Mu'Min v. Commonwealth

389 S.E.2d 886, 239 Va. 433, 6 Va. Law Rep. 1655, 1990 Va. LEXIS 47
CourtSupreme Court of Virginia
DecidedMarch 2, 1990
DocketRecord 890899
StatusPublished
Cited by47 cases

This text of 389 S.E.2d 886 (Mu'Min v. Commonwealth) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mu'Min v. Commonwealth, 389 S.E.2d 886, 239 Va. 433, 6 Va. Law Rep. 1655, 1990 Va. LEXIS 47 (Va. 1990).

Opinions

SENIOR JUSTICE POFF

delivered the opinion of the Court.

Dawud Majid Mu’Min, also known as David Michael Allen, was tried by a jury on an indictment charging capital murder. Invoking the three grounds defined in subsections (c), (d), and (e) of Code § 18.2-31 (Repl. Vol. 1988) (now, subsections (3), (4), and (5) of § 18.2-31), the indictment alleged that the killing had been committed while the accused “was a prisoner confined in a State or local correctional facility or while in the custody of an [437]*437employee thereof, or while in the commission of robbery, while armed with a deadly weapon, or during the commission of or subsequent to rape”.

The verdict form submitted to the jury in the first phase of the bifurcated trial quoted the three grounds alleged in the indictment and instructed the jury to “strike out” any ground “that you do not find beyond a reasonable doubt.” The jury marked through the third ground and returned a guilty verdict based upon the first and second grounds.

The verdict form submitted to the jury in the penalty phase of the trial quoted the language of Code § 19.2-264.4(C) defining the “dangerousness” and the “vileness” predicates and instructed the jury to strike out the language of either predicate “if either you do not unanimously find.” The jury, “having considered the evidence in mitigation of the offense,” returned the form unaltered and “unanimously fix[ed] . . . punishment at death.” After reviewing the probation report required by Code § 19.2-264.5, the trial court entered judgment confirming the conviction and imposing the penalty fixed by the jury. We have consolidated the defendant’s appeal of the conviction with the automatic review of the sentence, Code § 17-110.1 (A) and (F), and accorded both priority on our docket, Code § 17-110.2.

I. THE EVIDENCE

Most of the facts and circumstances related to the attack which led to the victim’s death are drawn from the defendant’s testimony at trial. Convicted in 1973 of first degree murder and sentenced to a term of 48 years, the defendant was an inmate at Haymarket Field Unit #26. On the morning of September 22, 1988, he and five other prisoners were transported to the Virginia Department of Transportation’s Dale City Headquarters (VDOT) where they were assigned to a work detail supervised by a VDOT employee.

During the course of his work that morning, the defendant damaged the point of a screwdriver which he repaired with the use of a bench grinder. At the same time he used the grinder to sharpen a short piece of metal (sometimes referred to as a “highway spike”) into the shape of a screwdriver, added a wooden handle, and attached the device to his shirt pocket with a holder fashioned from a paper clip. When the work crew suspended operations for lunch, the defendant crossed the perimeter fence [438]*438and walked along Interstate Route 95 a distance of approximately a mile to Ashdale Plaza, a shopping center. There, he entered Dale City Floors, a retail carpet store, and inquired of the operator, Mrs. Gladys Napwasky, about oriental carpets.

The defendant challenged the prices she quoted, and a heated argument ensued.1 According to the defendant, she “started screaming . . . nigger this and nigger that” and “spit in [his] face.” The defendant slapped her with his open hand, and she kicked him in the genitals. As the defendant fell to the floor, he “caught the top part of her pants” and pulled them “down right . . . by the thighs.” Mrs. Napwasky “slashed” at him with a steak knife. The defendant “pushed her off and . . . went straight for the shirt pocket and . . . came up and hit her in the chest and hit her up in the neck.” “Blood was coming from the nose and mouth and ... a trickle of blood . . . from the neck.” The defendant “checked her pulse to make sure she was okay”, placed a wet washcloth on the neck wound, and “took the sleeve of [his] shirt and . . . wiped her face.” While searching for a first aid kit, the defendant found four dollars in coins. He explained that he left the store intending to use the coins to purchase ice from a vending machine located in the shopping center to apply to his victim’s wounds. Changing his mind, he re-entered the store and “started wiping all the things that [he] could remember that [he] had touched.” When he returned to the VDOT, he washed blood from his shoes, took off his bloody shirt, “put it in the trash bag and threw it in the trash can.” He discarded the weapon used in the attack along the highway. The defendant testified that he had not raped his victim.

A customer of the carpet store found Mrs. Napwasky lying on the floor and called a rescue squad. A paramedic testified that he had found her “face up on her back on the floor in a pool of blood that was around her head and upper body”; that she was naked below the waist and her blouse and brassiere had been pulled above her breasts; tfiat although her heart was beating, “she was breathless and pulseless” because there was “no . . . fluid for it to actually pump.” The autopsy report identified 16 cuts and puncture wounds on the face, neck, chest, and left arm. A neck wound, three inches deep, severed the jugular vein. A wound four inches [439]*439deep in the left chest cavity penetrated the left lung. Evidence of numerous “blunt-force trauma injuries” was found on her face and forehead. The victim’s genital area was undisturbed.

The Commonwealth introduced the testimony of several of the defendant’s fellow inmates concerning his conduct following arrest. One witness testified that the defendant had fallen to his knees, crying and saying that he had killed somebody. Another said that the defendant had told him that he had murdered and robbed his victim. A third prisoner testified that the defendant had conceived an escape plan involving the use of violence. In a search of the defendant’s cell while he was awaiting trial, the authorities found a piece of metal taken from a typewriter page stand and an ear bracket from a pair of spectacles. Both appeared to have been sharpened.

II. PRE-TRIAL ISSUES

A. Constitutional Challenges

The defendant filed a motion to dismiss the indictment on the ground that the capital murder statutes are unconstitutional. The trial court rejected the several challenges articulated in a detailed memorandum. The defendant incorporated the memorandum in his brief filed in this Court. All the arguments urged by the defendant have been considered and rejected. See the decisions cited in Spencer v. Commonwealth, 238 Va. 563, 568-69, 385 S.E.2d 850, 853-54 (1989); Watkins v. Commonwealth, 238 Va. 341, 352, 385 S.E.2d 50, 56-7 (1989); Buchanan v. Commonwealth, 238 Va. 389, 412-13, 384 S.E.2d 757, 771 (1989), cert. denied, ___ U.S. ___, 110 S.Ct. 880 (1990); and Pope v. Commonwealth, 234 Va. 114, 121-22, 360 S.E.2d 352, 357 (1987), cert. denied, 485 U.S. 1015 (1988). We reaffirm our decisions in those cases.

B. Motion to Suppress

The trial court overruled the defendant’s motion to suppress statements he had made to an officer in two interviews conducted prior to his arrest.

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Cite This Page — Counsel Stack

Bluebook (online)
389 S.E.2d 886, 239 Va. 433, 6 Va. Law Rep. 1655, 1990 Va. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mumin-v-commonwealth-va-1990.