Cherrix v. Commonwealth

Citations: 513 S.E.2d 642; 257 Va. 292; 1999 Va. LEXIS 45Docket: Record 981798 & 982063

Court: Supreme Court of Virginia; February 26, 1999; Virginia; State Supreme Court

Original Court Document: View Document

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Brian Lee Cherrix was convicted of capital murder and sentenced to death, alongside convictions for forcible sodomy, using a firearm in the commission of a felony, and possessing a firearm after a felony conviction. The case revolves around the murder of 23-year-old Tessa Van Hart, who was shot and sodomized on January 27, 1994, after delivering a pizza to a location in Chincoteague. Her body was discovered in her vehicle hours later, with autopsy results indicating two gunshot wounds and evidence of assault. 

The investigation into her murder went cold for over two years until Cherrix, while in jail for unrelated charges, offered information about the murder in exchange for leniency. He alleged that his deceased cousin, Robert Birch, III, was the perpetrator, claiming Birch had lured Van Hart under the pretext of a pizza delivery, assaulted her, and discarded the murder weapon, a rifle, in a creek. 

Cherrix led police to the supposed location of the rifle, which was subsequently recovered. During police interviews, he provided inconsistent accounts of the events, sometimes speaking in the first person regarding the disposal of the rifle. Although Birch was investigated posthumously for his alibi on the night of the murder, he was ultimately ruled out as a suspect. Cherrix was sentenced to 20 years for unrelated charges before being transferred to the Virginia Department of Corrections.

On April 16, 1997, Cherrix was returned to Accomack County Jail facing charges of uttering and grand larceny. During transport, Chincoteague Assistant Police Chief Edward Lewis interviewed him about the Van Hart murder after advising him of his Miranda rights. Cherrix provided a revised account of the murder, maintaining Birch as the perpetrator. On April 17, 1997, counsel was appointed for Cherrix's charges. On April 25, he requested to speak with Lewis again and, after being read his Miranda rights once more, confessed to the murder and sodomy of Van Hart. He then guided Lewis and a sheriff's deputy to various locations relevant to his confession.

Cherrix was subsequently indicted for capital murder, forcible sodomy, and firearm-related offenses. After a bifurcated jury trial, he was convicted on all counts. The jury sentenced him to death for capital murder, life imprisonment for forcible sodomy, eight years for firearm use in the commission of those crimes, and five years for being a felon in possession of a firearm. The death sentence was based on findings of "future dangerousness" and "vileness." Cherrix appealed his capital murder conviction and non-capital convictions, which were consolidated.

Cherrix had previously filed pre-trial motions challenging the constitutionality of Virginia's death penalty statutes and seeking specific jury selection procedures. His appeals regarding the trial court's denial of these motions involved issues already addressed in prior cases, including the constitutionality of the statutory aggravating circumstances of "future dangerousness" and "vileness," the adequacy of jury instructions on mitigation, the use of unadjudicated conduct for proving future dangerousness, and the trial judge's discretion in reducing death sentences.

In Breard v. Commonwealth, the court affirmed that the inclusion of hearsay evidence in presentence reports during capital murder sentencing is constitutional. It also ruled that the appellate review of capital cases is not unconstitutional, and defendants lack a constitutional right to individual, sequestered voir dire or to require juror questionnaires. Cherrix's pre-trial motion to suppress his confession was denied after he claimed he invoked his right to counsel during police interrogations. Testimony from law enforcement contradicted his claims, indicating he was advised of his Miranda rights and voluntarily waived them. The trial court found Cherrix’s statements admissible, concluding that the determination of admissibility relies on the trial court's discretion to assess witness credibility and evidence. Cherrix's appeal arguing for reversible error based on the denial of the suppression motion was ultimately rejected.

Before admitting a defendant's statements made during custodial interrogation, the trial court must ascertain whether the defendant knowingly and intelligently waived their rights, guided by the totality of the circumstances. This factual determination, derived from the trial court's evaluation of witness credibility, is upheld on appeal unless clearly erroneous. In the case at hand, the trial court admitted statements made by Cherrix based on testimony from Officer Lewis, who confirmed he read Cherrix his Miranda rights on two occasions without any request for counsel from Cherrix. Although Cherrix contested this, the court favored Lewis’s testimony.

Regarding the failure to disclose exculpatory material, the trial court accepted the Commonwealth's claim that discovery obligations were met, despite the existence of a written statement from Cherrix's grandmother that could have supported Cherrix's alibi during the murder investigation. During the trial, Cherrix's grandmother testified to his whereabouts and an 8:15 p.m. phone call to his wife on the night of the murder, but was unable to recall details from her police interview. The Commonwealth introduced her written statement during rebuttal, which Cherrix objected to on the grounds of nondisclosure of exculpatory evidence, citing Brady v. Maryland. The trial court overruled the objection, and Cherrix argued that the nondisclosure indicated bad faith and violated due process.

However, the court found that the Brady requirement only applies to material exculpatory evidence, which is defined as evidence that could likely alter the trial's outcome if disclosed. Cherrix and his counsel were aware of the grandmother's testimony and had relied on it, suggesting that the undisclosed statement did not provide new material information. Thus, the trial court's decision to admit the statement was deemed appropriate, as the prosecution was not obligated to disclose information already known to the defense.

During the guilt phase of the trial, Lewis testified about Cherrix's oral confession made during their conversation on April 25. After Cherrix's confession, Lewis left the room, expecting Cherrix to prepare a written confession. Upon returning and finding none, Lewis conducted a "question and answer session," documenting each question and Cherrix's verbatim responses. Lewis read the responses back to Cherrix, who acknowledged their accuracy. However, when asked to sign the document, Cherrix refused. 

Cherrix objected to Lewis reading the "question and answer" document to the jury, claiming it was merely Lewis's notes rather than a formal statement since it was unsigned. The trial court overruled his objection, permitting the reading, and deferred a decision on its admission as an exhibit until after Lewis's cross-examination. Although the document was not formally admitted, it became part of the record due to Cherrix's post-trial motion.

On appeal, Cherrix argued that the document was only notes and should not have been read to the jury without being entered as evidence, asserting that the Commonwealth failed to establish the foundational requirements for admitting "past recollection recorded." The court disagreed, stating that the document represented Cherrix's own statements and was thus treated as a written confession, which is admissible under the "party admission exception" to the hearsay rule. The trial court emphasized that Lewis's detailed documentation of the interaction elevated the status of the document, allowing it to be considered as a valid confession.

A written confession can be admissible even if unsigned, provided the defendant understood and accepted its content, as established in Wong Sun v. United States. The unsigned nature of a statement does not affect its admissibility, only its weight and credibility. The "question and answer" document was deemed admissible as a confession, making the Commonwealth's failure to establish a foundation for its admission under the "past recollection recorded" exception irrelevant. Although the document could have been submitted as an exhibit, Cherrix's objection to its admission means he cannot contest the trial court's decision to allow Lewis to read it into evidence.

Cherrix argued that the trial court erred in denying his motion to set aside the verdict, claiming the Commonwealth did not prove the corpus delicti beyond a reasonable doubt. However, since Cherrix fully confessed to the crimes, only slight corroboration was necessary to establish the corpus delicti. The evidence presented, including the discovery of Van Hart's body with gunshot wounds and signs of assault, along with identification of the murder weapon linked to Cherrix, provided sufficient corroboration.

Cherrix proposed a jury instruction regarding the credibility of his statements to law enforcement, which the trial court partially granted. The court refused the first part of the instruction, stating there was no evidence suggesting that Cherrix's statements were involuntary. A general instruction regarding the jury's role in assessing credibility and evidence was granted. The trial court's decisions regarding the admission of evidence and jury instructions were upheld, indicating no error in the proceedings.

Cherrix appeals the trial court's refusal to provide a specific jury instruction on the voluntariness of his confession, arguing that the general instruction on credibility was inadequate. The appellate review confirms no error, noting that while a defendant can contest the voluntariness of statements at trial, a jury instruction requires substantial supporting evidence. Cherrix previously claimed police violated his Miranda rights during a pre-trial suppression hearing but did not testify at trial, where evidence showed he had voluntarily waived those rights. The trial court offered a general instruction on credibility and an additional instruction related specifically to the defendant's statements, effectively informing the jury of its role.

In the sentencing phase, Cherrix contends he was denied a competent mental health expert as mandated by Code § 19.2-264.3:1, which requires a psychiatrist with specific qualifications. He challenged the appointment of Dr. John Bulette, claiming he lacked the necessary qualifications; however, the record indicates Dr. Bulette met the statutory requirements. Cherrix also expressed a preference for Dr. Leigh Hagan but did not raise constitutional objections regarding the expert's appointment at trial, leading to the conclusion that his statutory argument is the only one considered. The trial court opted for a local psychiatrist instead of Dr. Hagan due to logistical concerns.

The trial court appointed Dr. Bulette as an expert despite Cherrix's objection that Dr. Bulette lacked experience in capital murder cases. Cherrix contended that this lack of experience disqualified Dr. Bulette under Code 19.2-264.3:1(A)(ii), which requires specialized training and experience for forensic evaluations. However, the trial court noted Dr. Bulette’s substantial experience in forensic evaluations and clarified that the statute does not stipulate prior experience in capital murder cases as a qualification. Cherrix did not challenge Dr. Bulette's qualifications regarding the statute's requirements, leading to the conclusion that the trial court's appointment was free from error.

Cherrix also sought to introduce mitigation evidence through various experts and officials concerning the effects of prison life on future dangerousness. Although the trial court initially approved the appointment of an expert penologist, it later vacated this order due to the late submission of a report and high cost estimate, deeming the proposed testimonies as immaterial. Cherrix argued that the exclusion of this evidence violated his constitutional rights under established case law. However, while defendants in capital cases have the right to present mitigating evidence, the court retains the authority to exclude evidence deemed irrelevant to the defendant's character or the circumstances of the offense. The trial court exercised its discretion under Code 19.2-264.4(B) to exclude the proposed evidence, which focused on the general nature of prison life without directly addressing Cherrix's character or the specifics of his offense.

Officials from the Department of Corrections were prepared to testify about the penal system's ability to contain Cherrix and the financial implications of a life sentence for taxpayers. Cherrix's defense argued that expert witnesses would provide similar testimony to that of the inmate and corrections officials, but the trial court determined that this evidence was irrelevant to Cherrix's personal history and experience. Consequently, the court affirmed the exclusion of this evidence as non-mitigating.

Cherrix sought to exclude evidence of crimes committed after his capital offense in January 1994 during the sentencing phase. The trial court refused to rule on this pre-trial motion, deeming it premature. The Commonwealth later introduced two post-offense convictions as evidence. Previous rulings established that a defendant's history, including events occurring after the capital offense, can be used to assess future dangerousness according to Virginia Code § 19.2-264.4(C). Thus, the trial court's admission of this evidence was deemed appropriate.

Cherrix also claimed the trial court erred by not properly informing the jury of his parole eligibility, arguing that this was relevant to the future dangerousness aspect of his sentencing. However, he waived this argument by failing to object during the trial and not proposing a parole eligibility instruction. The jury's inquiry about parole prompted the trial court to instruct them to disregard parole considerations, a stance Cherrix supported.

Regarding aggravating factors for the imposition of the death penalty, the Commonwealth had to demonstrate, beyond a reasonable doubt, that Cherrix posed a continuing serious threat to society or that his crime was particularly vile or inhumane. The jury found sufficient evidence to support both aggravating factors. Cherrix contended that it was unreasonable for the jury to conclude he would be a continuing threat and argued the Commonwealth did not sufficiently prove the heinous nature of his actions. The court disagreed with this assertion.

Cherrix contends that his past sentences indicate a minimal likelihood of release, suggesting he poses a limited threat to others in prison due to his small stature. However, this claim is speculative and overlooks significant evidence of his violent history, including multiple assault convictions and a lack of remorse after serious offenses, such as the murder of Van Hart and the shooting of his half-brother. Expert testimony highlighted Cherrix's anti-social personality and violent tendencies, particularly towards women. The record supports the jury's conclusion that he represents a continued serious danger to society.

The jury also found that Cherrix's actions during the murder were "outrageously or wantonly vile," asserting that his conduct involved torture and depravity. Cherrix disputes this, arguing there was no evidence of depravity beyond typical malice and that the victim died quickly. However, the circumstances of the crime, including premeditated actions, forced sodomy, and the cold execution of the victim, demonstrate a calculated and depraved mindset. Cherrix's behavior post-murder, including his nonchalant actions and comments, further substantiates the jury's finding of torture and depravity.

In reviewing the statutory requirements under Code 17.1-313(C), the court must assess whether the death penalty was influenced by passion or prejudice and whether it is disproportionate to similar cases. Cherrix argues that the jury's findings of future dangerousness and vileness were improperly based, but these findings have been affirmed as well-supported by the evidence.

The review of the case record finds no evidence that the jury's imposition of the death sentence was influenced by passion, prejudice, or arbitrary factors. In assessing whether the death sentence is excessive or disproportionate compared to similar cases, the review compares this case to other capital murder cases where life sentences were imposed. The jury's decision was based on future dangerousness and vileness predicates, which are significant criteria in similar cases. Generally, juries in the Commonwealth have frequently imposed death sentences for capital murder involving premeditated murder and rape/forcible sodomy. Specific cases cited include Barnabei, Clozza, Coleman, and Waye, indicating that the death penalty has been applied in instances where the victim was murdered to ensure silence. The review concludes that Cherrix's death sentence is neither excessive nor disproportionate compared to similar cases. Ultimately, no reversible errors were found, and the court affirms the trial court's judgment, maintaining the death sentence.