COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner Argued at Richmond, Virginia
LARRY JUNIOR CHEATHAM MEMORANDUM OPINION * BY v. Record No. 0917-00-2 JUDGE JERE M. H. WILLIS, JR. AUGUST 28, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY Richard S. Blanton, Judge
Khalil A. Latif for appellant.
Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
On appeal from his jury trial conviction of first-degree
murder, in violation of Code § 18.2-32, Larry Junior Cheatham
contends that the trial court erred in refusing to set aside the
verdict because the evidence was insufficient. For the
following reasons, we affirm the judgment of the trial court.
I. BACKGROUND
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. See Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. trial court will be disturbed only if plainly wrong or without
evidence to support it. See id.
On May 13, 1998, eighty-two-year-old Edith Delaney was
found dead in the basement of her home. Her dress was pulled
up, and her underwear was down around her ankles. Dr. Edward I.
Gordon, Prince Edward County Medical Examiner, testified that
the time of death was approximately 11:00 a.m. He further
testified that a clear fluid, not identified as seminal fluid,
was present on Ms. Delaney's anal and vaginal areas.
Dr. Charles J. Lee, an Assistant Medical Examiner for the
Commonwealth of Virginia, testified that Ms. Delaney died as a
result of a single stab wound to her back from a double-edged
knife and that her body displayed no defensive injuries. He
further testified that her vaginal area displayed redness that
appeared to result from rubbing and not from forced penetration.
Several witnesses testified that they saw Cheatham in Ms.
Delaney's neighborhood on the morning of the murder. One
witness testified that Cheatham wore a "bright fluorescent
almost Day-Glow T-shirt."
Officer Edward S. Gates testified that on May 16, 1998,
with Cheatham's written permission, the police searched his
motel room. They recovered a yellow T-shirt containing blood
stains. A forensic scientist testified that these blood stains
were consistent with Ms. Delaney's DNA profile.
- 2 - During the search of his motel room, Cheatham agreed to
answer a few questions. Officer Gates testified that Cheatham
denied knowing Ms. Delaney. However, the police had recovered
two checks written by her to him for yard work he had done for
her. Officer Gates stated that Cheatham later admitted that he
knew Ms. Delaney, that he had done yard work for her, and that
he had spoken with her several times on the day she died.
Officer Gates testified that when asked whether he had ever
been inside Ms. Delaney's house, Cheatham replied that he had
never been in her house or her basement. Officer Gates
testified that he had never asked Cheatham about the basement.
When asked whether he had killed Ms. Delaney, Cheatham replied
that "he ha[d] never even cut anybody." Officer Gates then
asked Cheatham how he knew Ms. Delaney had been stabbed.
Cheatham replied that he did not know that.
Lieutenant Wade Stimpson testified that on June 9, 1998, he
and Officer Anthony Q. Ellington arrested Cheatham and advised
him of his Miranda rights. Lieutenant Stimpson testified that
as they were transporting Cheatham to jail, "tears started
flowing down [Cheatham's] cheek," and he said, "[He] did it."
Lieutenant Stimpson stated Cheatham told the officers:
[H]e had gone there on that date to cut her grass hopefully in order to be able to get thirty dollars to buy a lawnmower she had in her basement. Upon arriving there someone else was already cutting the grass so he walked around the neighborhood for a while. After that person left he came back, told
- 3 - [Ms. Delaney] he was there to purchase the lawnmower. He followed her around to the back. He attempted to buy the lawnmower for twenty dollars. She wouldn't sell it to him. While she was bent over the lawnmower he got a knife and he stabbed her.
Lieutenant Stimpson testified that he told Cheatham that Ms.
Delaney's underwear had been pulled down to her ankles.
Cheatham denied that he had sexual intercourse with her, but
said he inserted his finger inside her and masturbated.
Lieutenant Stimpson testified that Cheatham said he disposed of
the knife he used to stab Ms. Delaney.
Officer Ellington witnessed Cheatham's confession and gave
essentially the same account as Lieutenant Stimpson.
Cheatham presented evidence that he had been diagnosed as
mildly mentally retarded, is legally blind, and has a partial
hearing loss.
Cheatham denied that he killed Ms. Delaney. He testified
that he stopped by her house on May 13, 1998, but left when he
saw someone else mowing her yard. He stated that he came back,
noticed the front door open, heard "rumbling" in the basement,
went to the back of the house to investigate the sound, and he
discovered Ms. Delaney dead. He testified that he did not call
the police because he was scared. He denied that he confessed
to the police.
- 4 - During cross-examination, Cheatham admitted that he had
lied to the police and had given them an account different from
his testimony.
II. SUFFICIENCY OF THE EVIDENCE
Cheatham contends that the evidence was insufficient to
prove that he was the criminal agent or that he had the
requisite malice, intent, and premeditation to be guilty of
first-degree murder.
A. CRIMINAL AGENCY
Cheatham first contends that the evidence was insufficient
to identify him as the perpetrator of the crime. We disagree.
Based upon Cheatham's confession, coupled with the
corroborating evidence of his presence near Ms. Delaney's house
at the time of the murder, his conflicting statements to the
police, some of which indicated knowledge of facts only the
killer could have known, and the presence of Ms. Delaney's blood
on Cheatham's T-shirt, the jury could properly conclude beyond a
reasonable doubt that Cheatham killed Ms. Delaney.
B. MALICE, INTENT, AND PREMEDITATION
Cheatham next contends that the Commonwealth failed to
prove that he acted with the malice, intent, and premeditation
required for first-degree murder. However, he failed to
preserve this argument at trial and cannot now raise it on
appeal. See Rule 5A:18.
- 5 - At the close of the Commonwealth's evidence, Cheatham moved
to strike the capital murder indictment. He argued that the
evidence did not support the homicide-in-commission-of-a-felony
element of capital murder and that the evidence did not support
the object sexual penetration charge. The motion was denied.
Cheatham's motion to strike at the conclusion of all the
evidence and his closing argument raised only the issue of
criminal agency, not whether intent, premeditation, and malice
had been proved. His motion to set aside the jury's verdict was
based solely on issues raised in the pre-sentence report.
Therefore, Cheatham is barred from presenting any argument
related to any element of first-degree murder except criminal
agency. The record provides no reason to invoke the good cause
or ends of justice exceptions to Rule 5A:18.
We affirm Cheatham's conviction of first-degree murder.
Affirmed.
- 6 - Benton, J., dissenting.
The rule is well established in Virginia that a conviction
for a criminal offense may not rest only on an uncorroborated
extrajudicial confession.
"Extrajudicial confessions of the accused are competent evidence tending to prove the corpus delicti. But the corpus delicti cannot be established by such a confession uncorroborated by other evidence. In other words, a conviction in a criminal case is not warranted by the extrajudicial confession of the accused alone. The confession must be corroborated in a material and substantial manner by evidence aliunde of the corpus delicti."
Phillips v. Commonwealth, 202 Va. 207, 210-11, 116 S.E.2d 282,
284 (1960) (citation omitted). Establishing the corpus delicti
"involves the proof of two distinct propositions: first, that
the act was done; and secondly, that it was done by the person
charged." Nicholas v. Commonwealth, 91 Va. 741, 750, 21 S.E.
364, 367 (1895). See also Claxton v. City of Lynchburg, 15 Va.
App. 152, 154, 421 S.E.2d 891, 893 (1992) (noting that "[t]he
term corpus delicti, meaning 'the body of a crime,' refers to
'the objective proof or substantial fact that a crime has been
committed' . . . [and] 'ordinarily includes two elements: the
act and the criminal agency of the act'"). Thus, even when
"there is no doubt that the homicide was proved . . . [, the
definition of corpus delicti requires that we be] concerned with
[corroboration of] the defendant's agency in the crime." Lucas
- 7 - v. Commonwealth, 201 Va. 599, 603, 112 S.E.2d 915, 918-19
(1960).
When the evidence establishes only a suspicion or a
probability of guilt, it is insufficient as a matter of law to
support a conviction. Tarpley v. Commonwealth, 261 Va. 251,
257, 542 S.E.2d 761, 764 (2001).
Fundamental principles applicable here should be reviewed. To justify conviction of a crime, it is insufficient to create a suspicion or probability of guilt. Rather, the burden is upon the Commonwealth to prove every essential element of the offense beyond a reasonable doubt. "The evidence must exclude every reasonable hypothesis of innocence and be consistent only with the guilt of the accused."
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997) (citations omitted).
Four weeks after Edith Delaney was killed, the police
arrested Larry Junior Cheatham, a mentally retarded man, and
charged him with murder while committing a robbery. During the
interval between Delaney's death and Cheatham's arrest, the
police questioned Cheatham at least six times and made no audio
or video record of any of those interviews, some of which lasted
45 minutes. In most instances the details of those interviews
were established only by the testimony of police officers from
their memories. Although the officers testified that Cheatham
denied in all those pre-arrest interviews that he killed
Delaney, the record contains only a summary of Cheatham's
- 8 - responses during those interviews and does not contain, except
in one instance, the questions he was asked. Thus, the record
fails to disclose what information about Delaney's death the
police conveyed to Cheatham during those interviews. The
conviction in this case is based upon the police recitation of
statements they said Cheatham orally gave after they arrested
him and were delivering him to jail and upon circumstantial
evidence that fails to corroborate that Cheatham was the killer.
At trial, Officers Stimpson and Ellington testified that
they arrested Cheatham on the charge of capital murder arising
from the death and robbery of Delaney. During the arrest, the
officers brandished their weapons and told Cheatham "the
punishment could be the electric chair." After a magistrate
denied Cheatham bail, the officers drove Cheatham to the
regional jail. After they passed Cheatham's residence and
approached the jail, Cheatham began to cry. The officers
testified that Officer Ellington told Cheatham "if there is
something you want to tell us, you need to tell us now." Both
officers testified that Cheatham then said "I did it." They
testified that "each time he would make a statement [they asked
him additional questions] in order to clarify what he was
talking about to make sure there was no misunderstanding."
Officer Stimpson testified as follows:
For example, I asked him to give me the whole story about what had occurred. He stated he had gone there on that date to cut
- 9 - her grass hopefully in order to be able to get thirty dollars to buy a lawnmower she had in the basement. Upon arriving there someone else was already cutting the grass so he walked around the neighborhood for a while. After that person left he came back, told [Delaney] he was there to purchase the lawnmower. He followed her around to the back. He attempted to buy the lawnmower for twenty dollars. She wouldn't sell it to him. While she was bent over the lawnmower he got a knife and he stabbed her.
Both officers testified that Cheatham initially did not say
anything in his narrative about other events. For example,
Cheatham said nothing about a robbery and said nothing about
Delaney's clothing. Both officers testified that Officer
Stimpson first raised the issue of sexual assault. He "told
. . . Cheatham that when [they] discovered . . . Delaney's body
her underpants had been pulled down and were only remaining on
one ankle on her leg." When Cheatham was unresponsive to
Officer Stimpson's inquiry about what then happened, Officer
Stimpson "asked if he did have sex with her." When asked about
his testimony at the preliminary hearing, Officer Stimpson
testified as follows:
Q. Let me read the question again: When you said did you have sex with her, did he say no and then stop and then you ask another question?
What was your response?
A. I said, no. He said -- I said, I don't recall. It's a possibility I said, well, why were her pants down if you didn't have sex with her? And he may have said in
- 10 - response to that that he stuck his finger in her.
Q. May have said? So on this day you're testifying he may have said that he had put his finger in her?
A. I hadn't thought about this part of it at that point in time until it came up. At that point in time I said he may have said, but today I'm saying after proper recollection I know he said it.
The officers did not seek to obtain a recording of
Cheatham's statements and did not ask him to sign a statement.
Instead, they later prepared a summary of his statements.
Officer Stimpson used a narrative report to describe his
questioning of Cheatham and typed the report to "clean it up a
little." Cheatham was later charged with murder while in the
commission of sexual object penetration. At trial, Officer
Stimpson testified from his memory to other statements he said
Cheatham made that day. Officer Ellington also testified that
he "made an overall summary" and "did not write the questions
down." He testified that he "just wrote a summary of basically
what Mr. Cheatham had said."
The Commonwealth's other evidence proved that Delaney bled
to death from an internal hemorrhage caused by a stab wound
through her back that severed her aorta. The assistant medical
examiner testified that Delaney could have been stabbed while
the assailant was standing in front of her or to her side, and
not just from behind. He also testified that bruising on her
- 11 - chin indicates she could have been held or struck on her chin by
the assailant. He testified that from the physical evidence
there was no way to know whether she was bending or standing
when she was stabbed.
Although the police officer testified that Cheatham said he
"stuck his finger in [Delaney]," no evidence confirmed that
event occurred. The assistant medical examiner testified that
penetration was "unlikely because the microscopic [examination]
showed no acute injury in that area." He also testified that
there were no lacerations or contusions to Delaney's genitalia
and that the "3/8 inch pink discoloration" on her genitalia,
which was referenced in the autopsy report, "was a chronic
rubbing type of an injury rather than an acute injury." In
addition, the evidence does not establish the identity of the
"clear fluid that was not natural" which was found at Delaney's
"anal area and the perivaginal area or outside the vaginal
area." Although a certificate of analysis, "indicated the
presence of blood on the anal swab and on the underpants," those
circumstances were not explained. Thus, the evidence does not
eliminate the possibility the fluid was applied by Delaney
earlier that day before her death to alleviate personal
discomfort.
Near Delaney's body, the police found a comb with hairs
from a person not of her race. A photograph showed it partially
beneath her dress on the floor. A forensic scientist who tested
- 12 - the hairs on that comb for the police testified that the hairs
were not consistent with Cheatham's hair. He also testified
that he recovered "a characteristically Caucasian body hair"
from Delaney's underpants. That hair could not have been
Cheatham's. Although the police recovered partial fingerprints
from the basement, they were "unidentifiable." Indeed, the
evidence found on or near Delaney and in the house did not
connect Cheatham to the killing and tended to indicate the
presence of another person.
The police did not recover the instrument used to stab
Delaney. The medical examiner's report notes that Delaney's
wound "is a 3/4 inch stab wound, the inferior edge is sharp and
there are two sharp ends superiorly," and it identifies the
instrument causing the wound as a "suspect knife." The
assistant medical examiner testified that the wound could also
indicate that the instrument was consistent with "a double-sided
well sharpened knife." No evidence proved Cheatham ever owned
an instrument that would make a wound of this shape. Put
simply, the Commonwealth's own evidence raises the hypothesis,
which was not disproved, that another person killed Delaney.
None of the evidence tends to corroborate the statements
the police officers attributed to Cheatham orally identifying
himself as the killer. In Phillips, the Supreme Court
overturned a conviction because insufficient evidence other than
a confession supported the conviction. The Court reiterated the
- 13 - well established "'rule in criminal cases . . . that the
coincidence of circumstances tending to indicate guilt, however
strong and numerous they may be, avails nothing unless the
corpus delicti . . . be first established.'" 202 Va. at 211-12,
116 S.E.2d at 285 (citations omitted). The Court ruled that a
conviction cannot stand when the corroborating evidence "is just
as consistent with non-commission of the offense as it is with
its commission." Id. at 212, 116 S.E.2d at 285.
It is not sufficient that the evidence merely establish
that a crime was committed because "'[t]he corpus delicti
consists not merely of an objective crime, but of the
defendant's agency in the crime.'" Lucas, 201 Va. at 603, 112
S.E.2d at 918 (citation omitted). An obvious purpose of the
rule is to avoid punishing a person for a crime that person
never, in fact, committed. Jefferson v. Commonwealth, 6 Va.
App. 421, 424, 369 S.E.2d 212, 214 (1988) (citation omitted).
These principles have heightened importance here because "[t]he
concern in a case involving a defendant of subnormal
intelligence is one of suggestibility." Jurek v. Estelle, 623
F.2d 929, 938 (5th Cir. 1980).
We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the "confession" will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.
- 14 - Escobedo v. Illinois, 378 U.S. 478, 488-90 (1964) (footnotes
omitted). Reliable research supports the conclusion that
mentally retarded persons process information in a way "that
even when a mentally retarded suspect's responses appear normal,
his answers may not be reliable." State v. Moore, 364 S.E.2d
648, 655 (N.C. 1988). "Persons who are mentally retarded are
described as having 'significantly sub-average general
intellectual functioning existing concurrently with deficits in
adaptive behavior and manifested during the developmental
period.'" Penry v. Lynaugh, 492 U.S. 302, 308 n.1 (1989)
(citation omitted).
Cheatham does not dispute that he went into Delaney's
basement the day she was killed. He testified that he spoke
with Delaney earlier that morning when he was walking about town
seeking to find odd jobs. He had previously cut her grass for
pay and went to her residence that day seeking to cut her grass.
The evidence also proved he sought to do casual labor, such as
cutting grass, for two of Delaney's neighbors that same morning.
Cheatham testified that after he first spoke to Delaney, he
returned to ask about purchasing her old lawnmower, which the
evidence proved was in her basement near her newer mower. He
testified that when he called to her from her front screened
door he heard a "rumbling" in the basement, which he said
"sounded like somebody was making a lot of noise." He went
- 15 - around to the basement door and entered the basement to look for
Delaney.
The assistant medical examiner testified that because
Delaney suffered from an internal hemorrhage after being
stabbed, she would not have died instantaneously. He said "it
would have taken a few seconds, maybe a couple of minutes [for
Delaney] to bleed that much" and die. The evidence does not
disprove that Cheatham heard Delaney moving in the throes of
dying.
Cheatham testified that when he went into the basement,
Delaney was on the floor. Cheatham, whose eyesight is so
deficient that he is legally blind, testified that after he saw
Delaney, "I [knelt] down. Some blood or something was running
down in the floor, and I [knelt] behind her to see was she
breathing." As mentioned by the majority, two "tiny" stains of
Delaney's blood were found on a T-shirt recovered from
Cheatham's home. These stains, however, serve to corroborate
the defense's theory of the case because the presence of the
stains are consistent with Cheatham's testimony that he kneeled
near her body, detected she was not breathing, saw blood, and
then left. He said he did not contact the police because he had
not been in that situation before and was afraid.
Cheatham also testified that although he knew the
magistrate "said [he] didn't have no bond," he did not
understand the consequence of that. He thought he was going
- 16 - home. Cheatham, who had never before been arrested, became
upset when the police officers drove him past his residence
while going to jail. He began to cry. He testified that
Officer Stimpson began roughly talking to him and demanding
answers. Cheatham said he did not remember their questions and
did not remember making the responses they attributed to him.
Cheatham said he "won't answering any questions . . . just
shaking, nodding [his] head."
Cheatham denied killing Delaney and, except for the police
officer's recitation of Cheatham's statements while crying, the
record establishes Cheatham has consistently denied killing her.
Indeed, when he was asked by Officer Gates during a pre-arrest
interview whether he killed Delaney, Cheatham responded "that he
has never even cut anybody." (Emphasis added). That statement
is only assertion with an idiomatic intensive that Cheatham had
not ever injured anyone with a weapon.
The evidence proved that Cheatham, who was thirty-five
years old when these events occurred, has not been convicted of
any criminal offense. Cheatham's mental retardation is well
documented. His cognitive disability was identified "as early
as first grade." He has an IQ that is in the lowest first,
second, or third percentile of the population. Cheatham's IQ
records indicate his lowest ability was in "social
comprehension; in other words, the ability to understand social
situations." He is weakest in verbal skills, which the record
- 17 - establishes are "skills . . . that . . . [involve] the ability
to understand verbal information, remember it and use it,
vocabulary, knowledge about the world, social comprehension,
knowing what to do in social situations."
The record clearly established that the anxiety of arrest
and immediate realization of incarceration produced responses
from Cheatham that caused him to cry. Cheatham had no
familiarity with the criminal justice system. Although the
officers testified that Cheatham verbally gave inculpatory
statements in this condition of distress, no evidence
corroborates that he killed Delaney. Moreover, this is not a
case in which it can be said that Cheatham "had confessed to the
crime not in a general manner, but as one who was familiar with
the minutiae of its execution." Washington v. Murray, 4 F.3d
1285, 1292 (4th Cir. 1993). As the Supreme Court noted in
Burrows v. Commonwealth, 224 Va. 317, 295 S.E.2d 893 (1982):
Based on the evidence as a whole, the Commonwealth did not prove beyond a reasonable doubt [Cheatham] was the criminal agent. The most that can be stated is that the evidence created a suspicion [he] was the perpetrator. "Suspicion, however, no matter how strong, is insufficient to sustain a criminal conviction."
Id. at 319-20, 295 S.E.2d at 895 (citation omitted).
For these reasons, I would reverse the conviction.
- 18 -