Error to a judgment of the Hustings Court of the City of Richmond. Hon. W. Moscoe Huntley, judge presiding.
Present, All the Justices.
HARRISON, J., delivered the opinion of the court.
These are the second and third of companion cases, today decided by this court, styled Penn v. Commonwealth.
Thomas Lee Penn was indicted separately for the murders of Addison E. Wilkins and Malcomb Lynn Norment, Jr. At a jury trial had on both indictments, with the consent of defendant, on April 17-18, 1967, he was found guilty and given life sentences. Judgments on
the sentences were accordingly imposed by the lower court. He appeals from his convictions, assigning as the sole error the action of the lower court in "admitting into evidence certain statements in the nature of confessions made by defendant, as such statements were obtained in violation of defendant's constitutional rights".
The background, education and mental condition of defendant, as well as the circumstances under which the May 29, 1966 statement was made to the police, have been discussed in detail in the opinion of this court in the first companion case. Penn v. Commonwealth, 210 Va. 213, 169 S.E.2d 409 (1969).
Addison E. Wilkins and Malcomb Lynn Norment, Jr. were murdered in the City of Richmond on May 21, 1966. Detective H. W. Duke, of the Bureau of Police of the City of Richmond, located their bodies on the south edge of the roadbed of the 3600 block of East Richmond Road near Oakwood Cemetery. At that time, the place where the bodies were found was being excavated for an apartment building. The officer found no identification or money on either body. The pockets of the victims had been turned wrongside outwards.
Dr. Geoffrey T. Mann, Chief Medical Examiner for Virginia, testified that Wilkins, 20 years old, had been shot 10 times with what he believed to be a .22 calibre pistol, 5 of the shots having been in the back of the head. He said the decedent died as the result of these gunshot wounds.
Dr. Gordon E. Madge, Assistant Medical Examiner for Virginia, testified that Norment died as the result of multiple gunshot wounds which he described as 2 in the chest, 2 in the back of the head, 2 in the back, and 1 on the right side of the face.
The Commonwealth then sought to introduce into evidence statements given by defendant Penn on May 29, 1966 and May 31, 1966. The evidence of Detective Harry W. Duke and Detective C. L. Brown, taken out of the presence of the jury touching on their admissibility, was substantially the same as is set forth in the opinion of this court in Penn v. Commonwealth, supra. It will be hereinafter discussed. The trial court admitted into evidence so much of the statements as relates to the murders of Wilkins and Norment. Defendant objected and excepted to this action.
In the statement of May 29th,*fn1 defendant admitted that he shot and [210 Va Page 231] killed Wilkins. At the time he did not know his victim's name, but identified him as a "conscientious objector", and as a man of medium height who wore eyeglasses and had on dark clothing. (Defendant had read in the newspapers that the man was a conscientious objector.) He met Wilkins about Forest Hill Avenue and asked the decedent to show him to Laburnum Avenue. Defendant said that he took Wilkins down by the cemetery "right up where they were cleaning up the ground". Penn feigned trouble with the accelerator of his car, opened the door and asked Wilkins out. He told him he "... was going to send him to a resting place, then... shot him,... [and] put him in the area that they were digging up". [210 Va Page 232] Penn then returned to West Broad Street where he saw Norment, identifying him as "this other follow", and offered to take him to the
bus station. Instead, he took Norment out to the same excavation spot near the cemetery where he had killed Wilkins, required him to get out of the car and then shot him. Defendant says that Norment "grabbed his heart and mumbled something, then I put him down near the other body".
Defendant shot Wilkins about 10 to 12 times, using two .22 calibre pistols, and he took his watch, identification and $11. He burned the identification, broke the watch up "because I already had one" and spent the money "in a useful way". He also stated that he shot decedent in the back of the head while he was running away.
Defendant shot Norment 10 times with the same two guns, and removed all identification from the decedent which he burned in a
heater in his home. He took $11 from this victim and "spent it in the same way that I spent the other eleven dollars". This is the essence of the statement made by defendant to the officers on May 29, 1966.
Detective Duke testified that on May 31st, defendant gave an additional statement.*fn2 It is substantially the same as the one given on May 29, 1966, except that in the latter defendant implicated his brother, William Penn, as having been an active participant in the murders of both Wilkins and Norment, as well as those of Mozelle Spencer, Willie Sexton and James Horace Carter, Sr. Defendant admitted shooting both Wilkins and Norment, but in the May 31 statement said that his brother, William, also shot the two victims, shared in the money that was stolen from the bodies, and drove the Carter vehicle used at the time.
When defendant was arraigned, he entered pleas of not guilty and not guilty by reason of insanity. In support of this defense, he called Dr. William M. Lordi, a psychiatrist, and in rebuttal, the Commonwealth called Doctors Emilio F. Montero and Leo E. Kervin, Jr., psychiatrists. Their testimony relative to the mental condition of defendant was the same as in Penn v. Commonwealth, supra.
Dr. Lordi testified again that he concluded in 1962 that defendant was psychotic and diagnosed him as a paranoid schizophrenic. He said that when he saw him in 1966 it was his feeling, or opinion, that defendant "had deteriorated considerably, intellectually, emotionally and in terms of being more disturbed psychiatrically". In his opinion defendant's psychotic act of killing in May, 1966 was an act of impulse growing out of some mental disease affecting his volition.
Doctors Montero and Kervin, who had defendant under observation for approximately 41 days, testified that they subjected him to the usual tests and examinations to determine his mental and physical condition, and found no organic damage to defendant's brain, no mental disturbance or mental illness. Defendant's I.Q. indicated that he functions in the normal range of intelligence. These doctors testified that defendant was neither mentally ill nor mentally defective, and was able to distinguish right from wrong. They found nothing to indicate that defendant acted on an irresistible impulse.
In addition to Dr. Lordi, defendant called Richard A. Childress, a bailiff of the lower court, who testified ...