were decided adversely to the defendant's claims. The previous rejec-
tions of the contentions are affirmed
Although the defendant assigned error to certain issues, he did not address
them in his brief and, pursuant to Rule 5:27(e), he has waived any objection to
these rulings and the issues will not be considered on appeal
Whether a statement is voluntary under the Miranda standard is ultimately a
legal rather than a factual question, but subsidiary factual questions are enti-
tled to a presumption of correctness
The test to be applied in determining voluntariness is whether the statement is
the product of an essentially free and unconstrained choice by its maker or
whether the maker's will has been overborne and his capacity for self-determi-
nation critically impaired, given the totality of all the surrounding circum-
stances
Mueller v. Commonwealth
244 Va. 386 (1992)
5. The factual findings of the trial court that the defendant knew how to ask for
the assistance of counsel, that his question to one of the detectives was not an
expression of a desire to have the assistance of counsel, and that the police
properly advised the defendant of his Miranda rights and he understood those
rights prior to confessing to the crimes are supported by the record and are
accorded substantial weight in the determination that the defendant's state
ment was voluntary
Based on a review of the videotape of the defendant's interrogation, his state
ments regarding going to jail were simply impatient gestures and they did not
constitute an invocation of his right to terminate the interrogation
The defendant's question to the officer, *‘Do you think I need an attorney
here?’’ did not const,tute an unambiguous request for counsel
Under the totality of the circumstances in this case, the detective’s response to
the question did not invalidate the defendant's earlier waiver of his Miranda
rights
As a matter of law, the defendant's confession to the detectives was voluntary
There is a presumption that a defendant can receive a fair trial from the citi
zens of the jurisdiction in which the offense occurred and it is the burden of
the defendant to overcome this presumption by demonstrating that the feeling
of prejudice on the part of the citizenry is widespread and is such that would
be reasonably certain to prevent a fair trial
The decision whether to grant a change of venue lies within the sound discre
tion of the trial court and its ruling will not be disturbed on appeal unless the
record affirmatively shows an abuse of discretion
Here there was no challenge to the accuracy of the media coverage of the case
nor was it unduly difficult to select a jury because of a predisposition toward a
belief in the defendant's guilt. The trial court did not abuse its discretion in
denying the defendant's motion for a change of venue
Since the defendant did not proffer any questions regarding the ability of a
prospective juror to impose a life sentence, he may not claim on appeal that
his right to question this prospective juror was violated
The trial court did not err in sustaining the prosecutor's objection to two ques
tions which were argumentative and provided the prospective juror with no
basis upon which to express an opinion, and even ignoring the argumentative
nature of the questions, the trial court's ruling did not violate the defendant's
right to a fair and impartial jury
The trial court did ask questions which probed whether a prospective juror
would automatically vote for the death penalty and he responded that he would
not vote automatically to impose either the death penalty or life imprisonment
The trial court did not abuse its discretion in refusing to allow further ques
tions proposed by the defendant on that subject
Since the defendant cites no evidence to support his contention that the venire
was tainted by the comments of one prospective juror and the record reflects
Mueller v. Commonwealth
244 Va. 386 (1992)
that both counsel had ample opportunity to question each prospective juror
and the questioning revealed no evidence that the comments had influenced
the prospective jurors in any way the trial court did not abuse its discretion in
refusing to disqualify the entire venire because of those comments
In reviewing the rulings of the trial court on challenges for cause, the voir dire
is considered as a whole to determine whether there is any indication that a
iuror’s performance of his or her duty in accordance with the trial court's
instructions and the oath. The jurors need not be totally unaware of the facts
and issues involved in the case
In a review of the voir dire testimony of each of nine prospective jurors, there
‘< no indication that each could not lay aside his or her impressions of opin-
‘ons and render a verdict based on the evidence presented in court and there-
fore there was no manifest error in the trial court s refusal to strike any one of
those jurors for cause
Since the record does not reveal whether the defendant's photograph was
included in a photo array, and the witness did not identify any photograph
shown to him by the police as representing the man he had seen near the vic-
tim. the trial court correctly determined that the information did not constitute
exculpatory evidence and the defendant was not entitled to a mistrial based
upon the prosecutor's failure to inform him of exculpatory evidence within the
meaning of Brady
The trial court did not err in its rulings which did not allow the defendant an
pportunity to introduce evidence regarding parole ineligibility in mitigation
f punishment at the penalty phase of the trial because it has been uniformly
ind repeatedly held that information regarding parole eligibility 1s not relevant
for the jury's consideration
Evidence of a defendant's prior parole history !s admissible during the penalty
phase of a capital murder trial where the Commonwealth is seeking the death
penalty based on the ‘‘future dangerousness ’ predicate
After a defendant has testified as to certain matters, the proper scope of cross
examination lies within the sound discretion of the trial court. Here, the trial
urt did not abuse its discretion in allowing the Commonwealth to question
the defendant about his prior convictions for sexual offenses, as well as about
whether he had learned anything as a result of his commission of the present
offenses
Where the defendant did not object at the time that the medical examiner had
not stated her opinions with a reasonable degree of medical certainty, he may
not complain on appeal regarding the admission of this opinion evidence.
Since the medical examiner gave testimony at the penalty phase of the trial
which involved only a description of the condition of the victim's body, based
on photographs being offered. it did not constitute opinion evidence, and it
was properly admitted
“a
Mueller v Commonwealth
244 Va. 380 ( 1992)
, fe soravated batter
Here the testimony sufficiently established the defendant 5 aggreve™~ aitery
nee : : re t
f the victit as well as fs depravity f mind, to meet he vileness predicatk
et forth in Code § 19 64
% The evidence of the medical caaminer ts iff ent to establish an aggravated
, . f . wa
battery because the victim was sbyected af terva agony a .
jleath
} eriod of ne
The ma uc f the det lant wa rv ‘ That f a per }
‘ re
and under wT wnces as pern an inf me | y "
7 ’ , :?
R Evidenct f sexual mutita f whether j g ( " ca
in & P
‘ » depravily | “i within ihe ft caning f ( ove 9 ; :
f ' i the jury
) The senten g for mn » with Instruction A silly apprised (he
, . “nie
| ente rm y ri rn and iid | ; w any | re pt pre ented
pil eunishment was if sed 4
} After a revicw | pr ' 1s w Tic af 3} punisam [
act ,
c wi ' t¢ npf onment was imp sed i iL ded thal e
a as }
‘ ‘
nae f deat! ae Wa ‘ al nce ‘ , dispropor nate
ente
; for ne
ri ence general > ed DY ner \< x mei v y .
ia milaf ature
“ } let re
" ; , lef las le att P , e wa Dp P ’
youning ugecs' ;
’ an ,
fluence of pa n. { 10 ra e af i "
hLectertie
Appeals from jidgments f£ the Circuit Court if ¢ Hnesterii« }
. i ! re OTresicging
( ounty Hon William K sMNEILOr jdge pt iding
Affirmed
Cary B Rowen Christopne? jf iin Bowen ind Bowen, on
brie) for appellant
Robert H anderson, li, Assistant ‘yrorney General
on briet), Tor ippelice
Mary Sue
Terry Attorney (,enerai
jUSTIK Ee KEEN AN delivered the opinion of the Court
Charity Powers, age ten disappeared 1n the early morning hours
of ctober 6 iv¥0 four montns later
of Everett Lee Mueller. Mueller was
her body was recovered from
a shallow grave neat the home
arrested and thereafter confessed t
At the first stage Of a bifurcated trial :
&§ 19.2-264 1 and -264.4, a jury found Mueller guilty of capital
, 4 *r in the
murder in violation of ‘ ode § 18.2-31(5) and 31(8) (murder
and murder of a child under 12 in the com
convicted Mueller of rape
» her rape and murdet
conducted pursuant to ¢ ode
commission of a rape
mission of an abduction) The jury also
Mueller v. Commonw...th
244 Va. 386 (1992)
and abduction with intent to defile, and it fixed his punishment at
life imprisonment on each of those charges. In the penalty phase of
the capital murder trial, the jury fixed Mueller’s punishment for
capital murder at death, based on findings of both vileness and
future dangerousness. After the hearing required by Code § 19.2
264.5, the trial court imposed the sentences fixed by the jury
Mueller is before this Court for automatic review of his death
sentence and, pursuant to Code § 17-110.1, we have consolidated
that review with his appeal of his capital murder conviction. We
have also certified from the Court of Appeals Mueller’s appeal of
his noncapital convictions. Code § 17-116.06. Further, in accor
dance with Code § 17-110.2, we have given this matter priority on
our docket. We review the evidence and all reasonable inferences
fairly deducible therefrom in the light most favorable to the Com
monwealth, the prevailing party below. Cheng v. Commonwealth.
240 Va. 26, 42, 393 S.E.2d 599. 608 (1990)
[HE EVIDENCI
Ihe evidence at trial showed that on the evening of October $
1990, Taryn Potts took her daughter, ¢ harity Powers, to a skating
rink and left her there for the evening. Potts had arranged to have a
iriend, Steve Harris, drive Charity home from the rink later that
night. However, Harris fell asleep and he did not go to the rink
When Potts arrived home at 3:00 a.m. on October 6, 1990 and dis
covered that Harris had not brought Charity home, she immediately
contacted the police, and they began to look for her daughter
Kevin H. Speeks, who knew Charity, testified that he saw her at a
last food restaurant near the skating rink about |2:50 a.m. on Octo
ber 6, 1990. While at the restaurant, Specks also observed a man
with an unkempt appearance, who appeared to be thirty years of age
and of medium height, driving a cream-colored station wagon with
wood siding through the parking lot several times. As Speeks left
the restaurant, he saw that the man was standing on the right side of
the building. Speeks also saw that Charity was sitting on a curb
located on the same side of the building. Sergeant Mike Spraker of
the Chesterfield County Police Department testified that Mueller
customarily drove a cream-colored station wagon which had wood
siding
Mueller v. Commonwealth 39]
244 Va. 386 (1992)
In conversations with the police on October 8 and 9, 1990, Mue!
ler admitted speaking with a young, white female on the night of
October 5, 1990, at a fast food restaurant that might have been near
the skating rink. As a result of information gained in their investiga
tion, the police searched for Charity’s body near Mueller's home
and on February 8, 1991, they found ‘‘a clump of hair and what
looked like some white bone sticking out of the ground.’’ There
upon, the police exhumed Charity’s body, which had been buried
ibout 900 feet behind Mueller’s house. An investigator also found a
knife sticking in the ground about |74 feet from the grave
The police arrested Mueller on February 12, 1991. After being
advised of his Miranda rights, Mueller agreed to talk with Detective
R. Wayne Garber of the Chesterfield County Police Department and
John M. Palfi, an FBI special agent. Garber and Palfi interrogated
Mueller for approximately four and one-half hours. During this
nterrogation, Mueller stated several times that he was ready to go
to jail and that the police should put him in jail. Mueller did not
state at any time that he wished to end the questioning. Approa!
mately two hours into the interrogation, Agent Palfi left the room
Shortly thereafter, Mueller asked Detective Garber, *‘Do you think |
need an attorney here?’’ Garber shook his head slightly from side to
side while holding his arms out and his palms up in a shrug-like
manner, stating, *‘ You're just talking to us.’’
Several minutes later, Mueller confessed to the crime. Mueller
stated that he had agreed to give Charity a ride home from the res
taurant but that he drove her to his house instead. He admitted that
he was thinking about having sex with her and he stated that he
thought she was 18 or 19 years old. Charity was approximately
48°’ tall and weighed 90 pounds. Mueller stated that Charity agreed
to have sex with him, and she told him that she wanted to go home
afterward. Mueller took Charity to the woods behind his house
where he had intercourse with her. He stated that although he had a
knife nearby, he did not use it
Mueller stated that he strangled Charity to death because he was
afraid that she would report the incident to the police. He also stated
that he had been drinking heavily and that, the next morning, he did
not know whether he had dreamed about the previous night s events
or whether they actually had occurred. When he weni to check the
woods, he saw Charity’s body. He then purchased a shovel from a
local store, buried the body, and burned Charity’s clothes and jew
elry
Mueller v. \ummonwealth
244 Va. 386 (1992)
After making this confession, Mueller led the police to the site
where he had buried the body. He also showed them where he had
burned the clothing and jewelry, as well as the area where he had
left the knife. This was the same area where the police earlier had
found a knife. Additionally, Mueller showed the police the location
where he had intercourse with Charity. This area was about 15 feet
from where the knife was found
Dr. Marcella Fierro, who conducted an autopsy on Charity’s
body, testified that Charity’s throat had been cut to the depth of one
inch, resulting in a horizontal cut on the epiglottis, which is located
on the trachea. She further testified that such a cut would result in
the severance of the carotid artery and the jugular vein. According
to Dr. Fierro, a person suffering from such an injury would die after
several minutes, and there were indications that Charity had bled
before her death. Based on these facts, Dr. Fierro testified that the
ause of death was an ‘‘acute neck injury
Additionally, Dr. Fierro found that, upon examining the skin over
the breast area, there were ‘‘irregular holes in the area where each
nipple would be.’’ Dr. Fierro testified that she believed this condi-
tion to be the result of an injury, but she could not determine its
suse or whether it had occurred before or after death. Dr. Fierro’s
examination also revealed a *‘big gash’’ on the victim's upper left
thigh. Dr. Fierro stated that this could be an injury but that she
could not determine whether it had occurred before or after Char-
ity s death. However, Dr. Fierro testified that if it were an injury, it
would have resulted from application of a ‘‘blunt or sharp force."
Dr. Fierro also determined that there were three tears to the hymenal
ring of the vagina which were consistent with sexual penetration
lI
ISSUES PREVIOUSLY RESOLVED
[1] Mueller’s appeal raises certain legal issues which are resolved
by our prior decisions. We reaffirm our previous rejection of these
contentions. Therefore, we will not discuss them beyond giving
citations to representative cases in which those issues were decided
adversely to Mueller’s claims. The issues raised here which have
been expressly rejected by this Court are
4. The death penalty violates the United States Constitution's
prohibition against cruel and unusual punishment. See George
Mueller v. Commonwealth
244 Va. 386 (1992)
v. Commonwealth, 242 Va. 264, 271, 411 S.E.2d 12, 16
(1991), cert. denied, 503 U.S . 112 $.Ct. S91 (1992);
Yeatts v. Commonwealth, 242 Va. 121, 126, 410 S.E.2d 254,
258 (1991), cert. denied, U.S . 112 $.Ct. 1500
(1992)
B. The aggravating circumstance of ‘‘vileness’’ set forth in the
capital murder statute is unconstitutionally vague. See Spencer
v. Commonwealth, 238 Va. 563, 569, 385 S.E.2d 850, 853
(1989), cert. denied, 493 U.S. 1093 (1990)(Spencer Il); Gray
v. Commonwealth, 233 Va. 313, 320-21, 356 $.E.2d 157, 161
cert. denied, 484 U.S. 873 (1987)
The verdict form was defective because it did not list the miti
gating factors mentioned in the statute. See Buchanan v. Com
monwealth, 238 Va. 389, 416-17, 384 S.E.2d 757, 773 (1989),
cert. denied, 493 U.S. 1063 (1990), Watkins v. Common
wealth, 229 Va. 469, 491, 331 S.E.2d 422, 438 (1985). cert
denied, 475 U.S. 1099 (1986): LeVasseur v. Commonwealth
225 Va. 564, 595, 304 S.E.2d 644, 661 (1983), cert. denied
464 U.S. 1063 (1984)
ASSIGNMENTS OF ERROR WAIVED
[2] Because Mueller did not address in his brief assignments of
error 7, 8, 9, 12, and 16, he is deemed to have waived them.’ Rule
5:27(e); see Quesinberry v. Commonwealth, 241 Va. 364 470. 402
S.E.2d 218, 222, cert. denied, 502 U.S bi2 S.Ct. 13 (1991)
These assignments of error are
4
The Court erred in denying Defendant's ' " bductio d apital
murder
8. The Court er n refusing
person under
9 The Court
murder
12. The Court
um § body
16. The Court
Mueller v Commonwealth
244 Va. 386 (1992)
IV
PRI
'RIAL MATTERS
-
A. Admissibility of Mue.ler’s February 12, 1991 Confession
Mueller contends that the trial court erred in refusing to Suppress
his confession of February 12. 199] He does not contest the ade-
quacy of the Miranda warnings given at the outset of the interroga-
tion, nor does he challenge the validity of his initial waiver of these
rights. Rather, Mueller asserts only that Detective Garber’ s response
to his question, ‘‘Do you think I need an attorney here?’’, invali-
dated the earlier Miranda warnings given to him. Thus, he contends
that his subsequent confession was involuntary
[3-4] In assessing the effect of Detective Garbe. 5 response on the
voluntariness of Mueller’s statement. we apply a well-established
Standard of review. In Gray \ Commonwealth, 233 Va. at 324, 356
S.E.2d at 163, we said
A defendant's waiver of his Miranda rights is valid only if the
waiver is made knowingly, voluntarily and intelligently,
Miranda, 384 U.S. at 475 Whether a statement is voluntary is
ultimately a legal rather than factual question. See Miller y
Fenton, 474 U.S. 104, 110, 106 S.Ct 445, 450 (1985). Subsidi-
ary factual questions, however, are entitled to a presumption of
correctness. /d. at 112, 106 S.Ct. at 451. The test to be applied
in determining voluntariness is whether the statement is the
product of an essentially free and unconstrained choice by its
maker,’’ or whether the maker's will ‘has been overborne and
his capacity for self-determination critically impaired."’
Schneckloth v. Bustamonte, 412 US 218, 225 (1973). In deter.
mining whether a defendant's will has been overborne, courts
look to ‘‘the totality of all the surrounding circumstances,"’ id
at 226, including the defendant's background and experience
and the conduct of the police, Correll y Commonwealth, 232
Va. 454, 464, 352 S.E.2d 352. 357 (1987); Stockton, 227 Va. at
140, 314 S.B.2d at 38]
he record shows that Mueller was 42 years old at the time he
made this confession and that he had a high school equivalency
|
monwealth
(1992)
ATTERS
ry 12, 1991 Confession
rt erred in refusing to suppress
He does not contest the ade
| at the outset of the interroga
ty of his initial waiver of these
at Detective Garber’ s response
ed an attorney here?’’, invali
iven to him. Thus, he contends
ivoluntary
clive Garber’s response on the
we apply a well-established
onwealth, 233 Va. at 324. 356
fa rights is valid only if the
intarily and intelligently
f a Statement is voluntary is
ual question. See Miller
t. 445, 450 (1985). Subsidi
entitled to a presumption of
( 451. The test to be applied
hether the statement is the
unconstrained choice by its
ll “*has been overborne and
ion critically impaired
>. 218, 225 (1973). In deter
has been overborne, courts
unding circumstances,’’ id
background and experience
rell v. Commonwealth, 232
1987); Stockton, 227 Va. at
$ 42 years old at the time he
id a high school equivalency
Muelle: Commonwealth 395
244 Va. 386 (1992)
diploma. Prior to the interrogation, Detective Garber = a
ler of his rights under Miranda and Mueller stated that he unde
cach of those rights
~~ investigative efforts in this case also ee ae
ler's experience with police interrogation procedure $ A dh é _—
1990, Garber read a ‘‘Miranda Right Form’’ to ~ 2 ene
Garber ascertained that Mueller understood the re nag the - .
Mueller signed a written waiver of his Miranda rights poe —
sions after signing this waiver, Mueller exercised his right to te
ate police questioning ‘aes
ls addition, the record shows that several years earlier, ~~
had been informed of and had waived his Miranda rights on ~
occasions. On each of these occasions, he executed a form waiving
his Miranda rights, and he gave a statement to the police
We also note that, during the February 12, 199! mc ay
Mueller made some statements which further poy ary i
was aware of the consequences of talking to the police - a “
fessing, Mueller expressed concern regarding where me por de
incarcerated, given the serious nature of the crimes a ai
ing to the crimes, he told Detective Garber and Agent oa ee
had wanted ‘‘to get it off his chest."" At this time, Mue wal ~
stated, ‘I got death coming to me. | knew it as soon as | opened my
ae te also consider the factual findings made by the trial court
- > trial court found that Mueller
concerning Mueller’s confession. The trial cx
knew how to ask for the assistance of legal counsel, as -Y
his request for such assistance on October 9, 1990, : womy
course of a prior interview with Detective Garber and ne Nn os
that the police properly advised Mueller of his Miranda iy he
February 12, 1992; and that he understood those rights prior Oo . |
The trial court further found that Mueller’s
. » to the crimes
fessing | 1991 was not an
question to Detective Garber on February | 2, -
expression of a desire for the assistance of counse ee
Mueller does not assert that these factual findings oe u r-
ported by evidence taken at the suppression hearing. Basec - =
review of this evidence, we conclude that the factual wneing vad -
trial court are supported by the record and, geet r- —
them substantial weight in our determination waetner ro rb
statement was voluntary. See Miller v. Fenton, 474 U.S , th2
(1985)
—
396
Mu r v. Commonwealth
244 Va. 386 (1992)
[6] Based on the above evidence ; -
ler’s question, ‘‘Do nce and findings, we hold th: ’
>ch + wn fli a I need an attorney here?’’, ea
of be Atinaade o - ~ id not invalidate Mueller’s earlier waive
Garber did not a i aap we find that Mueller’s question ~
oni. = mute a request for counsel. In Eaton v. C
cert. denied, 502 vy 236, 253-54, 397 S.E.2d 385, 395 96 (1990),
rd ad, UZ : a. = '
thet “‘custodial becoat 112 S.Ct. 88 (1991). this Court a
received Miranda w: gation must cease, when the accused. havin
questions of the ee oe having begun to respond to -
sel."*” (quoting - ere has clearly asserted his right to ym
re rm. 3 ae v. Arizona, 451 U.S. 477, 485 (1981 .
aaa iain , + Eaton, the police had continued to qu :
pono a0 é h ter ne had asked, ‘‘ You did say I could hav vs
Court held Presa oe | 240 Va. at 250, 397 S.E.2d at 393 This
biguous request oe endant’s question did not constitute an unam-
Va. at 254, 397 S._E po SO as to invoke the Edwards rule. 240
question to Detective G ~ Here, we likewise hold that Mueller’s
request for counsel sarber did not constitute an unambig
e guous
[7] Mueller
sani ethno a ta that even if his question did not
response pantetiatins ; © COERTS Gt counsel, Detective Garber’s
Miranda tights. We 4 ohio Mueller’s earlier waiver of his
oes Senieeation isagree. Based on our review of the videota
here by Mueller to a nat Garber did not, as perma
‘‘No.”” Rather he re sey to Mueller's question by answerin
Slightly from side to . omy » while shrugging and shaking his head
the totality of the circ a , You're just talking to us.”’ Considerin
prior experience * - ummstances detailed above, including Mueller’s
tacts with Detective Ge — Justice system and his previous ot
enems ted ais er and Agent Palfi, we find that Garber's
waiver of his Mirand n at issue did not invalidate Mueller’s earlier
eusiier did ant — a Moreover, since Garber’s response to
istnentinn aemaited mp an unambiguously negative reply, the
was not altered by thi : : € initial advisement of Miranda rights
We also sies Ghadtier’s exes
PM Rapmrdion. yor 1" S assertion that his repeated state
right to terminate oe to jail constituted an invocation =
216 Va. 40, 216 SE od 28 (1975), th In Akers v. Commonwealth
stenction oien ae & >), this Court confronted a s '
eg pdr ne menpmr afte: being advised of “ caren
’ 0 I have to talk about it now?’’ In response to this
ae tr tha
gs, we hold that Muel-
ey here?”’, and Detec-
{ueller’s earlier waiver
Mueller’s question to
sel. In Eaton v. Com-
’d 385. 395-96 (1990),
991), this Court stated
en the accused, having
gun to respond to the
erted his right to coun-
U.S. 477, 485 (1981))
had continued to ques-
did say | could have an
397 §.E.2d at 393. This
not constitute an unam-
» the Edwards rule. 240
wise hold that Mueller's
stitute an unambiguous
n if his question did not
insel, Detective Garber's
’s earlier waiver of his
r review of the videotape
ser did not, as contended
question by answering
ng and shaking his head
Jking to us." Considering
bove, including Mueller’s
stem and his previous con-
alfi, we find that Garber’s
invalidate Mueller’s earlier
since Garber’s response to
yously negative reply, the
isement of Miranda rights
hat his repeated statements
gituted an invocation of his
ip Akers Vv Commonwealth,
sCourt confronted a similar
2 advised of his Miranda
pw?’ In response to this
Mueller v. Commonwealth
244 Va. 386 (1992)
re
question, the police merely continued the interrogation. This Court
held that the defendant’s question was not an invocation of his right
to terminate questioning, stating, ‘‘Defendant’s inquiry was no more
than an impatient gesture on his part. If defendant had desired to
end the interrogation, he could have simply said, ‘I do not want to
answer any more questions."’* 216 Va. at 46, 216 S.E.2d at 32.
({8] Based on our review of the videotape of Mueller’s interroga-
tion, we likewise conclude that his statements regarding going to
jail were simply impatient gestures and that they did not constitute
an invocation of his right to terminate the interrogation. After each
such statement, Mueller continued to talk with Garber and Palfi,
giving no indication that he wanted to end the discussion. Moreover,
when Palfi asked him whether he would rather talk to other officers
instead of himself and Garber, Mueller responded, “I’ve been talk-
ing to you for four months. I’ve established a pretty good relation-
ship with you guys '* Finally, the record shows that, during two pre-
vious interviews with Garber, Mueller unambiguously had
terminated the police interrogation by standing up and stating that
he wanted the officers to stop questioning him.
(9} For these reasons, on our independent review of the record,
we conclude, as a matter of law, that Mueller’s statement of Febru-
ary 12, 1991 was voluntary and admissible
B. Change of Venue
Mueller filed a pretrial motion requesting a change of venue on
the ground that extensive media coverage of the murder made it
impossible for him to receive a fair trial in Chesterfield County. The
articles and television reports he adduced included information that
Mueller was charged with the murder of Charity Powers, that Muel-
ler had a previous criminal record which included prior rape Convic-
tions, and that Mueller had confessed to raping and killing Charity
Mueller also presented to the trial court affidavits from residents of
Chesterfield County stating that. based on what they had seen or
heard in the media, they believed that Mueller probably was guilty
of raping and killing Charity Powers The trial court took the
motion for change of venue under advisement. Mueller renewed this
motion on the day of trial. After the jury was empaneled, the trial
court denied the motion, stating that it was satisfied that the jury
panel was impartial.
398 Mueller v. Commonwealth
244 Va. 38€ 192)
Mueller argues that the trial court erred in denying his motion for
a change of venue because the media coverage was inflammatory
and contained information regarding his confession and his prior
criminal record. Mueller contends that these aspects of the media
coverage necessitated a change of venue in order to protect is
rights afforded under the Sixth, Eighth, and Fourteenth amendments
of the United States Constitution. We disagree
[10-11] Initially, we observe that there is a presumption that a
defendant can receive a fair trial from the citizens of the jurisdiction
in which the offense occurred. It is the burden of the defendant to
overcome this presumption by demonstrating that the feeling of
prejudice on the part of the citizenry is widespread and is such that
would ‘‘be reasonably certain to prevent a fair trial."’ Stockton v.
Commonwealth, 227 Va. 124, 137, 314 S.E.2d 371, 380, cert.
denied, 469 U.S. 873 (1984)(citation omitted). Further, the decision
whether to grant a change of venue lies within the sound discretion
of the trial court. George, 242 Va. at 274, 411 S.E.2d at 18; LeVas-
seur, 225 Va. at 577, 304 S.E.2d at 651. Therefore, the trial court's
ruling on this issue will not be disturbed on appeal unless the record
affirmatively shows an abuse of discretion. /d.
Extensive media coverage which discloses information about the
accused, including his criminal record, does not, of itself, mandate a
change of venue. Buchanan, 238 Va. at 407, 384 S.E.2d at 767;
Mackall v. Commonwealth, 236 Va. 240, 250, 372 S.E.2d 759, 766
(1988), cert. denied, 492 U.S. 925 (1989). A significant factor in
determining whether a change of venue is warranted is whether the
media reports are factual and accurate. Buchanan, 238 Va. at 407,
384 S.E.2d at 768. Here, Mueller does not challenge the factual
: nature or accuracy of the media coverage surrounding his case.’
Moreover, we find no indication in the record that any of the media
reports were inaccurate.
[12] Another significant factor in determining whether the venue
of a trial should be changed is the difficulty encountered in select-
ing a jury. /d. In the present case, 47 venirepersons were examined.
Mueller argues, however, that an editorial published in the Richmond Times - Dispatch,
five months before the hearing on his motion for change of venue, was inflammatory. While
the editorial did refer to the murder of a child as being ‘‘among the sharpest evidence of the
utter corruptibility of man,"* it also stated that Mueller’s guilt in the Powers case had yet to
be established. Accordingly, we do not view this article as being prejudicial to Mueller's
right to receive a fair trial
ior for
matory
Ss prior
media
ect his
dments
that a
Aliction
dant to
ling of
ch that
Kfon V.
» cert.
ecision
cretion
LeVas-
court's
record
yut the
date a
il 767.
9, 766
ctor in
her the
ut 407,
factual
case.”
media
venue
select-
mined.
uspatch,
y While
e of the
ad yet to
‘lueller’s
Mueller v. Commonwealth 399
244 Va. 386 (1992)
Of this number, only nine had to be excused because of their predis-
position toward belief in Mueller’s guilt.
As the United States Supreme Court has stated
To hold that the mere existence of any preconceived notion as
to the guilt or innocence of an accused, without more, is suffi-
cient to rebut the presumption of a prospective juror’s imparti-
ality would be to establish an impossible standard. It is suffi-
cient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.
Irvin v. Dowd, 366 U.S. 717, 723 (1961). Here, given the factual
nature of the media coverage and Mueller’s tacit acquiescence in the
accuracy of its content, as well as the relative ease with which a jury
was empaneled, we hold that the trial court did not abuse its discre-
tion in denying Mueller’s motion for a change of venue.
V
JURY SELECTION
A. Refusal to Allow Questions on Voir Dire
Mueller next argues that the trial court erred in refusing to allow
certain questions on voir dire which he contends were necessary to
determine whether any prospective jurors were predisposed toward
imposing the death penalty. Mueller asserts that he should have
been allowed to ask these questions because the Commonwealth
was entitled to conduct the opposite line of questioning, viz.,
whether certain prospective jurors were unalterably opposed to the
death penalty. See Wainwright v. Witt, 469 U.S. 412, 424 (1985);
Adams v. Texas, 448 U.S. 38, 45-46 (1980); Witherspoon v. Illinois,
391 U.S. 510, 522 (1968).
A total of 47 persons comprised the venire. From this group, 23
persons were struck for cause. Mueller objected to the trial court's
qualification of ten of the remaining 24 members. However, he
objected to only two members, Ruby Moschler and Max Zoeckler,
on the grounds that they were ‘‘death prone.’’
{13} An examination of Mueller’s voir dire of Ruby Moschler
reveals that the trial court did not reject any question regarding
400 Mueller v. Commonwealth
244 Va. 386 (19°
Moschler’s ability to impose a life sentence.? Since Mueller did not
proffer any such question which was rejected by the trial court, he
may not claim on appeal that his right to question this prospective
juror was violated. See Morgan v. Illinois, ___ US. 112
S.Ct. 2222, 2229 (1992); LeVasseur, 225 Va. at 585, 304 S.E.2d. at
655. —
During his voir dire of Max Zoeckler, Mueller sought to ask,
“[I]f in sitting in the guilt phase of the trial you conclude beyond a
reasonable doubt that Mr. Mueller has raped and killed a 10 year old
child, don’t you think that death is the only appropriate punishment
for that?’’ The trial court sustained the prosecutor's objection to this
question. Counsel for Mueller then attempted to ask Mr. Zoeckler,
(I}f you sit in the guilt phase of the trial and you determine
beyond a reasonable doubt that Mr. Mueller raped and
abducted and killed a 10 year old girl, and then you sit in the
sentencing phase and listen to the evidence in aggravation and
the evidence in mitigation, aren't you going to think the only
appropriate sentence is death?
The trial court also sustained the prosecutor's objection to this ques-
tion
[14] We hold that the trial court did not err in refusing both of
these questions since they were argumentative and provided the pro-
spective juror with no basis upon which to express an opinion. See
Buchanan, 238 Va. at 402, 384 S.E.2d at 765; Patterson v. Com-
monwealth, 222 Va. 653, 659 n.*, 283 S.E.2d 212, 216 n.* (1981)
Further, even if we disregard the argumentative nature of these
questions, we still find that the trial court’s ruling did not violate
Mueller’s right to a fair and impartial jury.
[his Court has held that where the voir dire questioning con-
ducted by the trial court otherwise ‘‘assure[s] the removal of those
In fact, Mueller was allowed to ask Moschler whether she would be ‘predisposed
towards the death penalty’’ if she heard facts which showed Mueller to be guilty beyond a
reasonable doubt. Moschier replied, ‘‘{I}f the evidence in a trial proved to me that he had
done all these things, | will be in favor of [the death penalty]."’ Moschler clarified this
answer by stating that she would make this decision only after weighing all the evidence in
the penalty phase. She also stated that she could consider imposing a life sentence. Further
in response to a question posed by counsel for Mueller, she stated that there was evidence
that could keep her from imposing the death penalty
|
i
Mueller v. Commonwealth
244 Va. 386 (1992)
who would invariably impose capital punishment,”’ it is not revers-
ible error for the trial court to deny defense counsel additional ques-
tions on this subject. Turner v. Commonwealth, 221 Va. 513, 523,
273 S.E.2d 36, 42-43 (1980), cert. denied, 451 U.S. 1011 (1981)
This approach is in accord with the holding of the United States
Supreme Court set forth in Morean, __ U.S. at ___, 112 S.Ct. at
2232-33.
In Morgan, the Court held that the defendant's right to a fair and
impartial jury was violated by the trial court's refusal to inquire
whether prospective jurors would vote automatically for imposition
of the death penalty. The defendant had requested that the trial court
ask the jurors: ‘If you found [the defendant] guilty, would you
automatically vote to impose the death penalty no matter what the
facts are?”’ __ U.S. at __, 112 S.Ct. at 2226.
In reaching its decision, the Supreme Court noted that the trial
court had not asked any questions on this subject. Instead, it had
only posed general questions regarding the prospective jurors’ abil-
ity to be fair and impartial and follow the instructions of the court.
The Supreme Court held that such general questions were inade-
quate because a prospective juror could, in good conscience,
respond affirmatively and yet be unaware that certain beliefs about
the death penalty would impede his or her performance as a juror.
__ US. at __, 112 S.Ct. at 2226; 2232-33.
[15] In the case before us, the trial court did ask questions which
probed whether prospective juror Zoeckler would automatically
vote for the death penalty. At the beginning of Zoeckler’s individual
voir dire, the following dialogue took place:
THE COURT: Do you have any moral or religious convictions
that would prevent you from voting for the death penalty?
MR. ZOECKLER: No.
THE COURT: On the other hand of that if the Court instructed
you also, and I will instruct you that one of the other penalties,
a lesser penalty that you could consider is life imprisonment,
could you fairly consider the lesser penalty in deciding on what
penalties the defendant should receive, by punishment what he
should receive?
MR. ZOECKLER: I could consider it, yes.
Mueller v. Commonwealth
244 Va. 386 (! )
THE COURT: If the Court instructed you that it was death or
life imprisonment, would you fairly consider life imprisonment
as well as the death penalty?
MR. ZOECKLER: I don’t know, no.
THE COURT: Let me see if I have got you right. First, if I
instructed you that there are two penalties that you could pun-
ish the defendant for, one is the death penalty, you say you
have no moral or religious convictions that would prevent you
from voting for the death penalty?
MR. ZOECKLER: Right.
THE COURT: Also, if the Court instructed you that the life
imprisonment was a lesser penalty, would you consider the
lesser punishment?
MR. ZOECKLER: Yes, I would consider it.
In responding to the prosecutor’s questions, Zoeckler reiterated this
position, stating that he would not vote automatically to impose
either sentence. In response to questions from Mueller’s counsel,
Zoeckler stated that he would wait to hear the evidence in the pen-
alty phase before deciding which penalty to impose. Viewing
Zoeckler’s voir dire as a whole, we find that he was questioned suf-
ficiently to determine whether he would automatically impose the
death penalty. Therefore, we cannot say that the trial court abused
its discretion in refusing to allow further questions which Mueller
proposed. See Morgan, __ U.S. at ___, 112 S.Ct. at 2232-33; Tur-
ner, 221 Va. at 523, 273 S.E.2d at 43; LeVasseur, 225 Va. at 584,
304 S.E.2d at 655.4
* Mueller also contends that the trial court erred in refusing to allow him to ask Theresa
Gryder, who was eventually empaneled on the jury, the following question
First you decide whether or not the person is guilty or innocent, so given that you have
already decided that, okay, and you have determined that he, in fact, did abduct, rape
and murder a 10 year old child, don’t you feel then that the death sentence would be the
only appropriate punishment?
Because Mueller did not object to the trial court's determination that Gryder was qualified to
serve on the jury, he has not preserved his right to challenge this determination. See Morgan,
U.S. at ___, 112 S.Ct. at 2229; Rule 5:25
th of
ment
life
r the
ted this
impose
ounsel,
ie pen
iewing
ed suf
se the
abused
Mueller
; Tur
at 584.
Theresa
u have
\, rape
be the
slified to
Mor gan
4
Mueller v. Commonwealth 103
244 Va. 386 (1992)
B. Refusal to Disqualify Venire
Mueller contends that the comments of one venireperson improp
erly tainted the group and that the trial court erred in failing to dis
qualify the entire venire for this reason. During the trial court's
questioning of the first group of 14 prospective jurors, David Clark
told the court that another prospective juror, Helen Blackwell, stated
in the jury waiting room that she had ‘‘some strong feelings about
the innocence or guilt of the defendant.’’ The iria!l court then asked
the entire panel, “‘|Hjave any of you acquired any information
about the alleged offense or the accused from news media or other
sources, and if so, would that information affect your impartiality in
the case?’
The trial court postponed questioning of those who
answered in the affirmative until the individual questioning of each
prospective juror.”
When questioned individually, only Robert Mitchell referred to
comments which he had overheard in the waiting room. Mitchell
stated that he had heard another prospective juror say that Mueller
had confessed. Another prospective juror, Ruby Moschler, stated
that she had not overheard any prospective juror making statements
in the waiting room
At the end of the voir dire, the trial court asked the entire venire
whether any member had heard anything since being questioned by
the court which would change any answer he or she had given pre
viously. No one answered in the affirmative
[16] Mueller cites no evidence to support his contention that the
venire was tainted by the comments of Helen Blackwell. Further
the record reflects that both counsel had ample opportunity to ques
tion each prospective juror as to what he or she had heard, in the
waiting room and elsewhere, about the case. This questioning
revealed no evidence that Blackwell's comment had influenced or
prejudiced the prospective jurors in any way. In fact, Mitchell, the
only prospective juror who mentioned having heard Blackwell's
comment, said that the statement he overheard was ‘‘a casual
thing’ and that it was “‘not important to me at that time.’
The trial court is vested with discretion to determine whether the
parties have had a ‘‘full and fair’ opportunity to determine whether
a juror ‘‘stands indifferent to the cause." Buchanan, 238 Va. at 401
The tral court excused Helen Blackwell for cause based on its determination that she
had already formed an opinion in the case
404 Mueller v. Commonwealth
244 Va 386 (1992)
384 S.E.2d at 764; LeVasseur, 225 Va. at 581, 304 S.E.2d at 653
Since the answers to the questions posed by the trial court, as well
as by counsel for both parties, indicated that none of the prospective
jurors was affected by Helen Blackwell's statement, we hold that
the trial court did not abuse its discretion in refusing to disqualify
the entire venire
C. Refusal to Strike Prospective Jurors for Cause
[17] Mueller next argues that nine prospective jurors who had
knowledge of his prior record or confession should have been
stricken for cause. Our standard of review here is well-settled
Based on the trial court's ability “‘to observe and evaluate the
apparent sincerity, conscientiousness, intelligence, and demeanor of
prospective jurors first hand,’’ we will not disturb its rulings on
challenges for cause, unless there is manifest error. Pope v. Com
monwealth, 234 Va. 114, 123-24, 360 §.E.2d 352, 358 (1987), cert
denied, 485 U.S. 1015 (1988). In making this determination, we
decide whether the voir dire 2s a whole shows that a juror’s per
formance of his or her duty, in accordance with the trial court's
instructions and the oath taken, would be prevented or substantially
impaired. Adams, 448 U.S. at 45; Eaton, 240 Va. at 246, 397 S.E.2d
at 391; George, 242 Va. at 276, 411 S.E.2d at 19
Additionally, we observe that jurors need not be totally unaware
of the facts and issues involved in the case. /rvin, 366 U.S. at 722
his is true even in instances where a juror has previous knowledge
of a defendant's past crimes and of the current charge against the
defendant. Murphy v. Florida, 421 U.S. 794, 800 (1975)
In the case before us, the trial court initially questioned the pro
spective jurors collectively concerning whether (1) there was any
thing which would prejudice them against either party, (2) they
were aware of any bias or prejudice against either party, and (3)
they understood that a defendant is presumed to be innocent until
the prosecution proves his guilt beyond a reasonable doubt.° Addi
tionally, each prospective juror was questioned individually by the
trial court and counsel for both parties to determine whether pre
trial publicity had caused him or her to be biased
* Donald Meincke and Dale Morris were questioned individually regarding the presump
tion of innocence and the prosecution's burden of proof beyond a reasonable doubt
Mueller v. Commonwealth 405
244 Va. 386 (1992)
Raymond LaFountain
In response to a question by Mueller’s counsel, Raymond
LaFountain stated that he had heard from television reports that
Mueller had been charged with the crime, that Charity’s body had
been found near Mueller’s home, and that Mueller had made a con
fession to the police. However, LaFountain stated that he had not
formed an opinion as to Mueller’s guilt or innocence. LaFountain
also noted that he did not ‘*know a whole lot about [the case] other
than the fact that the news has said this happened, this gentleman
was accused, and so forth.’’ LaFountain was unaware of Mueller's
prior criminal record
Cynthia Woods
Cynthia Woods stated she had seen television reports and read
newspaper articles which discussed the crime and Mueller’s arrest
She also stated, **I think he had a record,’’ but she did not remem
ber any details. Woods, an eighth grade teacher, also told Mueller's
counsel that, to a limited extent, she had discussed the case with her
students. Woods stated that she did not know much about the defen
dant, that she had ‘‘not been around this summer,’ and that she had
not formed an opinion regarding Mueller’s guilt or innocence
Max Zoeckler
Max Zoeckler stated he had heard media reports concerning
Charity’s disappearance and the discovery of her body. He did not
recall hearing anything about Mueller’s connection with the case,
other than ‘*[i}t may been [sic] that he had some prior acquaintance
ship with the little girl."’ Zoeckler further stated that he had not
formed an opinion regarding Mueller’s guilt or innocence
Patricia Squire
In response to questioning by the prosecutor, Patricia Squire
stated she had heard in media reports that Mueller had been arrested
and she recalled ‘‘there had been another point in which he had sim
ilar charges.’’ Squire also had heard that the victim's body had been
406 Mueller v. Commonwealth
244 Va. 386 (19°
dismembered.’ Upon further questioning by the prosecutor whether
she had formed an opinion regarding Mueller’s guilt or innocence,
based on what she had seen or heard from the media, Squire
responded, “‘I felt like he had evidence that very much swayed
towards him being guilty In terms of myself deciding whether
he is guilty or not, no, | have not made any decision.’ She then
reaffirmed this response by stating, ‘‘I haven't formed an opinion
She further stated that she would be able to put aside any informa
tion she had learned from the media and base her decision in this
case on the evidence presented in court
In response to a question posed by Mueller’s counsel, Squire
again stated that, based on the information she had obtained from
the media, ‘‘it probably weighs heavily in terms of thinking he
might be guilty."" However, upon further questioning by Mueller’s
counsel, Squire stated that her previous knowledge of the case
would not interfere with her ability to follow the trial court's
instructions and that she could put the fact of Mueller’s prior crimi
nal convictions out of her mind. She also stated that her previously
acquired knowledge would not interfere with her ability to apply a
presumption of innocence in the case
Elizabeth Davis
Responding to a question from the trial court, Elizabeth Davis
stated that all she had seen or heard in the media coverage of this
case was the fact that Charity Powers had disappeared. Davis later
responded to the prosecutor that she understood the presumption of
a defendant's innocence, the prosecution's burden of proof of guilt
beyond a reasonable doubt, and that she would apply the trial
court's instructions to the evidence in making her decision. In
response to a question from Mueller's counsel, Davis stated that, in
conversations with co-workers about the case, she had heard that
Mueller had confessed. However, Davis also stated that she had not
formed an opinion regarding Mueller’s guilt or innocence
Donald Meincke
Donald Meincke stated he had heard about the case in television
Squire was incorrect in her belief that the body had been dismembered
Mueller v. Commonwealth 407
244 Va. 386 (199?)
arrested, had confessed his guilt, and that he previously had been
convicted of other crimes. However, Meincke further stated that he
could put aside what he had learned from the media, that he had not
formed an opinion regarding Mueller's guilt or innocence, that he
could base his decision on evidence heard in court, and that he
could be impartial
Dale Morris
Dale Morris stated that he was aware of the case and Mueller's
confession of guilt from television news reports. Morris indicated
that he had not formed an opinion about Mueller’s yuilt or inno
cence and that he felt he could decide the case based entirely on the
evidence presented in court
Robert Mite hell
Robert Mitchell stated he knew, based on media coverage, that
Mueller was arrested for the murder of Charity Powers, but he did
not “*know that much as to what the evidence was that caused his
arrest." Although Mitchell initially stated he believed, as a general
rule, that a person is usually guilty if arrested, he later stated that he
did not know the facts of the present case and had not formed an
opinion regarding the guilt or innocence of Mueller
Ruby Moschler
Ruby Moschler stated she learned from media reports that Muel
ler had been arrested for the murder of Charity Powers. However,
she did not remember anything else about Mueller and she said that
she had formed no opinion regarding his guilt or innocence. Mos
chier further stated that, while she did not already feel that Mueller
was guilty, she was ‘relieved that he ha[{d] been arrested.’ Upon
questioning by Mueller’s counsel, Moschler responded that she
would weigh the evidence presented in the courtroom to determine
which penalty to impose, that she would consider both penalties,
and that she had no &xed opinion regarding Mueller's guilt
{18} In our rcyiew of the whole voir dire testimony of each of
these nine prospective jurors, we find no indication that each could
not ‘lay aside [his o: her] impressions or opinions and render a ver
dict based on the evidence presented in court." Pope, 234 Va. at
408 Mueller v. Commonwealth
244 Va. 38% (1992)
124. 360 S.E.2d at 358. Accordingly, we find no error in the tral
court's refusal to strike each of them for cause. /d
VI
GUILT PHASI MOTION FOR MISTRIAIL
Mueller contends that he was entitled to a mistrial based on the
prosecutor's failure to inform him that witness Kevin Speeks had
not made a positive identification of him when shown a photo array
consisting of seven pictures. The record is silent, however, regard
ing whether Mueller’s photograph was among the seven photo
graphs shown to Speeks. Nevertheless, Mueller argues that Speeks's
failure to identify him was exeulpatory evidence within the meaning
of Brady v. Maryland, 373 U.S. 83 (1963). We disagree.
(19] Exculpatory evidence is evidence favorable to a defendant
which must be disclosed by the prosecution where it is material to
the defendant's guilt or punishment. /d. at 87. The record before us
shows that the prosecutor informed the trial court that he had inves-
tigated the matter of the photo array upon learning about it for the
first time at trial. He was unable to determine which police officer
showed Speeks the photographs. Thus, there is no evidence before
us that Speeks was shown a photograph of Mueller or of any specif
ically identified individual. Moreover, since Speeks did not identify
any photograph as representing a person he had seen at the fast food
restaurant, but merely stated that one photograph resembled a man
who was there, the trial court correctly determined that this informa
tion did not constitute exculpatory evidence. Townes v. Common
wealth, 234 Va. 307, 324, 362 S.E.2d 650, 659 (1987), cert. denied,
485 U.S. 971 (1988)
Vil
PENALTY PHASE
A. Parole ineligibility
Mueller argues that the trial court violated his due process rights
by refusing to instruct the jury that, pursuant to Code § 53.1
151(B1), he would not be eligible for parole if convicted of the rape
of Charity Powers, since this would be his third rape conviction. He
also asserts that he should have been allowed the opportunity to
Mueller v. Commonwealth 409
244 Va. 386 (1992)
vduce evidence regarding parole ineligibility in mitigation of
puxishment at the penalty phase of the trial
[20] We hold that the trial court did not err in its rulings here
Chis Court has held uniformly and repeatedly that information
regarding parole eligibility is not relevant for the jury's considera
tion. King v. Commonwealth, 243 Va. 353, 367-68, 416 S.E.2d 669,
677 (1992); Eaton, 240 Va. at 248-49, 397 §.E.2d at 392-93; War
kins v. Commonwealth, 238 Va. 341, 351, 385 S.E.2d 50, 56 (1989),
cert. denied, 494 U.S. 1074 (1990). Further, the United States
Supreme Court has expressly left the determination of this question
to the individual states, as a matter of state law. California v
Ramos, 463 U.S. 992, 1013-14 (1983); Eaton, 240 Va. at 249. 397
S.E.2d at 392-93. We perceive no reason in the case before us to
depart from our prior rulings on this subject
[21] We find no merit in Mueller’s contention that, notwithstand
ing the prior rulings of this Court, he should have been permitted to
present evidence of parole ineligibility because two of the Com
monwealth’s witnesses referred to his prior parole history in their
testimony during the penalty phase of the trial. In Pope, 234 Va. at
126-27, 360 S.E.2d at 360, this Court held that evidence of a defen
dant’s prior parole history is admissible during the penalty phase of
a capital murder trial, where the Commonwealth is seeking the
death penalty based on the ‘‘future dangerousness'’ predicate. This
Court explained that, under Code § 19.2-264.4, the jury is required,
prior to imposing the death penalty based on a finding of future dan
gerousness, to consider the defendant's ‘‘prior history.’’ The fact
that a defendant has had the benefit of parole supervision is part of
this prior history. See id. Thus, this Court has drawn a clear distinc
tion between the admissibility of a defendant's parole history and
evidence of his future parole eligibility
B. Cross-Examination of Mueller
Mueller argues that the trial court erred in permitting the Com
monwealth to question him about his prior convictions for sexual
assault, as well as the present offenses against Charity Powers. We
disagree. During his direct testimony, Mueller acknowledged that he
had prior convictions for sexual offenses and he stated that he was
refused parole repeatedly because of these convictions. Mueller also
testified on direct examination about the circumstances under which
410 Mueller v. Commonwealth
244 Va. 386 ( )
his life had deteriorated and he related the fact that he had spent two
years in a California state hospital
[22] Once a defendant has testified as to certain matters, the
proper scope of cross examination lies within the sound discretion
of the trial court. See Savino v. Commonwealth, 239 Va. 534, 545,
391 S.E.2d 276, 282, cert. denied, 498 U.S. __, 111 S.Ct. 229
(1990). Considering the above testimony, we find that the trial court
did not abuse its discretion in allowing the Commonwealth to ques-
tion Mueller about his prior convictions for sexual offenses and
about whether he had learned anything as a result of his commission
of the present offenses.
C. Admissibility of Dr. Fierro’s Testimony
[23] Mueller contends that portions of the testimony of Dr. Mar-
cella Fierro, who conducted the autopsy of the victim’s body,
should not have been admitted because they included opinion evi-
dence which was not stated to a reasonable degree of medical cer-
tainty. However, Mueller does not identify the portions of Dr.
Fierro’s testimony which he claims were admitted improperly. Fur-
ther, the record shows that, during Dr. Fierro’s testimony in the
guilt phase of the trial, Mueller made no objection to the fact that
her opinions were not stated to a reasonable degree of medical cer-
tainty.” Accordingly, he may not complain on appeal regarding the
admission of this opinion evidence. Spruill v. Commonwealth, 221
Va. 475, 478-79, 271 S.E.2d 419, 421 (1980); Rule 5:25.
During the penalty phase of the trial, the prosecutor questioned
Dr. Fierro regarding certain photographs which depicted the condi-
tion of the victim's body. At this point, Mueller did object to Dr.
Fierro’s testimony. He argued that any opinion on her part regarding
the cause of the injuries, as well as the cause of death, would not be
admissible since it could not be stated to a reasonable degree of
medical certainty.
[24] This objection, however, was wholly inapposite to the testi-
mony which Dr. Fierro gave at the penalty phase of the trial. Here,
* Although prior to Dr. Fierro’s testimony, Mueller informed the court that the defense
was *‘going to have objections to some of the things we think they are going to try to get in,
because we don't think there is a reasonable degree of certainty," Mueller never made a
contemporaneous objection based on Dr. Fierro’s stated degree of certainty during her testi-
mony in the guilt phase of the trial
Mueller v. Commonwealth 411
244 Va. 386 (1992)
Dr. Fierro’s testimony dealt only with descriptions of the photo-
graphs which the prosecution sought to introduce. Dr. Fierro gave
no further testimony during the penalty phase of the trial. Since her
testimony at this stage of the trial involved only a description of the
condition of the body, as depicted in the photographs, it did not con-
Stitute opinion evidence and was properly admitted.
D. Sufficiency of Evidence of Vileness.
[25] Mueller asserts that the evidence in this case was insufficient
to meet the vileness predicate set forth in Code § 19.2-264.2. We
disagree. A finding of vileness must be based on conduct which is ~
‘‘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. Proof of any one of these three compo-
nents will support a finding of vileness. /d.; see Poyner v. Common-
wealth, 229 Va. 401, 424, 329 S.E.2d 815, 831, cert. denied, 474
U.S. 865 (1985). We hold that the testimony here sufficiently estab-
lished Mueller’s aggravated battery of the victim, as well as his
depravity of mind
[26] First, the record demonstrates that Mueller perpetrated an
aggravated battery on Charity Powers within the meaning of Code
§ 19.2-264.2. This Court has defined ‘‘aggravated battery’’ in this
context to mean ‘‘a battery which, qualitatively and quantitatively,
is more culpable than the minimum necessary to accomplish an act
of murder."’ Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d
135, 149 (1978), cert. denied, 441 U.S. 967 (1979). Mueller stated
that he strangled Charity to death after he raped her. Dr. Fierro testi-
fied, however, that Charity’s throat had been cut and that a person
suffering this type of wound would live for several minutes. We
find that this evidence from Dr. Fierro is sufficient-to establish an
aggravated battery because the victim was subjected to ‘‘an interval
of agony awaiting death.’’ Stout v. Commonwealth, 237 Va. 126,
134,.376 S.E.2d 288, 292, cert. denied, 492 U.S. 925 (1989);
Edmonds v. Commonwealth, 229 Va. 303, 313, 329 S.E.2d 807,
814, cert. denied, 474 U.S. 975 (1985).
[27] The record before us also contains sufficient evidence to
establish Mueller’s depravity of mind. Depravity of mind can be
established by proof of psychological torture of the victim. Poyner,
229 Va. at 425, 329 S.E.2d at 832. We find that the jury reasonably
412 Mueller v. Commonwealth
244 Va. . (1992)
could have inferred from the evidence that Charity Powers was tor-
tured psychologically during the sequence of events which
culminated in her murder. This ten year old child was alone late at
night after -being unable to find Steve Harris, who was supposed to
have taken her home. Mueller offered to help her out of this fright-
ening situation by telling her that he would take her home. Instead
of keeping that promise, he took her into the woods, raped her, and
then killed her. This conduct extended over a period of time and
under such circumstances as to permit an inference of psychological
torture. See id.
[28] Further evidence of Mueller’s depravity of mind is Dr.
Fierro’s testimony that there were holes in the breast area where the
victim’s nipples would have been and that she believed that this
condition resulted from an injury inflicted on the victim. Evidence
of such sexual mutilation, whether occurring before or after death,
evinces a depravity of mind within the meaning of Code § 19.2-
264.2. See Jones v. Commonwealth, 228 Va. 427, 447-48, 323
S.E.2d 554, 565-66 (1984), cert. denied, 472 U.S. 1012 (1985).
E. Verdict Form.
Mueller argues that the verdict form submitted to the jury did not
properly inform it of the sentencing options. He contends that the
structure of the verdict form influenced the jury to impose the death
sentence rather than life imprisonment. We find no merit in this
contention.
Instruction A informed the jury that it was required to choose
between sentences of death and life imprisonment. This instruction
also informed the jury that it could not sentence Mueller to death
unless the prosecution proved beyond a reasonable doubt at least
one of the two aggravating factors of vileness or future dangerous-
ness. Further, Instruction A directed the jury that, even if the prose-
cution had proved one or both of these aggravating factors, it was
nevertheless free to fix Mueller’s punishment at life imprisonment,
‘if you believe from all the evidence that the death penalty is not
justified.”’
Instruction B set forth four alternative verdicts: (1) a sentence of
death based on a finding of both aggravating factors; (2) a sentence
of death based on a finding of future dangerousness; (3) a sentence
of death based on a finding of vileness; and (4) a life sentence based
on all of the evidence in aggravation and mitigation of the offense.
Mueller v. Commonwealth 413
244 Va. 386 (1992)
To indicate its verdict, the jury was instructed to ‘*[c]ross out any
paragraph, word or phrase which you do not find beyond a reason-
able doubt.”’
[29] We hold that this sentencing form, in conjunction with
Instruction A, fully apprised the jury of its sentencing options. The
structure of the form did not, as contended by Mueller, favor any of
the options presented. Further, since the jury was told in Instruction
A that it could choose the penalty of life imprisonment, even if it
found either or both aggravating factors, the information concerning
the option of life imprisonment was complete. See Stockton v. Com-
monwealth, 241 Va. 192, 215, 402 S.E.2d 196, 209 (1991), cert.
denied, 502 U.S. __, 112 S.Ct. 280 (1991); LeVassewr, 225 Va. at
594-95, 304 S.E.2d at 661.
VIII.
SENTENCE REVIEW
Code § 17-110.1(C) requires us to review the imposition of the
death sentence on Mueller, based on the trial record, to determine
whether (1) it was imposed under the influence of passion,
prejudice, or any other arbitrary factor; or (2) it is excessive or dis-
proportionate to the penalty imposed in similar cases, considering
both the crime and the defendant.
Initially, we note that Mueller does not contend that the death
sentence was imposed under the influence of any of the above statu-
tory factors, nor does he contend that the sentence is excessive or
disproportionate to the penalty imposed in similar cases. Neverthe-
less, we have examined the records of all capital murder cases
reviewed by this Court, pursuant to Code § 17-110.1(E), giving par-
ticular attention to those cases where the death penalty was based
upon both the ‘‘future dangerousness’’ and the ‘‘vileness’’ predi-
cates. Those cases are collected in Spencer v. Commonwealth, 238
Va. 295, 319-20, 384 S.E.2d 785, 860 (1989), cert. denied, 493 U.S.
1093 (1990) (Spencer II). Since Spencer Il, we have decided several
other capital murder cases where the death penalty was based on
both predicates: George v. Commonwealth, 242 Va. 264, 411 S.E.2d
12 (1991), cert. denied, 503 U.S. __, 112 S.Ct. 1591 (1992);
Strickler v. Commonwealth, 241 Va. 482, 404 S.E.2d 227, cert.
denied, 502 U.S. ___, 112 S.Ct. 386 (1991); Quesinberry v. Com-
monwealth, 241 Va. 364, 402 S.E.2d 218, cert. denied, 502 U.S.
_, 112 S.Ct. 113 (1991); Stockton v. Commonwealth, 241 Va.
414 Mueller v. Commonwealth
244 Va. 386 (1992)
192, 402 S.E.2d 196 (1991), cert. denied, 502 U.S. __., 112 S.Ct.
280 (1991); Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d
609, cert. denied, 498 U.S. __, 111 S.Ct. 281 (1990) (Spencer IV);
Mu'Min v. Commonwealth, 239 Va. 433, 389 S.E.2d 886 (1990),
aff'd, 500 U.S. __, 111 S.Ct. 1899 (1991); Smith v. Common-
wealth, 239 Va. 243, 389 S.E.2d 871, cert. denied, 498 U.S. __.,
111 S.Ct. 221 (1990); Spencer v. Commonwealth, 238 Va. 563, 385
S.E.2d 850 (1989), cert. denied, 493 U.S. 1093 (1990) (Spencer III);
Watkins v. Commonwealth, 238 Va. 341, 385 S.E.2d 50 (1989),
cert. denied, 494 U.S. 1074 (1990).
[30] After reviewing these records, as well as cases in which life
imprisonment was imposed, we conclude that Mueller’s sentence of
death was neither excessive nor disproportionate to sentences gener-
ally imposed by other sentencing bodies in Virginia for crimes of a
similar nature. In fact, few of these cases equal or exceed both the
vileness of this crime or the future dangerousness of this defendant.
As stated above, this case involves the rape, abduction, and mur-
der of a ten year old child. Even under Mueller’s account of the
events, the victim suffered an exceedingly gruesome and painful
death. The evidence of Mueller’s future dangerousness was also
overwhelming. Prior to these crimes, Mueller had committed sev-
eral violent sexual assaults on women, including assaults on two of
his own sisters. He testified that he did not feel remorse after com-
mitting two of those crimes. In addition to the testimony of Dr.
Henry Gwaltney, the Commonwealth's expert witness, Mueller’s
own expert witness, Dr. Mariah Travis, testified that Mueller is an
extremely dangerous person.
[31] Finally, based on our review of the record, we find nothing
which suggests that Mueller’s death sentence was imposed under
the influence of passion, prejudice or any other arbitrary factor.
IX.
CONCLUSION
We find no reversible error in the issues presented here. Having
reviewed Mueller’s sentence of death pursuant to Code § 17-110.1,
we decline to commute the sentence. Accordingly, we will affirm
the judgments in both cases.
Record No. 920287 - Affirmed.
Record No. 920449 - Affirmed.
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