Elliott v. Commonwealth

Present: All the Justices

LARRY BILL ELLIOTT
OPINION BY
v. Record Nos. 031610 & 031611 JUSTICE LAWRENCE L. KOONTZ, JR.
March 5, 2004
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William D. Hamblen, Judge

In this appeal, we review the capital murder conviction and

death sentence imposed on Larry Bill Elliott for the murder of

Dana L. Thrall, Code § 18.2-31(7) (willful, deliberate, and

premeditated killing of more than one person as part of the same

act or transaction), along with his convictions for the first

degree murder of Robert A. Finch, Code § 18.2-32, and firearm

offenses related to these two murders, Code § 18.2-53.1.

BACKGROUND

In accordance with well-established principles of appellate

review, we will recount the evidence as reflected in the record

in the light most favorable to the Commonwealth, the prevailing

party below. Wolfe v. Commonwealth, 265 Va. 193, 198, 576

S.E.2d 471, 474, cert. denied, ___ U.S. ___, 124 S.Ct. 566

(2003).

The Murders

At approximately 4:00 a.m. on the morning of January 2,

2001, Mary Bracewell, a newspaper delivery person, was traveling

her route in the Woodbridge community of Prince William County,
Virginia. Bracewell was aware that there had been several

recent vehicle break-ins in the neighborhood and became

suspicious when she saw a man standing beside a pick-up truck

parked on Belfry Lane. Bracewell observed the man, who appeared

to be carrying a flashlight, walk to the north end of Belfry

Lane, cross the street, walk onto a grassy area between two

townhouses, and then disappear from her view. Bracewell called

police on her cellular telephone to report her observations.

At 4:15 a.m., Officer Marshall T. Daniel of the Prince

William County Police Department received a radio dispatch

directing him to respond to Bracewell’s call. He arrived at

Belfry Lane three minutes later. Bracewell indicated the parked

pick-up truck to Daniel and related to him what she had

observed. Daniel noted that the pick-up truck, which was

locked, had a Department of Defense windshield identification

sticker and that there was a cellular telephone on the passenger

seat.

At 4:27 a.m., Officer Daniel received a radio call to

respond to a report of a domestic disturbance at a townhouse

located at 3406 Jousters Way. Jousters Way is located

approximately 300 yards north of Belfry Lane. Although the two

streets do not intersect, one can reach Jousters Way on foot

2
from Belfry Lane by walking in the same direction that Bracewell

had seen the man beside the pick-up truck walking.

Tina Miller, who lived in an adjoining townhouse, had made

the report of a domestic disturbance at 3406 Jousters Way.

Miller telephoned police after being awakened by a crashing

sound coming from 3406 Jousters Way at approximately 4:20 a.m.

As she placed the call, Miller heard three or four “hollow”

sounds followed by “the most horrible scream” she had ever

heard. Miller thought that the screaming voice sounded like

that of Thrall, one of the occupants of 3406 Jousters Way.

Tommy Young, who lived in a townhouse on the opposite side

of the street from 3406 Jousters Way, was walking his dog in

front of his home at about the same time Miller was awakened by

the crashing sound. Young heard two loud “banging noises”

coming from 3406 Jousters Way, followed by the sound of a female

scream and three more banging noises. Young went back to his

house and told his wife to call the police. A few minutes

later, Young looked out his front window and saw that the front

storm door of 3406 Jousters Way, which had earlier been closed,

was swaying back and forth. Young also noted that the front

window shades of the home, which were normally left half-drawn,

were fully closed.

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 Officer Scott Bigger of the Prince William County Police

Department arrived at 3406 Jousters Way at 4:25 a.m. Officer

Bigger knocked on the front door, but got no response. Officer

Daniel arrived a few minutes later and walked around to the back

of the townhouse. The backyard was enclosed by a privacy fence,

and Officer Daniel could hear a large dog barking “pretty

hysterical[ly], angry” inside the yard.

Returning to the front of the home, Officer Daniel observed

that Officer Bigger had still received no response to his

knocking on the front door. Looking through a gap between the

shades of a front window, Officer Daniel was able to see the

legs of a person lying prone and motionless in the foyer of the

home. Officer Bigger opened the unlocked front door and he and

Officer Daniel saw Finch, who lived with Thrall in the home,

lying on the floor dead. Finch had suffered three gunshot

wounds: one to his head, one to his back, and one to his chest.

Officer Daniel immediately returned to the back of the home

to secure that area while Officer Bigger waited at the front of

the home for additional officers to arrive. When those officers

arrived, Officer Daniel immediately returned to the location on

Belfry Lane where the pick-up truck had been parked. He arrived

at that location at 4:38 a.m. The truck was gone.

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 Officer Sheldon R. Creamer, one of the officers who had

responded to the call by the other officers for assistance,

arrived at 3406 Jousters Way at approximately 4:45 a.m.

Entering the home, he heard “a muffled breathing sound” coming

from the kitchen at the back of the home. In the kitchen he

found Thrall, shot and lying in a pool of blood. Emergency

medical personal called to the scene took Thrall by ambulance to

a helicopter, which in turn evacuated her to the Washington

Hospital Center in the District of Columbia, where she later

died. Thrall had suffered multiple gunshot wounds including a

defensive wound to her right hand, three to her head, and one to

her chest. She also suffered a blunt force trauma to the back

of her head consistent with a pistol-whipping.

Officer Creamer found that the backdoor was locked by its

doorknob lock, but that the door’s deadbolt lock was not

engaged. He could hear the dog barking in the back yard.

Entering the yard from the kitchen, Officer Creamer found that

the dog had calmed down. He then determined that the gate of

the privacy fence was secured with a locked padlock.

Meanwhile, because Officer Daniel had reported seeing a

child looking out of a second floor back window, Officer Bigger

reentered the home and went upstairs. There he found Thrall’s

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two sons, aged six and four, who were crying and upset. Police

officers removed the children from the home.

The Investigation

Officer Thomas Leo, a crime scene analyst with the Prince

William County Police Department, collected bloodstain samples

at various locations inside the townhouse. Subsequent DNA

testing of these samples confirmed that the blood was that of

Thrall and Finch. Leo also found a bloodstain on the inside of

the gate of the privacy fence. Subsequent DNA testing of this

sample showed that it was consistent with Elliott’s DNA to a

degree that a match would occur “once in the entire world

population.”

Although a murder weapon was never recovered, forensic

testing of ten bullets recovered from the home and during the

autopsies of Thrall and Finch confirmed that all had been fired

by the same weapon. The bullets were of a type used only in a

revolver-type handgun. Gary Arnsten, a firearms expert with

Virginia’s Division of Forensic Science, testified at trial that

because no weapon of this type could hold more than five or six

bullets in its revolving chamber, he was certain that the weapon

had been reloaded during the commission of the murders.

Detective Charles Hoffman of the Prince William County

Police Department spoke with Finch’s sister, Jennifer Finch, the

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day of the murders. She informed Detective Hoffman that Finch

had a prior romantic relationship with Rebecca Gragg. She also

told him that Finch and Gragg had been involved in a bitter

custody dispute over their two children. Detective Hoffman went

to Gragg’s residence in Dale City, Virginia, located about six

miles from the crime scene. Gragg was not at home, but there

were two vehicles parked in front of the residence. One of the

vehicles was registered in Elliott’s name.

Gragg returned to her home later that day and was

interviewed by two detectives. At that time, Gragg maintained

that Elliott was her “friend and business partner.” She denied

knowing anything about the murders, but stated that Finch had

many enemies.

The following day, January 3, 2001, Detective Hoffman and

another detective traveled to Fort Meade in Hanover, Maryland,

where Elliott worked as a civilian employee for the United

States Army as a counterintelligence expert. The detectives had

learned that Elliott owned a pick-up truck and wanted “to

determine whether that truck could, in fact, have been the truck

that was seen nearby the [crime] scene.” The detectives located

the truck in a parking lot at Fort Meade, and Detective Hoffman

observed that there was a flashlight, a cellular telephone, and

a box of bandages on the seat of the truck.

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 As Detective Hoffman was taking photographs of the truck,

Elliott approached him, identified himself as the owner of the

truck, and agreed to talk to the detectives. During that

conversation, Elliott told the detectives that Gragg was an

employee at a brewing company he owned in West Virginia. He

admitted that he had supplied Gragg with a credit card in the

name of “Rebecca L. Elliott,” but maintained that this had been

for business purposes. He also told the detectives that he had

been traveling over the New Year’s holiday, as had Gragg, and

that during that time he had spoken with her several times on

his cellular telephone in an effort to arrange a business

meeting with her.

Elliott told the detectives that he was aware that Gragg

and Finch were involved in a dispute regarding the custody of

their two children. Elliott related that Gragg had traveled to

Florida over the New Year’s holiday and had taken the children

with her. He further related that Gragg had told him that she

was having car trouble and would not be able to return to

Virginia with the children in time to return them to Finch at

2:00 p.m. on New Year’s Day as she was required to do under a

visitation agreement. Elliott claimed that he had driven to

Gragg’s residence in the early afternoon of New Year’s Day “in

case Robert Finch showed up so that [Elliott] could explain to

8
him the problems Rebecca was having with getting back.” Elliott

denied he had any relationship with Gragg other than as her

employer. He also denied knowing Finch and claimed that he had

seen him only once.

Although Detective Hoffman told Elliott that his truck had

been seen in Finch’s neighborhood in the early morning hours of

the day of the murders, Elliott denied having been in the area.

Elliott claimed that he had spent the night of January first to

second sleeping in his truck at a rest area in Maryland.

Elliott voluntarily accompanied the detectives to the Anne

Arundel County, Maryland Police Department. During the course

of an interview there, Elliott admitted the true nature of his

involvement with Gragg. He told the detectives that he had

initiated a relationship with Gragg in mid-1999 after viewing

her photograph on an Internet website called “Adult Friend

Finders.” In her advertisement, Gragg had indicated that she

was looking for a “sugar daddy.” During their first meeting,

Gragg told Elliott that she had worked as a stripper and

“private escort,” a euphemism for a “call-girl” prostitute.

Gragg told Elliott that she wanted to turn her life around and

needed financial support to start a business designing and

selling costumes for strippers. She told Elliott that she was

not interested in having a romantic or sexual relationship with

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him. Elliott agreed to this arrangement, saying that he wanted

only friendship from Gragg.

Elliott subsequently provided Gragg with significant

financial support, including paying private school tuition for

her children, paying the mortgage on one house Gragg owned in

West Virginia and rental on others where she lived with her

husband and children at various times, providing her with cars,

and permitting her to use his credit cards. Elliott also paid

for breast augmentation surgery for Gragg, who had begun

operating a pay-to-view pornographic website. Elliott admitted

that his support of Gragg had placed a significant financial

burden on him and that he had to sell investments to pay her

credit card debts.

Elliott further admitted that he knew where Finch lived and

that, after he had gone to Gragg’s house on the afternoon of

January 1, 2001, he had driven to Finch’s house. He denied

getting out of his truck, however, and claimed that he had seen

“a black man with a slinky walk going to the front door of the

home.” Elliott maintained that he had then driven to a large

national retail store and a restaurant before driving to the

rest stop in Maryland where he had spent the night. He then

claimed that he had driven back to Gragg’s residence about 3:00

a.m. on the morning of January 2, 2001, to retrieve a case of

10
motor oil that he had seen there the day before. He then went

to a convenience store where he called Gragg’s cellular

telephone on a pay telephone. Elliott claimed that he used the

pay telephone because his own cellular telephone’s battery had

run down. Telephone company records showed that a call had been

placed from the pay telephone to Gragg’s cellular telephone at

3:28 a.m. on January 2, 2001.

Elliott admitted that after calling Gragg, he drove to

Finch’s neighborhood. He admitted leaving his truck, claiming

that he did so only because he needed to urinate. Elliott

stated that after urinating by a guardrail on the side of the

road, he walked by Thrall’s and Finch’s townhouse. He denied

going onto the property and stated that he had not heard

gunshots, a scream, or anything unusual. At the conclusion of

this interview, Detective Hoffman took a photograph of an

abrasion he had noticed on one of Elliott’s hands.

On January 4, 2001, Gragg, accompanied by her lawyer, was

again interviewed by detectives investigating the murders of

Thrall and Finch. During that interview, she admitted receiving

a telephone call early on the morning of the murders, but

claimed that the call had come from Finch. Gragg claimed that

Finch had threatened to call the police if she did not return

their children to him that afternoon. Gragg also told the

11
detectives that she did not believe that Elliott had committed

the murders.

On January 7, 2001, Detective Hoffman conducted another

interview with Elliott during which Elliott admitted that he had

been in Finch’s neighborhood “hundreds of times.” He further

admitted walking through the neighborhood, but again denied that

he had ever been on the property of the townhouse where Thrall

and Finch lived.

On January 8, 2001, Officer Leo, the crime scene analyst,

took possession of Elliott’s pick-up truck pursuant to a search

warrant. He determined that the interior of the truck had

recently been cleaned, noting that the carpet was wet and that

the seats and interior had been covered with a “silicone type

base cleaner.” Nonetheless, testing of samples collected from

the underside of the truck’s floor mats showed a trace residue

of blood, though the samples were too small for accurate DNA

testing. A further blood sample found in the seat cushion was

consistent with Elliott’s DNA.

Detectives investigating the murders interviewed Gragg on

January 12, 2001 and again on January 19, 2001. She continued

to deny any knowledge of the murders. Based on the results of a

polygraph examination that Gragg had agreed to take, police

suspected that Gragg was not being fully forthcoming, but they

12
were not certain to what extent she had knowledge of the murders

or whether she may have been directly involved. Over the next

several months, Gragg had continuing contact with the police

concerning the investigation of the murders, but she did not

provide any additional information concerning Elliott.

On May 9, 2001, Elliott was arrested in Maryland and

charged with capital murder. At that time, according to

Maryland State Police, Elliott was “leaving [in his vehicle] at

a high rate of speed,” and there was some concern that he was

attempting to flee. Elliott claimed, however, that he had

intended to turn himself in.

On May 10, 2001, Prince William County detectives again

interviewed Gragg. During that interview, Gragg agreed to

submit to a second polygraph examination. After the polygraph

examiner and Detective Hoffman told Gragg that her responses to

questions concerning her knowledge of the murders indicated that

she was being untruthful, Gragg asked to speak with her

attorney.

After consulting with her attorney, Gragg told the police

that the telephone call she had received early on the morning of

the murders was not from Finch, although initially she had

assumed it was because the connection was not good and she could

not hear the caller clearly. Gragg then related that when the

13
caller realized that she thought she was talking to Finch, the

caller said he was “tired of this s*** and was going to take

care of it” and hung up. Gragg then realized that the call had

come from Elliott. She attempted to call his cellular

telephone, but the call was answered by a voice mail system.

Gragg told the detectives that she received several more

calls on her cellular telephone from Elliott later on January 2,

2001. During one call, Elliott told her that “all of our

problems had been taken care of.” In another call, Elliott

claimed that “Jerry,” a cryptic figure Elliott supposedly knew

through his work with military counterintelligence, “had come

out of nowhere to help him, that he had to go clean up this

mess.” Later, Elliott told Gragg that he was looking for a

place “to dump . . . these bloodied black trash bags from the

mess that Jerry had made.”

Gragg told the police that she had not been truthful in her

prior interviews because she was afraid of Elliott and “Jerry,”

because Elliott had once told her that “Jerry” was watching her

and that he would kill her or her family if she went to the

police. Once Elliott was in custody and the police had assured

her that there was no “Jerry,” she stated that she had decided

to be truthful. Gragg’s attorney confirmed that she had told

14
him on several occasions that she feared Elliott would harm her

if she told the police what she knew.

Indictment and Pre-trial Proceedings

On August 6, 2001, the Prince William County grand jury

returned indictments charging Elliott with the capital murder of

Thrall, the first degree murder of Finch, and two counts of the

use of a firearm in the commission of a felony. Elliott was

tried on these indictments initially in a jury trial in July

2002. After the jury had found Elliott guilty and sentenced him

to death, the trial court declared a mistrial after it had been

determined that a juror had improperly discussed the case with a

third party during the trial.

Prior to the July 2002 trial, Elliott had filed numerous

motions, among which were motions to have the Virginia capital

murder and death penalty statutes declared unconstitutional and

to have the jury instructed that, if the Commonwealth presented

evidence of vileness during the penalty determination phase of

the trial, the jury was to be unanimous in its determination of

the elements of the act that caused it to be vile. The trial

court denied these motions without comment. After the mistrial

was declared, Elliott did not renew any of these motions or

otherwise request that the trial court adopt the pre-trial

15
rulings of the first trial and apply them to the conduct of the

retrial.

Prior to the retrial, Elliott filed motions seeking

disclosure of exculpatory and impeaching information within

Rebecca Gragg’s initial statement to police and related police

reports. Elliott maintained that, as a result of Gragg’s

testimony during the first trial, he now believed that the

Commonwealth was in possession of statements by Gragg or police

reports contradicting her testimony. Elliott also sought an in

limine ruling from the trial court to permit the introduction at

trial of a videotape of Gragg’s polygraph examinations. Elliott

maintained that the polygraph evidence would show that Gragg had

a motive to fabricate a story implicating him when she learned

that police knew that she had been untruthful in her prior

interviews when she denied any knowledge of or involvement in

the murders.

The trial court, by letter to counsel, directed the

Commonwealth to disclose to Elliott all statements, whether

exculpatory or not, “authored by Rebecca Gragg and furnished to

the Office of the Commonwealth’s Attorney at some point during

the pendency of this prosecution.” The record shows that the

Commonwealth provided Elliott with additional material not

previously provided under a Brady order entered in the first

16
trial, including a forty-eight-page statement “generated by Ms.

Gragg.” The Commonwealth averred in a cover letter to the

packet containing this material that Elliott had thus been

“provided . . . with transcripts or summaries of all material

contacts between Ms. Gragg and the police concerning this . . .

case.”

On February 10, 2003, and in anticipation of Elliott’s

second trial, a hearing was conducted on Elliott’s motion to

permit the videotape of Gragg’s polygraph examinations into

evidence. During that hearing, Elliott’s counsel asserted that

he should be permitted to establish that Gragg had changed her

“story” after the police told her that she had “failed” the

polygraph examinations. The trial court ruled that during

cross-examination of Gragg, Elliott could establish that police

had confronted her on May 10, 2001, with the assertion that she

had been untruthful in her prior interviews and that is why she

had made prior inconsistent statements to the police. The trial

court reasoned that Elliott’s right to cross-examination could

be conducted “without getting into this morass of polygraph, no

polygraph, passing, failing and the like.”

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 Guilt Determination Phase

Elliott’s second trial commenced on March 24, 2003.1 During

the guilt determination phase of the trial, the Commonwealth

presented evidence in accord with the above-recited facts

concerning the murders and the subsequent police investigation.

During the course of the guilt determination phase, several

issues arose which principally relate to the polygraph

examinations of Gragg and are the subject of various assignments

of error asserted by Elliott in this appeal. For clarity, we

will confine our recitation here to the facts relevant to the

murders and subsequently recite additional facts where

appropriate to address those assignments of error.

Brandon T. Jackson, an employee of the United States Army

Intelligence & Security Command at Fort Belvoir, Virginia, had

known Elliott since 1991. He testified that on December 26,

2000, Elliott had sent him an e-mail stating that Elliott and

some co-workers at Fort Meade wanted to establish a gun range

for practice shooting. Jackson recounted that Elliott knew that

Jackson had a federal firearms dealer’s license, and that

Elliott wanted to know if Jackson could acquire gun silencers

1
Elliott has not assigned error to any aspect of the jury
selection process. Accordingly, we need not recount the
incidents of that portion of the trial.

18
because these were needed for use at the gun range to avoid

complaints from neighbors.

Jackson testified that he ignored the e-mail because he

believed Elliott’s request was “ludicrous.” He explained that

gun silencers would never be used for practice shooting because

the repeated use of silencers made them less effective at

reducing the sound of gunfire. He also testified that obtaining

gun silencers legally was a complex process. Several days after

sending the e-mail, Elliott telephoned Jackson and asked if he

had received the e-mail. He also asked Jackson detailed

questions about gun silencers and whether Jackson thought

Elliott could purchase a silencer at a gun show.

Gragg testified at length concerning her relationship with

Elliott. While not denying her willingness to financially

exploit Elliott’s attraction to her, she maintained that from

the outset she had made it clear to Elliott that she was not

seeking a romantic or sexual relationship. Gragg testified,

however, that Elliott had once claimed to her that they had

sexual intercourse while Gragg had been under the effects of a

pre-operative sedative the night before her breast augmentation

surgery.

Following this incident, Elliott was “constantly”

professing his love to Gragg and provided her with more and more

19
financial support and material goods. Though continuing to

accept these gifts, Gragg became uncomfortable with the

relationship and began refusing to see Elliott socially.

Elliott then began making excuses to see Gragg allegedly on

business related matters and would arrive unannounced at places

where he knew Gragg would be.

Elliott had employed a private investigator to aid Gragg in

her child custody dispute with Finch. When the investigator

failed to provide Elliott with any useful information, Elliott

told Gragg that “he knew people that could do it better.”

Gragg, who still had romantic feelings for Finch, told Elliott

not to interfere.

Eventually, Gragg revealed to Elliott that she had resumed

her relationship with Finch and was still in love with him.

Elliott then told Gragg that “Jerry” was “checking up” on her so

that Elliott could “keep [Gragg] in line.” When Gragg made

light of this claim, Elliott grabbed her by the arm and told her

that she should take him seriously because “people’s lives were

in danger.” Elliott also told her that if she went to the

police, these people would be killed. Elliott specifically

mentioned Finch as one of the people who would be killed.

In mid-December 2000, Elliott told Gragg that she “had

gotten him into this mess,” and that she had to help him get out

20
of it. Elliott said that, if Gragg refused, he did not know

what “Jerry” might do. Elliott gave Gragg personal information

about his wife’s financial accounts and had her pose as his wife

on the telephone to make transfers out of those accounts.

Elliott threw the paper with the information on it away, but

Gragg retrieved it and later turned it over to the police.

On December 26, 2000, the same day that Elliott sent the e-

mail to Jackson inquiring about obtaining gun silencers, Elliott

sent a rambling e-mail to Gragg to “give [her] a little more

information concerning a couple of issues that are in the

works.” Indicating that he had sent her a carbon copy of his e-

mail to Jackson, Elliott further stated that Jackson was “only

one of two people that I am working this issue with.” Elliott

claimed that the other person, who he identified as “Mac,” was

“into anything that went bang and he just may have some

connections.” Elliott further indicated that he had to meet

with “Mac” personally because “[h]e is the type of guy that

would bolt if I mentioned any of this in an email.”

Throughout the e-mail, as he had in previous communications

to Gragg, Elliott made references to having “this one issue

resolved” and the possibility of he and Gragg “hav[ing] a

relationship when [her] problem [is] taken care of.” Gragg

testified that she understood that by the “issue” and the

21
“problem” Elliott was referring to the child custody dispute

with Finch. Elliott concluded the e-mail with a postscript

telling Gragg to remember that he loved her even “if everything

goes south.”

After the Commonwealth rested, Elliott recalled Detective

Hoffman for the limited purpose of inquiring into one of the

issues, previously referenced herein, that had arisen during the

Commonwealth’s presentation of evidence. Elliott otherwise did

not offer any evidence. After being instructed by the trial

court and hearing argument from the Commonwealth and the

defense, the jury retired to consider its verdicts. During

deliberations, the jury sent a question to the trial court

asking to view a videotape of the crime scene that had been

admitted into evidence. With the concurrence of the parties,

the trial court permitted the jury to view the videotape. The

record does not reflect that there was any other communication

from the jury during this phase of the trial.

After four hours of deliberation, the jury returned its

verdicts, convicting Elliott of the capital murder of Thrall,

the first degree murder of Finch, and the two related firearm

offenses. At the request of the defense, the jury was polled

and each juror indicated agreement with the verdicts.

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 Penalty Determination Phase

Elliott has not assigned error to the conduct of the

evidentiary portion of the penalty determination phase of his

trial. Accordingly, we will recount the evidence presented in

summary fashion. The Commonwealth called Thrall’s mother,

brother, and sister-in-law as witnesses to give victim impact

testimony. Each recounted the effect of Thrall’s murder on her

family, including the effect it had on her two sons.

Elliott called his wife and six of his co-workers as

character witnesses. Their testimony consisted principally of

assertions of Elliott’s good character, mild manner, and strong

work ethic, including his twenty years enlisted service in the

United States Army as a counterintelligence specialist and his

subsequent civilian employment in that same capacity.

Elliott’s wife testified that they had married in 1976 and

that they had a daughter. Elliott also had children from a

prior marriage. She admitted that Elliott had not had a close

relationship with their daughter. She maintained, however, that

he was not a violent person and “would not hurt anybody.” On

cross-examination, Elliott’s wife maintained that she had been

unaware of Elliott’s relationship with Gragg. Mrs. Elliott also

testified that she was unaware until after the murders that

23
Elliott had dissipated about $200,000 of her separate assets

during the course of his relationship with Gragg.

The trial court, having ruled that the Commonwealth could

not argue Elliott’s future dangerousness to society as an

aggravating factor supporting the imposition of the death

penalty, ruled that the case would be submitted to the jury only

on the vileness aggravating factor. During consideration of the

jury instructions, Elliott’s counsel stated that he agreed with

the proposed instruction which, in relevant part, defined the

vileness aggravating factor as requiring that the murder of

Thrall “was outrageously or wantonly vile, horrible or inhuman,

in that it involved torture, depravity of mind or aggravated

battery of the victim beyond the minimum necessary to accomplish

the act of murder.”

Elliott did not request an instruction requiring that the

jury agree unanimously on the basis for finding the murder to

have been vile, as he had requested in his pre-trial motion

prior to his first trial. Rather, Elliott’s sole assertion at

this point was that, “for the record,” he objected to the jury

being instructed on capital murder because the evidence would

not support a finding that the murder of Finch was vile. While

conceding that he had no authority other than “a new article [he

had] read,” Elliott’s counsel contended that where the capital

24
murder charge was premised on there having been one or more

killings as part of the same transaction, the jury was required

to find that all the killings were vile. The trial court

overruled this objection and again asked if Elliott concurred

with the instructions. Elliott’s counsel replied, “Yes, other

than the objection I’ve made.”

While the jury was deliberating, it sent a question to the

trial court asking clarification on where the money to pay a

fine imposed on Elliott would come from and “where would the

money go.” With concurrence of the parties, the trial court

instructed the jury that it was not to concern itself with these

matters. The record does not reflect that there was any other

communication from the jury during this phase of the trial.

The jury returned its verdicts, sentencing Elliott to death

for the capital murder of Thrall, to life imprisonment for the

first degree murder of Finch, and to a total of eight years

imprisonment for the two firearm offenses. At the request of

the defense, the jury was polled and each juror indicated

agreement with the verdicts.

Sentencing

After the jury returned its verdict imposing the death

sentence, the trial court ordered the preparation of a post-

sentence report in accord with Code § 19.2-264.5. In that

25
report, Elliott claimed for the first time that his relationship

with Gragg had in fact evolved into a sexual, though not

necessarily romantic, arrangement. Elliott maintained that he

had not disclosed this fact to the police at Gragg’s request.

Elliott continued to maintain his innocence.

Following preparation of the post-sentence report, the

trial court held a sentencing hearing on May 22, 2003. During

that proceeding, the trial court overruled several post-verdict

motions filed by Elliott. To the extent these motions are

pertinent to issues raised in this appeal, we will address their

substance within the discussion of the relevant assignments of

error. Addressing the trial court prior to the imposition of

sentence, Elliott denied any involvement in the murders of

Thrall and Finch, asserting that he was the victim of “lies that

were told in [the] courtroom” and “a police department that

practices Gestapo techniques.” The trial court imposed sentence

in accord with the jury’s verdicts.

We consolidated the automatic review of Elliott’s death

sentence with his appeal of the capital murder conviction. Code

§ 17.1-313(F). Elliott’s appeal of his non-capital convictions

was certified from the Court of Appeals, Code § 17.1-409,

26
consolidated with his capital murder appeal, and the

consolidated appeals were given priority on our docket.2

DISCUSSION

Elliott raises twenty assignments of error with respect to

the conduct of his trial and the imposition of the death

sentence. The Commonwealth contends that many of Elliott’s

assignments of error either were not properly preserved in the

trial court or otherwise have been procedurally defaulted. We

will address Elliott’s assignments of error seriatim,

considering the Commonwealth’s assertions of waiver where

relevant.

The “Reasonable Doubt” Jury Question Issue

In preparing for this appeal, Elliott’s appellate counsel3

discovered in the trial court’s manuscript record a handwritten

note, apparently composed by a juror, which reads:

Can you supply a more simplistic definition of
reasonable Doubt from a guilt or im (sic) innocence
point of View?

2
Except to the extent that Elliott asserts that errors in
the general conduct of his trial would require a reversal of all
his convictions, Elliott does not directly challenge his
convictions or sentences for the non-capital crimes.
3
Elliott’s trial counsel had sought to withdraw from
representation following the mistrial of Elliott’s first trial.
The trial court denied the motion to withdraw, and trial counsel
represented Elliott pro bono publico during the second trial.
Subsequently, Elliott’s appellate counsel were substituted and
served pro bono publico.
27
 In his first assignment of error, Elliott contends that the

trial court erred in failing to inform his counsel of this jury

question. Elliott asks that this Court remand the case to the

trial court for an evidentiary hearing “to determine whether the

jury asked the reasonable doubt question appearing in the

record.”

Because the existence of the “reasonable doubt” jury

question was not discovered until after the trial court’s

jurisdiction had expired, no inquiry was made in the trial court

as to whether the jury had intended for this question to reach

the trial judge. The Commonwealth contends that because the

alleged failure of the trial court to inform Elliott of the

question was not the subject of any objection in the trial

court, the issue cannot be raised for the first time on appeal.

Rule 5:25. Elliott responds that “a party can[not] waive an

argument before becoming aware of the error.”

As we previously noted herein, there is no indication in

the record that the trial court received any inquiry from the

jury other than the request to view the crime scene videotape

during the guilt determination phase and the question concerning

the imposition of a fine during the penalty determination phase.

Unlike the questions received by the trial court, the

“reasonable doubt” jury question contains no response from the
28
trial court. Beyond these facts, the matter reduces itself to

one involving pure speculation, and we decline to speculate

whether the jury actually intended to send the purported jury

question at issue to the trial court for a response.

Accordingly, we will take no further consideration of this issue

in this appeal.4

Polygraph Evidence Issues

In his second assignment of error, Elliott asserts that the

trial court erred in overruling his motion in limine to have the

videotape of Gragg’s polygraph examinations admitted into

evidence. Elliott acknowledges that evidence of polygraph

examinations is not admissible to show the correctness of the

results of such examinations. Relying on Crumpton v.

Commonwealth, 9 Va. App. 131, 384 S.E.2d 339 (1989), he contends

that evidence of a polygraph examination may be admissible to

explain “the motive for, or context underlying, testimony or

statements given by a witness after the witness is told of the

results of his polygraph examination.” The Commonwealth

responds that Elliott’s reliance on Crumpton is misplaced and

that the trial court’s ruling in this case is in accord with our

4
Moreover, the relief that Elliott seeks, a remand for an
evidentiary hearing in the trial court, is not one that may be
afforded in a direct appeal.

29
decision in Robinson v. Commonwealth, 231 Va. 142, 155, 341

S.E.2d 159, 167 (1986), where we held that results of a

polygraph examination may not be used to impeach a witness. We

agree with the Commonwealth.

In Crumpton, the Court of Appeals held that a criminal

defendant had a right to give a full explanation of his prior

inconsistent statements to the police “so long as that

explanation did not also necessarily invoke the polygraph

examination results as proof that he had been truthful” when he

testified. 9 Va. App. at 137, 384 S.E.2d at 343. The Court in

Crumpton emphasized that its holding was based upon “the

particular facts and procedural posture” in which the issue

arose in that case. Id., 384 S.E.2d at 342. Moreover, the

Court expressly acknowledged our clear precedent, as expressed

in Robinson, 231 Va. at 156, 341 S.E.2d at 167, that the results

of polygraph examinations are not admissible whether they favor

the accused or are agreed to by both the accused and the

Commonwealth. Crumpton, 9 Va. App. at 135, 384 S.E.2d at 342.

Crumpton is inapplicable to the present case. It is

evident that Elliott sought to impeach Gragg’s credibility by

the introduction of evidence of Gragg’s polygraph examinations

as reflected in the videotape of those examinations.

Accordingly, our decision in Robinson is controlling, and we

30
hold that the trial court did not err in denying Elliott’s

motion in limine to admit into evidence the videotape of Gragg’s

polygraph examinations.

The remaining polygraph issues raised by Elliott in this

appeal arose at trial in the following context. During

Elliott’s counsel’s cross-examination of Detective Hoffman in

the guilt determination phase of the trial, the following

exchange occurred:

Q. Now there is a gentleman in your police department
− and I don’t necessarily want you to tell me what he
does, but I want to ask you the question. There is a
Mr. Meyers; you are familiar with that name?

A. Yes, sir.

Q. He is a person that interviewed Rebecca [Gragg] as
well as you; am I right?

A. I believe you’re referring to the polygrapher?

Elliott’s counsel immediately requested a bench conference.

Counsel asserted that he had specifically framed his question so

that Detective Hoffman would not identify Meyers as a polygraph

examiner. The trial court agreed and asked, “[w]hat if anything

do you want to do?” Elliott’s counsel asserted that Hoffman had

“opened the door and I want to go in it.” The trial court

reflected that it was “a little dismayed by the answer [Hoffman]

gave,” excused the jury, and proceeded to question Hoffman.

31
 The trial court questioned Detective Hoffman on why he had

referred to Meyers as “the polygrapher.” Hoffman explained that

there were two officers in the police department named Meyers.

He conceded upon further questioning, however, that the other

officer was a patrolman who had not been involved in the

investigation of the Thrall/Finch murders.

Elliott’s counsel maintained that because the jurors were

now aware that Gragg had taken a polygraph examination, they

would naturally assume that she had passed the examination and,

thus, tend to find her testimony more credible. The trial court

offered to instruct the jury either that it should disregard

Detective Hoffman’s last answer and/or to specifically instruct

the jury that the fact that a witness may have taken a polygraph

examination should not lend credence to the witness’s testimony.

Elliott’s counsel indicated that he would prefer that the jury

only be instructed to disregard the answer, and that he agreed

to this remedy “under protest.”

Elliott’s counsel then moved for a mistrial, stating that

“[i]t was the responsibility on the part of the Commonwealth to

inform [Detective Hoffman] not” to make reference to Gragg

having taken polygraph examinations. Elliott’s counsel further

stated that while he did not “know why [Hoffman] did it . . . he

has been a police officer long enough to know that he shouldn’t

32
be discussing polygraphs in courtrooms . . . it was intentional

in that regard.” The trial court denied the motion for

mistrial. The trial court then instructed Detective Hoffman

that he was not to mention the polygraph examinations again.

When the jury returned, the trial court instructed the jurors

that they “will disregard the last answer given by this

witness.”

Elliott subsequently filed a post-verdict motion for a new

trial, asserting that the jury would have been unable to follow

the trial court’s instruction and disregard Detective Hoffman’s

answer indicating that Meyers was a polygraph examiner. During

the sentencing hearing, the trial court expressly found that

Hoffman had inadvertently mentioned Meyers’ role as a polygraph

examiner, and that, without a more definitive assertion that

Gragg had undergone polygraph examinations, it would require “an

inference upon inference upon inference” for the jury to have

concluded that Gragg had passed the examinations. The trial

court denied the motion for a new trial, ruling “that one can

assume to the extent that answer has any effect at all, that

[the jury] did in fact follow the Court’s instructions to”

disregard the answer.

In his third assignment of error, Elliott contends that the

trial court erred in not permitting him to introduce the results

33
of Gragg’s polygraph examinations to rebut the false impression

that Gragg had been truthful in her statements to the police.

Elliott contends that the jury would naturally have such an

impression from Detective Hoffman’s reference to a “polygrapher”

having interviewed Gragg. Elliott asserts, as he did at trial,

that Hoffman’s response “opened the door” to the admission of

the results of Gragg’s polygraph examinations. We disagree.

The term “opening the door” is a catchphrase often used to

refer to the doctrine of curative admissibility. Curative

admissibility, in its broadest form, allows a party to introduce

otherwise inadmissible evidence when necessary to counter the

effect of improper evidence previously admitted by the other

party. See Clark v. State, 629 A.2d 1239, 1244-45 (Md. Ct. App.

1993); see also 1 John H. Wigmore, Wigmore on Evidence, § 15

(Rev. ed. 1983). The specific facts of this case do not

implicate the application of this doctrine. We are of opinion

that the trial court properly exercised its discretion to give a

curative instruction to the jury under the circumstances rather

than to permit Elliott to introduce otherwise inadmissible and

unreliable evidence.

In his fourth and fifth assignments of error, Elliott

contends, respectively, that the trial court erred in not

granting his motion for mistrial and in not granting his motion

34
for a new trial on the ground that the curative instruction

given by the trial court was not adequate to cure the prejudice

caused by Detective Hoffman’s testimony.

A trial court exercises its discretion when it
determines whether it should grant a motion for
mistrial. Whether improper evidence is so prejudicial
as to require a mistrial is a question of fact to be
resolved by the trial court in each particular case.
Unless this Court can say that the trial court’s
resolution of that question was wrong as a matter of
law, it will not disturb the trial court’s decision on
appeal. A judgment will not be reversed for the
improper admission of evidence that a court
subsequently directs a jury to disregard because
juries are presumed to follow prompt, explicit, and
curative instructions.

Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420,

cert. denied, 510 U.S. 859 (1993) (citations omitted).

As the trial court noted during the sentencing hearing, the

oblique reference to a “polygrapher” is not so inherently

prejudicial as to require the trial court to grant a mistrial or

to set aside the verdict and order a new trial. See Epperly v.

Commonwealth, 224 Va. 214, 234, 294 S.E.2d 882, 893-94

(1982) (holding that a witness’s mention of the word “polygraph”

did not cause harmful error because the reference was elicited

“without definition or elaboration”). We hold that in this case

the giving of a prompt curative instruction to disregard the

reference, which the jury is presumed to have obeyed, was

sufficient to avoid any prejudice to Elliott and, thus, the

35
trial court did not abuse its discretion in denying the motions

for a mistrial and for a new trial.

Gragg’s Alleged False Testimony

During his cross-examination of Gragg, Elliott’s counsel

attempted to impeach Gragg by asserting that she had embellished

her trial testimony with inculpatory details that had not been

included in the interview she gave to police on May 10, 2001.

Specifically, Elliott’s counsel contended that, in contrast to

her trial testimony, she had not told police that Elliott had

said during one of the telephone calls after the murders that he

was “covered with blood” and that the police were “swarming”

around. Gragg testified that while these details were not in

the transcript of her interview with the police, she had “told

[Detective Hoffman] everything when we were outside” taking a

cigarette break and that “when I came back inside they made me −

they wrote it down.” Under further questioning, Gragg was

uncertain whether the police had written the statement

containing these additional details for her to sign or whether

she had written the statement herself.

Elliott’s counsel, noting that such a statement “has not

been provided to the Defense,” requested that Elliott be

provided a copy of this written statement. The Commonwealth’s

Attorney advised the trial court that he had no knowledge of the

36
written statement’s existence. As it was late in the day, the

trial court called a recess and directed the Commonwealth’s

Attorney to make inquiries regarding the existence of the

written statement.

After the Commonwealth’s Attorney and Elliott’s counsel

jointly interviewed Detective Hoffman, the Commonwealth’s

Attorney advised the trial court that, according to Hoffman, “no

such document was created by him or by anyone . . . he did not

have [Gragg] sign anything or read over anything” on May 10,

2001. Elliott’s counsel stated that he wanted “a stipulation

from the government that there is no such statement.” The trial

court ruled that either the Commonwealth could agree to such a

stipulation or Elliott could call Hoffman “to establish that no

such statement exists . . . absent the stipulation by the

Commonwealth the statement does not exist, you’re entitled to

prove that it doesn’t exist.” The trial court then asked

Elliott’s counsel, “What else do we need to do?” Elliott’s

counsel replied, “Not a thing.”

Elliott’s counsel then asked the Commonwealth’s Attorney

whether he would stipulate that the statement did not exist.

The Commonwealth’s Attorney replied, “We don’t know it doesn’t

exist, we don’t have any evidence on it. You’ve just got to

argue that to the jury that there is no such document.” The

37
trial court again asked, “Well, what else can we do today?”

Elliott’s counsel replied, “That’s it, your Honor.”

When the trial resumed the following morning, Elliott’s

counsel continued his cross-examination of Gragg. Gragg

conceded that she did not mention Elliott saying he was “covered

in blood” or that police were “swarming” in either the May 10,

2001 interview or in a written statement she later prepared for

the police.5

Elliott’s counsel then questioned Gragg about the written

statement she alleged contained these details, asking her to

describe the paper it had been written on and to clarify whether

she or Detective Hoffman had written the statement. Gragg

testified that she could not recall whether the statement had

been written on a pad or on loose paper, but that she believed

Hoffman had written the statement and she had read it and signed

it. Gragg further testified that when she later asked the

Commonwealth’s Attorney for a copy of this statement, he told

her to ask Detective Hoffman, who “told me that he could not

find it.”

After Elliott’s counsel concluded his cross-examination of

Gragg, the trial court called a bench conference and asked the

5
This written statement was the one provided to Elliott
during the pre-trial proceedings.
38
Commonwealth’s Attorney if he had any recollection of having

been asked by Gragg about the May 10, 2001 written statement or

referring her to Detective Hoffman. The Commonwealth’s Attorney

stated that he had no such recollection.

Elliott’s counsel stated that while he was “not suggesting

that [the Commonwealth] did anything improper” concerning

Gragg’s testimony, his “concern is how do we proceed knowing

there is no such statement.” The trial court again opined that

Elliott could call Detective Hoffman to testify that the

statement did not exist. Elliott’s counsel then stated that he

was concerned the Commonwealth might try to rehabilitate Gragg

in redirect examination. The trial court then asked whether

Elliott’s counsel was asserting that “the Commonwealth knows

this is . . . perjury.” Elliott’s counsel responded he was not

making that assertion. Although the Commonwealth conducted a

brief redirect examination of Gragg, it did not return to the

issue of the alleged May 10, 2001 written statement.

After the Commonwealth rested, Elliott recalled Detective

Hoffman and asked him whether he had prepared a written

statement for Gragg to sign on May 10, 2001. Hoffman testified

that neither he nor any other officer prepared a statement for

Gragg to sign on that day.

39
 Elliott filed a post-verdict motion for an evidentiary

hearing “to determine the factual circumstances surrounding the

existence of a written statement allegedly signed by Rebecca

Gragg at the behest of the police on May 10, 2001.” Elliott

contended that either “Gragg lied on the stand in a deliberate

attempt to make her story appear more credible and consistent”

or “the written statement was signed by her off the record, and

the police and/or the Commonwealth lost it or suppressed it.”

Elliott stated that an evidentiary hearing was necessary because

“any possibility of witness perjury or police misconduct must be

fully explored.”

At the sentencing hearing, the trial court ruled that the

matter had been “explored before this jury to the extent . . .

that the Defendant saw fit to do so . . . . [T]o conduct an

additional hearing at this point on the same issue . . . is not

warranted.” The trial court denied the motion for an

evidentiary hearing in the sentencing order.

In his sixth assignment of error, Elliott contends that

“[t]he trial court erred in failing to declare a mistrial based

upon the presentation of false testimony by the Commonwealth’s

witness Rebecca Gragg that she had signed a written statement

during an interview with the police on May 10, 2001.” In his

seventh assignment of error, Elliott contends that “[t]he trial

40
court erred in failing to require the Commonwealth to cure the

false testimony by its witness Rebecca Gragg that she had signed

a written statement during an interview with the police on May

10, 2001.” In briefing these assignments of error, Elliott

directs the Court to two points in the trial transcript,

asserting that at these points “the trial court failed to

declare a mistrial, to require the Commonwealth to take steps to

correct the falsehood offered by its star witness, or to

otherwise remedy the introduction of this testimony.”

The Commonwealth contends that the record does not show

that Elliott requested a mistrial or otherwise requested the

trial court to “remedy the introduction of this testimony.”

Accordingly, the Commonwealth asserts that Elliott may not raise

these issues for the first time on appeal. Rule 5:25.

In his eighth, ninth, and tenth assignments of error,

Elliott contends, respectively, that the trial court erred “in

failing to find that the Commonwealth violated its obligation to

disclose exculpatory evidence,” in failing to grant his post-

trial motion for an evidentiary hearing to inquire into the

existence of Gragg’s alleged written statement, and “in failing

to grant a mistrial based upon the Commonwealth’s failure to

disclose exculpatory evidence.” The Commonwealth contends that

Elliott, though purporting to relate these assignments of error

41
to the question presented in which he argued his sixth and

seventh assignments of error, failed to adequately brief these

issues.

We have reviewed the trial transcript at the two points

referenced by Elliott with respect to the trial court’s failure

to grant a mistrial or provide him with some other remedy for

Gragg’s alleged false testimony. In addition, we have

considered the entire record of Gragg’s testimony concerning the

statement that she alleged she signed on May 10, 2001 and the

various bench conferences related to that testimony. At no

point in the record can we discern where Elliott requested that

the trial court declare a mistrial, sought a directive from the

trial court requiring the Commonwealth to “cure” Gragg’s false

testimony, or asked the trial court for any specific remedy.

At best, the record shows that Elliott’s counsel asked

whether the Commonwealth would stipulate that Gragg had not

signed any statement on May 10, 2001. In response, the trial

court opined that in the absence of such a stipulation,

Elliott’s recourse was to call Detective Hoffman to rebut

Gragg’s testimony. In each instance where the trial court

offered this opinion, Elliott’s counsel did not object or

otherwise assert that this course of action was not adequate.

Moreover, Elliott availed himself of that remedy by calling

42
Detective Hoffman as his own witness. Thus, we agree with the

Commonwealth that Elliott did not preserve for appeal in the

trial court the issues raised in assignments of error six and

seven.

Similarly, we can discern no argument of assignments of

error eight, nine, and ten within Elliott’s opening appellate

brief. The failure to brief an assignment of error constitutes

a waiver of the argument. See, e.g., Burns v. Commonwealth, 261

Va. 307, 318, 541 S.E.2d 872, 880, cert. denied, 534 U.S. 1043

(2001). Moreover, as with assignments of error six and seven,

there does not appear to be any point in the record were Elliott

requested the trial court to rule that the Commonwealth had

failed to disclose exculpatory evidence, assuming that Gragg’s

alleged statement could be considered exculpatory, or sought a

mistrial on that ground. Thus, even if argued on brief, these

assignments of error would be barred in any case by the lack of

preservation in the trial court.

In his reply brief, Elliott contends that even if he is

precluded from raising these issues by his failure to preserve

them in the trial court, “the ends of justice would demand that

this Court address [these issues] because the false testimony by

a government witness strikes at the very heart of the legitimacy

of the judicial system.” Even if we were to assume, and indeed

43
there is support in the record for making the contention, that

Gragg fabricated her testimony concerning the May 10, 2001

written statement, the record is amply clear that the jury was

aware of this possibility. Every instance in which it is

possible, or even probable, that a witness has been untruthful

with respect to some part of her testimony does not require the

declaration of a mistrial, the striking of the witness’s

testimony, or some other intervention on the part of the trial

court. To the contrary, one of the principal duties of a jury

as factfinder is to make judgments on the credibility of the

witnesses and “[a] factfinder who appreciates a heightened

possibility of perjury will respond with heightened scrutiny.”

Ohler v. United States, 529 U.S. 753, 764 (2000).

Elliott thoroughly cross-examined Gragg about her claim to

having signed the May 10, 2001 written statement and called

Detective Hoffman to rebut that testimony.6 The record reflects

that in the guilt determination phase of the trial, the question

of Gragg’s credibility was a central theme of Elliott’s closing

argument. Moreover, Elliott consistently maintained at trial

6
In his post-trial motion for an evidentiary hearing,
Elliott contended that he wanted to question other police
detectives who might have knowledge of whether the statement
existed. As the trial court indicated in denying that motion,
Elliott had ample opportunity to call witnesses at trial.

44
that he did not ascribe any misconduct to the Commonwealth with

respect to Gragg’s questionable testimony. Under these

circumstances, we perceive no reason to invoke the ends of

justice exception in order to permit Elliott to raise here

issues that were never presented to or ruled on by the trial

court.

For these reasons, we hold that Elliott has waived the

issues raised in assignments of error six, seven, eight, and ten

by failing to preserve those issues in the trial court, and that

he has waived the issue raised in assignment of error nine by

failing to brief that issue in this appeal.

Exclusion of Evidence of Third Parties’
Animosity Towards Finch

During the trial, Elliott sought to question Gragg about an

incident in which Gragg’s husband had brandished a gun at Finch.

The trial court sustained the Commonwealth’s objection, ruling

that “unrelated acts of violence would have no bearing on the

case . . . I don’t see that it’s relevant.” In his eleventh

assignment of error, Elliott contends that the trial court erred

in not permitting him to introduce this evidence. Elliott

contends that the evidence was relevant to show that Gragg’s

husband “had as much motivation as [Elliott] to murder Mr.

Finch, and the evidence of his prior brandishment of a gun

45
against Mr. Finch shows that he was capable of acting on that

motivation.”

“Proffered evidence that merely suggests a third party may

have committed the crime charged is inadmissible; only when the

proffered evidence tends clearly to point to some other person

as the guilty party will such proof be admitted. We have stated

that a large discretion must and should remain vested in the

trial court as to the admission of this class of testimony.”

Johnson v. Commonwealth, 259 Va. 654, 681, 529 S.E.2d 769, 784,

cert. denied, 531 U.S. 981 (2000) (citations and internal

quotation marks omitted). As in Johnson, the evidence proffered

by Elliott “bore no direct relation to the crimes charged,” but

tended only to show a prior history of a bad relationship

between one of the victims and a third party. Id., 529 S.E.2d

at 785; cf. Karnes v. Commonwealth, 125 Va. 758, 766-67, 99 S.E.

562, 565 (1919) (holding evidence of recent death threats by

third party admissible). Accordingly, we hold that the trial

court did not abuse its discretion in ruling that this evidence

was irrelevant and inadmissible.

Elliott also sought to question Detective Hoffman on

whether he was aware of an allegation by Finch, found in an

affidavit in the record of Gragg’s and Finch’s custody dispute,

that Gragg had induced some acquaintances to assault Finch. The

46
trial court ruled that the statement was inadmissible hearsay.

In his twelfth assignment of error, Elliott contends, citing

Chambers v. Mississippi, 410 U.S. 284, 302 (1973), that the

trial court should not have “applied [the hearsay rule]

mechanistically to defeat the ends of justice.” Id. The

Commonwealth responds that Elliott did not argue for a Chambers

exception to the hearsay rule in the trial court and, thus, this

argument is barred by Rule 5:25.

We need not consider whether Elliott’s generalized

objection to the trial court’s exclusion of this evidence as

hearsay was adequate to encompass the argument he now makes on

appeal. Even if the due process argument under Chambers were

cognizable on this appeal, unlike the direct or exculpatory

proof noted by the United States Supreme Court in that case,

here the evidence is too tenuous and speculative to have

relevance to prove that Gragg or some other third party acting

for her may have committed the murders. Accordingly, we hold

that the trial court properly excluded this evidence.

Sufficiency of the Evidence

At the conclusion of the Commonwealth’s presentation of

evidence in the guilt determination phase of the trial, Elliott

made a motion to strike the Commonwealth’s evidence “to preserve

the record.” However, Elliott did not offer any express

47
argument that the Commonwealth had failed to make out a prima

facie case for capital murder or the other crimes with which he

was charged. The trial court denied the motion to strike the

Commonwealth’s evidence.

In a post-trial motion for “a new trial,” Elliott contended

that the evidence was not sufficient beyond a reasonable doubt

to prove that he committed the murders.7 Elliott contended in

that motion that the Commonwealth had failed to exclude every

reasonable hypothesis of his innocence. Elliott further

contended that even if the evidence were sufficient to prove

that Elliott committed the murders, the Commonwealth failed to

prove that Finch’s murder preceded Thrall’s murder. Though

citing no authority for the proposition, Elliott contended that

a capital murder premised upon the “killing of more than one

person as a part of the same act or transaction” under Code

§ 18.2-31(7) required proof that the victim of the capital

murder was killed after some other person had been killed.

Following argument at the sentencing hearing, the trial court

denied this motion without comment.

7
It goes without saying that if the trial court had
concurred in Elliott’s contention that the evidence had not
proven his guilt beyond a reasonable doubt as a matter of law,
the relief to which he would have been entitled was the setting
aside of the verdicts and a dismissal of the indictments with
prejudice, not a new trial.
48
 In his thirteenth assignment of error, Elliott contends

that the trial court erred in failing to grant his motion to

strike during the guilt determination phase of the trial. In

his fourteenth assignment of error, he contends that the trial

court erred in failing to grant his “motion to set aside the

verdicts for insufficiency of the evidence (denominated a motion

for a new trial).” Elliott failed to expressly relate either of

these assignments of error to a question presented and in

reviewing his questions presented, we do not find any that would

incorporate these issues. Moreover, we cannot discern any

argument within his brief that expressly addresses these

assignments of error. Accordingly, we hold that Elliott has

waived these assignments of error.8 See Burns, supra.

Vileness Aggravating Factor Issues

In his fifteenth assignment of error, Elliott contends that

the trial court erred in overruling his motion to have

Virginia’s capital murder and death penalty statutes declared

unconstitutional “on the ground that the ‘vileness’ aggravator

8
In any case, when considering challenges to the
sufficiency of the evidence in a criminal trial, we will not
disturb the factfinder’s verdict unless it is plainly wrong or
without evidence to support it. Stockton v. Commonwealth, 227
Va. 124, 146, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873
(1984). The record of Elliott’s second trial is adequate to
support the jury’s verdicts convicting him of the murders of
Thrall and Finch and the related firearm offenses.
49
. . . is unconstitutionally vague on its face and as applied in

this case and therefore fails to provide meaningful guidance to

the jury.” This contention is an amalgam of three arguments

raised by Elliott in the omnibus motion filed prior to his first

trial challenging the constitutionality of the capital murder

and death penalty statutes.

In his sixteenth assignment of error, Elliott contends that

“[t]he trial court erred in failing to instruct the jury on the

narrowing construction of the ‘vileness’ aggravator adopted by

this Court.”9 Although it is not entirely clear from the

argument he makes on brief with respect to this assignment of

error, it would appear that Elliott is asserting the same

argument as was made in one section of the omnibus motion to

have the capital murder and death penalty statutes declared

unconstitutional filed prior to his first trial. In any event,

we can find nothing in the record of his second trial to suggest

9
Elliott does not expressly state how the definition of the
vileness aggravating factor should have been narrowed or limited
in jury instructions. Presumably, Elliott is contending that
the killing of Thrall lacked one or more of the elements tending
to show that it involved “torture, depravity of mind or an
aggravated battery to the victim.” Elliott provides no
authority for his assertion that this Court has “adopted”
instructions to this effect, although we have permitted trial
courts the discretion to provide further guidance as to the
meaning of these terms. See Jones v. Commonwealth, 228 Va. 427,
446, 323 S.E.2d 554, 564-65 (1984), cert. denied, 472 U.S. 1012
(1985).
50
that he sought an instruction giving a “narrowing construction”

of the vileness aggravator.

In his seventeenth assignment of error, Elliott contends

that “[t]he trial court erred in denying appellant’s motion to

instruct the jury to agree unanimously upon a single element of

‘vileness.’ ” This argument was also raised in the omnibus

motion filed prior to Elliott’s first trial and in a separate

motion filed prior to the first trial seeking a specific jury

instruction. Elliott did not proffer an instruction to this

effect during the penalty determination phase of his second

trial.

The Commonwealth asserts that because Elliott did not renew

the pre-trial motions from his first trial or ask that the trial

court adopt its prior rulings on those motions in his second

trial, he failed to preserve these issues for appeal. The

Commonwealth further contends that by agreeing to the jury

instruction defining the vileness aggravating factor in his

second trial and not proffering any alternative instructions, he

has waived his claims that the trial court should have given

“narrowing construction” and “single element of vileness

unanimity” instructions.

In his reply brief, Elliott asserts that he was not

required to reassert his pre-trial motions from his first trial

51
because “the rulings in the first trial automatically carry over

to the second one.” For the same reason, Elliott contends that

he was not required to proffer his alternative instructions

limiting the vileness aggravating factor or requiring a

unanimous determination of the elements making the crime vile,

because the trial court had ruled on these issues prior to his

first trial.

The cases that Elliott relies upon for his assertion that

rulings from a mistrial carry over to a subsequent retrial are

inapposite and distinguishable. In Bradley v. Duncan, 315 F.3d

1091 (9th Cir. 2002), the federal Court of Appeals for the Ninth

Circuit ruled that where a trial court had determined that an

entrapment instruction was required in a trial that ended in a

mistrial, the instruction was also required to be given in the

subsequent retrial where “no additional evidence to the

contrary” rebutted the prior ruling. Id. at 1098. Thus,

Bradley does not stand for the proposition that all rulings of a

trial court in a prior mistrial carry over to a subsequent trial

but, rather, that the rationale underlying a particular ruling

in the first trial had been correct and should have been applied

to identical circumstances in the retrial.

In City of Cleveland v. Cleveland Electric Illuminating

Co., 538 F.Supp. 1328 (N.D. Ohio 1981), the trial court did

52
observe that “a mistrial does not affect or invalidate any of

the pre-trial proceedings in the case.” Id. at 1330. However,

that statement is made in an opinion addressing a motion to have

the pre-trial rulings from a mistrial adopted in the retrial.

Moreover, the rulings at issue were those in orders disposing of

discrete claims within a complex litigation, not rulings on

issues of law related to matters that would arise during the

retrial. In commenting on the rationale of the Cleveland

Electric decision, the federal Court of Appeals for the Sixth

Circuit has opined that the trial court is not bound in a

subsequent trial by the rulings of a prior mistrial, so much as

it has the discretion to “recognize and enforce prior rulings

. . . but also retains the power to reconsider previously

decided issues as they arise in the context of a new trial.”

United States v. Todd, 920 F.2d 399, 404 (6th Cir. 1990).

We concur in the view expressed by the Commonwealth in the

present case that when a criminal case ends in a mistrial, the

rulings made by the trial court prior to or during the aborted

trial do not automatically carry over to a subsequent retrial.

Thus, a defendant may not rely upon objections made at an

aborted trial to preserve issues for appeal following his

conviction in a subsequent trial. See, e.g., United States v.

Palmer, 122 F.3d 215, 221 (5th Cir. 1997) (“objections made at

53
the aborted trial have no bearing on the retrial, as the two are

entirely separate affairs”). Similarly, a defendant may not

assert that rulings made on pre-trial motions prior to a

mistrial are binding upon the trial court in a subsequent trial

unless the trial court adopts those rulings on its own motion or

in addressing a motion of one or both of the parties. See,

e.g., United States v. Oakey, 853 F.2d 551, 554 (7th Cir. 1988),

cert. denied, 488 U.S. 1033 (1989). In the absence of a ruling

in the second trial adopting the rulings of the aborted trial,

the defendant is required to renew his motions with specificity

in order to preserve the record of the trial court’s rulings and

the defendant’s objections thereto for any subsequent appeal of

the retrial.

Elliott does not assert that the trial court adopted its

prior rulings for purposes of his second trial, and we have not

been directed to any place in the record where such was done or

requested. Accordingly, we hold that under these circumstances

Elliott is barred from raising the issues asserted in this

appeal in assignments of error fifteen, sixteen, and seventeen.

Additionally, we also agree that Elliott’s failure to proffer in

his second trial alternative instructions limiting the

definition of the vileness aggravating factor or requiring

unanimity on the elements of vileness acts as a waiver of the

54
claim that the trial court should have given such instructions

to the jury.10

Statutory Review

Elliott’s eighteenth and nineteenth assignments of error

merely restate the elements of the statutory review of any death

sentence mandated by Code § 17.1-313(C). Accordingly, we will

combine the mandatory review of Elliott’s death sentence with

our discussion of the issues raised by Elliott in his

assignments of error.

10
We note further that, as framed within the omnibus
pretrial motion challenging the constitutionality of Virginia’s
capital murder and death penalty statutes, Elliott’s contention
that the vileness aggravating factor is vague is a reassertion
of an argument previously rejected by this Court on numerous
occasions. See, e.g. Wolfe, 265 Va. at 208, 576 S.E.2d at 480
and cases cited therein. Shortly before Elliott’s first trial
commenced, the United States Supreme Court released its opinion
in Ring v. Arizona, 536 U.S. 584 (2002). In briefing his
argument in this appeal that the vileness aggravating factor is
unconstitutionally vague, Elliott for the first time asserts
that Ring somehow implicates our prior consideration of this
issue. Elliott’s failure to argue the application of Ring in
the trial court, despite the fact that nine months elapsed
between that opinion’s release and the commencement of his
second trial, not only constitutes a waiver of that issue on
appeal, but demonstrates the necessity of prohibiting a
defendant from attempting to rely upon rulings from a prior
aborted trial. In any event, we have already addressed the
claim that Ring affects our prior consideration of
constitutional issues in death penalty cases and have determined
that “nothing . . . in Ring suggests that the Court intended to
revisit broader issues of due process protections afforded in
the penalty determination phase of all capital murder trials.”
Powell v. Commonwealth, 267 Va. 107, 137, 590 S.E.2d 537, 555
(2004).
55
 Code § 17.1-313(C)(1) requires that we determine whether

the jury imposed the sentence of death under the influence of

passion, prejudice, or any other arbitrary factor. Elliott

makes no particularized argument that the jury’s verdict was not

the product of a reasoned and dispassionate deliberation. Nor

does our review of the record in this case disclose that the

jury failed to give fair consideration to all the evidence both

in favor and in mitigation of the death sentence, or was

otherwise improperly influenced in favor of imposing the death

penalty. Accordingly, we hold that the sentence of death was

not imposed under passion, prejudice, or any arbitrary factor.

With respect to the consideration “[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(C)(2), Elliott contends that “[t]he Commonwealth

has never imposed such a sentence upon a man with as long and

accomplished a record of service to his country as” Elliott. He

further contends that “this case lacks the characteristics that

normally distinguish the cases in which the death penalty is

imposed based upon multiple homicides and vileness from those in

which juries choose to impose life imprisonment.”

During the penalty determination phase of the trial, the

jury heard testimony recounting Elliott’s service as a soldier

56
and non-commissioned officer in, and later as a civilian

employee of, the United States Army. The jury also heard

evidence throughout the course of the trial that Elliott

betrayed his wife of twenty-three years, pursuing a former

prostitute and squandering hundreds of thousands of dollars on

this illicit relationship. The evidence showed that Elliott

murdered two innocent people in a brutal and premeditated

manner, showing no remorse for and purposefully seeking to

conceal his crimes. The murder of Thrall was particularly

heinous in that it appears she was a victim of opportunity,

killed while her young children were nearby and simply because

she was present in the home with Finch or perhaps because she

saw and could have identified Elliott.

The jury could reasonably have concluded from Elliott’s

actions in his secret relationship with Gragg that he had

renounced the values he purported to support and follow in his

public life. Faced with the incongruent reality of Elliott’s

two lives, the jury was well within its province to determine

that the mitigating value of Elliott’s years of service in the

armed forces did not outweigh his culpability for the death of

Thrall under the circumstances of that murder.

Because of the statutory directive that we compare this

case with “similar cases,” we have focused on cases in which an

57
individual was murdered as part of the same act or transaction

as another killing and the death penalty was imposed upon a

finding of the vileness aggravating factor. However, our

proportionality review includes all capital murder cases

presented to this Court for review and is not limited to

selected cases. Even though no two capital murder cases are

identical, we are confident that, given the heinousness

associated with the murder of Thrall, the sentence of death

imposed on Elliott is neither excessive nor disproportionate to

sentences generally imposed by other sentencing bodies in this

Commonwealth for crimes of a similar nature considering the

crime and this defendant. See, e.g., Hudson v. Commonwealth,

267 Va. 29, 590 S.E.2d 362 (2004); Bailey v. Commonwealth, 259

Va. 723, 529 S.E.2d 570, cert. denied, 531 U.S. 995 (2000); Kasi

v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998), cert.

denied, 527 U.S. 1038 (1999); Woodfin v. Commonwealth, 236 Va.

89, 372 S.E.2d 377 (1988), cert. denied, 490 U.S. 1009 (1989).

In his twentieth assignment of error, Elliott contends that

“[t]he trial court erred in sentencing appellant to death.”

Elliott purports to relate this assignment of error to the

questions presented addressing his challenges to the

constitutionality of the vileness aggravating factor and the

mandatory review of his death sentence. Within the sections of

58
his brief addressing those questions presented, we can discern

no particularized argument that the trial court erred in

imposing the sentence of death in accord with the jury’s

verdict. Thus, we conclude that this assignment of error is

merely an assertion of general or cumulative error in the

conduct of the trial. We do not consider such generalized

assertions of error.

CONCLUSION

Having found no error below and perceiving no other reason

to commute or set aside the sentence of death, we will affirm

the judgment of the trial court.

Affirmed.

59