Green v. Commonwealth

PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J. 1

KEVIN GREEN

v. Record No. 020757 OPINION BY JUSTICE CYNTHIA D. KINSER
June 6, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
James A. Luke, Judge

This capital murder case is before the Court for the

second time. We previously reversed Kevin Green’s

conviction for the 1998 capital murder of Patricia L.

Vaughan and remanded the case to the circuit court for a

new trial. Green v. Commonwealth, 262 Va. 105, 118, 546

S.E.2d 446, 452 (2001). 2 Upon retrial, a jury again

convicted Green of capital murder during the commission of

robbery in violation of Code § 18.2-31(4). At the

conclusion of the penalty phase of the bifurcated trial,

the jury fixed Green’s punishment at death, finding “that

there is a probability that [Green] would commit criminal

acts of violence that would constitute a continuing serious

1
Chief Justice Carrico presided and participated in
the hearing and decision of this case prior to the
effective date of his retirement on January 31, 2003.
2
Green’s convictions for robbery, the malicious
wounding of Lawrence T. Vaughan, and three counts of the
illegal use of a firearm were not before the Court in the
prior appeal, Green, 262 Va. at 108, 546 S.E.2d at 447, nor
are they at issue in the present appeal.
threat to society” (the “future dangerousness” predicate),

and “that his conduct in committing the offense [was]

outrageously or wantonly vile, horrible or inhuman in that

it involved . . . both aggravated battery to the victim and

depravity of mind” (the “vileness” predicate). See Code

§§ 19.2-264.2 and –264.4(D). The circuit court

subsequently sentenced Green in accordance with the jury

verdict.

We consolidated the automatic review of Green’s death

sentence with the appeal of his capital murder conviction.

See Code § 17.1-313(F). Upon considering the issues raised

by Green and conducting our mandated review of the

imposition of the death penalty, we find no error in the

judgment of the circuit court. Thus, we will affirm that

judgment and the sentence of death in this case.

I. FACTS

A. GUILT PHASE

The victim, Patricia L. Vaughan, and her husband,

Lawrence T. Vaughan, owned and operated a small grocery

store in Brunswick County. As part of their grocery store

operation, the Vaughans regularly cashed checks for

employees of several nearby businesses, including a lumber

company that paid its employees on Friday of each week.

Consequently, Mr. Vaughan routinely went to a bank on

2
Fridays to obtain sufficient currency to cash payroll

checks for the lumber company employees. And, he did so on

Friday, August 21, 1998. Upon returning from the bank on

that Friday, he placed $10,000 in a bank bag that he kept

in a cabinet underneath the cash register, another $10,000

elsewhere in the store, and the remaining cash in a safe.

On the day in question, as Mr. Vaughan was starting to

eat lunch and to file an invoice, two men entered the

store. Mr. Vaughan saw them and recognized the taller of

the two men as Kevin Green, the defendant. Green had

worked for the lumber company for approximately eight to

ten weeks during the preceding spring, and had frequented

the Vaughans’ grocery store at lunchtime, after work, and

on Fridays to cash his payroll checks.

When the two men entered the store, Mrs. Vaughan had

her back to the door and was standing five or six feet from

Mr. Vaughan. Thinking that the shorter man was going over

to the “drink box,” Mr. Vaughan turned around to finish

his filing. As he did so, he heard his wife scream, “Oh,

God.” At trial, Mr. Vaughan described what he then heard:

It was four bangs. Bang, bang and I was
hit. I didn’t know where I was hit, but I was
hurt. I turned a complete turn and fell on the
floor, sit [sic] down on my right foot and broke
my right ankle. And about [the] time I went
down, I looked up and I realized it was a gun
being fired. I could see him, he shot toward my

3
 wife with the fourth shot. I saw his hand with a
pistol in it. He was holding [it] like he was
target practicing.

Mr. Vaughan testified that Green, after firing the

four shots, walked back to the door and stood there “as a

lookout” while the other man came around behind the counter

and tried to open the cash register. When the drawer on

the cash register jammed, Green directed the shorter man to

look under the counter. Upon doing so, he found the bank

bag containing approximately $9,000 in cash and Mr.

Vaughan’s pistol, which he then used to shoot through the

key hole in the cash register drawer. Taking the bank bag

and the pistol, the shorter man exited the store, but Green

walked a few steps over to where Mrs. Vaughan was lying on

the floor and pointed the gun at her again. According to

Mr. Vaughan, the gun misfired, and Green ejected a live

cartridge onto the floor. Green then fired two more shots

in the direction of Mrs. Vaughan. Lowering his head, Mr.

Vaughan heard the gun “snap” one more time, but he did not

know whether Green was pointing the gun at him or his wife.

Only then, when the gun was empty, did Green leave the

store.

After Green left, Mr. Vaughan dragged himself

approximately five feet across the floor of the store to a

telephone and dialed the “911” emergency number, but he was

4
too weak to reach his wife who was still lying on the

floor. One of the first police officers to arrive at the

scene testified that he observed “puddles of blood just

pouring out of [Mrs. Vaughan’s] nose, her mouth, [and] her

head.” A local volunteer medical examiner determined that

Mrs. Vaughan had died at the scene of the shooting.

A subsequent autopsy of Mrs. Vaughan’s body revealed

that she sustained four gunshot wounds. One bullet

penetrated the left side of her head, passed through the

temporal and frontal lobes of her brain, and lodged in the

inner frontal sinus of her face. Another bullet entered

the right side of her chest and went into the upper lobe of

her right lung. A third bullet penetrated the left side of

her back. This was the only non-lethal wound. The fourth

bullet entered the right side of Mrs. Vaughan’s back and

penetrated two lobes of her right lung. According to the

forensic pathologist who performed the autopsy, Dr. Jose

Abrenio, this wound caused hemorrhaging in her thoracic

cavity, which led to difficulty in breathing and had the

effect of suffocating her. Dr. Abrenio also opined that

Mrs. Vaughan survived “seconds to minutes” after she was

first shot.

Four days after the murder, a warrant was issued to

search Green, his residence, and automobile. During the

5
search of his home, six bullets were retrieved from the

trunk of a tree in his yard. The bullets were found behind

a “makeshift target” hanging on the tree. Forensic testing

on those six bullets and the four bullets recovered from

Mrs. Vaughan’s body during the autopsy revealed that all

ten “caliber 25 Auto full metal jacketed bullets” had been

fired from one weapon. About 35 to 50 feet from the tree,

16 25-caliber empty cartridge casings were also recovered.

After Green was arrested, he executed a form waiving

his Miranda rights and agreed to be questioned by law

enforcement officers. During that interrogation, Green

admitted that he and his cousin, David Green, robbed the

Vaughans’ grocery store and that he selected their store

because he knew the Vaughans kept a lot of money there.

Green and his cousin had originally planned to wear masks

to conceal their faces. However, they discarded the masks

after they had to wait behind the store in their automobile

for about an hour because other people were in the grocery

store. Green also admitted that he shot both of the

Vaughans, hitting Mrs. Vaughan four times.

B. PENALTY PHASE

During the penalty phase of the trial, the

Commonwealth presented testimony from several correctional

officers who had supervised Green’s incarceration at

6
different times and facilities. Much of their testimony

described incidents during which Green exhibited disruptive

behavior, refused to obey instructions, and made threats to

the officers. For example, one officer testified that

Green “clinched” the bars of his cell and said, “I’ll get

you, I will get you.” Another officer stated that, when

Green had to be placed in isolation because of his

disruptive conduct, Green started throwing anything he

could find, flushing the toilet, and throwing water into

the hallway. Green then told the officer that he was going

to make the officer’s life “a living hell.” Other

personnel described incidents in which Green threw food,

trash, and feces on the floor and refused to take his

medication.

In addition to this testimony, the Commonwealth called

Clement Leon Cleaton, an acquaintance of Green. Cleaton

testified that Green had threatened to rob and kill him and

that he had heard Green threaten to rob a man selling ice

cream from a truck. Cleaton also related an incident in

which Green had shot several times toward Cleaton’s “hog

pen” while Cleaton was feeding his hogs. Cleaton had asked

Green not to shoot in that direction.

As evidence of mitigating circumstances, Green

introduced testimony from Dr. Jack Daniel, an expert in the

7
field of forensic pathology. Dr. Daniel had reviewed Mrs.

Vaughan’s death certificate, the medical examiner’s report,

and Dr. Abrenio’s autopsy report. He testified that he

found no evidence in those documents that Mrs. Vaughan had

endured prolonged suffering before she died from the

gunshot wounds. However, Dr. Daniel agreed that it was not

possible to determine whether the blood found in Mrs.

Vaughan’s chest cavity during the autopsy was the result of

an immediate bleeding at the time of the injury or

accumulated during the hours following her death.

The jury also heard evidence from Dr. Scott W.

Sautter, an expert in neuropsychology who had tested

Green’s I.Q. on two separate occasions using two different

tests, the “Wechsler abbreviated intelligence scale” and

the “Wechsler [A]dult [I]ntelligence [S]cale [R]evised.”

Dr. Sautter testified that, while the formats of the two

tests are similar, the “two tests are not exactly the

same.” Dr. Sautter reported that Green had a full-scale

I.Q. score of 74 on the Wechsler Adult Intelligence Scale

and a score of 55 on the “abbreviated” test. With that

level of intellectual functioning, Dr. Sautter stated that

Green could work best in a structured environment with

guidance and supervision, and that he would expect Green to

have difficulties in independent living, managing a budget,

8
and going to a job on a consistent basis. Based upon his

evaluation of Green in a prison setting, Dr. Sautter also

opined that, in a maximum-security situation, Green would

not be a danger to others and his behavior would be

appropriate. However, in a less secure environment, Dr.

Sautter opined that Green would be susceptible to harm from

other people because of his limited capacity for

communication.

Two clinical psychologists testified for the

Commonwealth in rebuttal to Dr. Sautter’s testimony. Dr.

Lynda J. Hyatt reported that Green had an I.Q. score of 84

on the “Ammons & Ammons quick test,” which placed Green in

the category of “low average” mental functioning. Dr.

Thomas A. Pasquale evaluated Green’s personality as well as

his intellectual functioning. Dr. Pasquale diagnosed

depression, alcohol dependency, drug abuse, anti-social

personality disorder, and malingering. According to Dr.

Pasquale, Green had a full-scale I.Q. score of 74 on the

Weschler Adult Intelligence Scale, placing him in the

“borderline range” of intellectual functioning. With

regard to Green’s adaptive functioning, Dr. Pasquale noted

that Green had worked at a pizza restaurant where he

functioned routinely in taking orders, delivering pizzas,

and using the cash register; and that Green paid his own

9
rent, lived with a friend, and had a driver’s license. Dr.

Pasquale also opined that Green is a high risk for violence

in an “open community” but that, in a prison setting, the

probability of such risk is low. 3

II. ANALYSIS

A. PRE-TRIAL ISSUES

1. APPOINTMENT OF EXPERTS

Green assigns error to the circuit court’s refusal to

appoint an investigator, a mitigation specialist, and a

jury expert to assist him in his defense. Although Green

moved the court to appoint an investigator, he never asked

for a mitigation specialist or a jury expert. Thus, he is

now barred from raising any claim on appeal regarding the

court’s failure to appoint those two experts. See Rule

5:25.

As to his request for an investigator, Green asserted

in his motion before the circuit court that he needed this

type of expert assistance because he had no available

investigative resources, and because his counsel lacked

both formal training in criminal investigation and the time

to interview essential witnesses. Green claimed that an

investigator would have “the expertise necessary to locate

3
We will present additional facts and proceedings as
necessary to address specific issues.

10
essential witnesses and data, examine and evaluate

testimony and documents using his or her special knowledge

of the issues likely to be significant at a capital murder

trial, issues beyond the comprehension of the ordinary

layman.” On appeal, he asserts that the “imbalance”

resulting from his lack of investigative resources as

compared to the Commonwealth’s vast resources violated his

equal protection and due process rights as well as his

Sixth Amendment right to counsel.

As this Court has previously stated, a defendant does

not have an absolute right to the assistance of an

investigator, even when charged with capital murder.

Bailey v. Commonwealth, 259 Va. 723, 737, 529 S.E.2d 570,

578 (2000). Instead, as with any request for the

appointment of an expert, a defendant “must show a

particularized need” by establishing “that the services of

an expert would materially assist him in the preparation of

his defense and that the denial of such services would

result in a fundamentally unfair trial.” Husske v.

Commonwealth, 252 Va. 203, 212-13, 476 S.E.2d 920, 925-26

(1996). The determination whether a defendant has made an

adequate showing of particularized need for expert

assistance lies within the sound discretion of the trial

court. Id.; see also Lenz v. Commonwealth, 261 Va. 451,

11
462, 544 S.E.2d 299, 305, cert. denied, 534 U.S. 1003

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

The reasons Green presented to the circuit court to

justify his request for the appointment of an investigator

are strikingly similar to those offered by the defendant in

Bailey, 259 Va. at 737-38, 529 S.E.2d at 578. Bailey, like

Green, claimed he needed an investigator to “locate

essential witnesses and data, [and] examine and evaluate

testimony and documents . . . likely to be significant at a

capital murder trial.” Id. We concluded that Bailey’s

assertions fell “far short of demonstrating a

particularized need for the services of an expert.” Id.

We reach the same conclusion in the present case. A

particularized need is more than a “[m]ere hope” that

favorable evidence can be obtained through the services of

an expert. Husske, 252 Va. at 212, 476 S.E.2d at 925-26.

Thus, we hold that the circuit court did not abuse its

discretion in denying Green’s motion for the appointment of

an investigator. 4

2. VILENESS AGGRAVATING FACTOR

4
To the extent that Green also argues that the Sixth
Amendment requires the appointment of an investigator, we
rejected that argument in Lenz, 261 Va. at 462, 544 S.E.2d
at 305.

12
 Green filed a pre-trial motion asking the circuit

court to rule that the evidence available to the

Commonwealth would be insufficient, as a matter of law, to

establish the “vileness” aggravating factor. Green now

claims that the court erred in denying that motion.

There is no procedure in Virginia that allows a

circuit court, in a pre-trial context, to rule on the

sufficiency of the Commonwealth’s evidence in a criminal

case. Instead, the court must determine the sufficiency of

that evidence based on the record made at trial.

Furthermore, as explained in Section (D)(2) below, there is

sufficient evidence in this case to support the jury’s

finding of the “vileness” predicate. Thus, the circuit

court did not err in denying this pre-trial motion.

3. DISCOVERY

Green assigns error to the circuit court’s order

limiting discovery to the materials and information allowed

by Rule 3A:11. However, Green does not identify any

specific evidence or information that he sought in

discovery but which the Commonwealth refused to disclose.

Thus, we find no merit in his argument that he was entitled

to expanded discovery rights. Additionally, the record

reflects that he received all the discovery to which he was

13
entitled under Rule 3A:11. See Bailey, 259 Va. at 736, 529

S.E.2d at 577.

B. JURY SELECTION ISSUES

1. CHANGE OF VENUE

Prior to trial, Green moved for a change of venue or,

in the alternative, for a venire from another county or

city not bordering Brunswick County. In support of his

motion, Green submitted copies of 37 newspaper articles

concerning this case, affidavits from six people, and the

results of an informal survey conducted by Green’s counsel.

Although Green initially stated that he would like to have

the issue resolved quickly, the circuit court, after

hearing argument, took the motion under advisement. Green

did not object to the court’s decision to do so.

At the conclusion of the penalty phase of the trial,

the court remarked from the bench that the defense had

moved for a change of venue “way back” and that “[i]t was

taken under advisement.” In order for the record to

reflect a ruling on the motion, the court then stated that

it considered the motion denied at the time the jury was

empanelled. The court memorialized its decision in an

order entered nunc pro tunc October 29, 2001.

Green now assigns error to the court’s ruling.

However, the Commonwealth asserts that Green is barred

14
under Rule 5:25 from arguing that the circuit court should

have granted a change of venue or that the voir dire

process was “unreliable and not above suspicion.” The

Commonwealth premises its argument on the fact that Green

failed to renew his motion for a change of venue either

after voir dire was completed or before the jury was

empanelled and sworn.

The record reflects that, after 24 jurors had been

qualified and immediately before the parties made their

peremptory strikes, the court asked if there were “[a]ny

preliminary matters before we bring the jury in?” Green’s

counsel stated, “No, sir.” When those 24 jurors returned

to the courtroom, the court directed the parties to begin

exercising their strikes. At that point, Green’s counsel

stated, “Defense is ready.” When the parties completed

their peremptory strikes, the court asked, “[I]s that your

jury?” Defense counsel answered, “Yes, sir.” At no time

did Green’s counsel ask the court to rule on the motion for

a change of venue previously taken under advisement or

renew that motion.

Nevertheless, Green disputes any waiver of this issue.

He argues that the court obviously knew that the motion for

a change of venue was still pending since the court

announced its ruling on the motion at the end of the trial.

15
Green also asserts that he reminded the court of the

outstanding motion when, just prior to commencement of voir

dire, he introduced into evidence the newspaper articles

and affidavits that he had previously attached to his

memorandum in support of the motion.

We do not agree with Green’s position. The posture of

the change of venue motion in this case is analogous to the

situation presented in Hoke v. Commonwealth, 237 Va. 303,

377 S.E.2d 595 (1989). There, the defendant moved for a

change of venue but requested that the motion be continued

in order to determine whether a jury could be empanelled.

Id. at 306, 377 S.E.2d at 597. The defendant agreed that

he could renew the motion if, as a result of jury voir

dire, there was a problem. Id. Because the defendant

never renewed the motion, we refused to consider his

contention on appeal that the trial court had abused its

discretion by failing to grant a change of venue. Id.

Although Green did not agree to continue his change of

venue motion as did the defendant in Hoke, Green, however,

did not object to the circuit court’s decision to take the

motion under advisement pending the outcome of voir dire.

Consequently, it was incumbent upon Green to renew the

motion before the jury was empanelled and sworn, or at

least remind the court that it was still pending and that

16
he wanted the court to rule on it. Cf. Lenz, 261 Va. at

462-63, 544 S.E.2d at 305-06 (pretrial motion waived when

defendant failed to request a ruling from the trial court).

Indeed, that was precisely the procedure followed by the

defendant in Thomas v. Commonwealth, 263 Va. 216, 559

S.E.2d 652 (2002), a case in which this Court reversed a

trial court’s refusal to grant a change of venue. Thomas

filed a pre-trial motion for a change of venue, which the

trial court took under advisement, but Thomas, unlike

Green, renewed the motion following voir dire. Id. at 230,

559 S.E.2d at 659.

Not only did Green fail to renew his motion for a

change of venue once the court took it under advisement, he

also implicitly consented to the seating of the jury in

this case. Cf. Commonwealth v. Washington, 263 Va. 298,

304, 559 S.E.2d 636, 639 (2002) (holding defendant

implicitly consented to trial court’s declaration of a

mistrial); but cf. King v. Commonwealth, 264 Va. 576, 577-

78, 570 S.E.2d 863, 863-64 (2002) (holding defendant did

not expressly or implicitly waive objection raised in

motion to strike the evidence when defendant later did not

object to a jury instruction covering the same issue).

After voir dire was completed but before the parties

exercised their peremptory strikes, the court specifically

17
asked whether the parties had any matters to bring before

the court. Similarly, when the parties completed their

peremptory strikes, the court asked, “[I]s that your jury?”

Instead of reminding the court about his pending change of

venue motion at that point, Green’s responses to the

court’s questions actually indicated that he had no

remaining issues to raise with regard to jury selection or

any objections to empanelling that jury. In short, he gave

the circuit court no reason to believe that he was still

pursuing a change of venue. Cf. Breard v. Commonwealth,

248 Va. 68, 80, 445 S.E.2d 670, 677 (1994) (trial court

reasonably could have assumed defendant acquiesced in

seating a juror when defendant failed to renew motion to

strike the juror after the court said it would rehear the

motion upon completion of voir dire). Green’s responses

were tantamount to a waiver of his prior motion. Thus, we

will not address Green’s claim that the circuit court erred

by refusing to grant his motion for a change of venue. 5 See

Rule 5:25.

2. JUROR QUESTIONNAIRE

5
Green also asserts on brief that the voir dire
process was unreliable and that the prospective jurors’
responses during voir dire were not forthcoming and
credible. Green presents this argument for the first time
on appeal. Thus, we will not consider it. Rule 5:25.

18
 Green claims that the circuit court erred by denying

his request to submit a questionnaire to prospective

jurors. At a pre-trial hearing, Green advised the court

that he intended to file a written motion on this matter

along with a sample questionnaire. Our review of the

record discloses that Green never filed either the motion

or the sample questionnaire. Nor does the record contain

any argument, oral or written, in support of such a motion.

Instead, we find only the court’s order denying a motion

for a jury questionnaire. Thus, Green is now barred from

presenting argument for the first time on appeal with

regard to this issue. Rule 5:25.

Moreover, we have previously held that the use of a

juror questionnaire outside the courtroom would undermine

the value derived from a trial court’s opportunity to

observe and evaluate prospective jurors first hand.

Strickler v. Commonwealth, 241 Va. 482, 492-93, 404 S.E.2d

227, 234 (1991). Accordingly, we find no abuse of

discretion by the circuit court on this issue.

3. VOIR DIRE QUESTIONS

Green submitted a list of 79 proposed voir dire

questions, which he later shortened to 52 questions. On

appeal, he claims that the circuit court erred by

19
specifically disallowing seven of those questions. Those

seven questions as enumerated on the longer list are:

No. 59. You understand there are twelve people on
the jury. Why do you think there are twelve people on
the jury?

No. 60. If there is a unanimous verdict,
what does this mean about your discussion about
the case?

No. 61. What do you think about the death
penalty?

No. 67. What is the first thing that comes
into your mind when you look at the defendant?
What else do you see in him?

No. 68. What kinds of adjectives or
descriptive words would you use to describe this
defendant to a spouse or friend?

No. 69. What are your assumptions or
opinions about him just because he is sitting
here on trial?

No. 71. How do you feel about life in prison
without parole as punishment?

These seven questions were “an invitation to a

rambling discourse on a broad range of emotions.” Buchanan

v. Commonwealth, 238 Va. 389, 402, 384 S.E.2d 757, 765

(1989). A defendant does not have a right to propound any

question he wishes, Bell v. Commonwealth, 264 Va. 172, 196,

563 S.E.2d 695, 711 (2002), and “trial courts are not

required to allow counsel to ask questions which are so

ambiguous as to render the answer meaningless,” Buchanan,

238 Va. at 401, 384 S.E.2d at 764. Instead, voir dire

20
questions must relate to the four statutory factors of

relationship, interest, opinion, or prejudice. See Code

§ 8.01-358 (“counsel for either party shall have the right

to examine under oath any person who is called as a juror

. . . to ascertain whether he is related to either party,

or has any interest in the cause, or has expressed or

formed any opinion, or is sensible of any bias or prejudice

therein”).

We conclude that the circuit court provided Green with

“a full and fair opportunity,” LeVasseur v. Commonwealth,

225 Va. 564, 581, 304 S.E.2d 644, 653 (1983), to determine

whether each prospective juror could “stand indifferent in

the cause,” Code § 8.01-358. When, as here, a

trial court affords ample opportunity to counsel
to ask relevant questions and where the questions
actually propounded by the trial court were
sufficient to preserve a defendant’s right to
trial by a fair and impartial jury, we will
generally not reverse a trial court’s decision to
limit or disallow certain questions from defense
counsel.

Buchanan, 238 Va. at 401, 384 S.E.2d at 764. Furthermore,

the circuit court stated that its voir dire of prospective

jurors would cover the issues concerning the death penalty

and life in prison without parole addressed in question

Nos. 61 and 71 and that, depending on a juror’s responses,

the court would allow follow-up questions by counsel.

21
Thus, the court did not abuse its discretion in refusing to

allow Green to ask these seven questions.

Green also complains that the bifurcated procedure for

felony trials prevented him from asking prospective jurors

at the guilt phase about evidence of other crimes that the

Commonwealth intended to use at the penalty phase to prove

future dangerousness. However, Green does not assert that

he attempted to ask any specific questions about other

crimes. Nor did he argue to the circuit court that the

bifurcated procedure prejudiced his ability to conduct voir

dire of potential jurors. Thus, we will not consider this

issue on appeal. Rule 5:25. We note, however, that the

court allowed Green to ask prospective jurors whether they

could consider his lack of a violent criminal record prior

to this incident as a reason for not imposing the death

penalty.

Green’s last assignment of error regarding voir dire

deals with the following questions proposed by the

Commonwealth:

No. 16. What contact did you have with the
police in connection with that incident? Were
you satisfied with the work of the police in
connection with that incident[?] Were you
satisfied with the work of the Courts[?]

No. 23. Have you, or a family member,
friend, or acquaintance ever been prosecuted for

22
 a criminal offense? Do you feel that person was
treated fairly by our system of justice?

We cannot find, nor does Green identify, any instance

where the Commonwealth asked question No. 16. Thus, the

issue whether the circuit court abused its discretion by

allowing that question is moot. We also find no abuse of

discretion by the court in allowing the Commonwealth to

pose question No. 23 to prospective jurors. That question

was designed to discover a potential juror’s possible

prejudice against the Commonwealth, which is a proper

subject for inquiry under Code § 8.01-358.

4. JUROR WILLIAMS

Green contends that the circuit court erred by

excusing prospective juror Williams for cause. The court

granted the Commonwealth’s motion to strike this juror

because of the juror’s equivocal answers about whether he

could render a guilty verdict in a case involving the death

penalty. We find no manifest error in the court’s

decision. Yeatts v. Commonwealth, 242 Va. 121, 134, 410

S.E.2d 254, 262 (1991) (trial court’s exclusion of

prospective juror will not be disturbed on appeal absent

manifest error).

During voir dire, the circuit court asked prospective

juror Williams if he could sentence someone in a case in

23
which one of the possible punishments is the death penalty.

The juror responded that he did not know whether he could.

Questioning by the Commonwealth revealed that this juror

had a cousin who had been convicted of murder and sentenced

to a term of imprisonment. When asked again whether he

could listen to aggravating and mitigating evidence during

the penalty phase of the trial and then decide whether to

vote for life imprisonment or the death penalty based on

that evidence, prospective juror Williams repeated that he

did not know if he could. He acknowledged that the

situation with his cousin could affect his ability to make

a decision in this case.

During subsequent questioning by Green’s counsel, this

juror could not say whether there could ever be a case so

heinous that he could impose the death penalty. Green’s

counsel then asked the following questions:

Q. In this particular case, are you
willing–if called as a juror–to listen to all of
the evidence at the trial and then at the
sentencing, and then come up with a decision as
to whether to vote death or life imprisonment?
Are you willing to do that as your duty, your
civic duty as a juror?

A. I don’t want to, but I’ll do it.

Q. But you will?

A. Yeah.

Q. And you can come up with a decision?

24
 A. I think I can.

The voir dire of prospective juror Williams concluded

with the following exchange between him and the

Commonwealth:

Q. Mr. Williams, I want you to look at
Mr. Green there.

(The prospective juror complied)

All right. With what you have told us,
could you under any circumstances vote to
give him the death penalty? I know it puts
you on the spot and I apologize for it, but
under any circumstances, could you vote to
give him the death penalty?

A. Right now? I mean, right now, no.

Q. I understand that. Can you imagine any–
is there any amount of evidence that I could
put before you, would anything–with the way
you feel now, would anything change your
mind?

A. No.

A prospective juror is properly excused for cause when

that person’s views concerning the death penalty would

substantially impair or preclude the performance of his or

her duty in accordance with the court’s instructions and

the juror’s oath. Schmitt v. Commonwealth, 262 Va. 127,

139, 547 S.E.2d 186, 195 (2001), cert. denied, 534 U.S.

1094 (2002); Barnabei v. Commonwealth, 252 Va. 161, 173,

477 S.E.2d 270, 277 (1996). In applying this principle on

25
appeal, we recognize that a trial court is in a better

position to determine whether a particular juror would be

impaired or prevented in performing the duties of a juror

because that court has seen and heard the juror’s responses

to relevant questions. Lovitt v. Commonwealth, 260 Va.

497, 510, 537 S.E.2d 866, 875 (2000), cert. denied, 534

U.S. 815 (2001). Thus, we accord deference to a trial

court’s decision to retain or excuse a juror. Id.;

Schmitt, 262 Va. at 139, 547 S.E.2d at 195.

Based on prospective juror Williams’ responses during

voir dire, the circuit court correctly excused this juror

for cause. The juror’s ability to follow the court’s

instructions and to perform his duties in accordance with

his oath was obviously impaired. In short, prospective

juror Williams never indicated that he could listen to the

evidence and actually reach a decision about whether to

impose the death penalty or a term of imprisonment for

life. See LeVasseur, 225 Va. at 583, 304 S.E.2d at 654

(juror who stated, “I don’t know if I could be party to

[the death penalty] or not[, t]here is some doubt in my

mind[,]” was properly excused for cause).

5. JUROR YOUNG

The Commonwealth asked the following question during

the voir dire of prospective juror Young:

26
 Q. You may hear evidence in the case of one or
more crimes committed by this defendant on
August 21st, 1998, other than the capital murder
for which he is convicted--I mean for which he’s
on trial. The [c]ourt will instruct you as to
the purpose for which you can consider those
other crimes. Would you be able to follow the
Judge’s instructions in how you view that other
evidence?

Because of the Commonwealth’s misstatement “other than the

capital murder for which he is convicted,” Green claims

that the circuit court should have excused this juror for

cause on the court’s own motion pursuant to Rule 3A:14(b).

However, when the voir dire of juror Young was completed,

the court asked both parties if they had any motions

regarding this juror. Counsel for Green responded, “No,

sir.” After each side exercised its peremptory strikes and

juror Young was selected to serve in the case, the court

asked counsel for both parties, “[I]s that your jury?”

Green’s counsel stated, “Yes, sir.” The court then

directed the clerk to administer the oath to the jury.

Because Green failed to raise any objection either during

the voir dire of prospective juror Young or before she was

empanelled and sworn as a juror to hear the case, he has

waived the argument that he now presents on appeal. Rule

5:25; see also Beavers v. Commonwealth, 245 Va. 268, 278,

427 S.E.2d 411, 418-19 (1993); Spencer v. Commonwealth, 238

Va. 295, 306-07, 384 S.E.2d 785, 793 (1989). The fact that

27
Rule 3A:14(b) authorizes a trial court to excuse a juror

for cause on its own motion does not relieve a defendant

from complying with the requirements of Rule 5:25.

C. GUILT-PHASE ISSUES

1. TESTIMONY OF FORENSIC PATHOLOGIST

Green asserts that the circuit court erred in

overruling his motion for a mistrial that he made after the

forensic pathologist, Dr. Abrenio, referred to his

testimony “in the previous case.” The statement at issue

is found in the following exchange between the Commonwealth

and Dr. Abrenio:

Q. When you say bleeding into the thoracic
cavity, what are you referring to?

A. I’m referring to the lethal wound to the
lungs and blood flow into the chest cavity.

Q. All right. Is that actually into the
lung or into the space around the lung?

A. Into the space around the lung. And
this was lethal. The reason for this, as I
testified in the previous case–shall I
repeat?

Q. The reason for this was what? You said
That the blood–

In response to Green’s motion for a mistrial, the

Commonwealth suggested that the court give a cautionary

instruction to the jury, but Green rejected that

suggestion. The circuit court then noted that the jurors

28
knew that there had been a previous trial because they were

being told that Green had been convicted of robbery. 6 The

court described Dr. Abrenio’s comment as “quick” and

questioned whether the jury had paid any attention to it.

The court subsequently overruled the motion for a

mistrial. In doing so, the court explained that great care

had been exercised in selecting the jury in order to insure

the jurors’ lack of knowledge regarding Green’s prior

capital murder trial. The court then stated:

This comment coming from a medical examiner
testifying about the cause of death was a lead
into what he was actually talking about, to his
actual point. The [c]ourt would have to assume
that the jurors know much more than voir dire
indicated for this unsolicited phrase to have any
effect, therefore, the motion for a mistrial is
denied.

We agree with the circuit court’s conclusions.

Contrary to Green’s assertion, Dr. Abrenio’s reference to

his prior testimony did not signal the jury that Green had

been previously convicted for the capital murder of Mrs.

Vaughan. Thus, Green’s reliance on our decision in Barker

v. Commonwealth, 230 Va. 370, 375, 337 S.E.2d 729, 733

6
During opening statements, Green’s counsel advised
the jury that Green had already been found guilty of
robbery. Just before the Commonwealth rested its case, a
stipulation was admitted into evidence, stating that, on
June 22, 2000, in the Brunswick County Circuit Court, Green
had been convicted of the August 21, 1998 robbery of the
Vaughans’ grocery store.

29
(1985) (holding that a venire person who knew of the

defendant’s prior conviction of the same offense for which

he was being retried could not sit as a juror), is

misplaced. Although Dr. Abrenio did not elaborate on the

context in which he had previously testified, the jury

already knew, based on defense counsel’s opening statement,

that Green had been convicted of the robbery of the

Vaughans’ grocery store. With that information, the jury

could have reasonably inferred that Dr. Abrenio was

referring to his testimony in that trial, irrespective of

whether such testimony would have been relevant.

The decision whether to grant a motion for mistrial

lies within a trial court’s exercise of discretion. Burns

v. Commonwealth, 261 Va. 307, 341, 541 S.E.2d 872, 895,

cert. denied, 534 U.S. 1043 (2001); Beavers, 245 Va. at

280, 427 S.E.2d at 420. “When a motion for mistrial is

made, based upon an allegedly prejudicial event, the trial

court must make an initial factual determination, in the

light of all the circumstances of the case, whether the

defendant’s rights are so ‘indelibly prejudiced’ as to

necessitate a new trial.” Spencer v. Commonwealth, 240 Va.

78, 95, 393 S.E.2d 609, 619 (1990) (quoting LeVasseur, 225

Va. at 589, 304 S.E.2d at 657). Unless we can say that the

30
trial court’s determination was wrong as a matter of law,

we will not disturb its judgment on appeal. Id.

Considering Dr. Abrenio’s brief reference to his prior

testimony in the context in which it occurred in this case,

we cannot say that the circuit court’s refusal to grant a

mistrial was wrong as a matter of law. Green’s rights were

not “indelibly prejudiced.” Id. Thus, we will not disturb

the court’s decision.

2. ADMISSION OF EVIDENCE SEIZED DURING
EXECUTION OF SEARCH WARRANT

At trial, Green objected to the admission of evidence

seized during the search of his home, specifically the

“makeshift target,” the empty cartridge casings, and the

bullets found in the tree trunk. He argued that there was

no connection between that evidence and the evidence that

was recovered from the crime scene and from Mrs. Vaughan’s

body during the autopsy. Thus, according to Green, the

evidence found at his residence was irrelevant, and its

probative value was substantially outweighed by its

tendency to cause unfair prejudice. He now assigns error

to the circuit court’s ruling allowing the admission of

that evidence and makes the same argument on appeal.

One of the issues at trial was whether Green intended

to shoot Mrs. Vaughan or whether the “pistol went off,” as

31
Green stated to a police investigator. The issue of

premeditation was a focal point in his counsel’s opening

and closing remarks. The fact that the bullets found in

the tree trunk and those recovered from Mrs. Vaughan’s body

were fired from one weapon established not only a nexus

between the evidence but also the fact that Green had

previously fired the weapon he later used to shoot Mrs.

Vaughan. 7 That fact, along with the “makeshift target” and

the empty cartridge casings, suggests that Green knew how

to shoot that particular firearm and was thus pertinent to

the issue whether the “pistol went off.” “Evidence is

relevant if it tends to prove or disprove, or is pertinent

to, matters in issue.” Clay v. Commonwealth, 262 Va. 253,

257, 546 S.E.2d 728, 730 (2001). Thus, we conclude that

the evidence seized during the search of Green’s house was

relevant to the issue of premeditation and that the circuit

court, therefore, did not abuse its discretion in admitting

the evidence.

7
Green had purchased a Lorcin L-25 semi-automatic
pistol on July 13, 1998. Forensic testing on six empty
cartridge casings found on the floor of the Vaughans’
grocery store indicated that four of those cartridge cases
were sufficiently marked to conclude that “[f]irearms that
produce class characteristics like those present on these
cartridges cases include, but are not limited to, pistols
with the brand names of Bryco and Lorcin chambered to fire
caliber 25 Auto cartridges.” As a result of forensic

32
 4. SUFFICIENCY OF EVIDENCE REGARDING CAPITAL MURDER

At the close of the Commonwealth’s evidence, Green

moved to strike the evidence regarding capital murder on

the basis that the Commonwealth had failed to prove that

the killing of Mrs. Vaughan was willful, deliberate, and

premeditated. In support of his motion, Green relied

primarily on his statement to a police investigator in

which he had maintained that he only intended to commit a

robbery and never meant to kill anyone. The circuit court

denied Green’s motion, finding that the evidence

established that Green entered the grocery store and “said

nothing before shooting; that he killed, wounded and then

robbed; and that he did not bother to wear a mask which he

had prepared.” Green assigns error to the court’s ruling

and makes the same argument here as he made before the

circuit court.

Premeditation is an intent to kill that needs to exist

only for a moment. Peterson v. Commonwealth, 225 Va. 289,

295, 302 S.E.2d 520, 524 (1983). It is generally a factual

issue. Schmitt, 262 Va. at 143, 547 S.E.2d at 197; Clozza

v. Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279

(1984). When reviewing the sufficiency of evidence on a

___________________
testing, the same conclusion was reached regarding eight of
the empty cartridge casings found in Green’s yard.

33
question of fact, we consider the evidence in the light

most favorable to the prevailing party below, in this case

the Commonwealth, and accord that party’s evidence all

reasonable inferences. Beavers, 245 Va. at 281, 427 S.E.2d

at 421.

Here, the evidence showed that Green entered the

Vaughans’ grocery store and shot Mrs. Vaughan without any

warning. After his cousin seized the bank bag containing

the cash and exited the store, Green walked over to where

Mrs. Vaughan was lying on the floor and fired two more

shots in her direction. Green did not leave the store

until his gun was empty. These facts clearly establish

premeditation. See Remington v. Commonwealth, 262 Va. 333,

353, 551 S.E.2d 620, 632 (2001) (stabbing victim eight to

ten times established premeditation), cert. denied, 535

U.S. 1062 (2002). Thus, we find no error in the circuit

court’s refusal to strike the Commonwealth’s evidence

regarding capital murder.

D. PENALTY-PHASE ISSUES

1. TESTIMONY OF DEPUTY WESSON

During Deputy Kevin Wesson’s penalty phase testimony,

he stated that, when he worked for a store selling

electronic devices, Mrs. Vaughan inquired about having a

security system installed at the Vaughans’ grocery store.

34
According to Deputy Wesson, Mrs. Vaughan was concerned

because of a robbery and murder that had occurred at a

store in a neighboring county and was fearful that the same

kind of crime could happen at the Vaughans’ store.

Green claims that this testimony violated his rights

under the Fifth, Sixth, Eighth, and Fourteenth Amendments

to the Constitution of the United States and the equivalent

provisions of the Constitution of Virginia. However, Green

did not object to Deputy Wesson’s testimony at trial.

Thus, he is barred from raising this claim for the first

time on appeal. Rule 5:25.

2. SUFFICIENCY OF EVIDENCE OF VILENESS
AND FUTURE DANGEROUSNESS

Green asserts that the circuit court erred in

overruling his motion to strike the Commonwealth’s evidence

regarding both the “vileness” and “future dangerousness”

predicates and also in overruling his motion to set aside

the jury verdict fixing the death penalty. As to the

“vileness” factor, Green argues that, since three of the

four gunshot wounds sustained by Mrs. Vaughan were lethal,

she died almost instantaneously without any other battery

to her. He also relies on the forensic pathologist’s

testimony that Mrs. Vaughan died within “seconds to

minutes” after she was first shot. Thus, in Green’s view,

35
the Commonwealth failed to prove either an aggravated

battery to the victim or depravity of mind of the

defendant.

He also contends that the Commonwealth failed to

establish beyond a reasonable doubt that Green would

probably commit criminal acts of violence in the future

that would constitute a continuing serious threat to

society. According to Green, the testimony of Dr. Sautter

and Dr. Pasquale established that Green would not be a

future danger if confined to prison. Green points to Dr.

Sautter’s opinion that Green’s behavior would be

appropriate in a maximum-security situation and to Dr.

Pasquale’s statement that, in a prison setting, the risk of

misbehavior by Green would be low. In asserting that the

Commonwealth failed to establish the “future dangerousness”

predicate, Green also relies on the fact that he had no

record of convictions for criminal offenses that pre-dated

the present offenses involving the Vaughans. Finally, he

characterizes the Commonwealth’s evidence of unadjudicated

prior bad acts as “‘benign’ run-ins with friends, family

and employers.”

With regard to the “vileness” predicate, the term

“aggravated battery” means “a battery which, qualitatively

and quantitatively, is more culpable than the minimum

36
necessary to accomplish an act of murder.” Smith v.

Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978).

Contrary to Green’s assumption that Mrs. Vaughan died

instantly, the forensic pathologist stated that he could

not determine in what sequence Green had fired the four

gunshots at Mrs. Vaughan. He did opine, however, that the

bullet that penetrated two lobes of her right lung caused

hemorrhaging in the thoracic cavity, the effect of which he

likened to suffocation. “A killing inflicted by multiple

gunshot wounds . . . when there is an appreciable lapse of

time between the first shot and the last, and when death

does not result instantaneously from the first” constitutes

an “aggravated battery.” Sheppard v. Commonwealth, 250 Va.

379, 392, 464 S.E.2d 131, 139 (1995). Likewise, multiple

gunshot wounds, any one of which could have been fatal,

constitute an “aggravated battery.” Walker v.

Commonwealth, 258 Va. 54, 71, 515 S.E.2d 565, 575 (1999).

We have construed the term “depravity of mind” to mean

“a degree of moral turpitude and psychical debasement

surpassing that inherent in the definition of ordinary

legal malice and premeditation.” Smith, 219 Va. at 478,

248 S.E.2d at 149. Green’s conduct established “depravity

of mind” when he repeatedly shot Mrs. Vaughan in front of

her husband and left them both to die merely so he could

37
rob them. The killing of Mrs. Vaughan was unprovoked and

Green showed no mercy for her when he walked back over to

where she was lying on the floor and emptied his gun at

her. See Walker, 258 Va. at 72, 515 S.E.2d at 575-76.

Thus, we conclude that the circuit court did not err in

refusing to strike the Commonwealth’s evidence or to set

aside the jury verdict finding the aggravating “vileness”

factor.

As to the “future dangerousness” predicate, we reach

the same conclusion. The circumstances surrounding the

murder of Mrs. Vaughan, including the shooting of Mr.

Vaughan, are alone sufficient to establish Green’s future

dangerousness. See Code § 19.2-264.4(C) (future

dangerousness can be based on “the circumstances

surrounding the commission of the offense”); Kasi v.

Commonwealth, 256 Va. 407, 423, 508 S.E.2d 57, 66 (1998).

In addition, Cleaton, an acquaintance of Green, testified

that Green had threatened to rob and kill him and had shot

in Cleaton’s direction on one occasion even though Cleaton

had specifically asked Green not to do so. Cleaton also

stated that he had heard Green threaten to rob a man

selling ice cream. Finally, several correctional officers

who had supervised Green’s incarceration testified about

38
Green’s disruptive behavior and his threats to the

officers.

E. ISSUES ALREADY DECIDED

Several of Green’s assignments of error concern issues

that this Court has already decided adversely to the

position he now advances. Green has offered no reason why

we should depart from our precedents. Thus, we affirm our

prior holdings and find no merit in the following

assignments of error:

1. The trial court erred in overruling the defendant’s

motion to declare Virginia’s death penalty statutes

unconstitutional. Green makes only a generalized argument

on this issue. We have rejected numerous specific

challenges to the constitutionality of Virginia’s death

penalty statutes in Beck v. Commonwealth, 253 Va. 373, 387,

484 S.E.2d 898, 907 (1997); Breard, 248 Va. at 74-75, 445

S.E.2d at 675; Mickens v. Commonwealth, 247 Va. 395, 403,

442 S.E.2d 678, 684 (1994); Satcher v. Commonwealth, 244

Va. 220, 227-28, 421 S.E.2d 821, 826 (1992); Watkins v.

Commonwealth, 238 Va. 341, 352, 385 S.E.2d 50, 56 (1989);

Spencer, 238 Va. at 280-81, 384 S.E.2d at 777-78; and

Smith, 219 Va. at 471-79, 248 S.E.2d at 145-49.

2. The trial court erred in overruling the defendant’s

motion for a bill of particulars. Initially, we note that

39
the circuit court granted Green’s motion in part. To the

extent that he now argues that he was entitled to a bill of

particulars providing a “narrowing” construction of the

“vileness” predicate and listing all the evidence that the

Commonwealth intended to rely upon at sentencing, we have

rejected such arguments in Goins v. Commonwealth, 251 Va.

442, 454, 470 S.E.2d 114, 123 (1996); and Strickler, 241

Va. at 490, 404 S.E.2d at 233, respectively.

3. The trial court erred in overruling the defendant’s

motion to preclude the Commonwealth from using evidence of

unadjudicated acts at sentencing. Although the circuit

court denied Green’s motion, the court stated in its order

that it would review each unadjudicated act for its

relevance to the issue of future dangerousness and its

probative value versus its prejudicial effect. This Court

has rejected Green’s arguments in Walker, 258 Va. at 64-67,

515 S.E.2d at 571-73; Williams v. Commonwealth, 248 Va.

528, 536, 450 S.E.2d 365, 371 (1994); and Stockton v.

Commonwealth, 241 Va. 192, 209, 402 S.E.2d 196, 206 (1991).

4. The trial court erred in denying the defendant’s

motion for additional peremptory challenges. We have

rejected this claim in Spencer, 240 Va. at 84, 393 S.E.2d

at 613; Buchanan, 238 Va. at 405, 384 S.E.2d at 767; and

40
O’Dell v. Commonwealth, 234 Va. 672, 690, 364 S.E.2d 491,

501 (1988).

5. The trial court erred in denying the defendant’s

motion for that court to conduct a proportionality review.

As we have already ruled, nothing in Code § 17.1-313(E)

requires a trial court to conduct such a review, Bailey,

259 Va. at 742, 529 S.E.2d at 581, and the circuit court in

this case did not abuse its discretion in refusing to do

so. See id.

6. The trial court erred by overruling the defendant’s

motion to introduce evidence regarding conditions of

imprisonment for life in rebuttal to the Commonwealth’s

evidence of the defendant’s future dangerousness. We have

rejected all Green’s arguments on this issue in Bell, 264

Va. at 199, 563 S.E.2d at 713; Burns, 261 Va. at 338-40,

541 S.E.2d at 892-93; Lovitt, 260 Va. at 517, 537 S.E.2d at

879; and Cherrix v. Commonwealth, 257 Va. 292, 309-10, 513

S.E.2d 642, 653-54 (1999). We further note that the

circuit court denied Green’s motion only “to the extent

that it exceeds evidence of [Green’s] previous adjustment

to incarceration.”

F. STATUTORY REVIEW

As with every case involving the imposition of the

death penalty, we must determine whether the death sentence

41
in this case was imposed under the influence of passion,

prejudice, or other arbitrary factors. Code § 17.1-

313(C)(1). Green does not claim that any specific passion

or prejudice affected the sentencing decision. Upon

reviewing the record, we find no evidence that any such

factor was present in this case or influenced either the

jury’s or the circuit court’s sentencing decision.

We are also required by the provisions of Code § 17.1-

313(C)(2) to determine whether Green’s sentence of death is

“excessive or disproportionate to the penalty imposed in

similar cases, considering both the crime and the

defendant.” Because of the statutory directive that we

compare this case with “similar cases,” we have focused on

cases in which an individual was murdered during the

commission of robbery and the death penalty was imposed

upon a finding of both aggravating factors. Our

proportionality review includes all capital murder cases

presented to this Court for review and is not limited to

selected cases. See Burns, 261 Va. at 345, 541 S.E.2d at

896-97. Based on that review, we conclude that Green’s

sentence of death is not excessive or disproportionate to

sentences generally imposed in this Commonwealth for

capital murders comparable to Green’s murder of Mrs.

Vaughan, and we cite the following cases as examples:

42
Akers v. Commonwealth, 260 Va. 358, 535 S.E.2d 674 (2000),

cert. denied, 531 U.S. 1205 (2001); Stout v. Commonwealth,

237 Va. 126, 376 S.E.2d 288 (1989); Poyner v. Commonwealth,

229 Va. 401, 329 S.E.2d 815 (1985); and Edmonds v.

Commonwealth, 229 Va. 303, 329 S.E.2d 807 (1985).

In reaching this conclusion, we have considered

Green’s argument that the death penalty in this case is

disproportionate because the Commonwealth failed to show

that Mrs. Vaughan endured prolonged suffering before she

died and because Green had no criminal convictions prior to

this offense. He thus claims that this case involved “less

aggravation” than many other cases in this Commonwealth in

which death sentences have been imposed. We do not agree

and reiterate that the purpose of our proportionality

review “is to reach a reasoned judgment regarding what

cases justify the imposition of the death penalty.” Orbe

v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817

(1999). We do not “insure complete symmetry.” Id.

III. CONCLUSION

For the reasons stated, we find no error in the

judgment of the circuit court or in the imposition of the

death penalty. We also perceive no reason warranting

commutation of the death penalty in this case. Thus, we

will affirm the judgment of the circuit court.

43
 Affirmed.

44