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.
Thomas Lee Penn seeks a reversal of a sentence of life imprisonment in the State Penitentiary for the murder of Cynthia Johnson. He was convicted by a jury in the Hustings Court of the City of Richmond on December 17, 1966, and judgment on the sentence was accordingly imposed by the trial court.
This is one of a series of cases before us involving defendant and his brother, William Penn. All cases are the subject of opinions this day being announced. While the issue here is a narrow one, it is deemed necessary that the proceedings in the court below, and the facts in the case, be detailed.
Cynthia Johnson was murdered in the City of Richmond on May 9, 1966. Defendant was arrested on May 29th and charged with the crime. At the request of his counsel, a psychiatrist, Dr. William M. Lordi, was appointed on June 15, 1966 by the trial court to examine defendant as to his mental condition. On motion of the Commonwealth's Attorney, a commission of three psychiatrists, Dr. R. Finley Gayle, Dr. Merritt Foster and Dr. Weir Tucker, were appointed on July 22, 1966 by the trial court to conduct a like examination. Defendant, having refused to submit to examination by the commission, or to cooperate with them, was committed to the Central State Hospital for examination by order of court entered September 13, 1966.
After various other proceedings in the court below, defendant was tried on December 15-16-17, 1966, convicted and sentenced as aforesaid. His pleas were not guilty and not guilty by reason of insanity.
About 6:30 P.M. on May 10, 1966, Cynthia Johnson's body was found in a wooded area, in the rear of 1409 North 32nd Street, in the City of Richmond. Detective A. B. Epps described the area as thick with a lot of trees, undergrowth, honeysuckle, etc. Decedent was lying face down. Her clothes had been torn, and her coat was found about 20 paces from the body. The officers found no money, cigarettes, or other identification on the body.
Dr. Geoffrey T. Mann, Chief Medical Examiner for Virginia, testified that the decedent, sixteen years old, died as the result of two gunshot wounds in her right chest. Two bullets were recovered from her body. He noted that the clothes of the decedent had been "torn up rather severely" as if she had been engaged in a struggle.
Oscar E. Henderson testified that he had dated Cynthia Johnson and had been with her from about 2 or 3 o'clock in the afternoon of Sunday, May 8th, until about 11 or 11:30 that evening. He gave her a package of Marlboro cigarettes and about 90 cents in change. When he last saw the decedent they were at the corner of 25th and Venable Streets, and, following an argument between the two, she left going in the direction of 26th and Q. Streets.
Johnnie Mae Hicks, age fifteen, testified that the first time she ever saw Thomas Lee Penn was on May 22, 1966, at or near a friend's house at 2019 North 29th Street. She stated that the time was close to 11 P.M., and that she and her boyfriend had been fighting when Penn walked up and told her that he was a detective. Defendant asked Johnnie Mae Hicks if this man (referring to her boyfriend) was bothering her. She replied that he was and that she was going to call
the police. Penn responded by telling her that his mother had already called them. At this point the boyfriend, Eugene Willis, went into the house to get a companion, a man named Purcell. Johnnie Mae Hicks stated that Penn ran with her around a field; that when they got there Willis and Purcell came out of the house and climbed across a fence looking for them; that Penn shot at Willis three times; and that he (Penn) ran. Willis then walked her home and left her at the door.
After that episode this witness reconsidered calling the police and had started towards a phone booth when she saw defendant again on the side of "the ice cream house". Penn walked with the Hicks girl to the phone booth, but convinced her that if she made the call there would be a lot of trouble. The two then went back to the girl's home and at this point she said that Penn suggested that she go back and call the police because Willis might come around and start some disturbance. En route back to the phone booth, and upon seeing an automobile which they thought belonged to Willis, Penn suggested running around another way instead of going straight. This way took them across the street and in a field. There defendant told the Hicks girl that she "was going with him". He told her to take off her clothes.
While there in the field, defendant asked her if she read the newspapers and "if she had read about Cynthia". Witness responded that she had read about her, and testified that Penn then said, "... I kill her and two mens in the cemetery". The witness also testified that Penn "... told me that Cynthia had died in darkness but I would die in the light". The area, although wooded, was lighted with street lights. Penn then shot Johnnie Mae Hicks. She described the weapon as a short black pistol with a white pearl handle that had ridges on it.
The Commonwealth then called Sergeant C. L. Brown, Detective Harry W. Duke and Detective Alvin B. Epps of the Richmond City Police Department, who testified regarding the surrender of defendant on May 29, 1966, and of the circumstances surrounding the confession that he made to the police officers on that day. Their testimony will be hereinafter discussed.
The confession*fn1 of defendant was introduced and in it he admits [210 Va Page 216] that he shot and killed Cynthia Johnson in "Armstrong's woods, dead man's canyon". Penn said that after he shot her, and while she was down, she asked for some air to breathe so he pulled her coat off and left her. He admits to stealing her house key, a pack of Marlboros and a scarf. Defendant stated to Detective Epps that he had disposed of the gun that he used by throwing it in a storm sewer in Washington, D.C.
At the conclusion of the evidence for the Commonwealth, defendant called Dr. William M. Lordi to testify. Dr. Lordi first saw defendant in 1962 at the Memorial Guidance Clinic. At that time defendant was referred to the clinic by the court "for being beyond parental control", and the authorities were concerned about his mental health. Dr. Lordi said defendant came to the clinic for psychiatric evaluation and for a social history, with his mother, and also for a psychological examination. He stated that he felt defendant "was a paranoid schizophrenic" and referred him to Central State Hospital for further study and treatment.
Dr. Lordi next saw Penn during July, 1966 and subjected him to a battery of tests, described as "... projective tests, tests for intelligence, tests for the presence or absence of brain problems, tests to help us get a picture of what was going on underneath the surface psychologically, also electroencephalogram and neurological examination". The doctor said he felt Penn "still is a paranoid schizophrenic", and in his opinion was "extremely ill mentally" and did not know right from wrong.
The Commonwealth, in rebuttal, examined Dr. L. E. Kervin, a psychiatrist, who is the Assistant Superintendent of Eastern State Hospital, and Dr. Emilio F. Montero, a psychiatrist, who is the Clinical Director of the Criminal Building of the Central State Hospital. These two doctors had Penn for observation and examination for approximately 41 days pursuant to order of court entered September 13, 1966.
In brief, they testified that defendant was subjected to all the usual tests and examinations given and made to determine a patient's mental and physical condition. The electric encephalogram showed no organic damage to Penn's brain. The psychological test revealed no mental disturbance or mental illness of any type. His I.Q. tested at a full scale of 103, which indicates that defendant functions in the normal range of intelligence. Their conclusion, stated separately, was that defendant was neither mentally ill nor mentally defective and was able to distinguish right from wrong. They saw no evidence to indicate that defendant acted on an "irresistible impulse".
Defendant, who is nineteen years old, was called by his counsel as a witness in his own behalf and testified at length. His counsel developed the fact that defendant is the product of a broken home, his father having abandoned his mother for another woman when defendant was a very young boy. It was established that defendant was raised in a home where violence, discord and insecurity prevailed.
The family has been in and out of numerous courts with their various domestic difficulties, and all members have been embroiled with the law. Defendant's career includes the 1962 confinement in Central State Hospital, following his apprehension or arrest by the juvenile authorities of the City of Richmond for truancy and being beyond parental control.
While on the witness stand, defendant admitted that he shot Cynthia Johnson and stole from her a pack of Marlboro cigarettes, a key chain and some change, and left her body in the woods. He also testified to shooting Johnnie Mae Hicks about 5 times and writing "sniper twenty" on her. His testimony regarding the circumstances of meeting the Hicks girl, the conversations, the other parties involved in the episode, and the locale, were entirely consistent with the circumstances as detailed by her.
Defendant was asked by his attorney how many people he had killed, and he responded: "Six by myself.... That was this year." He thought that the killings took place between February and May. Defendant detailed his various killings as follows:
(1) Moselle Spencer, at the Eggleston Motel. He robbed the victim of something over $70. Penn said that when he killed Spencer he was using a stolen automobile.
(2) James Horace Carter, Sr. Defendant had previously worked with this man and knew him. He persuaded Carter to drive him to an abandoned farm house where he killed him. Penn then stole from him $40, his personal belongings, groceries that Carter had purchased, and the victim's automobile, which he later burned.
(3) Willie Sexton. After killing this man, Penn admits that he took his money (only a few dollars), his personal belongings, and dumped his body in Chickahominy Creek.
(5) Addison E. Wilkins, who was identified as a conscientious objector. From this man Penn stole approximately $11 and his personal belongings.
(6) Malcomb Lynn Norment, Jr. was identified as "the man on Broad Street who was tall and slender". This man was shot 10 times by Penn and $11 was stolen from him.
Two of the victims were killed the same night. Defendant admitted that he had two pistols and used both on several of the victims.
This case was heard by a jury. Their verdict of conviction has been approved by the trial court. The conflicts in evidence have been
resolved by the jury against defendant. In fact, the only conflict is between the testimony of Dr. Lordi on behalf of defendant, and Doctors Kervin ...