Kenneth Ray Lewis v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Willis and Senior Judge Cole
Argued at Richmond, Virginia
KENNETH RAY LEWIS
MEMORANDUM OPINION * BY
v. Record No. 0843-99-2 JUDGE MARVIN F. COLE
JULY 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Esther J. Windmueller for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kenneth Ray Lewis, appellant, was convicted upon his guilty
plea of first-degree murder. 1 Appellant contends that the trial
court erred by allowing a police officer to testify at sentencing
regarding statements made by another inmate. For the following
reasons, we find no error and affirm the conviction.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
The Court notes that the final sentencing order entered by
the trial court erroneously reflects that the appellant was
found guilty of "capital murder." Accordingly, this case is
remanded to the trial court for the sole purpose of amending the
final order to reflect that appellant was found guilty, pursuant
to his guilty plea, of first degree murder.
Facts
Appellant and the victim, Michael Smith, were having a
cookout on Smith's front porch when appellant began striking Smith
on the head and neck with a hammer. Smith's blood splattered on
the walls. Appellant dragged Smith's body through the house, and
tried to put Smith's body into the trunk of Smith's car. Unable
to get Smith's body into the trunk, appellant put the body in the
backseat of the car, drove to Caroline County, and dumped the body
into the Mattaponi River. Thereafter, appellant admitted his
crime to Johnny Wright. Appellant explained how he threw chicken
bones and hamburger grease on the blood trail in the house in an
attempt to get dogs to lick up Smith's blood. Appellant asked
whether Wright's wife could dye his hair. Hair dye was found in
the car trunk along with cleaning items used to try to clean the
blood out of the car. Prior to trial, appellant tried to "take
out a contract" on Wright, the Commonwealth's main witness against
him.
Analysis
The only issue properly before this Court is the narrow issue
of whether the trial court erred by allowing hearsay testimony
during appellant's sentencing. Special Agent Carl Fisher
testified that he interviewed inmate John Wallace about statements
appellant made to Wallace. Appellant objected to any testimony
from Fisher, arguing that
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if the Commonwealth wants that information
. . . there's no reason that it could not
. . . subpoena Mr. Wallace so we could have
a reasonable opportunity to cross-examine
the source. . . . [W]hile I understand
certain hearsay is admissible at sentencing,
this is one where, in fairness, if the Court
wants to hear it, it should be able to hear
it [from Wallace] . . . and we should have
the opportunity to cross-examine [Wallace].
The trial court overruled appellant's objection and stated:
The Court understands that certain hearsay
evidence is admissible, and the Court will
take into consideration when it hears the
evidence, the fact that you will not have
the opportunity to cross-examine that person
who made those statements.
Fisher then testified about his interview of Wallace.
Wallace told Fisher that appellant admitted to him killing a man
with a hammer on that man's front porch and that he had thrown
the body into the river. Wallace also stated that appellant
offered him $1,500 to kill Johnny Wright, the Commonwealth's
main witness against appellant. Appellant cross-examined
Fisher. During allocution, appellant denied offering Wallace
money to kill the Commonwealth's witness.
A sentencing hearing is not a trial. The rules applicable
in a proceeding to determine a defendant's guilt are not
necessarily applicable in a sentencing proceeding. See Moses v.
Commonwealth, 27 Va. App. 293, 300, 498 S.E.2d 451, 455 (1998)
(right to confrontation a trial right, not a right in sentencing
proceeding); Thomas v. Commonwealth, 18 Va. App. 656, 659, 446
S.E.2d 469, 471 (1994) (en banc) (during sentencing, court may
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consider defendant's criminal record, including dismissed
juvenile charges and pending charges, charges for which accused
has been indicted but not convicted, offenses for which
defendant has been convicted but not sentenced, convictions on
appeal, and evidence of unadjudicated criminal activity). In
holding that a judge could use a presentence report containing
hearsay and evidence of unadjudicated crimes without offending
the due process guarantee, the Supreme Court noted that "most of
the information now relied upon by judges to guide them in the
intelligent imposition of sentences would be unavailable if
information were restricted to that given in open court by
witnesses subject to cross-examination." See Williams v. New
York, 337 U.S. 241, 250 (1949).
"In the sentencing phase of a case, the trial court may
rely upon hearsay testimony." Alger v. Commonwealth, 19 Va.
App. 252, 258, 450 S.E.2d 765, 768 (1994). "The information
relied upon by the court must, however, have some indicia of
reliability." Id.At the arraignment held on December 18, 1998, appellant
pled guilty to the first degree murder of Michael Anthony Smith
and admitted to the trial judge he understood this guilty plea
lost him his right to confront and examine the Commonwealth's
witnesses.
As a factual basis for the plea, the Commonwealth's
attorney set forth in great detail the Commonwealth's evidence
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to support the charge of murder. Special Agent Fisher and
several Richmond police officers had interviewed Johnny Wright.
Wright advised the officers that appellant, a friend, had
admitted to him in a conversation he had with him in the late
evening hours of August 23, 1998, that he had struck Smith with
a hammer several times and dragged him into the house, where he
struck him several more times. Appellant further admitted to
Wright that he had placed the victim in the backseat of his car,
driven it to Caroline County, and dumped the body into the
Mattaponi River.
The Commonwealth's attorney further represented to the
court another piece of evidence that appellant, while
incarcerated, was housed with an inmate named John Wallace. If
called as a witness, Wallace would testify to "the exact same
story that Mr. Lewis relayed to him [Wallace] in jail." Wallace
also would testify that appellant asked him "when he got out of
jail, would [he] find [Wright] and do harm to him, if he were to
testify."
The trial judge asked appellant if the facts as stated by
the Commonwealth's attorney "were they a fair statement of the
facts in the case." Appellant personally responded that they
were.
Almost four months later during sentencing, this same
information was elicited from Special Agent Fisher. Appellant
clearly knew about this evidence prior to his sentencing
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hearing, cross-examined Fisher about this evidence, and denied
the accuracy of the evidence during allocution. Appellant's
agreement that the Commonwealth's evidence would prove these
facts gives the evidence the necessary "indicia of reliability."
The trial court properly admitted Fisher's hearsay
testimony during appellant's sentencing proceeding. For these
reasons, we find no error in appellant's conviction, and
accordingly affirm.
Affirmed.
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