Jackson v. Commonwealth

Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Carrico, S.J.

JERRY TERRELL JACKSON
OPINION BY
v. Record Nos. 031517 & 031518 JUSTICE CYNTHIA D. KINSER
January 16, 2004
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge

A jury convicted Jerry Terrell Jackson of two counts

of capital murder for the premeditated killing of Ruth W.

Phillips in the commission of rape or attempted rape, and

in the commission of robbery or attempted robbery in

violation of Code §§ 18.2-31(5) and -31(4), respectively.

The jury also convicted Jackson of statutory burglary, in

violation of Code § 18.2-90; robbery, in violation of Code

§ 18.2-58; rape, in violation of Code § 18.2-61; and petit

larceny, in violation of Code § 18.9-96. At the conclusion

of the penalty phase of a bifurcated trial, the jury fixed

Jackson’s punishment at death on each of the capital murder

convictions, finding “that there is probability that he

would commit criminal acts of violence that would

constitute a continuing serious threat to society.” The

jury also fixed punishment of two life sentences for the

rape and the robbery convictions, a 20-year sentence for

the burglary conviction, and a 12-month sentence for the
petit larceny conviction. The circuit court sentenced

Jackson in accordance with the jury’s verdict. 1

Jackson appealed his non-capital convictions to the

Court of Appeals pursuant to Code § 17.1-406(A). We

certified that appeal (Record No. 031518) to this Court

under the provisions of Code § 17.1-409 for consolidation

with the defendant’s appeal of his capital murder

convictions (Record No. 031517) and the sentence review

mandated by Code § 17.1-313. After considering Jackson’s

assignments of error and conducting our sentence review, we

find no error in the circuit court’s judgments and will

affirm Jackson’s convictions and the imposition of the

death penalty.

I. FACTS

A. GUILT PHASE

Around 7 p.m., on Sunday, August 26, 2001, Richard

Phillips discovered the body of his 88-year-old mother,

Ruth Phillips, lying “twisted and exposed” on a bed in her

bedroom. Phillips explained that his mother’s “leg was

twisted around, and her pubic region was exposed[; h]er

breast was exposed[; and h]er nightgown was up around her

neck.” Mrs. Phillips lived alone in an apartment located

1
The circuit court also imposed fines in the total
amount of $102,500 as fixed by the jury.

2
in Williamsburg, and her son had become concerned about her

well-being that day because she had not attended church and

was not answering her telephone. After finding his

mother’s body, Phillips went outside and used a cellular

telephone to call the “911” emergency number. While

waiting for emergency personnel to arrive, he noticed that

the screen on a bathroom window in the apartment had been

removed.

A subsequent autopsy of Mrs. Phillips’ body revealed a

contusion on her nose and some hemorrhaging of minute blood

vessels in her cheeks and eyes. There were also two

lacerations to her vagina, one on the exterior area and the

other one on the interior area. The medical examiner who

performed the autopsy opined that the cause of death was

asphyxia. Death by asphyxia, according to the medical

examiner, occurs when the brain is without a supply of

oxygen for four to six minutes although unconsciousness may

come about within 15 to 30 seconds.

An investigator with the James City County Police

Department, Jeff Vellines, went to Mrs. Phillips’ apartment

and collected several items of physical evidence. He found

a window screen, mirror case, and cosmetic items outside

the apartment near the master bathroom window. Inside,

Vellines discovered a black pocketbook lying on the floor

3
next to Mrs. Phillips’ bed, and a brown wallet underneath

the pocketbook. The wallet did not contain any money.

However, a white square piece of paper found in the wallet

contained one latent fingerprint of value for

identification purposes. That fingerprint was later

compared with the fingerprints of the defendant and found

to be “one and the same.”

Another investigator at the crime scene recovered a

hair from Mrs. Phillips chest area and another hair on the

bed below the stomach area. During the autopsy of Mrs.

Phillips’ body, additional hairs were collected from her

left thigh area. Microscopic examination of those hairs by

a forensic scientist revealed that one of the hairs

recovered from Mrs. Phillips’ thigh area and the other two

hairs were pubic hairs, but they were not consistent with

samples of Mrs. Phillips’ pubic hair. These same three

hairs along with samples of the defendant’s blood and hair

were later subjected to mitochondrial DNA analysis.

According to the forensic scientist who performed the

testing, Jackson could not be excluded as the source of the

hairs found on Mrs. Phillips’ body and bed. The “mtDNA

sequence data” of each of those hairs matched the

“corresponding mtDNA sequence of the blood” taken from the

defendant.

4
 In December 2001, Vellines and Eric Peterson, also an

investigator with the James City County Police Department,

interviewed Jackson in the James City County Law

Enforcement Center. After waiving his Miranda rights,

Jackson admitted entering Mrs. Phillips’ apartment,

searching through and taking money out of her purse, and

then exiting through a back window. Jackson stated that he

did not know that Mrs. Phillips was at home, and that, when

he turned on the light and was going through her purse,

Mrs. Phillips, who was lying in bed, confronted him and

stated, “What do you want? I’ll give you whatever, just

get out.” In the defendant’s words, “[I]t just scared me

and I covered her up[.]” Jackson acknowledged that he held

a pillow over her face for two or three minutes and tried

to make her “pass out” so she could not identify him.

Jackson stated that, when Mrs. Phillips stopped screaming,

that was his “cue that she [had] passed out.” He also

admitted that he inserted his penis into her vagina while

he was holding the pillow over her face.

Continuing, Jackson stated that he took Mrs. Phillips’

automobile when he left her apartment and drove it to

another apartment complex, where he abandoned the vehicle

with the keys lying on top of it. He also used $60 that he

had taken from her purse to purchase marijuana. Throughout

5
the interview, Jackson denied that anyone else was with him

during this incident and insisted that he did not mean to

kill Mrs. Phillips.

At trial, Jackson testified to a different version of

the events that supposedly transpired at Mrs. Phillips’

apartment. 2 The defendant claimed that, on the day in

question, he had been playing basketball until around

midnight at the apartment complex where Mrs. Phillips

lived. Jackson stated that, as he was leaving, he came in

contact with Alex Meekins and Jasper Meekins. Jackson

decided to participate in their plan to break into Mrs.

Phillips’ apartment. According to Jackson, Alex entered

the apartment through a window and then let Jasper and the

defendant in through the front door. While Jackson was

looking through Mrs. Phillips’ purse, she woke up and asked

what was going on. Jackson testified that the following

events then took place in Mrs. Phillips’ bedroom:

Jasper Meekins, he put the pillow over her face
and smothered her. While he was smothering her, I
think she was struggling, but I told him at the end
when I heard some sound, she was gurgling, I told him
to stop. I pushed him off. As we were leaving, I
pulled her nightgown down. I put the blanket over
her, and I picked the pillow up initially and I didn’t
like what I saw, so I put the pillow back.

2
Jackson also testified at a hearing on a motion to
suppress his confession. His testimony at that hearing
also differed from his statement to the police.

6
 Jackson explained that he confessed to Peterson

because he thought that was what Peterson wanted to hear,

and because he just wanted to “get out of there as fast as

[he] could.” Jackson also explained that he never told the

investigators about Jasper’s and Alex’s participation in

the crime because he was “scared for [his] family on the

streets” and had concerns about being a “snitch.” At

trial, Jackson denied raping or killing Mrs. Phillips. He

also denied having any knowledge about who raped Mrs.

Phillips or about how his pubic hairs got on her body. 3

B. SENTENCING PHASE

During the sentencing phase of the bifurcated trial,

the Commonwealth introduced into evidence 18 orders showing

Jackson’s convictions or adjudications of delinquency for

such offenses as grand larceny, petit larceny, trespassing,

drug possession, receiving stolen property, contempt of

court, identity fraud, statutory burglary, credit card

theft, and obtaining money under false pretenses. The jury

also heard evidence from two correctional officers about

two incidents involving the defendant while he was

3
A mitochondrial DNA analysis of blood taken from Alex
Meekins showed that his mtDNA sequence did not correspond
to the mtDNA sequence of the three hairs recovered from
Mrs. Phillips’ body.

7
incarcerated. In the first incident, Jackson refused to

obey the orders of a correctional officer, and that refusal

led to a scuffle with several officers as they attempted to

remove Jackson’s hand cuffs. The other incident involved

an altercation between the defendant and another inmate.

In mitigation of the offenses, Jackson presented

evidence about his adjustment and behavioral problems when

he was a youth. In 1993, he was diagnosed with an

“adjustment disorder with depressed mood and attention

deficit, hyperactivity disorder.” Jackson was evaluated

again in 1996 because he was having behavioral problems at

home and was not doing well in school. Jackson expressed

resentment toward his stepfather and acted out his negative

feelings by behaving aggressively. However, testing

indicated that Jackson had average intellectual

functioning.

During his school years, Jackson took medication for

attention deficit hyperactivity disorder, but his mother

reported to Jackson’s pediatrician that her son continued

to have behavioral problems at school, including fights.

The defendant was eventually placed in a special school for

students who cannot be controlled in a regular classroom

8
setting. There was also evidence that the defendant

suffered physical abuse as a child. 4

II. ANALYSIS

A. DISMISSAL OF INDICTMENTS

Jackson assigns error to the circuit court’s refusal

to dismiss the capital murder indictments on the basis that

Code § 19.2-264.4(B) is unconstitutional. The defendant

raised this claim in a pre-trial motion and supporting

memorandum. The circuit court denied the motion. Jackson

now argues that Code § 19.2-264.4(B) contains “a relaxed

evidentiary standard that leads to inherently unreliable

determinations of aggravating factors and unreliable death

sentences.” Citing the decisions in Ring v. Arizona, 536

U.S. 584 (2002), Apprendi v. New Jersey, 530 U.S. 466

(2000), and In re Winship, 397 U.S. 358 (1970), Jackson

also seems to suggest that, in Virginia, the aggravating

factors of future dangerousness and vileness are not

decided by a jury based on proof of those factors beyond a

reasonable doubt. 5 We find no merit in the defendant’s

arguments.

4
We will summarize additional facts and proceedings as
necessary to address specific issues.
5
Any argument about the vileness aggravating factor is
irrelevant because Jackson’s sentence of death was
predicated on the jury’s finding of future dangerousness.

9
 First, before the sentence of death may be imposed,

the Commonwealth must prove at least one of the statutory

aggravating factors beyond a reasonable doubt. Code

§ 19.2-264.4(C). Pursuant to Code § 19.2-264.3, a jury

makes that determination, unless a jury trial is waived.

Code § 19.2-257. Thus, to the extent Jackson suggests

otherwise, he is incorrect.

Next, Code § 19.2-264.4(B) does not contain a relaxed

evidentiary standard or produce unreliable determinations

of aggravating factors. Evidence relevant to sentencing in

the penalty phase of a capital murder trial is admissible,

“subject to the rules of evidence governing admissibility.”

Id. We have held that this statute does not permit

admission of irrelevant evidence. See Powell v.

Commonwealth, 267 Va. ___, ___, ___ S.E.2d ___, ___ (2004)

(decided this day); Remington v. Commonwealth, 262 Va. 333,

357, 551 S.E.2d 620, 634-35 (2001). Presentence reports

from probation officers are specifically not admissible.

Id. And, in Virginia, hearsay evidence also is not

admissible during a penalty phase proceeding. Lovitt v.

Warden, 266 Va. 216, 259, 585 S.E.2d 801, 826 (2003).

Finally, we note that, although the defendant argues

that the full procedural safeguards employed during the

guilt phase of a capital murder trial must also be provided

10
in the penalty phase, he never identifies what procedural

safeguards were missing in his penalty phase proceeding.

He also fails to enunciate what unreliable information was

admitted into evidence during the penalty phase of his

trial as a result of the supposed relaxed evidentiary

standard. In other words, Jackson’s complaints about the

provisions of Code § 19.2-264.4(B) are merely hypothetical

in nature. Thus, we conclude that the circuit court did

not err in refusing to dismiss the indictments.

B. SUPPRESSION OF DEFENDANT’S STATEMENT

Jackson filed a pre-trial motion to suppress the

statement that he made to the police investigators. After

hearing evidence and argument of counsel, the circuit court

denied the motion, finding that Jackson’s statement was

voluntary and not the product of any psychological or

physical coercion.

The defendant assigns error to the court’s decision

and argues that, “[b]ased on the totality of the

circumstances, [his] will was overcome, his capacity for

self-determination was critically impaired and his

confession was not the product of a free and unconstrained

choice.” Jackson claims that the investigators who

questioned him engaged in trickery and deceit because of

statements such as, “I will work with you . . . I will be

11
with you, thick and thin, boy . . . I will be in your

corner” and “I’m here for you.” As further evidence that

his will was overborne, Jackson points to his repeated

denials of culpability during the first part of the

interrogation, his initial confession to a different crime,

and his lack of knowledge that the crime for which he was

being interrogated carried a possible sentence of death.

In accordance with his testimony at the suppression

hearing, Jackson claims that he simply told the

investigator what the investigator wanted to hear so that

he, the defendant, would be free to go.

We find no merit in Jackson’s arguments. The circuit

court found, and we agree, that there was no evidence of

any promises of leniency, any force, any threats, any

intimidation, any coercion, or any deprivation of the

defendant’s physical or mental needs. Such “subsidiary

factual determinations are entitled to a presumption of

correctness.” Swann v. Commonwealth, 247 Va. 222, 231, 441

S.E.2d 195, 202 (1994). The court also noted that the

defendant had a reported IQ score of 100 and an educational

level sufficient to read and write. Furthermore, Jackson

signed a waiver of his Miranda rights at the beginning of

the interview. And, he obviously understood the

implications of making statements to the police because he

12
had been charged with crimes on two previous occasions

after confessing to those crimes.

A defendant’s waiver of Miranda rights is valid if

made knowingly, voluntarily, and intelligently. Id.;

Jenkins v. Commonwealth, 244 Va. 445, 453, 423 S.E.2d 360,

366 (1992). “The test for voluntariness is whether the

statement is the ‘product of an essentially free and

unconstrained choice by its maker,’ or whether the maker’s

will ‘has been overborne and his capacity for self-

determination critically impaired.’ Id. at 453-54, 423

S.E.2d at 366 (quoting Culombe v. Connecticut, 367 U.S.

568, 602 (1961)). When determining whether a defendant’s

statement was voluntarily given, we examine the totality of

the circumstances, which include the defendant’s background

and experience as well as the conduct of the police in

obtaining the waiver of Miranda rights and confession.

Swann, 247 Va. at 231, 441 S.E.2d at 202; Correll v.

Commonwealth, 232 Va. 454, 464, 352 S.E.2d 352, 357 (1987).

Using these principles, we conclude that the

defendant’s statement was made knowingly, intelligently,

and voluntarily. Thus, the circuit court did not err in

admitting Jackson’s incriminating statement.

C. JURY SELECTION

13
 The defendant assigns error to the circuit court’s

failure to strike three prospective jurors for cause. An

accused has a constitutional right to be tried by an

impartial jury. See U.S. Const. amends. VI and XIV; Va.

Const. art. I, § 8. By statute, a trial court is required

to excuse any prospective juror who cannot “stand

indifferent in the cause.” Code § 8.01-358. However,

[b]ecause the trial judge has the opportunity,
which we lack, to observe and evaluate the
apparent sincerity, conscientiousness,
intelligence, and demeanor of prospective jurors
first hand, the trial court’s exercise of
judicial discretion in deciding challenges for
cause will be not disturbed on appeal, unless
manifest error appears in the record.

Pope v. Commonwealth, 234 Va. 114, 123-24, 360 S.E.2d 352,

358 (1987) (citing Calhoun v. Commonwealth, 226 Va. 256,

258-59, 307 S.E.2d 896, 898 (1983)); accord Bell v.

Commonwealth, 264 Va. 172, 191, 563 S.E.2d 695, 709 (2002);

Green v. Commonwealth, 262 Va. 105, 115-16, 546 S.E.2d 446,

451 (2001); Stewart v. Commonwealth, 245 Va. 222, 234, 427

S.E.2d 394, 402 (1993). Thus, on appellate review, we

defer to the trial court’s decision whether to retain or

exclude prospective jurors. Vinson v. Commonwealth, 258

Va. 459, 467, 522 S.E.2d 170, 176 (1999). Guided by these

principles, we will now review the voir dire of the three

jurors that the defendant claims should have been struck

14
for cause. In doing so, we consider the prospective

juror’s entire voir dire, not just isolated portions. Id.;

Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759,

767 (1988).

(1) Juror Reinsberg

The defendant moved the circuit court to excuse this

prospective juror because, among other reasons, she

indicated at one point during her voir dire that she would

probably require the defense to put on evidence during the

trial. However, her overall responses to voir dire

questions relevant to this particular issue reveal that she

could “stand indifferent to the cause” and would not

require the defendant to present evidence to establish his

innocence:

[DEFENSE COUNSEL]: Do you have any feelings
about the case from what you have read in the
Gazette or from what you may have read in the
Daily Press earlier?

MS. REINSBERG: The seriousness of it.

[DEFENSE COUNSEL]: Other than the seriousness?

MS. REINSBERG: The charges.

[DEFENSE COUNSEL]: Would you require the defense
to put on evidence to change your mind or
influence your decision considering what you have
read?

MS. REINSBERG: Probably.

THE COURT: Let me ask, what do you mean by that?

15
MS. REINSBERG: From what we have read, I don’t
know, I was thinking the newspaper —

THE COURT: Is accurate?

MS. REINSBERG: Is accurate, so I would — I would
want to know, it was accurate or inaccurate.
Sometimes certain parts can be made up. That
shouldn’t be.

[DEFENSE COUNSEL]: May I go on?
Considering that response, have you formed an
opinion of some sort as to the guilt or innocence
of the Defendant if you are going to require us
to put on evidence?

MS. REINSBERG: No.

[DEFENSE COUNSEL]: That’s based on what you have
seen or read?

MS. REINSBERG: (Nods head.) Just the one
article.

[DEFENSE COUNSEL]: Have you formed an opinion on
what you have heard, the facts of what you have
read, have you formed an opinion as to what
punishment Mr. Jackson should receive as a result
of what you —

MS. REINSBERG: No.

[DEFENSE COUNSEL]: You said that you would
probably require us to put on some evidence.
Tell us what you would be looking for from the
defense.

MS. REINSBERG: Well, were there other people
involved, for one.

* * *

[COMMONWEALTH’S ATTORNEY]: Judge, just a couple
[of] follow-up questions if I may.
Ms. Reinsberg, one of the questions [defense
counsel] asked you involved a response in which
you said you would want to hear if other people

16
were involved. Understanding that you read the
newspaper, correct?

MS. REINSBERG: Right.

[COMMONWEALTH’S ATTORNEY]: That was Saturday’s
Gazette?

MS. REINSBERG: Right.

[COMMONWEALTH’S ATTORNEY]: Are you willing to
put aside any opinions or thoughts you have
regarding that newspaper article and judge this
case based on the facts presented during the
course of the trial?

MS. REINSBERG: Definitely.

[COMMONWEALTH’S ATTORNEY]: And are you going to
hold the Commonwealth; that is, myself and Mr.
McGinty, in our case to the proper burden of we
have to prove the case beyond a reasonable doubt?

MS. REINSBERG: Uh-huh.

[COMMONWEALTH’S ATTORNEY]: And you understand
that at sentencing, if the jury has convicted the
Defendant of capital murder, that the burden is
on us to prove certain things beyond a reasonable
doubt —

MS. REINSBERG: Right.

[COMMONWEALTH’S ATTORNEY]: — before you can
impose the death penalty?

MS. REINSBERG: Right, I understand.

[COMMONWEALTH’S ATTORNEY]: Are you open-minded
to both the death penalty and life in prison?

MS. REINSBERG: Definitely.

[COMMONWEALTH’S ATTORNEY]: Do you agree with the
concept that the Defendant does not have to
present any evidence at trial?
MS. REINSBERG: Right.

17
 [COMMONWEALTH’S ATTORNEY]: In fact, the
Defendant doesn’t have to present any evidence at
sentencing?

MS. REINSBERG: Right.

[COMMONWEALTH’S ATTORNEY]: Are you willing to
follow that principle of law?

MS. REINSBERG: Yes.

The voir dire of prospective juror Reinsburg

demonstrates that the circuit court correctly concluded

that this juror understood both the Commonwealth’s burden

of proof and the fact that the defendant did not have to

present any evidence. As we have previously stated, “[t]he

real test is whether jurors can disabuse their minds of

their natural curiosity and decide the case on the evidence

submitted and the law as propounded in the court’s

instructions.” Townes v. Commonwealth, 234 Va. 307, 329,

362 S.E.2d 650, 662 (1987); accord Eaton v. Commonwealth,

240 Va. 236, 247, 397 S.E.2d 385, 392 (1990). Prospective

juror Reinsberg satisfied this test. Thus, we find no

manifest error in the circuit court’s decision refusing to

strike this juror for cause.

(2) Juror Baffer

Relying on the following series of questions, Jackson

claims that the circuit court erred in refusing to strike

prospective juror Baffer for cause:

18
 [DEFENSE ATTORNEY]: Do you hold the belief that
death is the appropriate punishment for a person
who commits a murder, rape and/or robbery unless
he can convince you otherwise?

MR. BAFFER: Yes.

[DEFENSE ATTORNEY]: Why is that?

MR. BAFFER: Because I believe in the State of
Virginia, the Penal Code in the — it’s
prescribed.

* * *

[DEFENSE ATTORNEY]: You were asked an
“automatic” question by the Commonwealth. Would
you automatically vote to impose the death
penalty on a person you determine beyond a
reasonable doubt constituted a continuing serious
threat to society?

MR. BAFFER: Yes.

This isolated portion of juror Baffer’s voir dire is

misleading because this prospective juror, when asked by

the Commonwealth whether he would automatically impose the

death penalty if the defendant were found guilty of capital

murder, answered “No.” The circuit court then engaged in

the following exchange with prospective juror Baffer:

THE COURT: Mr. Baffer, let me ask you one
question. [Defense counsel] asked you a
question. He said that if you found beyond a
reasonable doubt that a consideration of the
Defendant’s history and background there is a
probability that he would commit criminal acts of
violence that would constitute a continuing
serious threat to society, he asked you if you
found that, would you always vote to impose the
death penalty, and you said yes. Is that your
understanding of what the law in Virginia is?

19
MR. BAFFER: I’m not sure what the law of
Virginia is on that. You said automatically
impose the death penalty?

THE COURT: If you found — you convicted the
Defendant of capital murder and then you made a
second finding, go to the second phase where
evidence is presented regarding the possible
sentence. You have two possible sentences, life
in prison or death, and the Court would instruct
you that before you could impose the death
penalty, you must find beyond a reasonable doubt
that after consideration of the Defendant’s
history and background, there is a probability
that he would commit criminal acts of violence
that would constitute a continuing serious threat
to society, you made that finding, is it your
understanding that you must then impose the death
penalty?

MR. BAFFER: I don’t know that I must impose. I
mean, get him out of society. Life without
parole removes him from society.

THE COURT: That’s correct.

MR. BAFFER: If he would pose a danger, that
would be adequate that he doesn’t come back into
society.

THE COURT: What would be adequate, life without
parole?

MR. BAFFER: That would be adequate too, life
without parole.

THE COURT: The question [defense counsel] asked
you is if you found that this future danger
existed, would you automatically vote to impose
the death penalty?

MR. BAFFER: No, I would say no to that, if the
alternative is he got life without parole, that
would be adequate.

20
 THE COURT: Well, that is your alternative. You
only have two choices. If the Defendant is found
guilty of capital murder, you have two choices:
One is the death sentence; the other is life in
prison without parole. They are your only two
options, and if you were to find the Defendant
guilty of capital murder, and if you found the
condition of future dangerousness existed, could
you consider both?

MR. BAFFER: I could consider both.

THE COURT: Would you automatically impose the
death penalty if you found future dangerousness
existed?

MR. BAFFER: No, if he was removed from society.

As stated previously, we must consider this juror’s

entire voir dire. See Vinson, 258 Va. at 467, 522 S.E.2d

at 176. Upon doing so, it is clear that, while prospective

juror Baffer stated at one point, in response to confusing

questions by defense counsel, that he would automatically

impose the death penalty, he subsequently clarified his

position and stated that he would follow the court’s

instructions and consider both sentencing alternatives. We

have held that it is improper to ask prospective jurors

speculative questions regarding whether they would

automatically impose the death penalty in certain

hypothetical situations without reference to a juror’s

ability to consider the evidence and follow the court’s

instructions. Schmitt v. Commonwealth, 262 Va. 127, 141,

21
547 S.E.2d 186, 196 (2001). Thus, we conclude that the

circuit court ruled properly in seating this juror.

(3) Juror Berube

Jackson moved to strike prospective juror Berube on

the basis that she answered “No” to one question asking

whether she would be able to consider all mitigating

factors in making her decision whether to impose a life

sentence without parole or the death penalty. However, the

answer to this one isolated question does not accurately

portray this juror’s positive assertions during voir dire

that she would follow the court’s instructions and consider

all mitigating evidence when making her sentencing

decision. Furthermore, when overruling the defendant’s

motion to strike this juror, the circuit court noted that

juror Berube had given careful thought to her answers and

that she did not initially understand what mitigating

factors are. Thus, we conclude that the circuit court did

not err in finding that this juror would be fair and

impartial.

D. JUROR MISCONDUCT

During a recess on the third day of trial, the jurors

asked whether they could discuss among themselves the

evidence and testimony that had already been presented.

The parties and the circuit court agreed that the jurors

22
should not do so until after the close of all the evidence

and the jury’s deliberations began. When the jury returned

to the courtroom after the recess, the court instructed the

jurors that they should deliberate and discuss the evidence

only after all the evidence had been introduced. The court

further admonished the jurors to keep an open mind and to

refrain from deciding any issue until the case was

submitted to them for their deliberations.

The defendant did not object to those instructions or

ask for a mistrial at that time. Thus, to the extent that

Jackson now argues that the court should have granted a

mistrial as soon as it learned of the jury’s question,

which suggested, in Jackson’s view, that the jury had

already been discussing the case, such a claim was not

preserved for appeal. See Rule 5:25.

Jackson filed a post-trial motion for a new trial

and/or an evidentiary hearing based on allegations that the

jury had discussed his guilt or innocence prior to the

close of all the evidence. In support of the motion, the

defendant submitted an affidavit from alternate juror

Picataggi. In the affidavit, Picataggi stated that she had

“witnessed and heard discussion of this case, and its

outcome, among the jurors before the close of evidence and

in direct violation of the instructions of the court.”

23
 At a hearing on Jackson’s motion, defense counsel

advised the court that he had contacted all the jurors

after the conclusion of the trial because of his concerns

about the jury’s question on the third day of trial.

Counsel also told the court that this alternate juror

agreed to speak with him but that many of the jurors would

not do so or stated that such alleged discussions among the

jurors did not occur before the close of the evidence.

Defense counsel asked the court to summons all the jurors

to an evidentiary hearing and to question them individually

about what, if any, discussions occurred before the jury

retired to deliberate. The court decided to summons only

alternate juror Picataggi to a hearing for the purpose of

questioning her about the allegations stated in her

affidavit.

At that hearing, Picataggi explained, in response to

questions from the court, that she had heard three

discussions, two in the jury room and one at a local

restaurant where the jury had gone for lunch. She

acknowledged that no third person, such as the restaurant

owner or a waitress, participated in any of those

discussions, either by comments to the jury or by comments

from any of the jurors. Picataggi could not recall whether

any discussions ensued after the jurors asked the court

24
during a recess whether they could discuss the evidence

they had already heard.

Picataggi also could not remember exact words used,

but she described

a discussion in regard to the testimony of the
detective and [the defense counsel’s] questioning
him in regard to the videotape and that was
discussed among the jurors in that — well, they
didn’t particularly like the way that he was
questioning the detective, but that ultimately he
got to the truth or to the bottom of it.

However, she admitted that at no time did any juror come to

a conclusion about Jackson’s guilt or innocence. During

cross-examination by the defendant, Picataggi indicated

that the discussions concerned things that had happened in

the courtroom and matters that had been presented there,

and were not necessarily limited to comments about the

lawyers’ styles of questioning.

After hearing Picataggi’s testimony, the circuit court

denied the defendant’s motion for further investigation and

for a new trial. The court concluded that the jurors’

comments addressed the cross-examination of investigator

Peterson and defense counsel’s techniques of attacking that

witness’s credibility. The court found “no probable

misconduct and clearly no prejudice” to the defendant.

On appeal, Jackson argues that the evidence of jurors’

discussions “establishes a probability of prejudice and

25
brings into question the fairness of the trial.” The

defendant also asserts that the comment that “he got to the

truth or to the bottom of it” went to the issue of guilt or

innocence. At a minimum, the circuit court, according to

Jackson, should have conducted an evidentiary hearing at

which all the jurors should have been questioned. We do

not agree with the defendant’s position.

In Virginia, we strictly adhere “ ‘to the general rule

that the testimony of jurors should not be received to

impeach their verdict, especially on the ground of their

own misconduct.’ ” Jenkins, 244 Va. at 460, 423 S.E.2d at

370 (quoting Caterpillar Tractor Co. v. Hulvey, 233 Va. 77,

82, 353 S.E.2d 747, 750 (1987)). We have also generally

“ ‘limited findings of prejudicial juror misconduct to

activities of jurors that occur outside the jury room.’”

Id. (quoting Caterpillar Tractor Co., 233 Va. at 83, 353

S.E.2d at 751.) For example, in Haddad v. Commonwealth,

229 Va. 325, 330-331, 329 S.E.2d 17, 20 (1985), evidence

showing juror misconduct in the form of expressing an

opinion to third persons during trial proceedings was

sufficient to establish a probability of prejudice to the

accused.

Applying this same probability of prejudice standard,

we find that Jackson failed to carry his burden to

26
establish such prejudice. See id. Upon reviewing

Picataggi’s affidavit, the circuit court properly convened

an evidentiary hearing to investigate further her

allegations of juror misconduct. See Kearns v. Hall, 197

Va. 736, 743, 91 S.E.2d 648, 653 (1956) (when allegations

of jury misconduct are sufficient to indicate the verdict

was affected thereby, a trial court has a duty to

investigate and determine whether, as a matter of fact, the

jury did engage in misconduct). The evidence presented at

that hearing amply supported the court’s conclusions that

there was probably no misconduct and clearly no prejudice

to the defendant.

At best, Picataggi could only recall juror discussions

regarding defense counsel’s techniques of cross-examination

and the comment “he . . . got to the bottom of it.” She

could not remember any other specific comments by the

jurors, or whether any juror discussions about the evidence

transpired after the court instructed them not to do so in

response to the jury’s question. And, Picataggi admitted

that no juror expressed an opinion about Jackson’s guilt or

innocence. That fact distinguishes this case from Haddad.

Thus, we conclude that neither a new trial nor any

further investigation by the circuit court was warranted.

We said many years ago that “[i]f gossip of [jurors] among

27
themselves, or surmise, is to be the basis of new trials

there would be no end to litigation.” Margiotta v. Aycock,

162 Va. 557, 568, 174 S.E. 831, 835 (1934). That statement

remains true today.

E. VIDEO-TAPED CONFESSION AND TRANSCRIPT

Jackson asserts that the circuit court erred in

allowing the jury to use a transcript of his video-taped

confession while the video was played during the trial, in

overruling his motion for a mistrial because of problems

that occurred while watching the video tape and using the

transcript, and in allowing the jury to review the video-

taped confession during their deliberations. We find no

merit to any of these claims.

The circuit court directed that a transcript of the

video tape be prepared because portions of the video tape

were inaudible and the court concluded that it would be

helpful for the jurors to have the transcript while they

were viewing the video tape. At trial, Jackson claimed the

transcript was not accurate and thus objected to the jury’s

use of it. The circuit court disagreed and found that the

transcript was as accurate as it could be and that it was

incomplete because some portions of the video tape were

inaudible.

28
 Before the jurors watched the video tape, the court

instructed them that the transcript was “merely a guide

. . . [and was] not evidence.” The court further

instructed that the evidence was the tape itself and the

audio portion of it, and that the transcript would be

retrieved after the video tape was played and could not be

taken into the jury room during deliberations. Finally,

the court told the jury that, although there would be

places in the transcript stating that the video tape was

inaudible, it was, nevertheless, the jury’s “responsibility

to listen to the tape and determine what, in fact, [was]

being said.” The court reminded the jurors of these

instructions when they finished viewing the video tape.

“A court may, in its discretion, permit the jury to

refer to a transcript, the accuracy of which is

established, as an aid to understanding a recording.”

Fisher v. Commonwealth, 236 Va. 403, 413, 374 S.E.2d 46, 52

(1988); accord Burns v. Commonwealth, 261 Va. 307, 330, 541

S.E.2d 872, 888 (2001). Although Jackson argues on appeal

that the transcript was inaccurate, he points only to the

fact that some words were missing because the video tape

was inaudible at certain points, that the transcript was

incorrectly paginated, and that one page was missing.

However, those problems did not render the transcript

29
inaccurate. In light of the lengthy instructions that the

circuit court gave the jurors regarding the purpose of the

transcript and their use of it, we are persuaded that the

court did not abuse its discretion in allowing the jury to

use the transcript of the defendant’s video-taped

confession. See id. (trial court did not abuse its

discretion by allowing jury to use transcript that was not

complete).

During the playing of the video tape, it was

discovered that the pages in one juror’s transcript were

partially out of order. After that problem was corrected,

the court directed the Commonwealth to rewind the video

tape approximately two minutes. Subsequently, it was

discovered that the jurors’ transcripts were missing one

page. Playing of the video tape was momentarily stopped

while that problem was corrected. Because of these

problems and Jackson’s assertion that the jurors rarely

looked up from the transcript and thus did not watch the

video tape, he moved for a mistrial at the conclusion of

the playing of his video-taped confession. The circuit

court overruled the motion, finding that the jurors had

paid close attention to both the video tape and the

transcript. The court also noted that the amount of the

video tape that was replayed was minimal and that all the

30
problems with the transcripts were quickly corrected. The

court did not err in overruling the motion for a mistrial.

Finally, Jackson claims that undue emphasis was placed

on his confession and investigator Peterson’s testimony

regarding his interrogation of the defendant because the

jury was allowed to take the video tape into the jury room

during deliberations. However, Code § 8.01-381 provides

that “[e]xhibits may, by leave of court, be” carried into

the jury room. “Exhibits requested by the jury shall be

sent to the jury room or may otherwise be made available to

the jury.” Id. Thus, any exhibit introduced into

evidence, including a defendant’s written or recorded

statement, is available to jurors during their

deliberations. See Pugliese v. Commonwealth, 16 Va. App.

82, 90, 428 S.E.2d 16, 23 (1993). That jurors may put

emphasis on certain evidence, perhaps a particular exhibit

or testimony of a certain witness, is simply part of what

they do when weighing and considering the evidence. Id.

Thus, the court did not abuse its discretion in allowing

the jury to take the video tape into the jury room during

deliberations.

F. PHOTOGRAPHS

Jackson first challenges the circuit court’s ruling

allowing the Commonwealth to use an “in-life” photograph of

31
the victim. Mrs. Phillips’ son identified the photograph

during his direct examination, 6 and the Commonwealth

displayed the photograph during its closing argument in the

guilt phase of the trial for approximately seven seconds.

The court did not allow the jury to take the photograph

into the jury room. The defendant claims that the

photograph had no probative value and was used to arouse

the sympathies of the jury.

We conclude that the circuit court did not abuse its

discretion in allowing the use of the “in-life” photograph

of Mrs. Phillips. See Bennett v. Commonwealth, 236 Va.

448, 471, 374 S.E.2d 303, 317 (1988) (no abuse of trial

court’s discretion to admit photograph showing victim one

month before she died). The photograph was displayed only

twice for brief periods of time. Additionally, the

photograph was not given to the jury or taken into the jury

room during deliberations.

The defendant also claims that the circuit court erred

in admitting into evidence photographs of Mrs. Phillips

taken during the autopsy. He specifically challenges the

admission of duplicate photographs of Mrs. Phillips’ face

6
The circuit court noted for the record that the “in-
life” photograph of Mrs. Phillips was displayed in the
Commonwealth’s case-in-chief for approximately 15 to 20
seconds but that it was not passed to the jury.

32
and an enlarged photograph of her vaginal area. The

defendant asserts that any probative value of these

photographs was outweighed by their prejudicial and

inflammatory effect upon the jury.

Although Jackson does not identify the challenged

photographs by exhibit number, we assume that he is

complaining about two photographs of Mrs. Phillips’ face,

Commonwealth Exhibit Numbers 47 and 48; and the enlarged

photograph of her vaginal area, Commonwealth Exhibit Number

51. These are the photographs to which the defendant

objected at trial. The Commonwealth introduced each of

these during the medical examiner’s testimony. Number 47

depicted the front of Mrs. Phillips’ face, and number 48

was a side view. Number 51 showed a laceration in the rear

portion of her vaginal area. Each photograph depicted

different injuries suffered by Mrs. Phillips.

We agree with the circuit court’s conclusion that the

two facial photographs were “not shocking” or “gruesome”

and that Number 51 was simply “part of the facts of this

particular case.” Thus, the court did not abuse its

discretion in admitting these photographs. The photographs

were relevant to the issues of premeditation, intent, and

malice. See Gray v. Commonwealth, 233 Va. 313, 342, 356

S.E.2d 157, 173 (1987); Stockton v. Commonwealth, 227 Va.

33
124, 144, 314 S.E.2d 371, 384 (1984). And, contrary to the

defendant’s argument, any prejudicial effect of the

photographs did not outweigh their probative value.

G. USE OF PILLOW FOR DEMONSTRATIVE PURPOSES

During closing argument, the Commonwealth used a

pillow to demonstrate the length of time that Jackson held

the pillow over Mrs. Phillips’ face. The Commonwealth

asked the jury how such an act could not be indicative of a

specific intent to kill. The defendant objected on the

basis that the Commonwealth was not using the actual pillow

found at the crime scene and that the demonstration would

incite and inflame the jury. The circuit court overruled

the objection but directed the Commonwealth to tell the

jury that the pillow was “not the actual size and shape of

the pillow used” to suffocate Mrs. Phillips and that the

Commonwealth was using a pillow only for demonstrative

purposes.

“Admission of items of demonstrative evidence to

illustrate testimonial evidence is . . . a matter within

the sound discretion of a trial court.” Mackall, 236 Va.

at 254, 372 S.E.2d at 768. We conclude that the circuit

court did not abuse its discretion. As directed by the

court, the Commonwealth instructed the jury that the pillow

was not the actual pillow found at the crime scene and that

34
it was being used for demonstrative purposes. Furthermore,

the court also told the jury that the pillow was not the

one found on Mrs. Phillips’ bed. Finally, the

Commonwealth’s demonstration did not distort the evidence

concerning the manner of Mrs. Phillips’ death.

H. AUTOPSY REPORT

Jackson asserts that the circuit court erred in

admitting the autopsy report into evidence and allowing

that report to be given to the jury. When the defendant

objected to the introduction of the report, the court

indicated that it would redact any opinion expressed by the

medical examiner in the report. Although Jackson asserts

on brief that the report was admitted into evidence during

the medical examiner’s testimony, that factual statement is

not accurate. The defendant cross-examined the medical

examiner about his report, but at no point during his

testimony was the autopsy report admitted into evidence.

The report is not marked as an exhibit and is only stamped

as having been filed in both the General District Court and

the Circuit Court of the City of Williamsburg and County of

James City.

Although Code § 19.2-188 provides that “[r]eports of

investigations made by the Chief Medical Examiner, his

assistants or medical examiners . . . shall be received as

35
evidence in any court or other proceeding,” the autopsy

report concerning Mrs. Phillips was not admitted into

evidence in this case. Thus, this claim has no merit. 7

I. SUFFICIENCY OF EVIDENCE

Jackson moved to strike the Commonwealth’s evidence as

to guilt on the basis that the evidence was insufficient to

prove that he possessed the willful, premeditated, and

deliberate intent to kill Mrs. Phillips. The defendant

asserts that his testimony showed that the death of Mrs.

Phillips was accidental and not premeditated. We do not

agree.

When the sufficiency of the evidence is challenged on

appeal, we review the evidence in the light most favorable

to the prevailing party at trial, in this case the

Commonwealth, and accord to it all reasonable inferences

fairly deducible therefrom. Commonwealth v. Bower, 264 Va.

41, 43, 563 S.E.2d 736, 737 (2002); Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

We are obliged to affirm the judgment of the circuit court

unless that judgment is plainly wrong or without evidence

to support it. Code § 8.01-680; Beavers v. Commonwealth,

7
In Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292
S.E.2d 798, 806-07 (1982), we held that the Commonwealth
was not required to elect between introducing an autopsy
report or a medical examiner’s testimony.

36
245 Va. 268, 282, 427 S.E.2d 411, 421 (1993). When proof

of premeditation is the subject of a sufficiency challenge,

evidence showing that the premeditation was only slight or

momentary is sufficient to sustain the conviction. Id.

This is so because “[p]remeditation is an intent to kill

that needs to exist only for a moment.” Green v.

Commonwealth, 266 Va. 81, 104, 580 S.E.2d 834, 847 (2003)

(citing Peterson v. Commonwealth, 225 Va. 289, 295, 302

S.E.2d 520, 524 (1983)). The question of premeditation is

generally a factual issue. Id.

Despite Jackson’s self-serving testimony that he did

not smother Mrs. Phillips with a pillow and told Jasper

Meekins to stop doing so, the jury could have concluded,

based on the defendant’s confession, that he placed a

pillow over Mrs. Phillips face and held it there for four

to six minutes even though she would have become

unconscious within 15 to 30 seconds. That evidence is

sufficient to show that the defendant had a willful,

premeditated, and deliberate intent to kill Mrs. Phillips.

See id. Thus, we will not reverse the jury’s finding of

premeditation.

J. TESTIMONY FROM VICTIM’S SON

Jackson claims that the circuit court abused its

discretion by allowing Mrs. Phillips’ son to testify during

37
the sentencing phase of the trial because he remained in

the courtroom after he testified during the guilt phase in

violation of the court’s order sequestering the witnesses.

According to the defendant, the son’s presence in the

courtroom throughout the trial unduly influenced the jury.

We do not agree.

Pursuant to the provisions of Code § 19.2-265.01, a

victim, which includes Mrs. Phillips’ son, see Code § 19.2-

11.01(B), “may remain in the courtroom and shall not be

excluded unless the court determines, in its discretion,

the presence of the victim would impair the conduct of a

fair trial.” We cannot say in this case that the court

abused its discretion by allowing Mrs. Phillips’ son to

remain in the courtroom after he testified during the guilt

phase of the trial. The court correctly concluded that

Mrs. Phillips’ son did not learn anything while he was

present in the court that would have changed or affected

his victim impact testimony during the penalty phase.

Thus, the defendant was not prejudiced by the fact that

Mrs. Phillips’ son testified during the penalty phase after

having heard much of the testimony during the guilt phase.

See Bennett, 236 Va. at 465, 374 S.E.2d at 314 (a trial

court has discretion to decide whether a witness who

violates an order excluding witnesses from the courtroom

38
can testify, and prejudice to the defendant is one factor

to consider when answering that question).

K. ISSUES PREVIOUSLY DECIDED

In assigning error to the circuit court’s denial of

the defendant’s pretrial motion challenging the

constitutionality of Virginia’s capital murder statutes,

Jackson presents several reasons why he contends that the

death penalty on its face and as applied violates the Sixth

Amendment, the Eighth Amendment, and the Fourteenth

Amendment to the United States Constitution, as well as

Article I, §§ 8, 9, and 11 of the Constitution of Virginia.

We have previously rejected these arguments and find no

reason to depart from our precedent.

(1) The aggravating factor of future dangerousness is

unconstitutionally vague because it does not provide

meaningful guidance to the sentencing jury so as to avoid

an arbitrary and capricious infliction of the death penalty

− rejected in Bell, 264 Va. at 203, 563 S.E.2d at 716;

Lovitt v. Commonwealth, 260 Va. 497, 508, 537 S.E.2d 866,

874 (2000); Smith v. Commonwealth, 219 Va. 455, 476-78, 248

S.E.2d 135, 148-49 (1978).

(2) Virginia’s capital murder statutes do not require

instructions to the jury regarding the duty to consider

mitigating evidence, the meaning of mitigating evidence,

39
the absence of any burden of proof on a defendant with

regard to the mitigation evidence presented, and the

liberty that each juror has to consider and give effect to

mitigating evidence − rejected in Buchanan v. Angelone, 522

U.S. 269, 275-76 (1998); Lovitt, 260 Va. at 508, 537 S.E.2d

at 874; Mickens v. Commonwealth, 252 Va. 315, 320, 478

S.E.2d 302, 305 (1996); Joseph v. Commonwealth, 249 Va. 78,

82-83, 452 S.E.2d 862, 865 (1995).

(3) The use of unadjudicated conduct to prove the

aggravating factor of future dangerousness fails to comport

with the constitutional requirement of reliability for

capital sentencing − rejected in Bell, 264 Va. at 203, 563

S.E.2d at 716; Satcher v. Commonwealth, 244 Va. 220, 228,

421 S.E.2d 821, 826 (1992); Stockton v. Commonwealth, 241

Va. 192, 210, 402 S.E.2d 196, 206 (1991).

(4) A sentence of death under Code § 19.2-264.5 is

unconstitutional because a trial court may consider hearsay

evidence contained in a post-sentence report − rejected in

Lenz v. Commonwealth, 261 Va. 451, 459, 544 S.E.2d 299,

303-04 (2001); Cherrix v. Commonwealth, 257 Va. 292, 299-

300, 513 S.E.2d 642, 647 (1999).

(5) A sentence of death under Code 19.2-264.5 is

unconstitutional because a trial court is not required to

40
set aside a death penalty upon a showing of good cause -

rejected in Chandler v. Commonwealth, 249 Va. 270, 276, 455

S.E.2d 219, 223 (1995); Breard v. Commonwealth, 248 Va. 68,

76, 445 S.E.2d 670, 675-76 (1994).

(6) Virginia’s death penalty statutes do not provide

for meaningful appellate review, including the

proportionality review − rejected in Emmett v. Commonwealth,

264 Va. 364, 374-75, 569 S.E.2d 39, 46 (2002); Lenz, 261

Va. at 459, 544 S.E.2d at 304; Bailey v. Commonwealth, 259

Va. 723, 740-42, 529 S.E.2d 570, 580-81 (2000); Satcher,

244 Va. at 228, 421 S.E.2d at 826.

(7) The expedited review of death penalty cases is

unconstitutional − rejected in Morrisette v. Commonwealth,

264 Va. 386, 398, 569 S.E.2d 47, 55 (2002).

L. ISSUES WAIVED

At oral argument, the defendant indicated that he was

withdrawing assignment of error number 8, that the circuit

court “erred in denying defendant’s motion to dismiss

capital murder indictment for failure to allege aggravating

elements.” In response to questions from the Court, he

also acknowledged that he was no longer asking the Court to

reverse his conviction on the basis that the circuit court

erred by failing to grant a change in venue, as asserted in

assignment of error number 7. Specifically, defense

41
counsel stated, “We could [seat] a jury. . . . So to say

that venue alone is not what I am seeking in this case for

an error.” Thus, we will not consider these two

assignments of error.

Next, we note that the defendant did not brief

assignment of error number 20, that the circuit court

“erred in allowing the prosecutor in his argument during

the penalty phase to argue matters beyond those introduced

during that phase of the case.” In accordance with our

precedent, we will not consider this assigned error. See

Wolfe v. Commonwealth, 265 Va. 193, 207, 576 S.E.2d 471,

479 (2003); Kasi v. Commonwealth, 256 Va. 407, 413, 508

S.E.2d 57, 60 (1998).

III. STATUTORY REVIEW

A. PASSION AND PREJUDICE

Pursuant to the provisions of Code § 17.1-313(C), we

are required to determine whether the defendant’s sentence

of death was imposed under the influence of passion,

prejudice, or other arbitrary factors. On this issue,

Jackson claims that the jury’s verdict fixing his

punishment at death was the result of passion and prejudice

because the circuit court failed to grant a change of venue

and because the court did not strike prospective jurors

Reinsberg, Baffer, and Berube for cause. As already noted,

42
we rejected the substantive issue regarding those three

jurors and did not address the change of venue question

because the defendant withdrew it as a substantive basis

for a reversal of his conviction. We nonetheless have

examined both of these issues to ascertain whether they

created an atmosphere of passion and prejudice that

influenced the jury’s sentencing decision. We conclude

that they did not do so. 8 We also find no other indication

that the sentence of death was imposed under the influence

of passion, prejudice, or other arbitrary factors.

B. PROPORTIONALITY REVIEW

We are also required to determine whether the sentence

of death in this case is “excessive or disproportionate to

the penalty imposed in similar cases, considering both the

crime and the defendant.” Code § 17.1-313(C)(2). To

comply with this statutory directive, we compare this case

with “similar cases” by focusing on instances where the

victim was murdered during the commission of robbery or

rape and the death penalty was imposed based upon the

future dangerousness aggravating factor. The purpose of

8
We note that a jury was seated with relative ease in
this case. See Thomas v. Commonwealth, 263 Va. 216, 231,
559 S.E.2d 652, 660 (2002) (“The ease with which an
impartial jury can be selected is a critical element in
determining whether the prejudice in the community stemming

43
our proportionality review is to identify and invalidate

the aberrant death sentence. See Orbe v. Commonwealth, 258

Va. 390, 405, 519 S.E.2d 808, 817 (1999).

Our review in this case leads to the conclusion that

the defendant’s sentence of death is not excessive or

disproportionate to sentences generally imposed in this

Commonwealth for capital murders comparable to Jackson’s

murder of Mrs. Phillips. Although we consider all capital

murder cases presented to this Court for review, see Burns,

261 Va. at 345, 541 S.E.2d at 896-97; Whitley v.

Commonwealth, 223 Va. 66, 81-82, 286 S.E.2d 162, 171

(1982), we cite the following cases as examples: Roach v.

Commonwealth, 251 Va. 324, 468 S.E.2d 98 (1996); Beavers,

245 Va. 268, 427 S.E.2d 411; Yeatts v. Commonwealth, 242

Va. 121, 410 S.E.2d 254, (1991); O’Dell v. Commonwealth,

234 Va. 672, 364 S.E.2d 491 (1988). With regard to the

proportionality analysis, the imposition of the death

penalty in Beavers is particularly persuasive because of

the striking similarity between the facts in that case and

those presented here. Both cases involved elderly women

who were raped by their assailant and smothered with a

pillow.

from pretrial publicity is so wide-spread that the
defendant cannot get a fair trial in that venue.”)

44
 IV. CONCLUSION

For the reasons stated, we find no error in the

judgments of the circuit court or in the imposition of the

death penalty. We also see no reason to commute the

sentence of death in this case. Therefore, we will affirm

the judgments of the circuit court.

Record No. 031517 − Affirmed.
Record No. 031518 − Affirmed.

45