Howard v. Commonwealth

367 S.E.2d 527, 6 Va. App. 132, 4 Va. Law Rep. 2273, 1988 Va. App. LEXIS 37
CourtCourt of Appeals of Virginia
DecidedApril 5, 1988
DocketRecord No. 1308-85
StatusPublished
Cited by17 cases

This text of 367 S.E.2d 527 (Howard v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. Commonwealth, 367 S.E.2d 527, 6 Va. App. 132, 4 Va. Law Rep. 2273, 1988 Va. App. LEXIS 37 (Va. Ct. App. 1988).

Opinions

Opinion

KEENAN, J.

— Stephen Howard was convicted by a jury of conspiracy to commit capital murder. He was sentenced in accordance with the jury’s verdict to twenty years imprisonment. The [134]*134issues presented in this appeal are (1) whether Howard was denied his right to a fair trial because the trial was held in the administration building of the Powhatan Correctional Center; (2) whether Howard was denied a fair trial by the manner in which the Commonwealth presented its evidence and argument; (3) whether Howard was denied his sixth amendment right to compulsory process by the trial court’s failure to compel the testimony of the victim’s brother; and (4) whether the trial court erred in allowing testimony regarding pain suffered by the victim. We affirm Howard’s conviction, finding that he was not denied a fair trial or his sixth amendment right to compulsory process, and that although testimony concerning pain suffered by the victim was irrelevant, its admission was harmless error under the facts presented.

I.

In this case, the jury was empaneled at the courthouse in Powhatan County. The rest of the trial took place at the Powhatan Correctional Center (Center). Prior to trial, Howard requested that the entire proceedings take place at the courthouse. The trial court denied Howard’s motion on the ground that security at the courthouse was not adequate to accommodate the twenty-two inmate witnesses who had been subpoenaed by the parties.

At the beginning of the trial, out of the presence of the jury, defense counsel made some observations for the record concerning the trial surroundings. He noted that the administration building was directly across from the main prison compound and estimated that the front door of the building was approximately forty yards from the Center’s front gate. Defense counsel further observed that two gun towers and bayonet wire were within view of the administration building.

In response, the prosecutor gave his own description of the administration building and courtroom. He stated:

I think the record also should reflect this administration building is totally outside of the compound. The jurors do not have to come through any bars or any gates. There are no bars on any windows. There are no bars on any doors. It is an administration building. The courtroom is set up with a Judge’s bench, with counsel table, with chairs for witnesses, [135]*135and a jury bench on an elevated dais. And in all respects it resembles a courtroom.

After hearing these representations, the trial court upheld its earlier ruling denying Howard’s motion. The court stated:

The logistics of handling over twenty some inmate witnesses in Powhatan courthouse is out of the question. We’re incapable of providing for the safety of not only the inmates and witnesses, but of jurors and witnesses in a public setting such as that.

On the morning of trial, defense counsel renewed a request that the trial court subpoena the victim’s brother, Joseph Dunford. Counsel represented that this witness was needed to testify that Howard had no motive to kill the victim and that other people did have such a motive due to the victim’s membership in a satanic cult. Howard’s counsel stated that he had not spoken with the victim’s brother. He also stated that the victim’s brother had not been incarcerated with the victim during the months preceding the murder. The trial court denied Howard’s request for this subpoena.

The Commonwealth presented evidence at trial showing that Joe Payne, an inmate at the Center, placed a lock on the victim’s cell door, threw flammable liquid into the cell, and then ignited the liquid with a match. As a result, fire exploded from the cell. Seventy percent of the victim’s body received second and third degree burns. Several days later, the victim died as a result of the burns and related complications.

The evidence further showed that Howard, Payne, and three other inmates planned the manner in which the victim would be killed. Howard procured a lock which was identified at trial as the one placed on the victim’s cell door at the time of the burning. Howard was also assigned to be the “lookout” for Payne during the incident.

During presentation of the Commonwealth’s evidence, the prosecutor repeatedly attempted to question his witnesses concerning their prior consistent statements, as well as their fears for their safety as a result of testifying at the trial. The trial court sus[136]*136tained ten objections by defense counsel to this line of questioning. At one point during the presentation of the Commonwealth’s case, Howard’s counsel made a motion for a mistrial based on the improper questions asked by the prosecutor. The trial court did not rule on the motion, and counsel did not further request the court to do so at that time. A second mistrial motion reciting the same grounds was made at the conclusion of the Commonwealth’s case. The trial court denied this motion.

As part of his case, the prosecutor also asked Dr. Marcella F. Fierro to “characterize for the jury the effect of second and third degree burns, specifically, in terms of any possible pain to the person.” Howard objected to the relevance of the question. His objection was overruled. Dr. Fierro testified that second and third degree burns, such as those suffered by the victim, do not “totally involve nerve endings” and therefore do not “involve the most pain.”

Another witness for the Commonwealth, inmate Robert Smith, testified that Howard had been involved in a similar murder at another prison. Smith stated that Howard told him:

And I remember he had told me before he got to State Farm how he burnt this black dude to death. And I was in the penitentiary then, and I had seen Steve Howard in this, but I didn’t know how he did it. He told me he did it.

Howard objected to this testimony and requested that the evidence be struck. The record does not show that he asked for a mistrial at this point. The trial court ruled that the evidence was inadmissible, but stated that it would not grant a mistrial. Defense counsel stated: “Judge, I don’t have any magic conclusions on how to handle it, and I’ll leave it to your discretion.”

The trial court then instructed the jury in the following manner:
Ladies and gentlemen, in answering the last question the witness went further than was responsive to the question, and I want you to disregard the last part of his answer. Anything he said following, “We’re going to do him the same way we did the nigger in the penitentiary in ‘82.” Disregard that. Do not consider anything that the witness said after that in an[137]*137swering the question by Mr. Lewis.

Howard did not object to the trial court’s instruction.

During closing argument in the case, the prosecutor commented on the danger faced by the Commonwealth’s witnesses as a result of their testifying. Howard objected to the following portion of the prosecutor’s argument:

It is against the code for one inmate to testify against another. We have got a murder case here where a man was brutally murdered because of drugs, and because of his homosexuality, was killed. Let me tell you, if you get killed for that, they would certainly get killed in this penal system for one man testifying against another.

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Howard v. Commonwealth
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Cite This Page — Counsel Stack

Bluebook (online)
367 S.E.2d 527, 6 Va. App. 132, 4 Va. Law Rep. 2273, 1988 Va. App. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-commonwealth-vactapp-1988.