Prieto v. Com.

PRESENT: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.

ALFREDO ROLANDO PRIETO
OPINION BY
v. Record Nos. 082464 JUSTICE LEROY F. MILLETTE, JR.
& 082465 September 18, 2009

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge

In this appeal, we review two capital murder convictions

and two death sentences imposed by a jury upon Alfredo Rolando

Prieto, along with his convictions for rape and grand larceny

and two counts of the felonious use of a firearm while

committing murder. Prieto’s first trial in 2007 (Prieto I)

ended in a mistrial due to juror misconduct. The 2008 retrial

(Prieto II) resulted in the jury finding Prieto guilty of all

charges and sentencing him to death on the two capital

murders. We affirm all of the convictions. However, because

the verdict forms utilized by the jury in imposing death

sentences on the capital murders were defective, we reverse

the two sentences of death and remand the case for

resentencing.

We address the circuit court’s denial of Prieto’s motion

for mistrial in Prieto I on the grounds that the jury was

unable to reach a verdict during the sentencing phase of the

trial, and refusal to direct a verdict of life imprisonment.
We also address the circuit court’s granting of a mistrial for

manifest necessity due to juror misconduct.

We address all of the convictions and sentences which

were imposed following Prieto’s retrial in Prieto II. We

address the denial of Prieto’s objection to the retrial, the

denial of a separate proceeding regarding mental retardation,

evidence lost during the almost 17 year gap between the

murders and the identification of Prieto as a suspect, and the

sufficiency of the evidence to prove Prieto was the immediate

perpetrator and thus eligible for the death penalty. We

additionally address issues that have been previously decided

or waived. Finally, we consider Prieto’s objections to the

sentencing verdict forms and issues that may resurface in the

remanded resentencing proceeding.

I. PROCEEDINGS

Prieto was indicted for capital murder based on the

willful, deliberate, and premeditated killing of Rachael A.

Raver in the commission of or subsequent to rape. Prieto also

was indicted for capital murder based on the willful,

deliberate, and premeditated killing of Raver and Warren H.

Fulton III, as part of the same act or transaction. In

addition, Prieto was indicted for the rape of Raver, the

felonious use of a firearm while committing the murder of

2
Raver, the felonious use of a firearm while committing the

murder of Fulton, and grand larceny of Raver’s automobile.

A. First Trial (Prieto I)

In 2007, a jury in the Fairfax County Circuit Court found

Prieto guilty of the capital murder of Raver, the capital

murder of Fulton, rape, two counts of use of a firearm in the

commission of murder, and grand larceny, as charged in the

indictments. The circuit court ordered that the jury would

make a determination of Prieto’s alleged mental retardation

prior to receiving evidence on sentencing. The court, in

essence, trifurcated the trial into three phases: guilt or

innocence, mental retardation, and sentencing. The court

recognized that by separating mental retardation from

sentencing, some of the evidence might be duplicative.

However, in the mental retardation phase, the court intended

to limit evidence relating to “victim impact” and “future

dangerousness.” Although evidence relating to victim impact

and future dangerousness would ordinarily be presented in the

sentencing phase, the court’s purpose in trifurcating the

trial was to focus on the issue of mental retardation. The

jury would only address evidence relevant to the death penalty

if it determined Prieto was not mentally retarded.

At the conclusion of the presentation of evidence on

mental retardation, the jury was instructed that Prieto had

3
the burden of proving by a preponderance of the evidence that

he was mentally retarded. The jury was further instructed

that if it returned a verdict finding Prieto mentally

retarded, the jury should not fix punishment pending further

evidence, but that Prieto’s punishment would be limited to

imprisonment for life without parole and a fine of up to

$100,000.

After the jury began its deliberation on the issue of

mental retardation, the court received two notes from the

jury: one from the jury foreman indicating the jury’s

inability to come to a unanimous decision; and another from an

individual juror (Juror D) stating that he was being pressured

and asking to end the deliberation. Over Prieto’s objection,

the court gave the jury a modified “Allen charge.” 1 Following

a lunch break and the court’s receipt of a second note from

Juror D along with his refusal to continue deliberations, the

circuit court declared a mistrial on the grounds of manifest

necessity based upon Juror D’s misconduct.

The court denied Prieto’s motion to declare a hung jury

and sentence him to life in prison without the possibility of

parole. The court ruled that it had no alternative but to

1
Allen v. United States, 164 U.S. 492 (1896).

4
declare a mistrial for manifest necessity and order a retrial

of the entire case.

B. Second Trial (Prieto II)

In 2008, in the guilt or innocence phase of Prieto II, a

jury found Prieto guilty of two counts of capital murder, two

counts of use of a firearm in the commission of murder, rape,

and grand larceny. In the sentencing phase of the trial, the

jury found as to the two counts of capital murder that Prieto

had not proven by a preponderance of the evidence that he was

mentally retarded. In addition, the verdict form endorsed by

the jury was based upon a finding of the “future

dangerousness” or “vileness” aggravating factor without

differentiating which factor or both factors; and the jury

unanimously fixed Prieto’s sentence at death for each of the

two capital murder charges, and life plus twenty-six years for

the other charges. The circuit court sentenced Prieto in

accordance with the jury’s verdicts and entered final

judgment.

We consolidated the automatic review of Prieto’s death

sentence with his appeal of the capital murder convictions.

Code § 17.1-313(F). We also certified Prieto’s appeal of his

non-capital convictions from the Court of Appeals and

consolidated that appeal with his capital murder appeal. Code

§ 17.1-409.

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 II. EVIDENCE AT TRIAL

We consider the evidence presented at trial in the light

most favorable to the Commonwealth, the prevailing party

below. Porter v. Commonwealth, 276 Va. 203, 215-16, 661

S.E.2d 415, 419 (2008), cert. denied, ___ U.S. ___, 129 S.Ct.

1999 (2009); Gray v. Commonwealth, 274 Va. 290, 295, 645

S.E.2d 448, 452 (2007), cert. denied, ___ U.S. ___, 128 S.Ct.

1111 (2008).

We initially provide a summary of the evidence at trial

in order to establish an outline of the trial evidence.

Additional details will be provided where relevant to specific

issues of the appeal.

A. Guilt Phase Evidence

The last time Raver and Fulton were seen alive was after

midnight on December 4, 1988 as they were leaving a

Washington, D.C. restaurant with the intention of returning to

Virginia in Raver’s four door Toyota Corolla. On the morning

of December 6, 1988, Raver’s partially nude body was found

lying in a field located at the 1800 block of Hunter Mill

Road, which lies just south of the Dulles Toll Road in Fairfax

County. Fulton’s fully clothed body was found about 100 feet

away from Raver’s body. Raver’s jeans, underpants, gloves,

and shoes were found approximately halfway between the two

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bodies. Raver’s car was not found at the scene of the murder

nor at either Raver’s or Fulton’s residence.

Raver was killed by a single gunshot that entered her

lower left back, traveled in a downward trajectory, and

remained in her body. Dr. Frances P. Field, Assistant Chief

Medical Examiner for the Northern Virginia District Medical

Examiner’s Office, who testified as to the cause of death of

both Raver and Fulton, determined that Raver’s wound would

have been painful and death would not have been instantaneous.

Raver also had scraping of the skin on her abdomen, legs,

hands, and face, and a bruise on her neck. The abrasions on

Raver’s body were the result of pushing or pulling of her

body; and the wounds were not caused by an animal, according

to a medico-legal death investigator and wound identification

expert at the medical examiner’s office. Raver’s body was

found undressed from the waist down with her legs spread apart

on the ground, and a glistening liquid was found on her

thighs, which was collected on swabs and preserved as

evidence.

In performing a physical examination of Raver’s body, Dr.

Field recovered evidence swabs, including from inside Raver’s

vagina, because Raver was a possible victim of sexual assault.

Dr. Field also took pubic combings from Raver to remove any

7
hair foreign to Raver that may be present. The evidence was

sealed and delivered to the Fairfax County police.

Fulton was also killed by a single gunshot, which entered

the middle of his back, traveled in a downward trajectory, and

remained in his body.

The bullets were recovered from Raver and Fulton’s bodies

and transferred through a documented chain of evidence to

Julien J. Mason, Jr., a forensic scientist in the field of

firearms and toolmark identification. Mason examined the

bullets and testified that the bullets were .38 or .357

caliber bullets fired from the same weapon, a revolver.

Although Raver’s car was not located by Fairfax County

police, it was next observed in New York City just prior to

noon on December 5, 1988, the day before the bodies were

found. A New York City patrol officer ticketed Raver’s car

while it was parked in Queens, New York. Months later, when

Raver’s mother received a past due parking ticket on the car,

it was then secured in a New York City police garage and

finally examined by Fairfax County police. Raver’s car had

been “stripped totally” and the interior was “trashed.” No

“readily visible” evidence was observed.

Shortly after the murders, the vaginal swabs obtained

from Raver’s body were examined and tested in an effort to

identify a suspect. In January 1989, biological evidence

8
obtained from the physical examination of Raver was delivered

to Lifecodes Corporation in New York for DNA profiling, a new

technology at the time. The analysis was to be used in the

event a suspect was identified. Lifecodes extracted DNA from

Raver’s vaginal swabs and found DNA foreign to Raver, but at

that time there was no suspect for a comparison to be made.

The Fairfax County police received the returned evidence in

June 1989.

Ten years later in 1999, biological evidence was examined

by Carol Palmer, Group Supervisor in the Forensic Biology

Section of the Virginia Department of Forensic Science

Laboratory (the laboratory) and an expert in the field of DNA

analysis. Palmer testified that

[t]here came a time [in 1999 when the
laboratory] had a type of . . . DNA analysis,
that could be used on cases that had been
deemed cold cases, cases that had been worked
in previous years where now DNA testing might
be able to provide additional information.

Palmer testified that DNA testing can be used to make an

association or disassociation between individuals and samples

or items collected from crime scenes.

The biological evidence Palmer examined included a sample

of Raver’s blood and vaginal swabs from Raver. Palmer

obtained a foreign DNA profile from the vaginal swab. When

Palmer compared the foreign DNA profile from Raver’s vaginal

9
swab to a DNA profile obtained from a sample of Fulton’s

blood, Fulton was eliminated as the contributor of the foreign

profile.

In September 2005, almost 17 years after the murders,

when Prieto was identified as a suspect, a cheek buccal swab

was obtained from Prieto for the purpose of collecting DNA

material. In October 2005, Palmer compared the foreign DNA

profile from Raver’s vaginal swab and the swabs collected from

Raver’s thighs at the scene with the DNA profile obtained from

Prieto. Palmer was unable to eliminate Prieto as the

contributor of the foreign DNA profile from Raver’s vaginal

swabs and from swabs collected from Raver’s thighs. Palmer

testified that she “would expect to find this profile only

once in greater than the world population,” and that the

probability of finding the same DNA profile as found on the

vaginal swab was one in 90 quadrillion in the Caucasian

population, one in 900 quadrillion in the black population,

and one in one quadrillion in the Hispanic population.

B. Penalty Phase Evidence

Upon Prieto’s conviction by the jury of two counts of

capital murder, the court conducted a sentencing proceeding as

required by Code § 19.2-264.4. Prieto had timely provided

notice of his intent to present expert testimony to support

his claim of mental retardation pursuant to Code § 19.2-264.3:

10
1.1(C), and the issue of Prieto’s mental retardation was

determined by the jury as part of the sentencing proceeding in

his bifurcated trial.

At the sentencing proceeding, the Commonwealth introduced

evidence of Prieto’s prior convictions. The prior convictions

included a drive-by shooting of three people on or about

August 25, 1984 and an escape committed on or about August 16,

1985. The evidence of prior convictions also included a

series of crimes committed in California on or about September

2, 1990: the rape and murder of a 15 year old girl, two

attempted murders, two additional rapes, three kidnappings,

two robberies, two attempted robberies, and possession of a

firearm by a felon. Prieto was sentenced to death in

California for the murder of the 15 year old girl, who was

found in a remote, open field, partially unclothed, and lying

on her back with her legs spread apart. She was killed by a

single gunshot wound.

Evidence was also introduced that Prieto raped and

murdered Veronica Jefferson, a young professional woman, whose

naked body was discovered on May 11, 1988 on the grounds of an

elementary school in Arlington, Virginia. Jefferson died from

a single gunshot wound to the chest. Prieto’s DNA profile

could not be eliminated as the source of genetic material

11
obtained from vaginal swabs from Jefferson and from her

jacket.

The Commonwealth presented testimony from eight family

members concerning the impact of the deaths of Raver and

Fulton. In mitigation, Prieto presented five family members

to describe his difficult upbringing in El Salvador and how he

moved to California as a teenager and became involved with

gangs. The jury also heard from Prieto’s priest from prison

in California.

Dr. Ricardo Weinstein testified that Prieto was mentally

retarded. Dr. Pablo Stewart testified that Prieto suffered

from post-traumatic stress disorder as a result of his

experiences in El Salvador. Dr. James R. Merikangas testified

that Prieto suffered from brain damage affecting his right

frontal lobe, resulting in reduced impulse control. Dr. Leigh

D. Hagen testified for the Commonwealth that Prieto was not

mentally retarded within the meaning of Code § 19.2-

264.3:1.1(A).

III. ASSIGNMENTS OF ERROR WAIVED OR DEFAULTED

Although Prieto presents 82 assignments of error in this

appeal, 2 a number of the assignments will not be analyzed. We

will dispose of those assignments of error that Prieto did not

2
The assignments of error are designated by the number
Prieto has given them.

12
adequately preserve for appeal and therefore will not be

considered.

On brief, Prieto concedes that he has only briefed and

argued a portion of his assignments of error. Prieto failed

to provide an argument for assignments of error 1, 2, 3, 5, 7,

8, 9, 10, 11, 12, 16, 19, 20, 21, 23, 24, 44, 47, 48, 49, 50,

51, 52, 53, 54, 55, 56, 57, 58, 59, 62, 63, 64, 65, 66, 70,

71, 72, 73, 74, 76, and 77. Therefore, Prieto is deemed to

have waived these assignments of error. Rules 5:17(c)(4) and

5:27; see also Jay v. Commonwealth, 275 Va. 510, 519-20, 659

S.E.2d 311, 316-17 (2008) (citing Atkins v. Commonwealth, 272

Va. 144, 149, 631 S.E.2d 93, 95 (2006)); Muhammad v.

Commonwealth, 269 Va. 451, 477, 619 S.E.2d 16, 30 (2005),

cert. denied, 547 U.S. 1136 (2006); Elliott v. Commonwealth,

267 Va. 396, 422, 593 S.E.2d 270, 286 (2004), cert. denied,

543 U.S. 1081 (2005); Burns v. Commonwealth, 261 Va. 307, 318,

541 S.E.2d 872, 880, cert. denied, 534 U.S. 1043 (2001).

Prieto maintains that he addressed certain assignments of

error in some of his arguments. A reading of those arguments,

however, demonstrates that they do not address the assignments

of error Prieto claims they do. As a result of Prieto’s

failure to properly brief and argue assignments of error 4,

17, 18, 22, 26, 28, 31, 32, 35, 36, 38(a), (b), and (c), 39,

40, 41, 45, 46, 61, 80, 81, they have been waived. Rules

13
5:17(c)(4) and 5:27; see also Jay, 257 Va. at 519-20, 659

S.E.2d at 316-17.

Prieto failed to cite to any authority in support of his

arguments concerning assignments of error 30 and 34. Because

Prieto did not adequately brief these assignments of error,

they are considered waived. Rules 5:17(c)(4) and 5:27; see

also Powell v. Commonwealth, 267 Va. 107, 135, 590 S.E.2d 537,

554, cert. denied, 543 U.S. 892 (2004).

The arguments Prieto makes in support of assignments of

error 25, 27, 38(d) and (e) simply restate the assignment

itself. We have previously held that “[s]uch a statement does

not constitute an argument in support of the error assigned.”

Teleguz v. Commonwealth, 273 Va. 458, 473, 643 S.E.2d 708, 718

(2007). As a result, Prieto has waived those assignments of

error. Rule 5:17(c); see also Muhammad, 269 Va. at 478-79,

619 S.E.2d at 31.

Lastly, we will not consider assignment of error 69, as

it is procedurally defaulted. Prieto contends that the

circuit court erred in its response to a question from the

jury, made during the sentencing phase. The jury asked:

“Your Honor, regarding the first aggravating circumstance:

‘constitute a continuing serious threat to society;’ are we to

consider that he is already never likely to leave prison or

should we consider the possibility of him walking the street

14
as a free man?” The court responded in writing: “I refer you

back to the evidence that has been admitted and the

instructions of law.” During the discussion of the jury’s

question, Prieto argued that the jury should be guided to Jury

Instruction 7 and told that Prieto could only be sentenced to

death or imprisonment for life without the possibility of

parole. 3 On appeal, however, Prieto argues that the jury’s

question shows that they did not understand the concept of

“future dangerousness” and, as a result, the court should have

responded that “the probability referred to in [Code] § 19.2-

264.2 means ‘a likelihood substantially greater than a mere

possibility that [the defendant] would commit similar crimes

in the future.’ ” Since Prieto failed to raise this argument

at trial, we will not consider it on appeal. Rule 5:25;

Teleguz, 273 Va. at 470, 643 S.E.2d at 716.

IV. DENIAL OF HUNG JURY AND MOTION TO IMPOSE A
LIFE SENTENCE IN PRIETO I, MISTRIAL FOR MANIFEST
NECESSITY, AND DENIAL OF MOTION TO BAR RETRIAL IN PRIETO II

We next address issues concerning whether the circuit

court erred in denying Prieto’s motion for a mistrial in

Prieto I when the jury raised the issue whether it could reach

a unanimous determination regarding mental retardation and in

denying Prieto’s motion to impose a life sentence. We also

3
Jury Instruction 7 reads: “The words ‘imprisonment for
life’ means imprisonment for life without possibility of

15
consider the court’s declaration of a mistrial for manifest

necessity on the grounds of juror misconduct and the

consequent retrial of the entire case.

In Prieto I, the circuit court did not bifurcate the

trial into two separate phases for determination of guilt or

innocence and sentencing. Instead, the circuit court

trifurcated the first trial into three phases: (1)

determination of innocence or guilt, (2) determination of

mental retardation, and (3) sentencing. During jury

deliberations on the issue of mental retardation, the jury

foreman provided the circuit court with a note stating: “We

have been unable to get a unanimous decision. It appears we

will be unable to.” At the same time, the court also received

a note from Juror D, which read:

Again, I feel that I am being pressure [sic] by
my fellow juror[s] to go along with their
decision. I am the only one differing from the
the [sic] rest. My decision this time is firm
and final and deliberation has crossed the line
into peer pressure. Please end this
deliberation.

Upon being notified of these comments, Prieto’s counsel

moved to dismiss the jury on the grounds that the comments of

both the jury foreman and Juror D made it clear that the jury

would be unable to reach a verdict on the issue of mental

parole.”

16
retardation, and therefore, an “Allen charge” would not help

the jury reach a decision through the deliberative process.

Rather, defense counsel contended an “Allen charge” would only

force or compel Juror D to a different decision. Defense

counsel argued that a life sentence should be imposed pursuant

to Code § 19.2-264.4(E). 4

The Commonwealth argued that due to the length of time

the jury had been involved in the case and its apparent split,

the jury should at least be given a modified “Allen charge.”

The Commonwealth also argued that because Prieto bore the

burden to convince the jury on the issue of mental retardation

and failed to meet that burden, the trial should proceed to

sentencing.

The circuit court denied Prieto’s motion for a mistrial

on the grounds that the jury was hung and gave a modified

“Allen charge,” which reminded the jury to resume its

deliberations following lunch.

Before returning to the jury room to continue

deliberations following lunch, Juror D submitted a second note

to the circuit court, stating:

Now, during the deliberation of whether defendant
is mentally retarded or not, I am once again
facing absolute pressure to go along with the

4
Pursuant to Code § 19.2-264.4(E), “[i]n the event the
jury cannot agree as to the penalty, the court shall dismiss
the jury, and impose a sentence of imprisonment for life.”

17
 other jurors . . . I . . . AGAIN ask that your
Honor end this deliberation. . . . Since I don’t
believe that the prosecution has proved that the
defendant is guilty of the capital murder
charges, I kindly ask the court to immediately
dismiss me.

The circuit court adjourned the jury until the following

morning and addressed the issue of a mistrial with the

parties.

Prieto’s counsel asserted that the guilt phase of the

trial had concluded and the sentencing phase was taking place,

that despite trifurcating “mental retardation into being

different from the penalty phase, . . . the reality is that

we’re in the penalty phase. We’re not in the guilt and

innocence phase. That’s done. It’s been determined and so

there’s only two stages to the trial.” Prieto contended that

the jury was hung on the issue of mental retardation, as part

of the sentencing phase, and the circuit court should

therefore impose a sentence of life without parole pursuant to

Code § 19.2-264.4(E). The Commonwealth argued that the trial

was not yet in the sentencing phase, that the jury had

received no penalty evidence, and although the jury “[could

not] agree on retardation, [it was] hardly hung on penalty.”

The circuit court made a factual determination that Juror

D did not follow the “Allen charge” when instead of returning

to the jury room to continue deliberations after lunch, he

18
gave the deputy sheriff his second note. The circuit court

held that Juror D engaged in clear misconduct by “not

following [the court’s] instructions to maintain his honest

convictions” during the guilt phase and later “failing to

abide by the Allen charge.” The circuit court declared a

mistrial due to manifest necessity resulting from Juror D’s

misconduct.

At the outset of the retrial in Prieto II, Prieto filed a

motion to bar retrial and to impose a life sentence, arguing

that the jury’s deadlock on the issue of mental retardation

was akin to a deadlock on the issue of penalty, and therefore

the court must impose a life sentence as the death penalty was

precluded. The circuit court denied Prieto’s motion, stating

that “[t]he basis for the retrial here is that Judge [Dennis]

Smith [who presided over Prieto I] declared a mistrial based

on manifest necessity. And I find that there was a manifest

necessity and that Judge Smith had no choice but to declare a

mistrial and start this case from scratch.” The circuit court

cited as grounds of misconduct by Juror D his failure to vote

his conscience in the guilt phase and to follow the “Allen

charge” to resume and continue deliberations.

The circuit court, in noting that Prieto had not

challenged Judge Smith’s factual findings, stated that the

finding of misconduct was based upon three factors:

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 (1) Judge Smith’s contemporaneous finding that Juror D
refused to resume deliberations;
(2) Testimony from a deputy sheriff that he received
Juror D’s second note before deliberations resumed
following the “Allen charge” and the lunch recess;
and
(3) The court clerk’s notes corroborating Judge Smith’s
determination of the sequence of events.

The circuit court also concluded that the jury during Prieto I

was not hung on the issue of mental retardation when the

“Allen charge” was given.

On appeal, Prieto assigns error to the circuit court’s

denial of his motion to bar a retrial and impose a life

sentence. Prieto maintains that the circuit court erred in

declaring a mistrial in Prieto I and in allowing the

Commonwealth to seek the death penalty in Prieto II. Prieto

contends that when the jury informed the circuit court that

they could not reach a unanimous verdict on the issue of

mental retardation in Prieto I, the jury had deadlocked on the

appropriate sentence. Therefore, Prieto argues the circuit

court should have sentenced him to life without parole, in

accordance with Code § 19.2-264.4(E), and barred the

Commonwealth from retrying him for capital murder in Prieto

II. Prieto further asserts that because it was clear that the

jury had deadlocked on the issue of mental retardation when

the circuit court proceeded to give the jury an “Allen

charge,” giving the “Allen charge” was unduly coercive.

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Prieto argues that because Juror D said that his decision at

“this time is firm and final” and then opted to end his

participation in the deliberations, the jury was hung and it

made no difference whether Juror D followed the circuit

court’s instruction to continue deliberations.

Prieto further argues that since mental retardation is a

bar to a death sentence, if any juror concludes that a

defendant is mentally retarded, then that jury can never reach

a unanimous verdict for death. Prieto continues, if there is

no unanimity for death, then there can be no death sentence.

Finally, Prieto argues that it was not Juror D’s alleged

misconduct that created a manifest necessity for a mistrial.

According to Prieto, if any manifest necessity for a mistrial

existed in Prieto I, it resulted from the circuit court’s own

error in failing to declare the jury deadlocked when the court

received the notes from the jury foreman and Juror D, and in

delivering an unduly coercive “Allen charge.”

The Commonwealth argues that the circuit court in Prieto

I did not err in declining to declare a hung jury on the issue

of mental retardation. The Commonwealth contends that the

circuit court also did not abuse its discretion by giving an

“Allen charge.” According to the Commonwealth, the circuit

court properly found that the jury had ceased to function as a

jury even before it returned the guilt stage verdicts because

21
of Juror D’s misconduct. The Commonwealth argues that Juror

D’s misconduct continued when he refused to comply with the

“Allen charge” by refusing to continue deliberations. The

Commonwealth asserts that the circuit court was left with an

incomplete jury to continue deliberations and a mistrial for

manifest necessity was the only appropriate alternative.

A. Denial of Mistrial Based Upon Motion That Jury
Was Unable To Agree On A Verdict – Hung Jury

We first address whether the circuit court abused its

discretion in denying Prieto’s motion for a mistrial in Prieto

I upon receipt of the notes from the jury foreman and Juror D.

The circuit court is authorized to discharge the jury either

when it appears that the jurors cannot agree on a verdict –

are hung - or when there is a manifest necessity for such

discharge. Code § 8.01-361. The power to discharge a jury is

discretionary and the court must exercise this power

carefully, according to the circumstances of the case. Mack

v. Commonwealth, 177 Va. 921, 926, 15 S.E.2d 62, 64 (1941).

“The object of the law is to obtain a fair and just verdict,

and whenever it shall appear to the court that the jury

impanelled cannot render such a verdict, it ought to be

discharged, and another jury impanelled.” Id. at 927, 15

S.E.2d at 64.

22
 When a jury is unable to reach a unanimous verdict, it is

within the sound discretion of the circuit court to determine

at what point a mistrial should be granted because the jury is

hung. See Smith v. Commonwealth, 239 Va. 243, 267, 389 S.E.2d

871, 884 (1990), cert. denied, 498 U.S. 881 (1990), cert.

denied, 506 U.S. 848 (1992). The circuit court is authorized

to allow deliberations to continue, in consideration of the

seriousness of the matter to the community, and the length and

complexity of the trial proceedings. See Eaton v.

Commonwealth, 240 Va. 236, 258-59, 397 S.E.2d 385, 398-99

(1990), cert. denied, 502 U.S. 824 (1991). Among the

alternatives available to the circuit court is the provision

of an “Allen charge,” reminding the jury of the need to reach

a verdict if one can be reached without any individual juror

giving up his or her conviction. Poindexter v. Commonwealth,

213 Va. 212, 215, 191 S.E.2d 200, 203 (1972).

In a capital proceeding, the citizens of this

Commonwealth have a strong interest in having a jury express

the conscience of the community on the ultimate question of

life or death, and the court is entitled to direct the jury to

continue its deliberations for a reasonable time even after

the jury has indicated that it is deadlocked. Eaton, 240 Va.

at 259, 397 S.E.2d at 399; Lowenfield v. Phelps, 484 U.S. 231,

238 (1988).

23
 The imposition of a life sentence upon the jury’s failure

to reach a unanimous verdict at the sentencing stage pursuant

to Code § 19.2-264.4(E) is mandated only after a reasonable

period of deliberation, and the trial judge determines that

further deliberations would be fruitless and the jury’s

deadlock is final. Eaton, 240 Va. at 259, 397 S.E.2d at 399.

The circuit court did not abuse its discretion in denying

Prieto’s motion to declare a mistrial on the grounds that the

jury was hung because it could not agree on a verdict. Among

the considerations relevant to the issue of whether further

deliberation would be fruitless were the following:

(1) The trial had been in progress for approximately
four weeks;
(2) The jury had successfully arrived at a verdict of
guilty in the guilt or innocence phase;
(3) The jury had been deliberating the determination of
mental retardation for approximately a day and a
half; and
(4) The jury foreman’s note did not state that the jury
was unable to reach a unanimous decision, only that
it appeared to be unable to do so.

Based on these circumstances, the circuit court acted within

its discretion in instructing the jury to continue

deliberations.

The language from an excerpt of a portion of the modified

“Allen charge” addresses some of the reasons the circuit court

instructed the jury to continue its deliberations:

This is an important case. There appears no
reason to believe either side could try the

24
 case better or more exhaustively than it has
been tried before you. . . .

[T]here appears no reason to believe that the
case could ever be submitted to twelve citizens
who were more conscientious, more impartial,
and more competent to decide it, or that more
or clearer evidence could be produced on behalf
of either side. . . .

It is your duty as jurors, however, to consult
with one another and to deliberate with a view
towards reaching a unanimous agreement if you
can do so without doing violence to your
individual judgment. . . .

Remember at all times that no juror is expected
to yield a conscientious belief he or she may
have as to the weight or the effect of the
evidence, but remember also that in a full
deliberation and consideration of all the
evidence in the case, it is your duty to agree
upon the verdict, if you can do so without
violating your individual judgment and your
conscious [sic].

Prieto argues that Juror D’s first note indicated that he

was the only dissenter, his decision was “firm and final,” and

deliberations had crossed into peer pressure. However, the

circuit court interpreted the two notes differently when Judge

Smith contrasted Juror D’s note with the foreman’s note and

stated: “[I]t doesn’t sound to me like it’s a jury that’s

trying to force him when they say it appears we’re unable to.”

We hold the circuit court did not abuse its discretion in

denying Prieto’s motion for a mistrial based on Prieto’s

argument that the jury was hung due to an inability to reach a

verdict. The factual findings made by Judge Smith support his

25
exercise of discretion in allowing the jury more time in its

deliberations in this lengthy, complex and important case.

B. Mistrial For Manifest Necessity

Therefore, the next issue we address is whether the

circuit court abused its discretion in granting a mistrial for

manifest necessity and granting a retrial of the entire case.

We review this matter for an abuse of discretion. Smith, 239

Va. at 267, 389 S.E.2d at 884.

The granting of a mistrial for manifest necessity may

become necessary when the jury ceases to function as a jury.

When Juror D refused to continue deliberations, and in effect

impeached his verdict rendered in the guilt or innocence

phase, the circuit court was faced with the novel issue

whether to continue a trial when juror misconduct not only

affected the sentencing phase, but also the prior phase of

guilt or innocence.

A circuit court has the authority to discharge the jury

when it determines there exits a manifest necessity to do so.

Code § 8.01-361. “In determining whether manifest necessity

exists, a trial court is vested with broad discretion.”

Smith, 239 Va. at 267, 389 S.E.2d at 884. Absent a showing

that the circuit court abused its discretion by granting a

mistrial, this Court will not disturb the circuit court’s

26
ruling on appeal. Cheng v. Commonwealth, 240 Va. 26, 40, 393

S.E.2d 599, 607 (1990).

In assessing whether manifest necessity existed, the

circuit court considered the fact that Juror D refused to

follow the court’s instructions in two respects. First, Juror

D revealed that he had not “maintain[ed] his honest

convictions” during the guilt phase when he expressed that he

did not believe the Commonwealth had proved that Prieto was

guilty of capital murder after the jury had returned a

unanimous guilty verdict. Secondly, Juror D refused to follow

the “Allen charge” when he gave the circuit court a note prior

to returning to the jury room after lunch which clearly stated

both Juror D’s belief that Prieto was not guilty of capital

murder as well as Juror D’s unwillingness to continue

deliberations.

Based on these circumstances, the circuit court made a

factual determination that Juror D did not follow the “Allen

charge” and had engaged in clear misconduct. Prieto has not

assigned error to these factual determinations, which find

ample support in the record. We hold that the circuit court

did not abuse its discretion when it declared a mistrial due

to manifest necessity arising out of juror misconduct,

discharged the jury, and granted a retrial of the entire case.

C. Motion To Bar Retrial In Prieto II

27
 Prieto’s motion to bar a retrial in Prieto II is based

upon his argument that the jury was unable to reach a verdict,

or was hung, in the penalty phase of Prieto I, which required

a sentence of life imprisonment. Prieto also argues that a

deadlock in the mental retardation phase constitutes a

deadlock under Code § 19.2-264.4(E), even if the issue of

mental retardation was separated from the rest of the

sentencing phase.

A sentence of life without parole is only mandated if the

jury is deadlocked in the sentencing phase of a capital murder

trial. Code § 19.2-264.4(E). We need not resolve the issue

whether a jury that is deadlocked on the determination of

mental retardation “cannot agree as to the penalty” pursuant

to Code § 19.2-264.4(E) when that issue has been separated

within the sentencing phase because of our decision that the

jury in Prieto I was not deadlocked. The jury was not

deadlocked because it was in a position to continue

deliberations if not for Juror D’s failure to follow the

circuit court’s “Allen charge” and his impeachment of his

guilty verdict in the guilt or innocence phase. We find no

error in the circuit court’s denial of Prieto’s motion to bar

a retrial and impose a life sentence.

V. DETERMINATION OF MENTAL RETARDATION

28
 We next address Prieto’s argument that the circuit court

erred in not requiring that the issue of mental retardation be

determined separately from the other sentencing issues in

Prieto II. We begin with the proposition that there is no

statutory requirement that the issue of mental retardation be

determined separately from the other sentencing issues in the

penalty phase. Virginia’s statutory scheme provides that when

the issue of the defendant’s mental retardation is properly

before the jury, that issue shall be determined as part of the

sentencing phase of the bifurcated trial. Code § 19.2-

264.3:1.1(C).

Prior to the second trial, Prieto filed a motion for

pretrial determination of mental retardation based upon his

argument that Rule 3A:9(b)(2) provides that any defense or

objection that is capable of determination without a trial of

the general issue may be raised by motion before trial.

Prieto further argued that a pretrial determination of mental

retardation was not precluded by statute. The circuit court

denied Prieto’s motion for a pretrial determination of mental

retardation as being clearly precluded by Code § 19.2-

264.3:1.1(C), which provides that:

In any case in which the offense may be
punishable by death and is tried before a
jury, the issue of mental retardation, if
raised by the defendant in accordance with the
notice provisions of subsection E of § 19.2-

29
 264.3:1.2, shall be determined by the jury as
part of the sentencing proceeding required by
§ 19.2-264.4.

(Emphasis added).

Prieto then moved to bifurcate the sentencing proceeding

as the circuit court did in Prieto I by separating the issue

of mental retardation from sentencing. Prieto sought a full

hearing on mental retardation with “openings, closings, and

evidence in between.” The circuit court denied Prieto’s

motion for a separate phase on the determination of mental

retardation. The circuit court determined that the plain

meaning of Code § 19.2-264.3:1.1 provides that the

determination of mental retardation must be part of the

sentencing phase of trial.

Prieto argues there are two mechanisms the circuit court

could have employed to assure that his mental retardation

claims would be considered on the merits without the taint

from evidence of future dangerousness, evidence of vileness,

or victim impact evidence. Prieto asserts the circuit court

could have either directed a pretrial determination of the

issue of mental retardation or bifurcated the sentencing phase

of the trial, limiting the evidence to that regarding mental

retardation. Prieto contends the circuit court erred in

failing to employ one of these mechanisms to the consideration

of Prieto’s mental retardation. As a result, according to

30
Prieto, the jury was improperly influenced in its

consideration of mental retardation by irrelevant evidence.

The Commonwealth responds that the circuit court properly

rejected Prieto’s motions to decide the issue of mental

retardation prior to trial based upon the clear language of

Code § 19.2-264.3:1.1(C).

We agree with the Commonwealth’s arguments concerning the

application of Code § 19.2-264.3:1.1(C). The language in the

statute directing that the issue of mental retardation “shall

be determined by the jury as part of the sentencing proceeding

required by § 19.2-264.4” clearly mandates that the issue of

mental retardation be determined by the jury as part of the

sentencing phase. Therefore, the circuit court did not err in

denying Prieto’s motion for a pretrial determination of mental

retardation.

The circuit court also did not err when it denied

Prieto’s motion to bifurcate the sentencing phase to include a

separate phase on mental retardation. No statute required the

circuit court to bifurcate the sentencing phase to have a

separate phase solely to address the issue of mental

retardation. We hold that the issue of mental retardation is

not to be separated from the issue of punishment, but is to be

determined by the jury as part of the sentencing phase of the

bifurcated trial.

31
 VI. LOST EVIDENCE AND SUFFICIENCY OF THE EVIDENCE

Among the items of physical evidence that the medical

examiner preserved during her examination of Raver’s body were

two hairs obtained from combings of Raver’s pubic area. These

two hairs were examined shortly after their discovery and were

determined to be foreign to Raver. No further examination was

conducted because there was no suspect’s hair to which a

comparison could be made. When Prieto was developed as a

suspect almost 17 years later, the hairs were missing.

When Dr. Field, the medical examiner, performed her

physical examination of Raver’s body and recovered evidence

swabs from inside Raver’s vagina, she also took pubic combings

from Raver to remove any foreign hair that may be present.

According to Dr. Field, in a possible victim of a sexual

assault, pubic combings are conducted to remove any foreign

hair that might be present for comparison with a suspected

assailant’s hair.

In December 1988, within a week after Raver’s body was

discovered, Myron T. Scholberg, a forensic scientist for the

Commonwealth of Virginia and a hair, fiber, and fabric expert,

prepared a certificate of analysis concerning the results of

hair examinations he conducted of Raver and Fulton. The

Fairfax County police provided Scholberg with Raver’s pubic

hair combings, her known head hairs and pubic hairs, and a

32
hair that was removed from a vaginal swab. Scholberg also

received Fulton’s head hairs and pubic hairs. At the time of

Scholberg’s examination, there was no suspect, so he had

nothing with which to compare the samples. Scholberg was

asked to determine if there were any hairs foreign to Raver in

her pubic hair combings. According to Scholberg, at that

time, DNA testing was not used by the laboratory.

Scholberg determined that Raver’s known hairs were

Caucasian, and observed two hairs of Negroid origin in her

pubic hair combings, which could not have originated from

Raver. One of the Negroid hairs was a head hair and the other

was a head hair fragment. Scholberg testified that the head

hair fragment was too small and did not contain enough of the

hair or its characteristics to compare with a known sample.

According to Scholberg, the head hair was a full-length hair

with a root and was suitable for comparison purposes.

However, Scholberg determined that this full-length hair was

not forcibly removed, and therefore did not have a piece of

tissue on the end of the root that could later be used for DNA

analysis. Scholberg testified that he could not exclude the

possibility that the hairs he examined were Hispanic in

origin.

Scholberg’s notes do not indicate he examined the hair on

the vaginal swab. He was asked to report any foreign hairs,

33
and he did not report that the hair on the vaginal swab was

foreign to Raver. Scholberg also prepared a second report

which indicated “examinations [were] being held in abeyance

pending possible additional known hairs from a suspect.” In

January 1989, when Scholberg was finished with his analysis of

the hairs, Fairfax County Police Officer James F. Mowatt

collected the recovered hairs in a sealed condition from the

laboratory and took them to the police property room.

On September 21, 2005, almost 17 years after the murders,

Fairfax County homicide detective Robert J. Murphy went to the

police property room and retrieved a brown opaque envelope,

which was the original container believed to contain the hair

from Raver’s pubic combings. He transported it to the

laboratory and submitted it to Carol Palmer, the forensic

scientist who was going to look at the hair and determine

whether it would be suitable for DNA testing. Two days later,

Palmer called Detective Murphy and told him that the envelope

was empty. That same day, Detective Murphy went first to the

laboratory and then to the police property room where he

searched for the missing hair evidence, but could not find it.

He located the envelope designated to contain the hair from

the vaginal swab and transported it to the laboratory, but

later learned the vaginal swab hair was missing as well.

34
 Detective Murphy, along with another detective and

property officers, searched the entire property room on four

separate occasions. They looked at every single item of

evidence in the case. At Detective Murphy’s direction, the

laboratory personnel searched the entire laboratory, including

lockers and old property files. Despite the intensive search,

the missing evidence was never located.

After Prieto became a suspect in the murders, a sample of

his head hair was obtained for examination. Charles Linch, a

hair examiner for the Commonwealth of Virginia, examined the

sample of Prieto’s head hair for purposes of classifying the

hairs’ race characteristics. Linch concluded that Prieto’s

head hairs were mixed, with Mongoloid and Caucasian

characteristics. When Linch was asked if in his practice he

would make an opinion based on one hair and a fragment of

another, Linch said he would issue a report saying it was

“characteristically this or characteristically that.” He

continued, “[i]f I say characteristically Negroid, that

wouldn’t mean it had to come from a black person. But it had

Negroid characteristics, predominant Negroid characteristics.

We all have mixtures in our head hair.” According to Linch,

“[n]one of [the hairs] had characteristically Negroid

pigmentation. . . . [I]f these hairs were found individually

[and I had] just a piece of one of the heavy pigmented ones, I

35
might could [sic] make the error and call it a Negroid hair.”

Linch’s report concluded that “[t]he head hairs exhibited are

characteristically Mongoloid and characteristically mixed

Mongoloid[/]Caucasian, racial characteristics.”

Linch also testified about the transient nature of hair,

which can be transferred from person to person. Linch

testified that when an expert finds another person’s hair on a

victim, there is no way the expert can determine how it got

there unless the expert saw it either fall or be transferred.

Prieto filed a motion to bar capital punishment due to

the loss of the hair evidence and the impact he maintains its

unavailability had on the “triggerman” theory. The circuit

court denied Prieto’s motion to bar the death penalty based on

the loss of evidence by the Commonwealth. The circuit court

noted that “[n]o one is suggesting [the loss of the evidence]

was done for bad purposes.” Furthermore, the circuit court

stated: “In this case, there is zero evidence at all; zero.

Not a scintilla of evidence that this evidence was lost for

any bad faith purpose, maliciously, or intentionally. In

fact, the government literally turned the property room upside

down looking for this evidence.” The circuit court continued:

So, I don’t see any evidence that it was done
intentionally, and absent evidence that it was
done intentionally, or in bad faith, or
maliciously . . . I cannot understand why the
defense would be entitled to an adverse

36
 inference, because there is no reason at all
for me to believe that there is anything about
the fact that this evidence is missing that
would warrant an adverse inference.

On appeal, Prieto assigns error to four determinations by

the circuit court relating to the lost hair evidence and the

sufficiency of the evidence to convict Prieto as an immediate

perpetrator or “triggerman,” which is required for Prieto’s

conviction as a principal in the first degree, making him

eligible for the death penalty. Code § 18.2-18. Prieto

argues that the circuit court erred in

(1) failing to strike the death penalty at the close of
the Commonwealth’s case-in-chief because the
Commonwealth failed to prove Prieto was the
“triggerman”;
(2) denying his motion to bar the death penalty because
the Commonwealth lost evidence crucial to his
defense;
(3) not dismissing the charges against him because the
Commonwealth lost the foreign hairs from Raver’s
pubic combings, which he contends were exculpatory
evidence; and
(4) failing to instruct the jury regarding an adverse
inference to be drawn against the Commonwealth due
to its loss of the evidence.

Prieto also argues that the Commonwealth violated his due

process rights by losing exculpatory evidence, and that he was

not required to show bad faith to establish a due process

violation. Prieto maintains that there are two categories of

evidence which, if lost, can serve as the basis for a due

process violation: (1) “material exculpatory evidence,” and

(2) “potentially useful evidence.”

37
 Prieto asserts that while the loss of evidence that is

merely potentially useful requires a showing of bad faith to

establish a constitutional violation, the loss of apparently

exculpatory evidence violates due process, even in the absence

of bad faith. According to Prieto, the lost hairs were

apparently exculpatory. Prieto contends that either through a

comparison between his own hair and the lost hairs or through

DNA samples derived from the full-length hair, he could have

shown that the hairs were not his and that another perpetrator

was involved. Prieto argues that the existence of another

perpetrator would have rendered the evidence presented

insufficient to establish him as the immediate perpetrator and

thus he would not have been subject to the death penalty.

Prieto asserts that the circuit court erred by not, at a

minimum, giving an adverse inference instruction to the jury.

The Commonwealth contends the circuit court did not err

in denying Prieto’s motions for relief concerning the loss of

evidence. The Commonwealth argues that because the lost hairs

were only potentially useful evidence, Prieto must show bad

faith to constitute a denial of due process of law. According

to the Commonwealth, Prieto did not dispute the circuit

court’s finding that there was no bad faith on the part of the

investigators or prosecutors involved in the loss of only

potentially exculpatory evidence. The Commonwealth originally

38
sought to have the hair examined because the hair was

potentially inculpatory, and argues that Prieto was not

prejudiced by the loss of the hair. According to the

Commonwealth, because the hair was missing and there was

evidence that the hair contained Negroid characteristics,

Prieto had the opportunity to argue to the jury that the hair

established the existence of another perpetrator.

A. Lost Evidence

The Commonwealth does not have an absolute duty to retain

and preserve all material that might be of conceivable

evidentiary significance in a particular proceeding. Arizona

v. Youngblood, 488 U.S. 51, 58 (1988). Evidence obtained by

the police prior to the identification of a suspect under some

circumstances may be inculpatory or exculpatory, and whether

it is exculpatory cannot be determined until a comparison can

be made with an identified suspect. Such evidence is

potentially exculpatory, and not apparently exculpatory. If

the potentially exculpatory evidence is lost prior to the

determination of a suspect, unless there is bad faith on the

part of the Commonwealth, there is no due process violation.

“[U]nless a criminal defendant can show bad faith on the part

of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law.” Id.

39
 A defendant is not entitled to an adverse inference

instruction due to the loss of evidence that only potentially

has exculpatory value, when the loss is without fault by the

Commonwealth. The circuit court explicitly stated that the

missing evidence was as likely to hurt Prieto as help him.

Because the evidence was only potentially exculpatory, Prieto

was required to show bad faith in order to successfully lodge

a due process violation claim. The circuit court found that

the evidence was not lost as a result of bad faith by the

Commonwealth, and Prieto does not dispute that finding.

The circuit court’s findings are supported by the

evidence, which renders the exculpatory value of the lost hair

inconclusive. Scholberg classified Prieto’s hair as

Mongoloid/Caucasian, but testified that he could not exclude

the possibility that the lost hairs were Hispanic in origin.

Linch, whose analysis took place after the hairs were

lost, also characterized Prieto’s hair as mixed Mongoloid and

Caucasian. However, Linch testified that if Prieto’s

individual hairs or only a piece of a heavily pigmented hair

was found, Linch might mistakenly call it a Negroid hair. It

is unclear from the record whether DNA analysis could have

been performed on the hairs if they had not been lost.

Additional support for the circuit court’s finding that

the lost hairs from Raver’s pubic combings were only

40
potentially exculpatory comes from the fact that the record

does not reflect the whereabouts of the hairs from the years

1989 to 2005. Since the hairs were last observed in 1989 when

Scholberg examined them prior to the evidence envelope being

sealed, and they were not present in 2005 when the evidence

envelope was next unsealed, the reasonable inference to be

drawn is that the hairs were lost at some time prior to 2005

when Prieto’s DNA sample was taken for comparison purposes.

The hairs could not have apparent exculpatory value when there

was no suspect with whom a comparison could be made. In fact,

the Commonwealth believed there was inculpatory value to these

hairs, which was why DNA analysis was attempted. Prieto

himself referred to the missing evidence as “potentially

exculpatory” in his motion to bar the death penalty, though he

now argues on appeal that the lost hairs had apparent

exculpatory value.

We have previously addressed the issue of the loss of

potentially useful evidence. We held in Lovitt v. Warden,

Sussex I State Prison, 266 Va. 216, 241, 585 S.E.2d 801, 815

(2003), cert. denied, 541 U.S. 1006 (2004) (internal citations

omitted), that

under the Youngblood standard, a state’s failure
to preserve potentially useful evidence does not
constitute a denial of due process unless a
defendant can show bad faith on the part of the
state. The presence or absence of bad faith by

41
 the state depends on whether agents of the state
had knowledge of the exculpatory value of the
evidence when it was lost or destroyed. Thus,
the possibility that evidence could have
exculpated a defendant depending on future
testing results is not enough to satisfy the
constitutional standard of materiality.

It is undisputed that there was no bad faith on the part

of the Commonwealth. Defense counsel again conceded the lack

of bad faith at oral argument on appeal. Therefore, since the

lost hairs were only potentially useful evidence and the

Commonwealth did not act in bad faith, the loss of the

evidence does not constitute a due process violation that

would require a reversal of Prieto’s convictions. We hold

that the circuit court properly denied Prieto’s motion to bar

the death penalty and correctly refused to dismiss the charges

against Prieto due to the loss of the hairs.

B. Sufficiency Of The Evidence That Prieto
Was The Immediate Perpetrator

On appeal, Prieto argues that the evidence of foreign

hairs supports his argument that there must have been another

perpetrator present at the scene; and that although the

evidence supports Prieto’s conviction for rape, the existence

of a second perpetrator precludes a determination that Prieto

was the immediate perpetrator of the murders. The

Commonwealth argues that there is only evidence of one person

at the scene committing the rape and the murders; and,

42
therefore, because the DNA evidence implicates Prieto in the

rape, the evidence is sufficient to support his conviction as

the immediate perpetrator of the murders.

Prieto relies upon our decisions in Rogers v.

Commonwealth, 242 Va. 307, 410 S.E.2d 621 (1991), and Cheng,

to argue that there was insufficient evidence to establish him

as the immediate perpetrator of the murders. In Rogers, the

defendant admitted to the rape and robbery of the victim, but

repeatedly denied knowing who stabbed her. Id. at 315, 410

S.E.2d at 626. The defendant stated in a police interview

that Troy Malcolm told the defendant that he had stabbed the

victim, and stated that he saw blood on Malcolm’s jacket. Id.

at 314, 410 S.E.2d at 625. Malcolm admitted to being present

in the victim’s home, where the crimes were committed. Id. at

316, 410 S.E.2d at 626. The defendant stated that he remained

in the victim’s home after Malcolm ran out the back door, and

was confronted by two witnesses when he later exited the

house. Id. We determined that the Commonwealth “tacitly

conced[ed] that at least one other person was present at some

point during this criminal enterprise,” and held, therefore,

that the evidence was insufficient to exclude Malcolm as a

perpetrator. Id. at 318-19, 410 S.E.2d at 628. We reversed

the defendant’s capital murder conviction. Id. at 320, 410

S.E.2d at 629.

43
 In Cheng, there were three known participants in the

abduction, robbery, and murder of the victim. 240 Va. at 43,

393 S.E.2d at 608. The defendant and two co-conspirators were

together during the two days prior to when the victim’s body

was discovered. Id. at 30-31, 393 S.E.2d at 601. The

defendant told the co-conspirators that he was going to rob a

restaurant and they went to a restaurant co-owned by the

victim. Id. The next day, the defendant told the co-

conspirators to “bring the shotgun and the jeep,” and they

stopped at the house of one of the co-conspirators and

retrieved the shotgun and the defendant’s jeep. Id. at 31,

393 S.E.2d at 601. The following morning, the victim’s body

was found with four gunshot wounds. Id. at 31-32, 393 S.E.2d

at 602.

The defendant in Cheng told a police officer that “he

didn’t do it.” Id. at 33, 393 S.E.2d at 603. The police

officer testified that the defendant later told him that a man

had put a contract on him and “they had to get rid of him,”

but that the defendant did not state directly that he was

involved in the crimes. Id. at 43, 393 S.E.2d at 608. We

held that the evidence, at most, created a strong suspicion

that the defendant was the triggerman, and was therefore

insufficient to support his conviction of capital murder. Id.

44
 We have previously addressed the standard of review for a

challenge, on appeal, of the sufficiency of the evidence

supporting a jury verdict.

We have held in many cases that, upon appellate
review, the evidence and all reasonable
inferences flowing therefrom must be viewed in
the light most favorable to the prevailing
party in the trial court. 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. The issue upon appellate review is
whether, after viewing the evidence in the
light most favorable to the prosecution, any
rational trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt.

Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502

(2008) (internal quotation marks and citations omitted).

Unlike in Rogers and Cheng, in this case there was no

conclusive evidence of the presence of another perpetrator.

Rogers and Cheng are inapplicable due to the overwhelming

evidence that Prieto was the sole perpetrator of the murders.

The field where Raver and Fulton’s bodies were discovered

in December 1988 was located at the 1800 block of Hunter Mill

Road, which lies just south of the Dulles Toll Road in Fairfax

County. Prieto was familiar with the area as prior to the

time of the murders, he worked with a crew cutting grass and

driving trucks along the Dulles Toll Road, near where the

bodies were found. When the police thoroughly searched the

45
scene of the murders, there was no evidence discovered, other

than potentially the lost hair evidence, that pointed to the

existence of a second suspect.

Raver and Fulton were each killed by a single gunshot

wound. The bullets recovered from their bodies were fired

from the same weapon. The weapon was determined to be a

revolver. Prieto owned a revolver around the time of the

murders. There was no evidence of a second weapon involved in

the murders or present at the scene of the murders.

The Commonwealth’s theory of the murders was that Raver

and Fulton were abducted and taken to the scene of the murders

in Raver’s car. When Raver and Fulton drove in her car to

Washington, D.C. the last night they were seen alive, the

backseat of the car contained a large box filled with

miscellaneous items. There was only enough space for one

additional person to sit in the backseat of the car. It was

fewer than 36 hours after Raver and Fulton were last seen

alive when the car was observed in New York City.

Circumstantial evidence from the scene included Raver’s

body being found a short distance from where all her clothes

except her bra, sweater, coat, and socks were located. The

evidence of scraping on her body and the presence of Prieto’s

semen in her vagina support the conclusion that she was raped

46
at the scene by Prieto, and there was no evidence of any other

person’s participation in the assault, rape, or murders.

The potentially exculpatory foreign hairs did not lessen

the impact of the other evidence the jury heard at trial. The

presence of the hairs could have been the result of

transference. Evidence was presented by the Commonwealth that

because of the transient nature of hair, there were, prior to

the transfer, potential sources of the hair other than another

perpetrator. The lost hairs could have been transferred as a

result of Raver’s use of a common washer and dryer in her

apartment building or from her use of the toilet at the

Washington, D.C. restaurant the last evening she was seen

alive, or from Prieto or possibly even Fulton, as a carrier of

the hairs and not the source. The fact that Raver was wearing

new underpants on the night of the murders does not negate the

possibility of such transference. From the standpoint of a

forensic analysis, the hairs’ significance in terms of

exculpatory value was inconclusive at best, possibly even

having the potential to inculpate Prieto if it was determined

the lost hairs matched his known head hairs.

When viewed together, the evidence presented at trial,

including the substantial circumstantial evidence, was

sufficient to support Prieto’s death sentence as an immediate

perpetrator or principal in the first degree in the two

47
capital murder convictions. “Circumstantial evidence is not

viewed in isolation. ‘While no single piece of evidence may

be sufficient, the combined force of many concurrent and

related circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.’ ” Commonwealth

v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (internal

quotation marks omitted) (quoting Derr v. Commonwealth, 242

Va. 413, 425, 410 S.E.2d 662, 669 (1991)), cert. denied, 540

U.S. 972 (2003).

Based upon the overwhelming evidence that Prieto raped

Raver at the time she was murdered and the circumstantial

evidence that there was only one perpetrator involved in the

murders, the evidence is sufficient to prove beyond a

reasonable doubt that Prieto was the immediate perpetrator of

the murders of Raver and Fulton. We hold that the circuit

court correctly denied Prieto’s motions to strike based on his

argument that the evidence was insufficient to prove he was

the immediate perpetrator and that he committed the crimes for

which he was convicted.

VII. VERDICT FORMS

We next consider whether the sentencing phase verdict

forms provided to the jury in Prieto II were defective.

Prieto makes two arguments. First, he argues the verdict

forms were defective because the forms did not provide an

48
option for the jury to sentence Prieto to life imprisonment if

the jury found one or both aggravating factors. Second, he

contends the verdict forms did not require the jury to be

unanimous in its finding regarding which of the aggravating

factors it found beyond a reasonable doubt in support of its

death penalty verdict. We address why the verdict forms were

defective for both reasons.

A. Sentencing Option of Life Imprisonment Even
If One or Both Aggravating Factors Found

During the sentencing phase, the circuit court overruled

Prieto’s objection that the verdict forms should provide an

option for the jury to sentence Prieto to life imprisonment

even if the jury found one or both aggravating factors. The

circuit court held that it had “an obligation to follow the

language of [Code § 19.2-264.4(D)],” which provides sample

verdict forms. The court also noted: “I don’t have any

question that the language in the statute is mandatory, I

don’t have any flexibility in that at all.” The court

recognized this as a “dilemma” because it held that the

statutory verdict form was mandatory, but also that it was

“lacking” if the jury finds “the aggravators but [does not]

give death.”

49
 Verdict form two, used by the jury in its finding

concerning the murder of Raver, tracked the language of Code

§ 19.2-264.4(D) and provided:

We, the jury on the issue joined, having found
Alfredo Prieto guilty of the willful,
deliberate and premeditated killing of Rachael
Raver in the commission of or subsequent to
rape and that after consideration of his prior
history that there is a probability that he
would commit criminal acts of violence that
would constitute a continuing serious threat to
society or his conduct in committing the
offense is outrageously or wantonly vile,
horrible or inhuman in that it involved torture
or depravity of mind, and having considered the
evidence in mitigation of the offense,
unanimously fix his punishment at death.

Signed____________________, foreman.

Or

We, the jury on the issue joined, having found
Alfredo Prieto guilty of the willful,
deliberate and premeditated killing of Rachael
Raver in the commission of or subsequent to
rape and having considered all of the evidence
in aggravation and mitigation of such offense,
fix his punishment at:
(please choose one)

___imprisonment for life

or

___imprisonment for life and a fine of
$_______.

Signed____________________, foreman.

Verdict form three, used by the jury in its finding

concerning the murders of Raver and Fulton as part of the same

50
act or transaction was identical to verdict form two, except

for the names of the victims and the description of the

capital murder elements.

The court acknowledged Prieto’s objection to the verdict

forms, stating:

I mean couldn’t someone read this verdict form
to suggest that if the aggravating factors are
present, death follows, and if the aggravating
factors are not present, there must be
imprisonment for life. But it doesn’t address
the third possibility which is the aggravating
factors exist but you choose life.

The circuit court granted three instructions that

addressed this issue. Instructions 6A and 6B were offered by

the Commonwealth with respect to the capital murder of Raver

in the commission of or subsequent to rape and the capital

murder of Raver and Fulton as part of the same act or

transaction. These two instructions were intended to properly

instruct the jury regarding the statutory aggravators of

future dangerousness and vileness, the Commonwealth’s burden

of proof regarding those aggravating factors, the

consideration of evidence in mitigation, and the sentencing

options available to the jury.

In addition, the circuit court granted Instruction J,

which was offered by Prieto. Instruction J provided:

You are instructed that even if you find
the Commonwealth has proven beyond a reasonable
doubt one or both of the aggravating

51
 circumstances, you are never required to
sentence the defendant to death. Rather,
despite your findings, you may if you choose
sentence him to life in prison without the
possibility of parole, with or without a fine.

In other words, with regard to either or
both Verdict Forms Number 2 and 3, if you find
the Commonwealth has proven beyond a reasonable
doubt one or both of the aggravating
circumstances, and you find that the
appropriate sentence is death, you would use
the first paragraph on Verdict Form Number 2
and Verdict Form Number 3, respectively.

Alternatively, there are two circumstances
in which you would use the second paragraph on
Verdict Form Number 2 and Verdict Form Number
3: (1) if you find that the Commonwealth has
proven beyond a reasonable doubt one or both of
the aggravating circumstances and you
nevertheless find that the appropriate sentence
is life or life and a fine; or (2) if you find
that the Commonwealth has failed to prove
beyond a reasonable doubt at least one of the
aggravating circumstances.

The foreman of the jury endorsed the first paragraph of

verdict forms two and three, thus sentencing Prieto to death

on each charge. After Prieto was convicted and sentenced to

death, he filed a motion to set aside his death sentences and

for a new trial arguing that the verdict forms failed to

provide the jury with the option of imposing a life sentence

even if it found one or both of the aggravating factors. In

his motion, Prieto provided the court with case law supporting

his argument. Specifically, Prieto argued that this court’s

decisions in Powell v. Commonwealth, 261 Va. 512, 552 S.E.2d

52
344 (2001), and Morrisette v. Warden of the Sussex I State

Prison, 270 Va. 188, 613 S.E.2d 551 (2005), cert. denied, 546

U.S. 1216 (2006), controlled the issue and required the

circuit court to provide a verdict form that gave the jury the

option of sentencing Prieto to life even if it found one or

both of the aggravating factors.

At oral argument on Prieto’s motion, the circuit court

stated that what it characterized as a dilemma in the jury

instruction conference was not in fact a dilemma at all

because this Court in Powell and Morrisette held that the

circuit court “must explicitly provide a verdict form

containing the option of life in prison even where the jury

finds one or both [aggravating] factors to exist.” The court

also stated: “Had I had Morrisette and Powell in front of me

when I decided this issue, I assure you that the verdict form

would have been modified in a manner consistent with these

binding precedents.”

The court, in discussing Prieto’s verdict forms in light

of Powell and Morrisette, noted that “the Supreme Court could

not have been more explicit and this verdict form does not

square with its decision.” Nevertheless, the court denied

Prieto’s motion, holding that Instruction J goes substantially

beyond the standard instruction which tells the jury that it

can find an aggravating factor to exist and still impose a

53
sentence of life. According to the court, Instruction J

distinguishes this case from Morrisette and Powell. The court

stated that with the instruction, “the jury could not have

been confused or conflicted about its options.”

On appeal to this Court, Prieto argues that verdict forms

two and three were defective because they failed to give the

jury the option of imposing a life sentence even if it found

one or both aggravating factors, as required by Powell and

Morrisette. Prieto contends that the jury instructions did

not correct this defect because a jury instruction, no matter

how clear, cannot cure a problem with a defective verdict

form.

In response, the Commonwealth argues that this Court has

never held that Virginia’s statutory verdict form contained in

Code § 19.2-264.4(D) is constitutionally lacking. The

Commonwealth asserts that the verdict forms used correspond

exactly to the jury instructions and provided a means for the

jury to exercise each sentencing option. According to the

Commonwealth, this Court’s discussion of verdict forms in

Powell is dicta and was rendered as an advisory opinion for

future capital cases. Additionally, the Commonwealth contends

that in Morrisette the Court did not rule that the circuit

court erred in using the statutory verdict form because it was

a habeas case addressing ineffective assistance of counsel.

54
The Commonwealth also asserts that because the General

Assembly amended Code § 19.2-264.4 after Powell, it abrogated

Powell as far as requiring verdict forms to provide for the

sentencing option Prieto now urges. The Commonwealth

maintains that because of the General Assembly’s action,

courts are required to use the statutory verdict form.

On this issue, we agree with Prieto. We have previously

held that “it is materially vital to the defendant in a

criminal case that the jury have a proper verdict form.”

Atkins v. Commonwealth, 257 Va. 160, 178, 510 S.E.2d 445, 456

(1999). 5 In Powell, we addressed whether in a capital murder

sentencing, a circuit court commits error by failing to grant

a proposed verdict form which provides the jury the option to

impose a sentence of life imprisonment even if the jury finds

both aggravating factors. See 261 Va. at 542, 552 S.E.2d at

361.

While reversing Powell’s conviction on other grounds, we

recognized that this was an issue of first impression and

addressed the issue on the merits, stating that our decision

“will be instructive to future capital murder trials.” Id. at

541, 552 S.E.2d at 361. We stated:

5
For a recent summary of the subsequent proceedings and
history of Atkins, see In re Commonwealth, 278 Va. 1, 5-8, 677
S.E.2d 236, 237-38 (2009).

55
 [T]he issue [in this case] is whether the jury
is likely to be confused where it is instructed
that it may impose a sentence other than death
if it finds one or both of the aggravating
factors have been proven beyond a reasonable
doubt, but receives verdict forms that do not
expressly state that the jury is allowed to fix
a sentence of life imprisonment even though one
or both aggravating factors are present.

The rationale of Atkins flows from the
principle that “it is materially vital to the
defendant in a criminal case that the jury have
a proper verdict form.” Atkins, 257 Va. at 178,
510 S.E.2d at 456. That rationale may be
extended to the provision of jury verdict forms
with sentencing options that accurately and
expressly correspond to the trial court’s
sentencing instruction. Accordingly, we hold
that in a capital murder trial, the trial court
must give the jury verdict forms providing
expressly for the imposition of a sentence of
imprisonment for life and a fine of not more
than $100,000 when the jury finds that one or
both of the aggravating factors have been
proven beyond a reasonable doubt.

Id. at 545, 552 S.E.2d at 363 (emphasis added).

Subsequent to Powell, we considered the same issue in the

context of a writ of habeas corpus in which the defendant

claimed that his trial counsel was ineffective for not

objecting to the verdict forms, which did not give the jury

the option of imposing a life sentence if it found one or both

of the aggravating factors. Morrisette, 270 Va. at 197, 613

S.E.2d at 559. In addressing the merits of the defendant’s

ineffective assistance claim, we stated: “We take this

opportunity to reaffirm our holding in Powell,” that a verdict

56
form must expressly include that sentencing option. Id. at

202, 613 S.E.2d at 562.

Our decisions in Powell and Morrisette make it clear that

a verdict form must provide the jury with the explicit option

of imposing a life sentence even if the jury finds one or both

aggravating factors. The Commonwealth’s argument that any

error in the verdict form is cured by the jury instructions is

without merit. As in this case, we have previously set aside

a defendant’s sentence of death and ordered a new sentencing

proceeding because “[t]he jury was presented with a confusing

situation in which the trial court’s instructions and the form

the jury was given to use in discharging its obligations were

in conflict.” Atkins, 257 Va. at 179, 510 S.E.2d at 457. No

jury instruction can overcome a verdict form in a capital

murder sentencing proceeding which is defective for lack of a

sentencing option to impose life imprisonment even if one or

both aggravators are found.

We also disagree with the Commonwealth’s argument that

the General Assembly’s amendment of Code § 19.2-264.4 after

our decision in Powell was a rejection of the holding in

Powell. Code § 19.2-264.4 establishes the sentencing

proceeding in a capital murder case and recognizes that a jury

must be instructed upon request of the defendant that a life

sentence means life without parole. This statute also

57
authorizes victim impact testimony and addresses the

admissibility of evidence in sentencing proceedings.

Moreover, the statute stipulates that no penalty of death can

be imposed unless the Commonwealth proves one or both

aggravating factors beyond a reasonable doubt and requires the

imposition of imprisonment for life if a sentencing jury

cannot agree as to the penalty.

There is, however, nothing in Code § 19.2-264.4 dictating

required jury instructions. It is the interplay between a

circuit court’s instructions to the jury and an appropriate

sentencing verdict form that is central to the issue in this

case. Code § 19.2-264.4(D) states that “[t]he verdict of the

jury shall be in writing, and in one of the following forms”

and provides only two forms. Clearly, the two generic forms

cannot be intended to limit the circuit court in the myriad of

possible instructions and verdict forms that may arise in a

capital murder case.

Our review of trial records in previous capital murder

cases involving imposition of the sentence of death reveals

that the statutory form was often not utilized, yielding to

the circuit court’s discretion in tailoring verdict forms to

the issues presented in a particular case. In these cases,

the circuit courts provided multiple verdict forms offering

the jury the option of finding unanimously and beyond a

58
reasonable doubt either or both aggravating factors, and

offering the jury for each finding the option of death or life

imprisonment, with or without a fine. Porter v. Commonwealth,

276 Va. 203, 264-65, 661 S.E.2d 415, 447-48 (2008); Gray v.

Commonwealth, 274 Va. 290, 645 S.E.2d 448 (2007); Teleguz v.

Commonwealth, 273 Va. 458, 643 S.E.2d 708 (2007), cert.

denied, ___ U.S. ___, 128 S.Ct. 1228 (2008); Juniper v.

Commonwealth, 271 Va. 362, 388, 626 S.E.2d 383, 400-01, cert.

denied, 549 U.S. 960 (2006); Muhammad v. Commonwealth, 269 Va.

451, 526, 619 S.E.2d 16, 59 (2005), cert. denied, 547 U.S.

1136 (2006).

We hold that the language of Code § 19.2-264.4 does not

require the circuit court to abdicate its authority in

tailoring jury instructions and verdict forms so that a jury

is clearly instructed on the issues relevant to the particular

case the jury is considering.

Sentencing options set forth in a verdict form must

explicitly correspond to the circuit court’s sentencing

instructions. Morrisette, 270 Va. at 202, 613 S.E.2d at 562.

Since Code § 19.2-264.4 provides no requirements or guidance

for the circuit court in instructing a capital sentencing

jury, there is no way that the verdict forms set out in Code

§ 19.2-264.4(D) could adequately apply to all possible

sentencing alternatives available to the jury. Although the

59
jury was instructed that in finding one or both of the

aggravating factors, the jury could sentence Prieto to life

imprisonment, with or without a fine, there simply was no

corresponding option in the statutory verdict form.

We find no reason to depart from our previous holding in

Powell and Morrisette that when a jury is instructed that

available sentencing options include life imprisonment, with

or without a fine, the circuit court is required to provide a

verdict form expressly providing the jury with that option.

In this case, the verdict forms provided by the circuit court

were defective in not specifically providing the jury in the

sentencing phase the option to sentence Prieto to life

imprisonment, with or without a fine, even if the jury found

one or both of the aggravating factors.

B. Unanimity Regarding Aggravating Factors

The circuit court also denied Prieto’s request for a

sentencing verdict form that informed the jury that it had to

be unanimous in the finding of one or both of the aggravating

factors. Verdict forms two and three utilized by the jury in

its findings, provided, in pertinent part:

[A]fter consideration of [the defendant’s]
prior history . . . there is a probability that
he would commit criminal acts of violence that
would constitute a continuing serious threat to
society or his conduct in committing the
offense is outrageously or wantonly vile,
horrible or inhuman in that it involved torture

60
 or depravity of mind, and having considered the
evidence in mitigation of the offense,
unanimously fix his punishment at death.

(Emphasis added).

Specifically, Prieto argued that the two aggravating

factors are elements of the offense that must be found beyond

a reasonable doubt by a unanimous jury, pursuant to Ring v.

Arizona, 536 U.S. 584 (2002). Prieto’s proposed verdict form,

which was not granted by the circuit court, included the

phrase “unanimously and beyond a reasonable doubt” in the

finding of each aggravator. 6 Prieto also raised this issue

6
Prieto’s proposed verdict form reads as follows:

We, the jury, on the issue joined, having
found the defendant guilty of the capital
murder of Rachael Raver in the commission of or
subsequent to rape and:
(1) having found unanimously and beyond a
reasonable doubt, after consideration of his
history and background that there is a
probability that he would commit criminal acts
of violence that would constitute a continuing
serious threat to society,
(enter “found” or “not found”)_______

and/or

(2) having found unanimously and beyond a
reasonable doubt that his conduct in committing
the offense was outrageously or wantonly vile,
horrible, or inhuman in that it involved
torture, depravity of mind or aggravated
battery to the victim beyond the minimum
necessary to accomplish the act of murder,
(enter “found or “not found”)_______

and

61
post-trial in a motion to set aside the death sentences and

for a new trial, which the circuit court denied.

On appeal, Prieto argues that the verdict forms were

defective under Ring because they did not require the jury to

unanimously find at least one of the aggravating factors to

impose a death sentence. Prieto contends that the aggravating

factors are elements of the offense because they are facts

that increase the maximum punishment from life imprisonment to

death. According to Prieto, it is not clear from the verdict

having considered all the evidence in
mitigation of the offense, unanimously fix his
punishment at:
Choose one:
_____Death (you may choose this option only if
you have found one or both of the aggravating
circumstances); or
_____Imprisonment for life (you may choose this
option even if you have found one or both of
the aggravating circumstances); or
_____Imprisonment for life and a fine of
$________(fine must not be more than
$100,000)(you may choose this option even if
you have found one or both aggravating
circumstances).

Signed_______________,
Foreman

Another section of Prieto’s proposed verdict form
concerning the murders of Raver and Fulton as part of the same
act or transaction contained the same language as above,
except for the names of the victims and the description of the
capital murder elements.

62
forms whether the jury unanimously found either or both of the

aggravating factors as required by Ring.

The Commonwealth responds that neither of the aggravating

factors is an element, but rather, they are alternate means of

proof. The Commonwealth argues that Code § 19.2-264.4 only

requires that the vote for imposing a death sentence be

unanimous. The Commonwealth asserts that our decisions in

Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979),

cert. denied, 444 U.S. 1049 (1980), and Hoke v. Commonwealth,

237 Va. 303, 377 S.E.2d 595, cert. denied, 491 U.S. 910

(1989), support its position that the jury need not make a

unanimous finding regarding individual aggravating factors.

We disagree with the Commonwealth on this issue.

“[T]he death penalty may not be imposed unless the trier

of fact finds one or both of the two aggravating factors that

we have referred to as ‘vileness’ and ‘future

dangerousness.’ ” Schmitt v. Commonwealth, 262 Va. 127, 149,

547 S.E.2d 186, 201 (2001), cert. denied, 534 U.S. 1094

(2002). The issue in this case is whether the two aggravating

factors are elements of capital murder that must be found

unanimously and beyond a reasonable doubt.

Code § 19.2-264.4(C) provides:

The penalty of death shall not be imposed
unless the Commonwealth shall prove beyond a
reasonable doubt that there is a probability

63
 based upon evidence of the prior history of the
defendant or of the circumstances surrounding
the commission of the offense of which he is
accused that he would commit criminal acts of
violence that would constitute a continuing
serious threat to society, or that his conduct
in committing the offense was outrageously or
wantonly vile, horrible or inhuman, in that it
involved torture, depravity of mind or
aggravated battery to the victim.

Likewise, Code § 19.2-264.2 provides:

In assessing the penalty of any person
convicted of an offense for which the death
penalty may be imposed, a sentence of death
shall not be imposed unless the court or jury
shall (1) after consideration of the past
criminal record of convictions of the
defendant, find that there is a probability
that the defendant would commit criminal acts
of violence that would constitute a continuing
serious threat to society or that his conduct
in committing the offense for which he stands
charged was outrageously or wantonly vile,
horrible or inhuman in that it involved
torture, depravity of mind or an aggravated
battery to the victim; and (2) recommend that
the penalty of death be imposed.

The Supreme Court of the United States has held that

“[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S.

466, 490 (2000). In Apprendi, the Supreme Court addressed

“whether the Due Process Clause of the Fourteenth Amendment

requires that a factual determination authorizing an increase

in the maximum prison sentence for an offense from 10 to 20

64
years be made by a jury on the basis of proof beyond a

reasonable doubt.” Id. at 469. The factual determination at

issue in Apprendi was addressed in the context of the

constitutionality of a New Jersey statute that provided for an

extended term of imprisonment “if the trial judge finds, by a

preponderance of the evidence, that the defendant in

committing the crime acted with a purpose to intimidate an

individual or group of individuals because of race, color,

gender, handicap, religion, sexual orientation or ethnicity.”

Id. at 468-69 (internal quotation and citation omitted).

The decision in Apprendi was expounded upon two years

later, in Ring, when the Supreme Court of the United States

held that “[c]apital defendants . . . are entitled to a jury

determination of any fact on which the legislature conditions

an increase in their maximum punishment.” 536 U.S. at 588.

In Ring, the Supreme Court addressed the constitutionality of

Arizona’s death penalty scheme, which allowed the trial judge,

sitting alone and after a jury adjudication of a defendant’s

guilt, to determine the presence or absence of aggravating

factors that allow imposition of the death penalty. The Court

held that this scheme was unconstitutional, stating: “If a

State makes an increase in a defendant’s authorized punishment

contingent on the finding of a fact, that fact – no matter how

the State labels it – must be found by a jury beyond a

65
reasonable doubt.” Id. at 602. Justice Scalia, concurring,

noted:

[T]he fundamental meaning of the jury-trial
guarantee of the Sixth Amendment is that all
facts essential to imposition of the level of
punishment that the defendant receives – whether
the statute calls them elements of the offense,
sentencing factors, or Mary Jane – must be found
by the jury beyond a reasonable doubt.

Id. at 610.

Thus, our inquiry must focus on whether the aggravating

factors in Virginia’s death penalty statute are facts that

increase the maximum punishment for a defendant. Clearly,

they are. The death penalty may not be imposed unless the

jury finds either or both of the aggravating factors of

“vileness” or “future dangerousness” beyond a reasonable

doubt. Code §§ 19.2-264.2, -264.4. As such, the aggravating

factors must be submitted to a jury and found beyond a

reasonable doubt. Moreover, because this Court has recognized

that there are two distinct aggravating factors, one or both

of the aggravating factors must be found beyond a reasonable

doubt by a jury before a death sentence may be imposed.

Furthermore, Article I, § 8 of the Constitution of Virginia

provides that a jury’s verdict in a criminal case must be

unanimous.

The Commonwealth’s reliance on Clark v. Commonwealth is

misplaced. In Clark, the defendant argued that the verdict

66
form “authorized the jury to impose a penalty of death if it

found the defendant’s conduct involved depravity of mind or

aggravated battery to the victim,” which is a challenge that

the form should reflect unanimity regarding which sub-factor

of the “vileness” aggravating factor on which the jury based

its verdict, not whether unanimity was required for the

“vileness” factor. 220 Va. at 213, 257 S.E.2d at 791. We

rejected the defendant’s argument, holding that the “verdict

returned by the jury complie[d] with the language of the

statute.” Id. Thus, Clark stands only for the proposition

that the jury’s finding regarding the various sub-factors of

the “vileness” aggravating factor need not be unanimous.

Clark was decided prior to Apprendi and Ring, and we did not

address whether the jury’s verdict regarding the two

aggravating factors of “future dangerousness” or “vileness”

must be unanimous.

The Commonwealth’s reliance on Hoke v. Commonwealth is

also misplaced. In Hoke, the defendant argued that his

constitutional right to a unanimous verdict was violated

because a jury instruction, to which he did not object, “was

ambiguous and vague and therefore violated [his]

constitutional rights to a unanimous verdict.” 237 Va. at

315, 377 S.E.2d at 602 (internal quotation marks omitted). He

argued that the instruction did not delineate between the

67
“vileness” and “future dangerousness” aggravating factors.

Id. However, the defendant conceded that the death sentence

was unanimous. Id. Moreover, the circuit court polled the

jury, and each juror affirmed that his or her verdict was

based on both aggravating factors. Id. Because there was an

independent basis to affirm the jury’s finding regarding both

aggravating factors, and because the defendant conceded that

the verdict was unanimous, we did not address the merits of

the defendant’s unanimity argument.

Unlike Prieto’s proffered verdict form, there is no

language in verdict forms two and three requiring the jury to

find one or both aggravating factors “unanimously and beyond a

reasonable doubt.” In this case, it is impossible to discern

from the verdict forms whether the jury unanimously found

either or both aggravating factors beyond a reasonable doubt.

This presents the troubling possibility that six or more of

the jurors based their decision on the “future dangerousness”

factor, while the other six or fewer based their decision on

the “vileness” factor. This hypothetical result, which is

permissible according to the language in the verdict forms,

would result in the jury sentencing Prieto to death based on a

non-unanimous verdict in violation of the Virginia

Constitution.

68
 Therefore, we hold that in the penalty phase of capital

murder trials the death penalty may not be imposed unless the

jury unanimously finds either one or both of the aggravating

factors of “vileness” or “future dangerousness” beyond a

reasonable doubt. We further hold that the verdict form in

Prieto II is defective in failing to explicitly set out the

unanimity required in the jury finding of one or both of the

aggravating factors beyond a reasonable doubt.

Based upon the insufficiency of the verdict forms to

provide the jury the specific option to impose a life sentence

even if the jury finds both aggravating factors proven, and

based upon the insufficiency of the verdict forms to require

the jury to unanimously find beyond a reasonable doubt one or

both aggravating factors to impose a sentence of death, we

will set aside the death sentences imposed by the jury and

remand this case to the circuit court for a new sentencing

proceeding.

VIII. RECORD OF CONVICTION WITH DEATH SENTENCE DISPLAYED

Because we have remanded this case for resentencing, in

order to provide guidance to the circuit court, it is

necessary that we address Prieto’s objection to the

introduction of the record of his capital murder conviction

from California which contained information that he was

sentenced to death for the California murder.

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 Prior to the start of the sentencing phase, Prieto

objected to the inclusion of information regarding his death

sentence in California, which was displayed in his criminal

record that the Commonwealth sought to submit to the jury.

The circuit court overruled Prieto’s objection and admitted

the documents into evidence.

Prieto argues that the admission of his previous death

sentence was irrelevant to his “future dangerousness” and

undermined the jury’s obligation to consider the mitigating

evidence. Prieto contends that informing the jury that a

defendant has already been sentenced to death also undermines

the fairness of the penalty proceeding.

The Commonwealth responds that this issue has been

decided by this Court in Bassett v. Commonwealth, 222 Va. 844,

284 S.E.2d 844 (1981), cert. denied, 456 U.S. 938 (1982), and

thus the circuit court’s admission of Prieto’s criminal record

was proper. The Commonwealth argues it is speculation that

knowledge of an already existing death penalty might

trivialize the jury’s decision, so that the jury might impose

a death sentence with less deliberation if it knows that the

defendant has already been sentenced to death.

We agree with the Commonwealth’s arguments on this issue.

Code § 19.2-264.4(B), which addresses the scope of admissible

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evidence in the sentencing phase of a capital murder trial,

provides, in pertinent part:

In cases of trial by jury, evidence may be
presented as to any matter which the court
deems relevant to sentence, except that reports
under the provisions of § 19.2-299, or under
any rule of court, shall not be admitted into
evidence.

Evidence which may be admissible, subject
to the rules of evidence governing
admissibility, may include the circumstances
surrounding the offense, the history and
background of the defendant, and any other
facts in mitigation of the offense.

Additionally, Code § 19.2-295.1 provides that upon a finding

that a defendant is guilty of a felony, the Commonwealth

“shall present the defendant’s prior criminal history,

including prior convictions and the punishments imposed, by

certified, attested or exemplified copies of the final order,

including adult convictions.”

In Bassett, we addressed whether the circuit court

properly admitted the defendant’s prior sentence and

conviction for armed robbery during the penalty phase of his

capital murder trial. 222 Va. at 858, 284 S.E.2d at 853. We

held that the evidence was admissible, noting that “[t]he

sentence reflects the gravity of the offense and the

offender’s propensity for violence.” Id. While the sentence

in Bassett was not a death sentence, the same rationale

applies to allowing the circuit court to admit a defendant’s

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prior conviction that includes a death sentence to establish

the aggravating factor of the defendant’s future

dangerousness.

We also agree with the Commonwealth that it is entirely

speculative whether knowledge of an existing sentence of death

would make a jury more or less likely to impose a second death

sentence. We believe that Virginia jurors will be able to

follow the instructions of the court and to render a verdict

according to the dictates of their individual consciences.

Accordingly, the circuit court did not err in admitting

Prieto’s criminal record which included his death sentence in

California.

IX. SENTENCING ISSUES PREVIOUSLY DECIDED

Prieto’s assignments of error also include arguments this

Court has previously rejected. Finding no reason to modify or

revisit our position on these issues, we adhere to our prior

holdings and reject the following arguments.

A. Constitutionality of Virginia’s Death Penalty Statutes

In assignment of error 15, Prieto challenges the

constitutionality of the death penalty statutes in Virginia.

1. Prieto contends that the statutes fail to adequately

direct the jury on how to evaluate the aggravating factors of

“vileness” or “future dangerousness” or the mitigating factors

so as to prevent the arbitrary and capricious imposition of

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the death penalty. This argument was rejected in Juniper, 271

Va. at 388, 626 S.E.2d at 401 (aggravating factors and

mitigating evidence); Wolfe v. Commonwealth, 265 Va. 193, 208,

576 S.E.2d 471, 480, cert. denied, 540 U.S. 1019 (2003)

(aggravating factors); and Watkins v. Commonwealth, 229 Va.

469, 490-91, 331 S.E.2d 422, 438 (1985), cert. denied, 475

U.S. 1099 (1986) (mitigating evidence).

2. Prieto also argues that unajudicated criminal acts

should not be considered in order to find future

dangerousness. We rejected this argument in Juniper, 271 Va.

at 389, 626 S.E.2d at 401, and Stockton v. Commonwealth, 241

Va. 192, 209-10, 402 S.E.2d 196, 206, cert. denied, 502 U.S.

902 (1991).

3. Prieto further contends that hearsay in the post-

sentence report should not be considered, which is an argument

we rejected in Teleguz, 273 Va. at 474, 643 S.E.2d at 719, and

O’Dell v. Commonwealth, 234 Va. 672, 701-02, 364 S.E.2d 491,

507-08, cert. denied, 488 U.S. 871 (1988).

4. Prieto contests the inability to set aside the

sentence of death upon a showing of good cause. We rejected

the same argument in Juniper, 271 Va. at 389, 626 S.E.2d at

401, Teleguz, 273 Va. at 474, 643 S.E.2d at 719, and Breard v.

Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675-76, cert.

denied, 513 U.S. 971 (1994).

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 5. Prieto argues that the proportionality and

passion/prejudice review conducted by this Court are not

consistent with the Eighth Amendment and other federal or

state constitutional provisions. We rejected this argument in

Teleguz, 273 Va. at 475, 643 S.E.2d at 719, Satcher v.

Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826 (1992),

cert. denied, 507 U.S. 993 (1993), and Smith, 239 Va. at 253,

389 S.E.2d at 876.

B. “Future Dangerousness” and “Vileness” Instructions

In assignments of error 67 and 68, Prieto argues that the

circuit court erred when it refused to give the jury his

proposed instructions H and K. For the “future dangerousness”

aggravating factor, instruction H would have, in part, defined

the term “probability” to mean “a reasonable likelihood that

the defendant will actually commit intentional acts of

unprovoked violence in the future.” For the “vileness”

aggravating factor, instruction K would have, in part, defined

the term “depravity of mind” to mean “a degree of moral

turpitude and debasement surpassing that inherent in the

definition of ordinary malice and premeditation.”

Because these definitions come from this Court’s decision

in Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135,

149 (1978), cert. denied, 441 U.S. 967 (1979), Prieto contends

they became part of the law in Virginia and have narrowed the

74
meaning of the aggravating factors so as to make them an

element of the offense. Prieto asserts that under Ring v.

Arizona, 536 U.S. 584 (2002), and Bell v. Cone, 543 U.S. 447,

454 n.6 (2005), the proposed instructions should have been

given in order to ensure that the jury properly determined

whether Prieto was a future danger to society or his conduct

was sufficiently vile in order to support a sentence of death.

We have specifically rejected the argument Prieto raises

with regard to the future dangerousness aggravating factor

involved in proposed instruction H. Porter v. Commonwealth,

276 Va. 203, 264-65, 661 S.E.2d 415, 447-48 (2008), cert.

denied, ___ U.S. ___, 129 S.Ct. 1999 (2009). We see no reason

to readdress this ruling at this time.

The circuit court also did not err in refusing to give

proposed instruction K. We have rejected the notion that the

term “depravity of mind” is unconstitutionally vague, Sheppard

v. Commonwealth, 250 Va. 379, 394, 464 S.E.2d 131, 140 (1995),

cert. denied, 517 U.S. 1110 (1996), or that an instruction

defining “depravity of mind” needs to be given. Tuggle v.

Commonwealth, 228 Va. 493, 515, 323 S.E.2d 539, 553 (1984),

vacated on other grounds, 471 U.S. 1096 (1985). We have also

found that Virginia’s death penalty statutes do not suffer

from the same issues found in Ring, 536 U.S. at 592-93, and

Muhammad, 269 Va. at 491, 619 S.E.2d at 39, and that Apprendi

75
v. New Jersey, 530 U.S. 466 (2000), does not require the jury

to be instructed on the definitions of the subparts of the

vileness aggravating factor. Elliott v. Warden, 274 Va. 598,

627, 652 S.E.2d 465, 488-89 (2007). Therefore, no additional

instruction was needed in order for the jury to understand the

vileness aggravating factor.

X. PAGE LIMIT

In his opening brief, Prieto argues that this Court erred

in denying his motion for an extension of page limit. Prieto

contends that this Court’s denial of his motion impeded his

right to effective assistance of counsel on appeal.

The Commonwealth responds that this argument is not a

proper issue for appeal because it does not challenge a ruling

made by the circuit court below. The Commonwealth also

contends this argument should be barred because no error was

assigned.

We will not consider this argument on appeal because

Prieto did not assign error to it and it is not an argument on

which he can rely “for reversal of the conviction or review of

the sentence of death.” Rule 5:22.

XI. STATUTORY REVIEW OF DEATH PENALTY

Because we have determined that there was reversible

error in the sentencing phase of Prieto’s trial which will

necessitate a remand to the circuit court, we need not

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consider at this time “[w]hether the sentence of death was

imposed under the influence of passion, prejudice or any other

arbitrary factor” and “[w]hether the sentence of death is

excessive or disproportionate to the penalty imposed in

similar cases, considering both the crime and the defendant.”

Code § 17.1-313.

XII. CONCLUSION

For the reasons stated, we find no reversible error in

the guilt phase of Prieto’s trial, and, accordingly we will

affirm Prieto’s convictions on all charges including the

capital murder charges. Because there was error in the

penalty phase, we will reverse the two sentences of death and

remand the case to the circuit court for a new penalty

proceeding on the capital murder convictions.

Reversed in part,
affirmed in part,
and remanded.

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