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Eaton v. Commonwealth9/21/1990
version and found him guilty of capital murder.
At the penalty phase of the trial, the Commonwealth argued for the death penalty based solely upon the aggravating factor of Eaton's "future dangerousness." It introduced evidence of the Custer, Marston, and McDonald murders, and entered a part of Eaton's Shenandoah County plea agreement into evidence. The jury was not informed that Eaton was ineligible for parole as a result of the agreement, and the defense objected to the deletion of that part of the plea bargain. Holley testified at the penalty phase that as Eaton described the murders, he joked that he was freed to blame the trooper's death on Judy because she was dead. Additionally, the Commonwealth introduced evidence from two other inmates at the Roanoke County Jail who testified that Eaton had fashioned a "shank," a weapon made out of wire and a spring from a shower curtain rod, with which he planned to escape by overpowering a guard and taking his weapon.
Eaton's evidence in mitigation consisted of a psychologist's testimony describing Eaton's intelligence as "low-average," and the testimony of certain jail employees that Eaton was not a problem prisoner.
After receiving instructions from the trial court, the jury retired to determine the sentence. Following over two hours of deliberations, the jury notified the trial court that it was deadlocked and inquired whether a unanimous vote, such as is required for the
death sentence, was required to impose a life sentence. The trial court responded: "I cannot instruct you beyond the instruction which you have received; if you are unable to agree upon the penalty, please advise the court."
No further communication was received from the jury. Three and one-half hours later, the jury returned with a unanimous verdict fixing Eaton's punishment at death.
III. ASSIGNMENTS OF ERROR WAIVED
Eaton is deemed to have waived Assignments of Error 2, 5, 7, 11, 12, and 30. Despite assigning error to these issues, Eaton failed to argue them on brief. Therefore, pursuant to Rule 5:27(e), we will not consider them on appeal. Cheng v. Commonwealth, 240 Va. 26, 41, 393 S.E.2d 599, 607 (1990).
IV. ISSUES PREVIOUSLY DECIDED
Eaton's appeal raises certain issues which have been decided adversely to his claims by our previous decisions. We adhere to those rulings and, accordingly, will not discuss them further here. The issues thus previously resolved are whether:
A. The death penalty is unconstitutional. See Spencer v. Commonwealth, 240 Va. 78, 84, 393 S.E.2d 609, 613 (1990) (Spencer IV).
B. The defendant should have been granted additional peremptory challenges. See id.
C. By permitting voir dire questions concerning the death penalty, the court impanelled a "death-prone" jury. See Pruett v. Commonwealth, 232 Va. 266, 277-78, 351 S.E.2d 1, 7-8 (1986), cert. denied, 482 U.S. 931 (1987).
V. VOIR DIRE
A. Refusal to Strike Veniremen for Cause.
Eaton contends that the trial court erred in retaining four veniremen over his objections. As an appellate court, we must give deference to the trial court's decision whether to retain or exclude individual veniremen because the trial court "sees and hears the juror." Wainwright v. Witt, 469 U.S. 412, 426 (1985); accord Spencer v. Commonwealth, 238 Va. 563, 572, 385 S.E.2d
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