Thomas v. Com.

Present: All the Justices

MELONI THOMAS

v. Record No. 090518 OPINION BY JUSTICE DONALD W. LEMONS
January 15, 2010
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider multiple assignments of error

arising from Meloni A. Thomas’ (“Thomas”) convictions of first

degree murder and use of firearm in the commission of a

felony.

I. Facts and Proceedings Below 1

Thomas was originally indicted for murder under Code

§ 18.2-32, armed statutory burglary under Code § 18.2-90, and

use of a firearm in commission of a felony under Code § 18.2-

53.1. 2 After a four-day jury trial, Thomas was found guilty

of both first degree murder and use of a firearm in the

commission of a felony and the jury fixed her punishment at 35

years imprisonment for first degree murder and three years

imprisonment for use of a firearm in the commission of a

1
Thomas was tried separately from Cardell Lamont Avent
(“Avent”), who was also charged and convicted for his
participation in the crimes. See Avent v. Commonwealth, 279
Va. ___, ___ S.E.2d ___ (2010) (this day decided). Neither
Avent nor Thomas testified at the other’s trial. As a result,
the evidentiary records in the two cases are inconsistent.
2
The trial court granted the Commonwealth’s motion for
entry of nolle prosequi of Thomas’ armed burglary charge, and
Thomas was only tried on her indictments of murder and use of
a firearm in commission of a felony.
felony, for a total sentence of 38 years imprisonment. The

trial court imposed the jury’s verdict.

A. Pre-trial Motions

Prior to trial, Thomas filed numerous motions including a

motion to quash or dismiss her indictment for murder. Thomas

argued that the Virginia Model Jury Instructions allow a jury

to infer malice, which “tends to cause [a] jury to ignore

contrary evidence or tends to place a burden of persuasion on

the defendant,” and she argued that the jury instructions are

thereby unconstitutional. Thomas requested the trial court

dismiss the indictment of murder against her or excise the

language in the jury instructions that allows an inference of

malice to be drawn by the jury. The trial court denied

Thomas’ motion to quash the murder indictment but took the

motion under advisement concerning jury instructions to be

given at trial with regard to malice and murder. Ultimately,

the trial court gave three instructions on malice to the jury

over Thomas’ objection.

Thomas also filed 17 motions in limine. Only the motions

in limine relevant to this appeal will be addressed in this

opinion. First, Thomas requested that the trial court

prohibit the Commonwealth “from using in the jury’s presence

the word ‘murder’ other than in argument as the same is

conclusive, argumentative, and should be properly restricted

2
to opening or closing arguments.” The trial court denied this

motion “as to issuing any ‘blanket prohibition’ but cautioned

both sides not to use language which would mislead, inflame,

or prejudice the jury.”

Second, Thomas requested that the trial court allow her

to refer to potential punishment ranges during voir dire of

the jury. The trial court ruled that neither Thomas nor the

Commonwealth could “make reference to the range of punishment

for any of the offenses prior to the penalty phase of the

trial.”

Third, Thomas moved the trial court to prohibit the

Commonwealth from “display[ing] to the jury or introduc[ing]

into evidence autopsy photographs/videotapes of the deceased

or photographs/videotapes portraying the condition of the body

of the deceased, during either the guilt phase or any

necessary penalty phase, as the prejudicial effect of same

outweighs any probative value.” The trial court took this

motion under advisement. However, during trial and after

lengthy argument on this issue, the trial court ruled that the

probative value of the photographs of the autopsy and the

victim’s remains outweighed the prejudicial effect of the

photographs. Both the autopsy photographs and the photographs

of the victim’s remains were admitted into evidence.

3
 Fourth, Thomas requested that the trial court prevent the

Commonwealth from referring to or introducing evidence of an

alleged prior assault or assault and battery by Thomas against

the victim. Specifically, Thomas stated that “there was no

trial and subsequent conviction” of the alleged assault or

assault and battery and the evidence of such is “inadmissible

to prove the offense charged at bar.” The trial court made a

preliminary ruling that the affidavit the victim had sworn out

against Thomas was not admissible in evidence because it had

not been served on Thomas until after the victim’s death and

there was no evidence that Thomas was aware of the affidavit.

The trial court further stated that it would make its final

ruling on the issue when the Commonwealth sought to introduce

such evidence at trial.

Fifth, Thomas moved the trial court to prohibit “the

Commonwealth from commenting on or seeking to introduce into

evidence any and all statements made by Co-Defendant Cardell

Avent tending to incriminate or inculpate” Thomas. Thomas and

the Commonwealth “reached an understanding – which was

affirmed by the Court that neither party would seek to

introduce any portion of the statements of codefendant Avent

. . . without filing a motion in limine and getting a further

ruling from the Court.”

4
 Sixth, Thomas moved the trial court to order the

Commonwealth to provide her with the “names, addresses, and

telephone numbers” of the four prospective Commonwealth’s

witnesses who may be called to testify about allegedly

inculpatory statements that Thomas made to them. Absent such

a ruling by the trial court, Thomas requested that the trial

court appoint “an investigator to assist the Defense in

locating these prospective Commonwealth’s witnesses for

interview” because even though Thomas had previously contacted

one of the prospective witness, “the Defense has no

information regarding the current whereabouts of the other

three witnesses and would face extreme difficulty in locating

same to interview.” The trial court denied both Thomas’

motion for the “names, addresses, and telephone numbers” of

all the Commonwealth’s witnesses and her motion for a private

investigator.

Finally, Thomas requested in both her motions in limine,

and a separately filed ex parte motion, that the trial court

order the production of criminal record checks of “any and all

prospective Commonwealth witnesses” under Code § 19.2-389 and

also requested “any juvenile criminal records of any and all

prospective witnesses expected to testify for the

Commonwealth.” The trial court denied Thomas’ requests for

both the criminal and juvenile records of all potential

5
Commonwealth’s witnesses. Specifically, the trial court

denied Thomas’ motions “unless and until [Thomas] can show

relevance of the criminal history check as to a particular

witness.”

B. The Trial

After Thomas was arraigned, the trial court excluded two

of Thomas’ voir dire questions. The two voir dire questions

the trial court excluded read:

17. Meloni Thomas has been indicted, which
indictment was based on evidence presented by
the Commonwealth alone and none by the Defense.
Does the existence of that indictment have any
effect on anyone’s opinion of the guilt or
innocence of Meloni Thomas? Would it cause
anyone in any way to doubt the presumption of
innocence the accused is afforded?

. . . .

28. If any one of you were my client, would
there be any reason you would not want yourself
on the jury?

Thomas’ attorney objected to the exclusion of the questions

and argued that Thomas should be allowed to ask those voir

dire questions.

The trial court then began the jury selection process.

During voir dire, three prospective jurors raised their hands

in response to Thomas’ question, “[i]s there anyone who would

give greater weight to the testimony of a police officer than

to that of another witness or the accused simply because of

6
the officer’s official status?” The trial court questioned

each of these three prospective jurors, and both the

Commonwealth and Thomas were also allowed to further question

these prospective jurors on their response. After further

questioning, the trial court struck one of the prospective

jurors, Mary Dettre (“Dettre”), for cause, but allowed

prospective jurors Lois Finch (“Finch”) and David Heizer

(“Heizer”) to stay in the jury pool.

In the trial court’s voir dire of Dettre, the trial court

asked Dettre if she “would give greater weight to the

testimony of a witness who was a police officer rather than to

another witness, simply because the person was a police

officer.” Prospective juror Dettre responded: “I kind of put

police officers, sheriff’s deputies on a pedestal, I guess you

say” and that while she did think police officers could lie

and make mistakes she would still “put more emphasis on [a

police officer’s] testimony.”

When the trial court conducted voir dire of prospective

juror Finch, she first responded that a police officer’s job

is “to tell the truth;” however, when asked further questions

by the trial court, Finch stated that she did think police

officers could lie and be mistaken and that she would

“consider all the facts and circumstances surrounding the

case.” Furthermore, Finch stated that she did not come to

7
court “predisposed” to “believe a police officer over other

witnesses.”

The trial court also conducted an individual voir dire of

prospective juror Heizer. Heizer stated that he did think

that police officers could lie and make mistakes and that he

would not “automatically believe a police officer simply

because he or she were a police officer.” Heizer also stated

that he “would listen to all the evidence from every witness

that took the stand and any other evidence presented, and

consider that all together before [he] reached a verdict.”

Finally, Heizer stated that he “would not believe a police

officer because he was a police officer” but that “all other

things being equal, and you have two people that have

different testimonies, [he] would probably lean toward the

police officer simply because [he] would hope that most police

officers, it’s their job to be impartial.” The trial court

struck prospective juror Dettre for cause but did not strike

prospective jurors Finch and Heizer for cause, even over

Thomas’ motion to strike all three.

The Commonwealth’s first witness, Major Brian Roberts,

Jr. (“Major Roberts”) of the Brunswick County Sheriff’s

Office, testified that, in response to a “missing persons”

report, he went to the residence of William David Thomas

(“William” or “the victim” or “father”). Major Roberts

8
testified that “[w]hen [he] first pulled into the driveway,

[he] had [his] window down, and there was a horrific odor,

like a rotting odor.”

Two other sheriff’s deputies were already on the scene,

and Major Roberts testified that all three of them went into

William’s house and again stated that “there was a very

stagnant odor in the air” but that he “couldn’t really find

out where that odor was” because “[i]t was so bad, you

couldn’t really draw a conclusion of where it was coming

from.” When Major Roberts entered William’s residence, he saw

“what appeared to be some blood droplets, bloodstains on the

stairwell” and also some blood staining in the living room

area and in the bathtub. Major Roberts testified that when he

went upstairs to William’s bedroom “it appeared to be a lot of

blood there” that “appeared it had been smeared, possibly

attempted to be cleaned up” with “some footprints or shoe

prints in what appeared to be blood staining upstairs in the

bedroom.” After searching the house for William, Major

Roberts testified that he and the other two deputies moved

their search “out on the curtilage; so the surrounding yard,

the outbuildings.”

Major Roberts testified that while he was searching for

William, he walked by a shed that “appeared to be like a

chicken coop” and that “a big swarm of green flies c[a]me from

9
that building.” In his experience and training, Major Roberts

testified that he “knew that was the end result of maggots.”

Major Roberts described that the shed “had a cinder block

propped up against the outside of the door as if it was to

keep it closed” and “[t]here were some items that were kind of

blocking the door. They were positioned to keep you from

seeing into the door, is what it appeared to be.” After

removing a “blue like insulation” and “a big, black, plastic-

looking thing that looked like a fender well,” Major Roberts

testified that there was “immediately . . . a huge pool of

maggots and what appeared to be a human head.”

Major Roberts testified that “[o]ne of the deputies, when

we removed the items, started dry heaving” and that “[i]t was

quite a horrific scene.” Due to the body being “horribly

decomposed,” Major Roberts testified that he and the other

deputies were not able to identify the body right away but

that “[t]hrough dental records, the medical examiner’s office”

positively identified the victim as William.

The Commonwealth’s Attorney asked Major Roberts about “a

series of pictures” from the scene where William’s body was

found. The photographs illustrated different angles and shots

of the shed and the victim’s body in the shed, which Major

Roberts described in his testimony. When the Commonwealth’s

Attorney moved for the admission of these photographs into

10
evidence, Thomas’ attorney did not object to their admission,

but then stated “[y]our Honor, I say no objection, but the

matter was ruled on pretrial.” The trial court admitted all

the photographs into evidence as Commonwealth’s exhibits 1-4.

Captain Kent Washburn (“Captain Washburn”) 3 of the

Brunswick County Sheriff’s Office corroborated Major Roberts’

testimony that there were bloodstains throughout the victim’s

residence and that the bloodstains “got heavier as [he] went

up the stairs . . . and in the bedroom there was a lot of dry

blood all over the room.” Captain Washburn also testified

that “fairly close to the [victim’s] residence” there was a

“well house” that appeared to have “bloodstains on the

outside.” When Captain Washburn “pulled up” the rope in the

“well house” there was “a five-gallon bucket, and in the

bucket, was what appeared to have . . . a badly-stained shirt

that appeared to have been blood on it. In the chest area was

a hole.”

Trooper Steven Kean (“Trooper Kean”), a member of the

Virginia State Police Search and Recovery Dive Team, testified

that he responded with the dive team to the victim’s home

3
Captain Kent Washburn was referred to in the Thomas and
Avent records as both “Captain Washburn” and “Lt. Washburn.”
For the purpose of consistency, we will refer to him as
“Captain Washburn” in both this opinion and in Avent v.
Commonwealth, 279 Va. ___, ___ S.E.2d ___ (2010) (this day
decided).

11
where he spoke with Captain Washburn who informed him that the

Brunswick County Sheriff’s Department was “currently

investigating a murder that had happened.” The dive team

recovered a “fitted sheet, the blanket, a piece of metal that

was wrapped up in [the blanket,] . . . a green towel, a

striped towel, and part of a Winchester gun.”

Dr. Bill Gormley (“Dr. Gormley”), a forensic pathologist

and medical doctor, supervised the autopsy of William’s body.

Dr. Gormley testified that William’s “cause of death is

certified as blunt force injury to the head,” that “there was

extensive damage to particularly the head,” and that the

victim’s “upper jaw was broken.” Dr. Gormley also testified

that the victim had numerous shotgun pellet wounds but that

“[n]o vital structures were damaged by [the] shotgun wound[s]”

and that the shotgun wounds “together are potentially

survivable.” In his testimony, Dr. Gormley used a

“PowerPoint” presentation that included numerous pictures from

the autopsy. The trial court admitted the “PowerPoint”

presentation with all the autopsy photographs into evidence,

and Thomas’ attorney did not object other than to remind the

trial court of his pretrial objections.

Major Roberts testified that two suspects developed:

Thomas – the victim’s daughter – and Avent, Thomas’ boyfriend.

Captain Washburn testified that he was not able to locate

12
Thomas and Avent in Brunswick County, but that he “received a

Crime Solvers tip” that Thomas, Avent, and Thomas’ three

children were in Kayenta, Arizona. Captain Washburn contacted

the Kayenta Police Department, which confirmed that Thomas,

Avent, and Thomas’ three children were in fact in Kayenta,

Arizona. Major Roberts and Captain Washburn then flew to

Arizona to meet with Thomas and Avent, both of whom were being

held in the Navajo County jail.

Major Roberts testified that he interviewed Thomas on

September 3rd and 4th of 2005. After Thomas waived her

Miranda rights, she gave Major Roberts a series of statements

over the two days that she was interviewed. Thomas gave Major

Roberts several written statements and Major Roberts audio

recorded two interviews with Thomas. The trial court admitted

the written statements and the audio recordings of Thomas’

interview into evidence. Thomas did not object to the written

statements or audio recordings being admitted into evidence or

to the audiotapes being played for the jury.

When Major Roberts first interviewed Thomas, she told

Major Roberts that she first learned of her father’s death

when she was arrested and that she did not ask how he died.

However, Major Roberts testified that he confronted Thomas

with information which indicated Thomas was lying about

knowing when her father died. Thomas objected to this line of

13
questioning and argued that unrecorded statements should not

be admitted into evidence. The trial court overruled Thomas’

objection, and allowed Major Roberts to continue his

testimony.

Major Roberts stated that Thomas admitted to him that

Avent’s sister “Cassandra” called Avent on August 18th “and

told him about the death of [Thomas’] father while [she and

Avent] were in Arizona.” When it became apparent that Major

Roberts was reciting what Thomas told him that Avent had told

her, Thomas objected. After a proffer outside the presence of

the jury, the trial court asked counsel to state the basis of

the objection. Counsel stated: “As to getting into any

statement made by Cardell Avent.” Counsel further stated, “and

I cannot cross-examine Cardell Avent.” The trial court

overruled the objection stating, “I don’t see any hearsay in

there . . . The description of the man isn’t being used to

prove the truth of it; the rest of it isn’t being used to

prove the truth of the statement. It’s simply a response from

Cardell Avent to her inquiry.” Major Roberts testified that

Thomas told him she had confronted Avent and asked him if he

“had anything to do with it.” Thomas told Major Roberts that

Avent said “that David, being her father, was a piece of shit,

that he took care of it, but he never said, yes, he did it.

But she state[d], But I thought he could have killed him.”

14
 In Thomas’ statements to Major Roberts, she admitted that

on August 9, 2005, she went to her father’s residence with

Avent to obtain several of her “welfare checks” that were at

her father’s house. Thomas stated that she and Avent entered

William’s residence together through the backdoor of the

residence. Thomas acknowledged that she and Avent did not

have permission to be in William’s home and that her father

did not “let [her] or [Avent] into his house on August 9,

2005.”

In one of Thomas’ written statements, 4 she acknowledged

that after she entered her father’s home, she

asked [her] dad for [her] checks he refused.
[Avent] then pulled o[ut] a gun and made [her]
dad go upstairs to get them. [Her] dad gave
[her] the checks and him and [Avent] started
arguing. [She] was at the top of the stairs and
[Avent] shot him once. [She] got scared.
[Avent] was yelling at [her] telling [her] he
would kill [her] too. [Avent] was hitting [her]
dad in the face with the gun. [Avent] told [her]
to check on the kids in the car and when [she]
came back into the house [her] dad’s body was
gone. [Avent] had moved his body. [Avent] told
[her] to get [] cleaning supplies out of the
kitchen. [She] gave them to [Avent] and he
cleaned up most of the blood. [Avent] was
running and throwing things in the well. [Avent]
made [her] get a blue [and] white blanket and put
it in the well. After that [she and Avent] left.

4
Thomas gave several written statements to the police,
which contain numerous grammatical and spelling errors;
therefore, to avoid confusion, these errors have not been
denoted using “[sic].”

15
Thomas supplemented her written statement with written answers

to numerous written questions Major Roberts asked her. In

those written answers, Thomas further stated that

[she] did not see the gun until [her] father
met [her and Avent] at the steps and [she]
asked for [her] checks and [William] said “NO”
and then [Avent] pushed [her] aside and pulled
out the gun and told [her] daddy to go get the
checks, then [she and Avent] followed daddy up
the steps to his bedroom and he got the checks
from a desk or dresser behind his bed and he
gave the checks to [Avent] and [Avent] gave
them to [her] and [she] backed up to the top of
the steps and [Avent] and daddy got to arguing
. . . [Avent] shot [her] daddy one time and
daddy fell beside the bed and [Avent] was on
top of him and hitting [her] dad in the head
and [Avent] hit him about 10 times at the most
and it last for a couple of minutes then
[Avent] told [her] to go check on the kids.
When [she] went back into the house [her] dad’s
body was gone and [Avent] told [her] to get the
cleaning supplies, then [she and Avent] started
cleaning up, but [she] could not do much,
because [she] got sick. [Avent] was running in
and out of the house getting stuff and putting
it in the well. [Avent] made [her] put the
blue [and] white checkered blanket and put it
in the well. Then [she and Avent] left.

Throughout her statements, Thomas also maintained that she did

not “see” that Avent had a gun until Avent had drawn the gun

on William after William refused to give Thomas her checks.

Thomas also described Avent’s gun to Major Roberts as “a sawed

off shotgun” that was “a single barrel,” even though she only

saw the gun “one time” and also added that the gun “had duc[t]

tape” on it which is why she “knew it was a single barrel.”

16
 Thomas was asked if she “put [her] father in a shed after

he was killed and shut the shed door,” and Thomas responded,

“[n]o, only [Avent] could have done it.” Thomas also told

Major Roberts that she drove the car from her father’s

residence and that she, Avent, and her children drove to a

grocery store in North Carolina to cash the checks she

obtained from her father. Before Thomas went into the grocery

store, she changed clothes, then had “a woman named Jean” cash

“one check.” Thomas told Major Roberts that she then met John

Bass in Roanoke Rapids, North Carolina “and gave him the other

checks to be cashed.” Thomas stated that she, Avent, and her

children then drove to Arizona. When asked in a written

question why she did not call the police, Thomas wrote that

Avent “told [her] he would kill [her] if [she] told anybody.”

While Thomas told the police Avent threatened her, she

testified at trial that she did not go to the police or seek

help because Avent threatened her and her children, and

several of the Commonwealth’s witnesses offered testimony

demonstrating that Thomas had numerous opportunities to call

the police or get help if she had so desired. Jean Chaney,

who works in customer service at a grocery store, cashed one

of Thomas’ checks on the day in question, and she testified

that Thomas came into the grocery store alone. Sharon Parish,

who lived in Arizona and with whom Thomas, Avent, and Thomas’

17
children lived in Arizona, testified that the police station

was about a quarter of a mile from their house, that Avent

left Thomas and her children for two days while he went to

work, and that Thomas and her children went with Sharon Parish

at least once to a Wal-Mart without Avent. Finally, John

Bass, who used to date Thomas, testified that he met Thomas on

the day in question at a fast food restaurant, then took

Thomas to a bank to get a check cashed, which took about 10 to

15 minutes. John Bass also stated that Thomas never asked him

to call the police for her.

The Commonwealth also presented several witnesses, each

of whom was either family or friends of Thomas, who testified

that prior to the day in question, Thomas told them she wished

her father was dead, that she hated him, that she would kill

her father by poisoning him with rat poison or by shooting

him, that “either she could do it, or she could get someone

else to do it,” and that she discussed several unsolved

murders that occurred in Brunswick County. Page Barham,

Thomas’ cousin, testified that Thomas told her that on a prior

occasion she broke into her father’s residence “and she shot

at him, and it hit the pillow.” John Bass testified that on

August 9, 2005, the day of the murder, Thomas told him she had

a “scuffle” with her father and that “she was running with a

18
warrant on her.” Thomas’ attorney did not object to this

testimony.

At the close of the Commonwealth’s case-in-chief, Thomas

moved to strike the evidence against her. Thomas argued: (i)

there was insufficient evidence to find her guilty of murder

as a principal in the second degree because there was no

evidence that she encouraged or incited the principal in the

first degree or that she shared an intent to kill with the

principal in the first degree; (ii) there was insufficient

evidence to find concert of action; (iii) there was

insufficient evidence that Thomas possessed a firearm in the

commission of a felony; and (iv) her case should proceed on a

charge of accessory after the fact. The trial court denied

Thomas’ motion to strike.

Thomas testified on her own behalf. She addressed the

comments she had made about wishing her father were dead and

that she hated him by stating that she and her father had

problems but that she did not “know one daughter that doesn’t

get mad at her dad or mom or guardian at one point of her life

or another.” As to the day in question, Thomas testified that

she went with Avent and her three children to her father’s

house to “get some child support checks that [William] had.”

Before arriving at her father’s house, Thomas testified that

she stopped by Avent’s mother’s house and Avent “put a duffle

19
bag in [her] trunk” but she did not see what was in the

“duffle bag.” Thomas maintained during her testimony that she

did not “see” a gun in Avent’s possession.

Thomas admitted to entering her father’s home and that an

argument ensued between her and her father. She testified at

trial that Avent then “came up behind [her] and kind of pushed

[her] out of the way” and “pull[ed] a gun . . . [f]rom his

pants.” According to Thomas, Avent “told [her] dad to get the

‘F’ up the stairs” to get Thomas’ checks. Thomas and Avent

followed William upstairs to his bedroom where William got

Thomas’ checks. Thomas testified that she then turned to go

back down the stairs and she “heard the shotgun go off” one

time and that she then went back “in the hallway” and Avent

was standing over William “hitting him.” Specifically, Thomas

testified that Avent was hitting William in the head with the

gun.

Thomas testified that she got “upset, really hysterical”

and that Avent told her “to shut the ‘F’ up, or [she] would be

next” and for her to “go check on the kids.” Thomas then left

her father’s house, and went to her car to check on her

children, and then moved the car “beside [her] father’s truck

which was behind the shed.” After staying in the car “about

ten minutes,” Thomas testified that Avent was “cleaning up”

and that he told her to get “two bottles of ammonia or bleach

20
and to go up the steps with them” and then he again threatened

Thomas and her children. Thomas then testified that she

helped Avent “clean up,” and that she followed Avent’s

instructions by throwing a blue and white comforter “in the

well.”

The following colloquy occurred between the

Commonwealth’s Attorney and Thomas during Thomas’ cross-

examination:

Q Having just seen your father shot and
bludgeoned to death, why didn’t you just drive
out of the driveway with your three kids in the
car, go to the police station?
A At that time, I wasn’t thinking very
clearly. I had just witnessed the worst thing
I had ever seen in my life. I also had a
choice to make.
Q What choice did you have to make?
A To put my kids’ life in danger and my life
in danger.
Q You thought they would be less in danger
there with this man who had just bludgeoned
your father and shot him; is that what you
thought?
A No. At the time, I wasn’t thinking very
clearly at all.

While Thomas testified that she “was under constant threats

from” Avent, during cross-examination the Commonwealth’s

Attorney asked her when she was taken into custody in Arizona

if,

at that point, you said, Oh, thank God, I have
finally been saved from this. Let me tell you
what happened. [Avent] has been threatening me
for three weeks. Is that what you said?
A No.

21
 Q But they were Arizona Officers. How about
when Kent Washburn came, the man who had known
you all your life? How about when he came and
asked you; you told him that, right? You said,
Kent, I am so glad to see you. Let me tell you
what happened. This man has been threatening
me. Thank God you got my kids out of that
situation?

. . . .

A No.

At the close of all the evidence, Thomas renewed her

motion to strike for the same reasons given in her first

motion to strike. The trial court again denied Thomas’ motion

to strike. Following discussion and argument about jury

instructions, the trial court overruled Thomas’ objections to

the jury instructions on malice, inference of intent to cause

the natural and probable consequences of an act, and flight

and gave the jury instructions proffered by the Commonwealth.

Both the Commonwealth and Thomas presented closing

arguments to the jury. In the Commonwealth’s closing

argument, the Commonwealth made a reference to warrants that

the victim had “out on” Thomas and that due to those warrants,

Thomas did not have permission to be at her father’s

residence. Thomas did not object to these comments.

The case was submitted to the jury after closing

arguments, and the jury returned a guilty verdict for both

22
first degree murder and use of a firearm in the commission of

a felony.

C. Thomas’ Appeal

Thomas appealed her conviction to the Court of Appeals,

which denied Thomas’ appeal by a per curiam order, Thomas v.

Commonwealth, Rec. No. 0202-08-2 (Dec. 16, 2008), which was

affirmed by a three-judge panel order, Thomas v. Commonwealth,

Rec. No. 0202-08-2 (Feb. 17, 2008). Thomas timely appealed to

this Court, and we granted her appeal on 15 assignments of

error:

1. The Court of Appeals and the Trial Court erred in
ruling that Defense Motions in Limine numbered nine and ten,
and the Defense Ex Parte Motion pursuant to § 19.2-389, Code
of Va., regarding criminal record checks, including juvenile
criminal records, of prospective Commonwealth witnesses were
not required to be furnished to the Defense by the
Commonwealth and also in denying the Defense the ability to
question such witnesses as to juvenile convictions of felonies
or moral turpitude misdemeanors for general impeachment
purposes because the 5th Amendment due process guarantee, 6th
Amendment right of confrontation and effective assistance of
counsel guarantees, and 14th Amendment, as well as similar
provisions of the Virginia Constitution, trump any preference
for confidentiality of juvenile records.

2. The Court of Appeals and the Trial Court erred in
overruling the Defense Motion to Strike at the conclusion of
the Commonwealth’s Case-in-Chief, the Defense Motion to Strike
at the conclusion of all the evidence, the Defense Motion to
Set Aside the Verdict, and in granting principal in the second
degree and concert of action jury instructions over Defense
objection, because the evidence was insufficient to convict
Defendant of first degree murder under § 18.2-32, and of use
of firearm/murder under § 18.2-53.1, Code of Va.

3. The Court of Appeals and the Trial Court erred in
overruling the Defense Motion at the conclusion of the

23
Commonwealth’s Case-in-Chief to allow the case to proceed on
an accessory after the fact murder theory and in refusing to
grant a requested Defense instruction on that theory because
the plain language of Va. Code § 19.2-286 and Supreme Court of
Virginia Rule 3A:17(c), as well as the legislative history
behind Code § 19.2-286, would plainly require a submission in
the instant case to the jury on an accessory after the fact
theory of liability and because the end result was
inconsistent with Appellant’s right to a fair trial.

4. The Court of Appeals and the Trial Court erred in
denying the Defense Motion to Quash or Dismiss Indictment and
in granting, over Defense objection, jury instructions
permitting an inference of malice because the law as stated in
these jury instructions unlawfully permits a conviction to be
had based upon a presumption rather than proof and unlawfully
shifts the burden of proof to an accused and are
unconstitutional.

5. The Court of Appeals and the Trial Court erred in
disallowing Defense proposed voir dire questions numbered 17
and 28 because the same were within Code of Va. § 8.01-358,
Virginia Supreme Court Rule 3A:14, and resulted in a denial of
due process, equal protection, effective assistance of
counsel, and trial by impartial jury in violation of the 5th,
6th, and 14th Amendments of the U.S. Constitution and the
equivalent guarantees of the Virginia Constitution.

6. The Court of Appeals and the Trial Court erred in
overruling the Defense Motions to Strike for Cause prospective
jurors David Heizer and Lois Finch because bias in favor of a
government witness is grounds for a challenge for cause; and
juror bias, whether presumed or proven, requires automatic
reversal; and for the same grounds as set forth in number 5,
supra.

7. The Court of Appeals and the Trial Court erred in
denying the Defense [request] to refer to punishment ranges as
to offenses in voir dire questioning of prospective jurors or
in opening or closing argument because neither the Defense nor
Prosecution could effectively screen prospective jurors for
peremptory or for cause challenges and for the same
constitutional grounds as set forth in numbers 5 and 6, supra.

8. The Court of Appeals and the Trial Court erred in
overruling the Defense objection to the jury instruction
regarding natural and probable consequences of one’s acts.

24
The inference in such jury instruction eliminates the burden
of proof on the Commonwealth to prove every element of an
offense beyond a reasonable doubt, and unconstitutionally
shifts the burden of proof regarding a defendant’s criminal
intent.

9. The Court of Appeals and the Trial Court erred in
overruling the Defense objection to the flight instruction
and, after deciding to give that instruction, in denying the
proffered flight instruction from the Defense because the
granting of the proposed Commonwealth flight jury instruction
was an improper comment on the evidence, drew specific
attention to something in evidence, amounted to the functional
equivalent of a directed verdict, and unconstitutionally
shifted the burden of proof regarding a defendant’s criminal
intent.

10. The Court of Appeals and the Trial Court erred in
overruling the Defense objection to the testimony of Officer
Brian Roberts as to incriminating statements allegedly made by
defendant not within the three written statements or two audio
recorded statements furnished by defendant to the police
authorities because mitigating or exculpatory portions of
statements made by defendant outside the three written
statements and two recorded statements did not come into
evidence along with the selected portions of such statements
being testified to by Officer Roberts, the end result being a
fundamental unfairness in trial.

11. The Court of Appeals and the Trial Court erred in
denying the Defense request for the assistance of a private
investigator because the same resulted in a denial of the 5th,
6th, and 14th Amendments guarantees of the U.S. Constitution
and equivalent guarantees of the Virginia Constitution and Va.
Code 10.2-163 [sic]. 5

12. The Court of Appeals and the Trial Court erred in
not sustaining the Defense request for a pre-trial ruling
prohibiting the Commonwealth from using in the jury’s presence
the word “murder” other than in argument, as the same is
conclusive, argumentative, should be properly restricted to
only opening or closing arguments, [and] was the ultimate
issue with such testimony invading the province of the jury,
resulting in fundamental unfairness of the trial.

5
We note there is no Code § 10.2-163.

25
 13. The Court of Appeals and the Trial Court erred in
allowing the Commonwealth to display to the jury and introduce
into evidence autopsy photographs of the deceased and
photographs portraying the condition of the body of the
deceased because the prejudicial effect of displaying such
photographs outweighed the probative value.

14. The Court of Appeals and the Trial Court erred by
allowing statements attributed to the co-defendant, Cardell
Avent, into evidence over Defense objection which tended to
incriminate or inculpate defendant because the same violated
the pre-trial ruling regarding same and resulted in a
violation of 5th Amendment due process, 6th Amendment right of
confrontation, 14th Amendment, and the equivalent guarantees
of the Virginia Constitution.

15. The Court of Appeals and the Trial Court erred in
allowing the introduction into evidence by the Commonwealth in
its Case-in-Chief and in its first closing argument of an
alleged previous assault or assault and battery by appellant
against the deceased because the prejudicial effect of this
testimony and this argument outweighed its probative value and
the same resulted in a violation of 5th Amendment due process,
6th Amendment right of confrontation and effective assistance
of counsel, 14th Amendment, and the equivalent guarantees of
the Virginia Constitution.

II. Analysis

A. Disclosure of Criminal Records of Commonwealth Witnesses

Thomas sought pretrial disclosure by the Commonwealth of

the criminal records of several witnesses for the

Commonwealth, including both adult and juvenile records. She

acknowledges that Virginia law does not permit use of

juvenile adjudications for the purpose of general impeachment

of a witness’ veracity on cross-examination, but she

maintains that this Court should reconsider the question and

hold that it was error in this case not to permit such use.

26
Code § 19.2-269 provides: “A person convicted of a felony or

perjury shall not be incompetent to testify, but the fact of

conviction may be shown in evidence to affect his credit.”

However, in Kiracofe v. Commonwealth, 198 Va. 833, 844-45, 97

S.E.2d 14, 22 (1957), noting the unique status of a juvenile

adjudication, we held that the trial court did not err in

refusing to allow a juvenile adjudication to be used to

impeach the general credibility of a witness. In the decades

since Kiracofe, the United States Supreme Court has held that

the Confrontation Clause requires that where pending juvenile

proceedings support a defendant’s specific effort to show

bias or motivation of a prosecution witness to give testimony

favorable to the government in a particular case, the policy

of privacy for juvenile records must give way to the need for

effective cross-examination to show the bias of the witness.

Davis v. Alaska, 415 U.S. 308, 320 (1974)). “[A] criminal

defendant states a violation of the Confrontation Clause by

showing that he was prohibited from engaging in otherwise

appropriate cross-examination designed to show a prototypical

form of bias on the part of the witness.” Delaware v. Van

Arsdall, 475 U.S. 673, 680 (1986). However, with respect to

general conviction impeachment, not intertwined with an

effort by the defendant to show bias of a witness in the

particular case based upon the circumstances of pending

27
juvenile proceedings, the Confrontation Clause does not

require disclosure or admission of juvenile records, 6 and we

are not persuaded that a change in our jurisprudence is

necessary on this subject and take this opportunity to

reaffirm that juvenile adjudications may not be used for

impeachment of a witness on the subject of general

credibility.

Review of Thomas’ several motions in limine relating to

juvenile records demonstrates that she sought juvenile

records as part of general impeachment preparations; bias or

motivation was never identified as a justification.

6
See Davis v. Alaska, 415 U.S. 308, 321 (1974) (Stewart,
J., concurring) (“The Court neither holds nor suggests that
the Constitution confers a right in every case to impeach the
general credibility of a witness through cross-examination
about his past delinquency adjudications or criminal
convictions”). “The Sixth Amendment does not require the
trial court to permit impeachment with juvenile adjudications
unless they can be used to establish bias, not merely to
challenge general credibility.” Tabron v. United States, 410
A.2d 209, 212 (D.C. 1979); Reid v. State, 888 A.2d 232, ¶¶ 16-
18 (Del. 2005) (Table Case). See generally Charles Alan
Wright and Victor James Gold, FEDERAL PRACTICE & PROCEDURE
§ 6138 (“courts have been reluctant to extend [Davis v.
Alaska] to justify admitting juvenile adjudications offered to
impeach [generally]. It makes some sense to draw such a
distinction between juvenile-adjudication evidence offered to
impeach for bias and such evidence offered to impeach [which]
undermines credibility only indirectly by showing a criminal
character and, thus, a propensity which is only generally
linked to truthfulness. On the other hand, bias evidence
shows the witness has a motive to lie in the specific case.
Thus, evidence offered to impeach . . . is less likely to do
'serious damage' to the prosecution’s case than is bias
evidence.”)

28
Consequently, it is not necessary to address the production

of such records where a bias-related purpose is shown.

Thomas also contends that she should have been provided

the adult records of several of the Commonwealth’s witnesses

pursuant to Code § 19.2-389(38), which in pertinent part

provides:

Upon an ex parte motion of a defendant in a
felony case and upon the showing that the
records requested may be relevant to such case,
the court shall enter an order requiring the
Central Criminal Records Exchange to furnish
the defendant . . . copies of any records of
persons designated in the order on whom a
report has been made under the provisions of
this chapter.

In this case, Thomas has not identified in the trial

court or on this appeal any prejudice allegedly flowing from

the trial court’s refusal to require production of these

records; consequently, any error in such ruling would be

harmless as a matter of law. Zektaw v. Commonwealth, 278 Va.

127, 139-40, 677 S.E.2d 49, 56 (2009); Pitt v. Commonwealth,

260 Va. 692, 695, 539 S.E.2d 77, 78 (2000).

B. Sufficiency of the Evidence

When examining a challenge to the sufficiency of the

evidence, an appellate court must review the evidence in the

light most favorable to the prevailing party at trial and

consider any reasonable inferences from the facts proved.

Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538,

29
539 (2003). The judgment of the trial court is presumed to be

correct and will be reversed only upon a showing that it is

“plainly wrong or without evidence to support it.” Viney v.

Commonwealth, 269 Va. 296, 299, 609 S.E. 2d 26, 28 (2005),

Code § 8.01-680; Jackson v. Commonwealth, 267 Va. 178, 204,

590 S.E.2d 520, 535 (2004).

Code § 18.2-18 provides that, in the case of every felony

(with the exception of certain murders), a principal in the

second degree “may be indicted, tried, convicted and punished

in all respects as if a principal in the first degree.”

A principal in the first degree is the actual
perpetrator of the crime. A principal in the
second degree, or an aider or abettor as he is
sometimes termed, is one who is present,
actually or constructively, assisting the
perpetrator in the commission of the crime.
In order to make a person a principal in the
second degree actual participation in the
commission of the crime is not necessary. The
test is whether or not he was encouraging,
inciting, or in some manner offering aid in
the commission of the crime. If he was
present lending countenance, or otherwise
aiding while another did the act, he is an
aider and abettor or principal in the second
degree.

Muhammad v. Commonwealth, 269 Va. 451, 482, 619 S.E.2d 16, 33

(2005) (quoting Jones v. Commonwealth, 208 Va. 370, 372-73,

157 S.E.2d 907, 909 (1967)). “[P]roof that a person is

present at the commission of a crime without disapproving or

opposing it, is evidence from which, in connection with other

30
circumstances, it is competent for the jury to infer that he

assented thereto, lent to it his countenance and approval, and

was thereby aiding and abetting the same.” Foster v.

Commonwealth, 179 Va. 96, 100, 18 S.E.2d 314, 316 (1942).

Additionally, as we recently held in McMorris v. Commonwealth:

It is a well-settled rule that a
defendant is guilty as a principal in the
second degree if he is guilty of some overt
act done knowingly in furtherance of the
commission of the crime, or if he shared in
the criminal intent of the principal
committing the crime. This rule cannot be
interpreted to mean that any overt act that is
advantageous to the principal’s criminal plan
is sufficient; the defendant must also share
in the principal’s criminal intent. The overt
act must be “knowingly in furtherance of the
commission of the crime.” Therefore, lack of
intent is usually a defense to a conviction as
a principal in the second degree. The one
exception exists when there was concert of
action and the resulting crime, whether such
crime was originally contemplated or not, is a
natural and probable consequence of the
intended wrongful act.

276 Va. 500, 505-06, 666 S.E.2d 348, 351 (2008) (citations

omitted).

Defining concert of action in Brown v. Commonwealth, 130

Va. 733, 738, 107 S.E. 809, 811 (1921), we stated: “All those

who assemble themselves together with an intent to commit a

wrongful act, the execution whereof makes probable, in the

nature of things, a crime not specifically designed, but

incidental to that which was the object of the confederacy,

31
are responsible for such incidental crime. . . . Hence, it is

not necessary that the crime should be a part of the original

design; it is enough if it be one of the incidental probable

consequences of the execution of that design, and should

appear at the moment to one of the participants to be

expedient for the common purpose.” And in Carter v.

Commonwealth, 232 Va. 122, 126, 348 S.E.2d 265, 267-68 (1986),

we held:

The Commonwealth’s failure to prove that [the
defendant] had advance knowledge of his co-
actor’s possession of a firearm is immaterial.
The evidence warrants the inference that he
was one of four men, acting in concert, who
decided to rob [the victim]; that they
followed him, surrounded him, and accosted
him; that it then appeared to at least one of
them that shooting [the victim] would be
expedient for their common purpose, and that
the shooting was done as an incident of that
common purpose. In these circumstances, each
co-actor is criminally responsible for the
shooting, even those who did not intend it or
anticipate that it would occur. Because they
shared the common intent to rob, they shared
the common intent to commit all of the
elements of robbery, including the use of such
force, violence, or intimidation as would be
expedient for the accomplishment of their
purpose. An incidental probable consequence
of such a shared intent was the use of a
weapon, including a firearm if one should be
at hand. In such circumstances, the law is
well settled in Virginia that each co-actor is
responsible for the acts of the others, and
may not interpose his personal lack of intent
as a defense.

32
 Thomas had expressed to others her hatred of her father

and her intent to kill him herself or to procure someone to do

it for her. The evidence revealed a prior occasion upon which

she fired a weapon at her father. She had been forbidden to

come to her father’s home; nonetheless, on the day of the

murder she and Avent arrived at the house and entered through

the back door without permission. They were intent upon

obtaining welfare checks for Thomas which were being held by

her father.

Thomas maintained that she did not know that Avent had a

weapon when they went into the back door without permission.

She testified that she and Avent had stopped at Avent’s

mother’s house before going to Thomas’s father’s house. Avent

put a duffle bag in the trunk of the automobile, but Thomas

maintained that she did not know what was in the duffle bag.

Upon entry to the home, an argument ensued regarding the

welfare checks and Thomas’ father refused to give her the

checks. She stated that at that time Avent pushed her aside

and pulled the weapon from his pants. The weapon was a sawed-

off shotgun. The jury was entitled to disbelieve Thomas’

assertion that she did not know Avent had a weapon when they

entered the home. The jury was entitled to conclude that it

was implausible that Thomas would not have seen Avent retrieve

the weapon from the duffle bag in the trunk, if that is how he

33
obtained it, or that she would not have known of a shotgun in

his pants, if that is how he transported it in the car and to

her father’s home.

Avent ordered William to go up the stairs to get Thomas’

checks. Both Avent and Thomas followed him up the stairs at

gunpoint. The jury was entitled to conclude that both Avent

and Thomas intended to force William to surrender the checks

by threat of violence or actual violence. Thomas was present

when the murder was committed and did not intervene. Expert

testimony established that William did not die from the

gunshot wound; rather, he died from a particularly vicious

beating with the sawed-off shotgun. The injuries were

horrific and the beating so savage that the weapon broke

apart. Thomas did nothing to intervene. Thereafter, she

assisted Avent in the disposal of the body and an attempt to

clean the crime scene and hide evidence.

Thomas claimed that she acted under duress. But the jury

was entitled to conclude that her failure to reveal the crime

or to flee Avent and inform the police when she had several

opportunities to do so, undermined any claim that she was

fearful of him.

Thomas’ shared intent to kill was demonstrated by several

statements made to acquaintances that she wished her father

were dead, would kill him herself or have someone else kill

34
him, and by her admission that she had attempted to shoot him.

Knowing that her father had forbidden her to come to his home

and that he would resist her efforts to obtain her welfare

checks, she and Avent entered the back door without

permission. It is reasonable to conclude that she knew there

would be a confrontation and that violence may result. Because

of inherent implausibility, the jury was entitled to

disbelieve her denial that she knew Avent had a sawed off

shotgun when they entered the home.

Even if there were a question about Thomas’ shared intent

to kill her father, a lack of shared intent is not a defense

to aiding and abetting liability when concert of action is

proved. Here there was sufficient evidence of concert of

action. Avent and Thomas arrived at her father’s home knowing

that they were forbidden to be there. They gained entrance

through the back door. They were intent upon forcing her

father to surrender the welfare checks. When he refused, they

pursued him up the stairs where he was shot and brutally

beaten. As in Carter, the violence, in this case the shooting

and beating, were “done as an incident of [a] common purpose.”

Thomas and Avent shared the intent to “use . . . such force,

violence, or intimidation as would be expedient for the

accomplishment of their purpose.” Id. at 126, 348 S.E.2d at

267. As in Carter, “[a]n incidental probable consequence of

35
such a shared intent was the use of a weapon, including a

firearm if one should be at hand. In such circumstances, the

law is well settled in Virginia that each co-actor is

responsible for the acts of the others, and may not interpose

. . . personal lack of intent as a defense.” Id.

The trial court did not err in holding that the evidence

was sufficient for the jury to find Thomas guilty of first

degree murder and use of a firearm in the commission of a

felony.

C. Accessory After the Fact Instruction

Thomas argues that the trial court erred in refusing to

allow her to proceed on the theory that she was an accessory

after the fact and refusing an instruction that would have

permitted the jury to make this finding.

In Commonwealth v. Dalton, 259 Va. 249, 255, 524 S.E.2d

860, 863 (2000) we analyzed both Code § 19.2-286 and Rule

3A:17(c) and concluded that “before a defendant can be tried

and convicted of being an accessory after the fact, he must be

charged with that offense. Unless such a charge is

specifically made, neither the Commonwealth nor an accused is

entitled to an accessory-after-the-fact instruction.” 259 Va.

at 255, 524 S.E.2d at 863. Accessory after the fact is not a

lesser included offense of murder. Id. at 254, 524 S.E.2d at

36
863. The trial court did not err in following the clear

holding in Dalton.

D. Jury Instructions Concerning Malice

Thomas argues that the Court of Appeals erred when it

affirmed the trial court’s denial of her pre-trial motion to

quash, the trial court’s denial of her jury instruction on

malice, and the trial court’s grant of jury instructions on an

inference of malice. While Thomas acknowledges that current

Virginia law entitles the Commonwealth to jury instructions on

an inference of malice, she argues that such an inference is

an unconstitutional presumption under Sandstrom v. Montana,

442 U.S. 510 (1970), and that giving the malice jury

instructions is reversible error.

We have previously addressed all of Thomas’ arguments

with regard to the constitutionality of instructing the jury

on an inference of malice in a murder case. See Strickler v.

Commonwealth, 241 Va. 482, 495-96, 404 S.E.2d 227, 235-36

(1991); Smith v. Commonwealth, 239 Va. 243, 263-64, 389 S.E.2d

871, 872 (1990). Specifically, we held constitutional in

Strickler jury instructions that stated, “that malice could be

‘inferred from any deliberate wilful [sic] and cruel act

against another, however sudden,’ ” and jury instructions that

stated a jury “ ‘may infer malice from the deliberate use of a

deadly weapon unless, from all the evidence, you have a

37
reasonable doubt as to whether malice existed.’ ” 241 Va. at

495-96, 404 S.E.2d at 235-36.

Here, the trial court granted three jury instructions on

malice. Instruction Number 9 read:

Malice is the state of mind which results
in the intentional doing of a wrongful act to
another without legal excuse or justification,
at a time when the mind of the actor is under
the control of reason. Malice may result from
any unlawful or unjustifiable motive including
anger, hatred or revenge. Malice may be
inferred from any deliberate willful and cruel
act against another, however sudden.

Instruction Number 10 read:

You may infer malice from the deliberate
use of a deadly weapon, unless, from all the
evidence, you have a reasonable doubt as to
whether malice existed.

A deadly weapon is any object or
instrument, not part of the human body, that is
likely to cause death or great bodily injury
because of the manner and under the
circumstances in which it is used.

Instruction Number 11 read:

Once the Commonwealth has proved there
was an unlawful killing, then you are entitled
to infer there was malice unless, from all the
evidence, you have a reasonable doubt as to
whether malice existed.

The trial court did not err in granting these jury

instructions. Instructions 9 and 10 are verbatim the

instructions we held in Strickler were constitutional and not

error to grant. 241 Va. at 495-96, 404 S.E.2d at 235-36.

38
Instruction 11 is within the holding of Hodge v. Commonwealth,

217 Va. 338, 344, 228 S.E.2d 692, 696 (1976), that an

“inference of malice arising from the commission of an

unlawful homicide is clothed with the due process safeguards

required” and that “the inference must be sufficient for a

rational juror to find the presumed or inferred fact beyond a

reasonable doubt.” Id. Furthermore, the trial court did not

err in denying Thomas’ pretrial motion to quash or dismiss

Thomas’ murder charge because the Commonwealth is entitled to

an inference on malice. See Strickler, 241 Va. at 495-96, 404

S.E.2d at 235-36; Smith, at 263-64, 389 S.E.2d at 882; Hodge,

217 Va. at 344, 228 S.E.2d at 696-97.

E. Defendant’s Proposed Voir Dire Questions

Thomas submitted a list of 29 proposed voir dire

questions. The trial court permitted Thomas to ask all but

two – numbers 17 and 28. The two excluded questions read:

17. Meloni Thomas has been indicted, which
indictment was based on evidence presented by
the Commonwealth alone and none by the Defense.
Does the existence of that indictment have any
effect on anyone’s opinion of the guilt or
innocence of Meloni Thomas? Would it cause
anyone in any way to doubt the presumption of
innocence the accused is afforded?

. . . .

28. If any one of you were my client, would
there be any reason you would not want yourself
on this jury?

39
The trial court permitted the statement at the outset of item

17 and allowed the second question posed within it, but

disallowed the first question. Thomas argues that the trial

court erred in excluding the first question in proposal 17,

and in excluding the proposed question in 28, because they

seek to probe a prospective juror’s interest or bias within

the scope of Code § 8.01-358.

We review a trial court’s decision to exclude voir dire

questions for an abuse of discretion. See Bassett v.

Commonwealth, 222 Va. 844, 853, 284 S.E.2d 844, 850 (1981). A

defendant has “no absolute right to have the court ask every

question he propounded.” Id. Code § 8.01-358, controlling

voir dire questions, states in relevant part:

The court and counsel for either party
shall have the right to examine under oath any
person who is called as a juror therein and
shall have the right to ask such person or
juror directly any relevant question to
ascertain whether he is related to either
party, or has any interest in the cause, or has
expressed or formed any opinion, or is sensible
of any bias or prejudice therein.

We have stated that

[t]rial courts must afford a party a “full
and fair” opportunity to ascertain whether
prospective jurors “stand indifferent in the
cause.” LeVasseur v. Commonwealth, 225 Va.
564, 581, 304 S.E.2d 644, 653 (1983), cert.
denied, 464 U.S. 1063 (1984). However, it is
within the trial court’s sound discretion to
decide when a defendant has had such an

40
 opportunity. Id., 304 S.E.2d at 653. . . . To
be permissible, counsel’s questions must be
relevant in that they are such as would
necessarily disclose or clearly lead to the
disclosure of relationship, interest, opinion,
or prejudice. See Code § 8.01-358. Where a
trial court affords ample opportunity to
counsel to ask relevant questions and where the
questions actually propounded by the trial
court were sufficient to preserve a defendant’s
right to trial by a fair and impartial jury, we
will generally not reverse a trial court’s
decision to limit or disallow certain questions
from defense counsel. See LeVasseur, 225 Va.
at 582, 304 S.E.2d at 653; Mackall v.
Commonwealth, 236 Va. 240, 251, 372 S.E.2d 759,
766 (1988), cert. denied, 492 U.S. 925 (1989).

Buchanan v. Commonwealth, 238 Va. 389, 401, 384 S.E.2d 757,

764 (1989).

That portion of proposed question 17 which was disallowed

was amply covered by other questions asked by the trial court,

such as:

Do you understand and can you agree with the principle,
one of the foundations of our laws, that the defendant is
presumed to be innocent?

Do you understand and can you agree with the principle in
our law that the Commonwealth must prove the defendant’s
guilt beyond a reasonable doubt?

The trial court therefore did not abuse its discretion in

refusing a portion of proposed voir dire question 17.

Proposed voir dire question 28 posed an open-ended

question to the prospective jurors likely to generate

speculative and irrelevant responses. “[T]rial courts are not

required to allow counsel to ask questions which are so

41
ambiguous as to render the answers meaningless.” Id.

Furthermore, the trial court amply addressed the issue in its

own questions:

Are you aware or sense any bias or prejudice either
against the Commonwealth or the accused?

Do anyone of you know of any reason whatsoever why you
cannot give a fair and impartial trial, both to the
Commonwealth and to the accused, Meloni Thomas, based
solely on the law which I will give you and the evidence
you will hear?

Therefore, the trial court did not abuse its discretion in

excluding Question 28.

F. The Trial Court’s Refusal to Strike Two Jurors for Cause

On appellate review, we give deference to
the trial court’s determination whether to
exclude a prospective juror, because the trial
court was able to see and hear each member of
the venire respond to the questions posed.
Thus, the trial court is in a superior position
to determine whether a juror’s responses during
voir dire indicate that the juror would be
prevented or impaired in performing the duties
of a juror as required by the court’s
instructions and the juror’s oath. Vinson v.
Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170,
176 (1999), cert. denied, 530 U.S. 1218 (2000);
Stewart v. Commonwealth, 245 Va. 222, 234, 427
S.E.2d 394, 402, cert. denied, 510 U.S. 848
(1993). A trial court’s decision on this issue
will not be disturbed on appeal absent a
showing that the trial court abused its
discretion. Vinson, 258 Va. at 467, 522 S.E.2d
at 176;, Roach, 251 Va. at 343, 468 S.E.2d at
109.

In conducting our review, we consider the
juror’s entire voir dire, not merely isolated
statements. Vinson, 258 Va. at 467, 522 S.E.2d

42
 at 176; Clagett, 252 Va. at 90, 472 S.E.2d at
269; Mackall v. Commonwealth, 236 Va. 240, 252,
372 S.E.2d 759, 767 (1988), cert. denied, 492
U.S. 925 (1989).

Lovitt v. Commonwealth, 260 Va. 497, 510-11, 537 S.E.2d 866,

875 (2000).

During voir dire, three prospective jurors raised their

hands in response to Thomas’ question, “[i]s there anyone who

would give greater weight to the testimony of a police officer

than to that of another witness or the accused simply because

of the officer’s official status.” The trial court carefully

questioned each of these three prospective jurors and both the

Commonwealth and Thomas were also allowed to further question

these prospective jurors on their responses. After further

questioning, the trial court struck one of the prospective

jurors for cause, but allowed prospective jurors Finch and

Heizer to stay in the jury pool. Thomas argues on appeal that

the trial court erred in not also striking Finch and Heizer

for cause as to their answers on the weight of an officer’s

testimony.

After reviewing the voir dire as a whole and without

repeating the specifics which are recited in “Section I” of

this opinion, we hold that the trial court did not err in

retaining prospective jurors Finch and Heizer in the jury

pool. Both Finch and Heizer were able to answer the trial

43
court’s questions and both attorneys’ questions in a manner

that demonstrated their ability to be fair and impartial

jurors. Therefore, we hold that the trial court did not abuse

its discretion in keeping Finch and Heizer in the jury pool

and not striking them for cause.

44
 G. Comment or Inquiry Regarding Range of Punishment in Voir
Dire or Opening Statements and Closing Arguments

Thomas argues that she could not “effectively screen

jurors for peremptory or for cause challenges” without

referring to the punishment ranges. However, we unequivocally

held in Commonwealth v. Hill, 264 Va. 315, 320, 568 S.E.2d

673, 676 (2002), that

neither the defendant nor the Commonwealth in a
non-capital criminal prosecution has a
constitutional or statutory right to ask the
members of a jury panel questions about the
range of punishment that may be imposed upon a
defendant if he is ultimately convicted of the
crimes charged or of lesser included offenses.

In a non-capital case, reference to statutory punishment

ranges is not relevant to the proper seating of a jury or to

any matters at issue in the guilt or innocence stage of a

felony proceeding in Virginia. Consequently, the trial did

not err in holding that Thomas could not refer to punishment

ranges in her voir dire of the jury or in opening statement or

closing argument in the guilt or innocence stage of the

proceedings.

H. Instruction Regarding Permissible Inference of a
Defendant’s Intent to Cause the
Natural Consequences of Their Acts

The jury was instructed that: “You may infer that every

person intends the natural and probable consequences of his

acts.” Thomas maintains that such an instruction “is the

45
functional equivalent of a directed verdict,” and “shifts the

burden of proof regarding a defendant’s criminal intent.”

We have previously addressed this question in Schmitt v.

Commonwealth, 262 Va. 127, 145, 547 S.E.2d 186, 198-99 (2001).

In Schmitt, we approved a jury instruction stating that “[i]t

is permissible to infer that every person intends the natural

and probable consequences of his or her acts” and that such an

inference “did not establish an improper presumption but

merely stated a permissive inference.” Id. We further

explained that “[u]nlike conclusive or burden shifting

presumptions regarding a defendant’s criminal intent, which

are constitutionally invalid, the present instruction did not

require the jurors to draw any inference or alter the

Commonwealth’s burden of proving [the defendant’s] criminal

intent beyond a reasonable doubt.” Id. at 145, 547 S.E.2d at

199.

Here, the concert of action instruction, Number 16, read:

“You may infer that every person intends the natural and

probable consequences of his acts.” This jury instruction is

almost identical to the jury instruction given in Schmitt.

Therefore, the trial court did not err in granting Instruction

Number 16 on concert of action and permissible inferences.

I. Instruction Regarding Flight

46
 The Commonwealth offered Instruction Number 19, which

read:

If a person leaves a place where a crime
was committed, or flees to avoid detection,
apprehension or arrest; this creates no
presumption that the person is guilty of having
committed the crime. However, it is a
circumstance which you may consider along with
the other evidence.

(Emphasis added.) Thomas’ proffered jury instruction on

flight, Instruction No. R-3, read:

If a person leaves a place where a crime
was committed, this creates no presumption that
the person is guilty of having committed the
crime. However, it is a circumstance which you
may consider along with the other evidence.
In your consideration of the evidence of
flight, you should consider that there may be
reasons for that which are fully consistent
with innocence. Those may include fear of
being apprehended, unwillingness to confront
police, reluctance to appear as a witness, or
being under duress or threat.

(Emphasis added.)

The trial court ultimately accepted the Commonwealth’s

instruction. During trial, Thomas’ attorney objected to the

Commonwealth’s flight instruction on the basis that

the model jury instruction on flight, which you
intend to give, my position would be it’s an
improper comment on the evidence. It’s drawing
attention to something specifically in
evidence, and it’s the functional equivalent of
a directed verdict. It shifts the burden of
proof regarding a defendant’s criminal intent.

47
On appeal, Thomas additionally argues that this Court held in

Turman v. Commonwealth, 276 Va. 558, 667 S.E.2d 767 (2008)

that the Model Jury Instruction on flight – that is utilized

in this case as well – was defective and therefore the trial

court committed reversible error in granting the instruction.

We held in Turman that the phrase “if a person leaves the

place where a crime was committed” is “overly broad” and

results in an incorrect statement of the law. 276 Va. at 563,

566, 667 S.E.2d at 771. However, in the present case Thomas’

proffered flight instruction contained the same phrase as both

the Commonwealth’s proffered flight instruction and the flight

instruction in Turman that was held to be error. The

defendant cannot be heard to complain about an error in an

instruction given that is also contained in the instruction

she proffered as an alternative. 7

7
See generally Breard v. Commonwealth, 248 Va. 68, 83-
84, 445 S.E.2d 670, 679 (1994) (relief on appeal not available
where the prosecution and defense’s “two instructions were
essentially identical”); Smith v. Commonwealth, 136 Va. 677,
682, 116 S.E. 246, 248 (1923) (even if “it would have been
proper” to grant a different instruction, where the trial
court did in substance what the defendant has requested in an
instruction, no reversible error is found); Gaines v.
Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003)
(“The defendant’s instruction was no more or less correct than
the instruction given”). See also McBride v. Commonwealth, 44
Va. App. 526m 530-31, 605 S.E.2d 773, 775 (2004) (reversal
will not follow where defendant’s own tendered instructions
invited the error raised on appeal); Levy v. Davis, 115 Va.
814, 820, 80 S.E. 791, 793 (1914).

48
 Furthermore, in Turman we observed that the “record is

simply devoid of more than a scintilla of evidence that Turman

left the victim’s apartment after the sexual acts had occurred

because he sought to avoid detection, apprehension, arrest, or

criminal prosecution.” Id. at 565, 667 S.E.2d at 771. By

contrast, this record is replete with evidence from which such

an inference of guilt may be drawn from flight. As we stated

in Anderson v. Commonwealth, 100 Va. 860, 863, 42 S.E. 865,

865 (1902):

When a suspected person attempts to escape or
evade a threatened prosecution, it may be
argued that he does so from consciousness of
guilt; and though the inference is by no means
strong enough by itself to warrant a
conviction, yet it may become one of a series
of circumstances from which guilt may be
inferred. An attempt to escape or evade
prosecution is not to be regarded as a part of
the res gestae, but only as a circumstance to
be considered by the jury along with the other
facts and circumstances tending to establish
the guilt of the accused. The nearer, however,
to the commission of the crime committed, the
more cogent would be the circumstance that the
suspected person attempted to escape, or to
evade prosecution, but it should be cautiously
considered, because it may be attributable to
a number of other reasons, than consciousness
of guilt.

See also Turman, 276 Va. at 564-65, 667 S.E.2d at 770.

J. Admission in Evidence of Thomas’ Oral
Statements to Police

In reviewing the admissibility of evidence, we apply an

abuse of discretion standard of review. Ortiz v.

49
Commonwealth, 276 Va. 705, 712, 667 S.E.2d 751, 756 (2008).

Thomas argues that the trial court erred in allowing Major

Roberts to testify about unrecorded statements Thomas made to

him while she was being interrogated. Thomas’ main objection

to the use of the unrecorded statements is that the jury was

not able to see or hear all the statements she made to the

police and in what context her statements were made.

Accordingly, Thomas argues that allowing Major Roberts to

testify about those unrecorded statements was fundamentally

unfair to her trial because, in addition to the statements

against her penal interest, Thomas also could have made

exculpatory or mitigating statements.

During Major Roberts’ testimony, Thomas’ attorney

conceded that the Commonwealth provided Thomas with Major

Roberts’ notes, which contained statements Thomas made to

police. When Thomas objected to Major Roberts testifying

about several unrecorded statements Thomas made to him during

his interrogation of her, Thomas did not proffer any testimony

about any statements Thomas made to Major Roberts that were

exculpatory or mitigating. Furthermore, Thomas testified on

her own behalf, and did not testify about any statements she

made to the police that were exculpatory or mitigating.

From the arguments made by Thomas, it is difficult to

discern the legal argument in support of her claim of error.

50
In any event, we are unable to reach the question because the

lack of proffers of what would have placed these statements in

context or what might have been exculpatory, makes it

impossible to determine if any alleged error was harmful.

O’Dell v. Commonwealth, 234 Va. 672, 697, 364 S.E.2d 491, 505

(1988).

K. Denial of Request for Private Investigator

Thomas argues that the trial court erred in denying her

request for a court-appointed private investigator to assist

her in “locating [the Commonwealth’s] witnesses for interview

by Defendant’s Counsel,” so that Thomas would “be able to

effectively confront the witnesses against her” and so that

her counsel could provide “effective assistance of counsel.”

We have long held that

a defendant does not have an absolute right to
the assistance of an investigator, even when
charged with capital murder. Bailey v.
Commonwealth, 259 Va. 723, 737, 529 S.E.2d 570,
578 (2000). Instead, as with any request for
the appointment of an expert, a defendant “must
show a particularized need” by establishing
“that the services of an expert would
materially assist him in the preparation of his
defense and that the denial of such services
would result in a fundamentally unfair trial.”
Husske v. Commonwealth, 252 Va. 203, 212-13,
476 S.E.2d 920, 925-26 (1996). The
determination whether a defendant has made an
adequate showing of particularized need for
expert assistance lies within the sound
discretion of the trial court. Id.; see also
Lenz v. Commonwealth, 261 Va. 451, 462, 544
S.E.2d 299, 305, cert. denied, 534 U.S. 1003

51
 (2001); Bailey, 259 Va. at 737, 529 S.E.2d at
578.

. . . .

A particularized need is more than a “mere
hope” that favorable evidence can be
obtained through the services of an
expert. Husske, 252 Va. at 212, 476 S.E.2d
at 925-26.

Green v. Commonwealth, 266 Va. 81, 91-92, 580 S.E.2d 834, 840-

41 (2003).

Thomas requested, as in Green, a court-appointed private

investigator to locate witnesses so that she could effectively

cross-examine those witnesses. As in Green, we hold that

Thomas’ request for the appointment of a private investigator

“fell ‘far short of demonstrating a particularized need for

the services of an expert.’ ” Id. at 92, 580 S.E.2d at 840-

41. Thomas had the advantage of knowing most of the

Commonwealth’s witnesses who would testify against her because

they were either her friends or family. Thomas’ attorney

could have located and interviewed these witnesses without the

need of a private investigator.

Recently, we restated the threshold requirements for

appointment of an investigator to assist the defendant. In

Dowdy v. Commonwealth, 278 Va. 577, 594-95, ___ S.E.2d ___,

___ (2009), we stated that the defendant “has the burden to

make a ‘particularized showing of the need’ for such

52
assistance” and that the sufficiency of such a showing “is

determined on a case-by-case basis, and the determination is a

matter resting within a trial court’s discretion.” Thomas’

request was generalized and not particularized. Id. at 595,

___ S.E.2d at ___. The trial court did not abuse its

discretion by denying the motion.

L. Use of the term “Murder” at Trial

Thomas argues that the trial court erred when it denied

her pre-trial motion requesting that the Commonwealth be

prohibited from using the word “murder” in the presence of the

jury because use of the word was “conclusive, argumentative”

and should have only been used in opening and closing

argument. This evidentiary question is reviewed for an abuse

of discretion. Ortiz, 276 Va. at 712, 667 S.E.2d at 756.

Thomas contends this became an issue at trial when

Trooper Kean from the state police search and recovery dive

team testified that when he arrived at the scene of the

incident “[Captain] Washburn . . . stated they were currently

investigating a murder that had happened.” Thomas argues that

allowing Trooper Kean to use the word “murder” resulted in a

fundamentally unfair trial and denied her due process of law.

The jury clearly knew that they were jurors at a murder

trial. The question at issue was whether Thomas had committed

the murder. The trial court did not abuse its discretion in

53
denying Thomas’ motion in limine seeking that the use of the

word “murder” be limited to opening and closing argument.

Even though the trial court did not specifically restrict the

Commonwealth from using the word “murder,” the trial court did

caution “both sides not to use language which would mislead,

inflame, or prejudice the jury.”

M. Introduction of Photographs of the Victim

We review the admissibility of evidence under an abuse of

discretion standard of review. Ortiz, 276 Va. at 712, 667

S.E.2d at 756.

Accurate photographs of a crime scene are
not rendered inadmissible solely because they
are gruesome . . . Juniper, 271 Va. at 413, 626
S.E.2d at 415-16, Walton v. Commonwealth, 256
Va. 85, 92, 501 S.E.2d 134, 138, cert. denied,
525 U.S. 1046 (1998). Such photographs must
nevertheless be excluded if their prejudicial
effect substantially outweighs their probative
value. Walker v. Commonwealth, 258 Va. 54, 69,
515 S.E.2d 565, 574 (1999), cert. denied, 528
U.S. 1125 (2000).

Teleguz v. Commonwealth, 273 Va. 458, 482, 643 S.E.2d 708, 723

(2007). Furthermore, we have stated that

[p]hotographs and videotapes of crime
scenes are admissible to show motive, intent,
method, malice, premeditation, and the
atrociousness of the crime. Spencer v.
Commonwealth, 238 Va. 295, 312, 384 S.E.2d 785,
796 (1989), cert. denied, 493 U.S. 1093 (1990);
Stamper v. Commonwealth, 220 Va. 260, 270-71,
257 S.E.2d 808, 816 (1979), cert. denied, 445
U.S. 972 (1980). If the photographs accurately
depict the crime scene, they are not rendered
inadmissible simply because they are gruesome

54
 or shocking. Gray v. Commonwealth, 233 Va.
313, 343, 356 S.E.2d 157, 173, cert. denied,
484 U.S. 873 (1987).

Goins v. Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126

(1996).

Thomas argues that the trial court erred in admitting

photographs of the victim because the prejudicial value

outweighed the probative value. Thomas concedes that she did

not object to photographs of the shed where the victim’s body

was found or photographs of the victim’s skull that depicted

“the blunt force trauma to the [victim’s] head.” However,

Thomas argues that the photographs of the victim’s body were

more prejudicial than probative due to the “state of

decomposition” of the victim’s body. After lengthy argument

on this issue, the trial court determined that the probative

value of the autopsy photographs and the photographs showing

the victim’s body outweighed the prejudicial effect.

Major Roberts, who laid the foundation for the

photographs of the victim’s body in the shed, used the

photographs to demonstrate to the jury how he found the

victim’s body that had been hidden in what he described as a

“chicken coop” behind a “black fender well” and a door. Also,

Dr. Bill Gormley, the testifying forensic pathologist, used

the autopsy photographs to explain to the jury the nature and

55
extent of victim’s injuries – both the shotgun wound and the

lethal head trauma.

Even though the photographs were graphic and gruesome,

the photographs demonstrated both the method and violence of

the crime and that the body was hidden. As noted above,

evidence with probative value may be excluded only if its

prejudicial effect substantially outweighs the probative

value. Teleguz, 273 Va. at 482, 643 S.E.2d at 723; Walker,

258 Va. at 69, 515 S.E.2d at 574. In this case, the trial

court did not abuse its discretion in admitting photographs of

the victim’s body.

N. Admission of Statements by Avent

Thomas argues that the trial court allowed Major Roberts

to testify about two statements made by Avent. The trial

court ruled on Thomas’ motion in limine by stating that

“neither side would seek to introduce any portion of the

statements of codefendant Avent . . . without filing a motion

in limine and getting a further ruling from the Court.” The

two “statements” attributed to Avent to which Thomas assigns

error are:

1. Major Roberts testified that Thomas stated to him that

she “asked [Avent] if he had anything to do with [her

father’s death]. And [Avent] said that [the victim],

56
 being her father, was a piece of shit, that he took

care of it, but he never said, yes he did it.”

2. Major Roberts testified that he “went back to see

[Thomas] about obviously some discrepancies, and

[Avent]’s comments that he had given [him] in the

interview certainly didn’t line-up with what [Thomas]

had said. So [Major Roberts] went to re-interview her

and debrief her on those comments.”

Thomas never objected at trial to the second “statement”

and consequently waived her objection on appeal. Rule 5:25. We

note as well that there is no statement made by Avent that was

introduced on this subject. There was simply the observation

by Major Roberts that the two co-defendants’ stories “didn’t

line-up.”

With regard to the first statement at issue, the Court of

Appeals analyzed this question of admissibility under

traditional hearsay rules. See Thomas v. Commonwealth, Rec.

No. 0202-08-2 (Dec. 16, 2008). Certainly the trial court

understood the objection in this manner. A fair reading of the

record reveals that Thomas’ objection to this statement

addressed confrontation questions under the Sixth Amendment as

well. However, the distinction is of no importance in the

context of this case. The recitation of Avent’s opinion that

Thomas’ father was “a piece of shit” most assuredly was not

57
offered for the truth of the matter stated. Crawford v.

Washington, 541 U.S. 36, 59 (2004); Tennessee v. Street, 471

U.S. 409, 414 (1985). The recitation that Avent said “he took

care of it,” is the only portion of the statement that has any

potentially objectionable material. However, in light of

Thomas’ own testimony about what Avent did to her father,

there is absolutely no question that if it were error to admit

it, it was harmless beyond a reasonable doubt. Zektaw, 278

Va. at 139, 677 S.E.2d at 56; Pitt, 260 Va. at 695, 539 S.E.2d

at 78 (2000); see Chapman v. California, 386 U.S. 18, 24

(1967).

O. Admission of Evidence of Prior Bad Act

Thomas argues that the trial court erred in allowing the

Commonwealth to introduce evidence that Thomas had previously

assaulted the victim because the prejudicial value of such

evidence outweighed the probative value. However, the Court

of Appeals held that this issue was barred from consideration

on appeal because Thomas had failed to object to the admission

of this evidence at the trial court. Significantly, Thomas

has failed to assign error to this holding by the Court of

Appeals. Consequently, we will not consider it. Rule 5:25.

III. Conclusion

For the reasons stated, we will affirm the judgment of

the Court of Appeals.

58
 Affirmed.

59